A doctor friend of mine once mentioned to me that it is often the throwaway comments a patient makes at the end of a consultation, when he is already halfway through the door, that can indicate a very serious condition. Why does the patient wait until the very end to disclose this information? Is it because he doesn’t think it is relevant, or because he knows that it is, but is afraid to ask?
Either way, the same conundrum faces HR practitioners time and time again. When a manager comes to your office or drops you an email to discuss a “straightforward” dismissal, or wishes to commence performance management or disciplinary action against an employee, it is essential that he knows to disclose every nugget of information whether or not it seems of immediate relevance.
Sure, we would anticipate (or at least hope) that any reasonable manager would mention if the employee in question had just announced that she is pregnant or requested to work flexibly.
But what about matters that a manager may not be particularly keen on mentioning, or perhaps genuinely thinks are irrelevant? Finding out down the line that the employee had recently complained to his manager (however informally) about a salary review or bonus decision; or that there had recently been strained conversations or arguments between the employee and his manager, can make a lot of difference to your initial advice and reactions. Regardless of whether or not these could trigger a whistleblowing claim or allegations of harassment, anything that can reasonably allow an employee to argue that the company’s actions were in retaliation for a previous incident will make HR’s job all the more complicated, and so needs more detailed preparation.
And so it rarely hurts to put together a brief checklist of questions to ask your managers in relation to any action they propose that could have a negative impact on the employee in question. Start with the straightforward ones (pregnant? sickness absence? any recent grievance?) and work your way down to less obvious issues (any recent tension in the manager-employee relationship? any issues raised about management style? any recent change in the employee’s behaviour? any relationship issues with other staff? any personal/domestic issues of which the manager is aware?). In short, it is often better to ask all the questions before the deed is done than to assume that the manager knows what’s important to mention. However, there are risks – first, that in asking the question, you may find yourself in receipt of information which you would sooner not have known. You cannot be “convicted” of victimisation or whistle-blowing detriment if you were unaware of the complaint or disclosure. This is more of an issue in theory than in practice since it will generally be the manager taking the action and he did know, and since no-one is likely to believe that the manager did not tell you anyway. Second, what if the employee had asked the manager to keep details of the complaint or pregnancy or domestic issues confidential? Your asking for that information may therefore place the manager in a difficult position.
Ultimately the employee would have little recourse for a disclosure made only to HR and expressly for the purpose of allowing the employer to do the right thing, but in the short term he or she may well not see it that way!
