As someone who has worked as an HR professional for some years, I can say that it’s not unusual for an employee to approach me wanting to talk about being bullied, harassed or discriminated against in some way.
Sometimes the employee wants to lodge an official complaint. That outcome involves a considerable amount of work and requires a strict application of professional process and the exercise of good sense, but at least there is a process to follow and it’s “straightforward”.
I say that because there are other occasions on which the person just wants to let someone know or have an opportunity to vent, but doesn’t want to go as far as lodging a formal complaint.
Those occasions place an HR practitioner in a difficult position, especially if the employee appears distressed or otherwise “not themselves”. From the individual’s perspective, the opportunity to unburden may be a great relief but from where the HR manager sits, the information that has been communicated is in a zone that’s akin to a no-man’s land. A complaint has been received but the complainant does not want to call it a complaint.
So what do you do as an HR professional if you can’t convince the person to formalise the complaint? How do you sleep at night when you are concerned not only about the welfare of the individual but the detrimental effect the behaviours reported might be having at the team level? Do these reported behaviours reflect the wider culture of the organisation?
These considerations prompt the question as to whether the duty of care overrides the duty of confidentiality. How do you deal with the issue of employee trust if you decide to take the issue further without the consent of the complainant? Do you write a file note but keep it to yourself?
There are no simple answers to these questions and they probably can’t readily become the subject of legislation. The need for exercising discretion and judgement by the HR professional is paramount, as is the imperative to keep in touch with the complainant and monitor any movements on the issue so it doesn’t take on a new life that runs out of control.
One thing that might help is to ensure the organisation effectively communicates and provides ongoing training on issues related to inclusion that touch on the organisation’s policies and procedures about bullying, harassment and discrimination.
If that happens everyone at least starts on the same page.
Just how prevalent these issues are no doubt varies from workplace to workplace, and those with a strong inclusive culture may report fewer cases. However, human nature is human nature and it’s our role as HR practitioners to know how to handle people so that we are supporting the employees as well as the organisation.
But we are now in an era where human behaviour and the law are combining to produce circumstances that result in HR managers being exposed to legal action being taken against them as individuals in the performance of their duties. Mindful of that, I’m sure grey areas such as the one I’ve described contribute to plenty of sleepless nights.
I would be interested in hearing about the experiences of others on this delicate question.
Hayley Breen is a senior development and research consultant at the Australian Human Resources Institute.
I think people over complicate it. Zoe is right, there is no entitlement to confidentiality and it is up to the HR professional to use professional judgement. However be realistic, any follow up will have to afford the alleged person with natural justice, which in most instances includes the right to address the allegations including who made them. They can’t be anonymous in the vast majority of circumstances. Unless there are mitigating factors or threats of serious harm, people need to be responsible & adult and put their name to a complaint. It’s hard but it’s the professional & responsible… Read more »
I agree people do over complicate it. As company representatives we can be vicarious liable if we do not ensure the safety & welfare of our employees. Yes you have to have policies in place, provide options, manage confidentiality etc. however if the employee does not want to make a complaint then as Donald points you use your professional judgement to take the next steps particularly if the employee is at risk. Whenever I manage these matters I do as Zoe points out inform the employee of my obligations, emphasize that they can’t be victimized for making a complaint as… Read more »
A balancing act but in the end treating an ‘in-confidence’ complaint formally or informally hinges on a judgement between an organisation’s duty of care to address a matter more directly, and respecting the individual’s preference to report but not pursue it. If, primae facie, the complaint is serious and there appears to be a clear risk to an individual or of a broader impact, the duty of care really requires a matter to be investigated formally, consistent with the organisation’s relevant policy and procedures.
I think as a HR Manager even if the employee doesn’t want to make a formal complaint, the employee still considers it serious enough a problem that they have come to HR to report the problem. As a HR manager we have vicarious liability under the EEO legislation and duty of care for this employee and any other employees who might be affected. We need to keep file notes at least to maintain records for the company and take appropriate action in a confidential manner to avoid any vindictive behaviour happening.
Zoe, I agree with your approach. It’s easy to drop a bombshell in the lap of HR, and walk away, while we deal with it. I have experienced a snr manager not taking action about a verbal complaint, because they insisted it be put in writing by the complainant. I believe that manager should have started an investigation process, rather than waiting for it in writing. Needless to say, the issue did not disappear, and got very untidy. I also agree that coaching the complainant to deal with the issue, first and foremost, and HR monitor to situation. This empowers… Read more »