What do you do when an employee comes to you with allegations of misconduct by another staff member, but asks for anonymity and refuses to formalise their complaint? I have written on this subject before, but I think it is worth covering again given the number of enquiries Synergy Workplace Investigations has been receiving along these lines lately.
A situation commonly faced by HR practitioners is what I like to call the ‘non-complaint’. This is a complaint that is made, usually about bullying and harassment, in which the complainant does not want to participate in a formal investigation process.
It may be that the employee simply wants to vent and has identified HR as the safest place in which to do this. They don’t want any action taken, they simply want to feel heard and understood. Or it may be that the complainant does want something done but hopes you will be able to act on the allegations without their assistance.
My theory, having dealt with many such cases, is that the majority of ‘non-complainants’ want some action taken, but their fear of repercussions from the perpetrator (who is frequently someone in a position of power), prevent them from lodging a formal grievance. By raising allegations under the cloak of ‘confidentiality’, they somehow hope you will be able to make the problem go away without them having to stand up and be counted, so to speak.
Those occasions place an HR practitioner in a very difficult position, especially if the employee appears to be severely affected. So what do you do as an HR professional if you are made aware of possible misconduct such as bullying or harassment but the victim won’t formalise the complaint? Does your duty of care from a workplace health and safety perspective override the issue of confidentiality?
The simple answer, in my opinion, is yes it does. Of course, each situation is different and needs to be addressed on an individual basis. But on the whole, regardless of whether a complaint is made confidentially, the complainant should be informed that, as an officer of the organisation, you have a duty of care to take the matter further, and that the anonymity of the complainant cannot be guaranteed.
If an employee says they intend to make confidential allegations, your first response should be to inform them that you can guarantee an understanding ear but you cannot guarantee confidentiality if the allegations involve employee misconduct.
It is vitally important in these situations, to keep good file notes and, if you decide no immediate action should be taken, to follow up with the complainant to ensure their ongoing wellbeing and monitor any further developments. If you don’t believe the matter is serious enough for a full blown investigation, look at the possibility of coaching the employee on how to respond to the problem. Help them to feel empowered with tools to cope with situations as they arise.
We exist in an era in which the law increasingly dictates how HR practitioners deal with workplace disharmony. The wellbeing of workers needs to be a top priority to avoid legal liability down the track.
If you receive a ‘non complaint’, you should be looking at the following:
- Does the alleged behaviour constitute a potential Code of Conduct breach? It is important to know where the boundary lies between acceptable and unacceptable behaviour in the workplace.
- Does the alleged behaviour constitute a potential workplace health and safety risk? Remember, health and safety includes mental health as well.
- Can the matter be investigated without a formal statement from the complainant?
- Does your organisation have adequately detailed anti-bullying and harassment policies?
- Does you organisation have grievance procedures and do employees know what these are?
- Is there a good Employee Assistance Program in place for employees who are having problems at work?
- Does there need to be more education around bullying and harassment?
- Are all employees sufficiently across the organisation’s code of conduct?
All of these considerations should come into play when a ‘non-complaint’ is received. In fact, these are things HR practitioners should be looking at on a regular basis regardless.