A new manager arrives in the department. He is notably unburdened by people skills. Employees begin to leave. The protagonist of this story (let us call her Sarah) does not actually get it in the neck from Bad Boss very much, but she can see his actions having a toxic effect on the team.

She happens to go to company HQ one day and bumps into HR person Mary. Mary is aware of increased turnover at Sarah’s office and asks what is happening. Sarah gives Mary the lowdown on Bad Boss and Mary is shocked. “This can’t stand!” says Mary, “I will have to escalate this.” Sarah asks in that case for her name to be kept out of it. Mary says that of course this has all been confidential.

No sooner has Sarah returned to the office than Bad Boss corners her. “What did you tell HR about me?” he shouts. Sarah is angry that she has been identified as the ‘snitch’. She knows that Bad Boss is called to HQ soon after but she does not see any outcome. Thereafter he barely speaks to her and takes away her nice corner office for no good reason. Her final thought? “I don’t think I will ever trust HR again.” The promise of confidentiality was not kept and her professional life has become a misery as a result. Sarah quits and threatens a constructive dismissal claim. Will she win?

HR and ER specialists have a difficult balance to strike in such a scenario. There are a couple of possible points of defence for Mary in the story above. One: there is an assumption that she told Bad Boss it was Sarah, but actually he could have put two and two together himself – Sarah stayed at HQ an extra day and now HR have given me a rocket? Sherlock, it is not. Two: if Bad Boss were to be spoken to by HR and told to get his act together, whether or not in a formal disciplinary context, usually that is confidential in itself and the rest of the team (including the complainant) would not have a right to know the details.

However, this story and the unfortunate result for trust in HR is not rare. How many times have you had someone wish to raise an issue or complaint with you, but tell you that under no circumstances can their name be involved? Often, this is entirely understandable as an individual does not want to feel the full force of a manager’s ire after putting their head above the parapet. However, you as HR are in a tricky position. The individual trusts you to keep their involvement confidential, but by trying to deal with it regardless you could unintentionally lead the manager in question to guess who it is. Alternatively, the issue could be something so pressing that you are obliged to deal with it even if the complainant asks you expressly not to do so. Is your duty to the business or to the employee?

Lessons for employers

  • When someone asks for confidentiality or for their name to be “kept out of it”, make clear that you will do all you can to keep it confidential (i.e. not an absolute promise). Explain that, in order for you to look into and address the issue, you will need to speak to the alleged perpetrator. Alleged perpetrators have rights too, including in particular the right to be given enough detail about the complaints against them to be able to admit, deny or explain them before any adverse action is taken. That will almost inevitably entail HR providing at least examples of the specific issues or incidents relied upon. In that event, the alleged perpetrator may guess the individual’s identity even where you are as discreet as possible. So make it clear from the start that you cannot offer a new identity in the Bahamas through witness protection.
  • If the individual is adamant that they do not want any situation created where the alleged perpetrator could work out who they are, you must make clear (followed up in writing) that you may not be able to address the issue fully or at all (depending on the circumstances) without being able to speak to the alleged perpetrator. Having made that point, consider whether there is any way past it. Can you find any corroborative evidence from more willing sources? Could the complainant be schooled in how to raise those concerns direct and discreetly with the manager rather than being seen to have told tales? What reassurance could you offer against retaliation by the manager?
  • If the complaint raises concerns of unlawful harassment or discrimination (especially against more than just the complainant), you may need to take a view as to whether to investigate in any event, against the individual’s wishes. This is a blog topic in itself and one we will come back to.
  • Clearly, if you do speak to the alleged perpetrator, you should take care to avoid dropping clues unintentionally about who it was who initially raised the issue (e.g. “she said”, “when you both worked on the XYZ pitch” “one of the anonymous complaints is that you always call him Derek instead of Tim”) or having the complainant’s file on your desk when grilling the perpetrator, being seen to meet the complainant immediately beforehand, etc.
  • In the circumstances and depending on what you know or suspect of the likely reaction of the alleged perpetrator, it may be sensible to give them a caution in writing that they should not try to identify or approach anyone they think may have complained as that could make the situation worse and formal steps may have to be considered. If there is then retaliation regardless, you may be able to say that you took reasonable steps to prevent it, and so possibly escape liability for victimisation.

If the proverbial does hit the fan though, what could happen? The main issue would be the potential retaliation that the complaining individual may face. Despite a warning, the alleged perpetrator may do something daft in response. While you may be able to discipline them for retaliation, especially where you warned them against it initially, the individual has still suffered the retaliation and, without super powers, you cannot undo that.

Unfortunately, through no fault or intention of yours, the loss of trust scenario may now have arisen. While this is tough on a personal and reputational basis as HR, another significant knock-on effect could be Sarah’s constructive dismissal threat. The merits of such a claim will depend on all of the circumstances. Relevant issues would include: (i) whether the complainant was promised anonymity, (ii) the nature of the complaint?, (iii) the reasonableness of any fear of retaliation, (iv) the extent of any actual retaliation, (v) the steps taken by the employer to prevent and/or punish it and (vi) whether the complainant’s name was identified through the employer’s carelessness or the manager’s intuition.