Q. I am the HR director of a small business currently facing a very tricky situation. Three members of staff have approached me on a no-names basis to say that the Chief Executive is aggressive and employs bullying tactics to keep the team in shape. Although they all say they want the problem to be addressed and wish to raise formal grievances they refuse to be named as they fear their jobs will be made very difficult by the Chief Executive.
Should I tell the informants that I cannot proceed unless they are prepared to be named? How should I investigate this matter and who should I put in charge when the most senior manager is being accused?
Dear Ms Balanced
A. Balancing the competing duties owed to the informants and to the accused is difficult, particularly balancing the Chief Executive’s right to understand the allegations which have been made against him, with the company’s duty to protect the employees who have made the allegations and are too fearful to be named.
The risk to the company is that the Chief Executive will argue that the investigation and any subsequent disciplinary action taken against him is unfair because he cannot fully understand the case against him without knowing who has made the allegations. However, failing to deal with the grievance at all may result in claims by the informants and potential stress-related personal injury claims if the company has failed to protect them from an allegedly bullying manager.
Investigating the matter is important, even if the informants do not want to be named. In most cases, the investigation would be conducted by a member of the company’s management team and the investigator would be more senior than the accused employee. Clearly, this is not possible in this instance as the most senior manager, the Chief Executive is the subject of the grievance. You might therefore need to consider instructing an external consultant to carry out the investigation, which should still be carried out in accordance with the company’s grievance policy and procedure. This has the advantage of demonstrating to the informants that the company is taking this matter seriously and intends to carry out a thorough and impartial investigation. However, the disadvantage of engaging an external consultant is that the company inevitable loses some control of the proceedings. Alternatively, is there someone senior from another group company who could step in?
It is crucial to investigate early on exactly why the informants wish to remain anonymous and to explore whether any strategies can be put in place to reassure the employees that if they are named there will be no negative consequences.
If the informants remain unconvinced, they should be made aware from the outset that no guarantee of absolute confidentiality can be given: if matters proceed to court or to an Employment Tribunal witness statements or notes of investigatory interviews may need to be disclosed and the informants anonymity may be lost at that point.
ACAS Guidance deals with cases such as this where the informants wish to remain anonymous. They recommend:
1) taking written statements from the informants;
2) seeking corroborative evidence; and
3) checking the motives of the informants, which includes enquiring as to their and making an assessment of their credibility and the weight to be attached to the evidence. A word of warning! Such enquiries into the character of the informants should be made tactfully.
If the investigation concludes that disciplinary action should be considered against the Chief Executive he will need to understand the accusations made against him. In general, this would involve providing the Chief Executive with meeting records, including minutes from investigatory meetings and any witness statements. However, such information may be withheld in certain circumstances such as this to protect a witness or an informant.
The question is can the Chief Executive to understand the allegations against him without knowing the identity of the informants or witnesses? What is important is that sufficient detail of the allegations is given to him in order to respond to them. It may be necessary to redact references in the statement which may lead to identification of witness in addition to their actual name.
During any disciplinary meeting, if the Chief Executive raises any issues that should be put to the informants, the disciplinary hearing should ideally be adjourned so that the hearing chairperson, can put those issues to the informants and question them.
As always full and careful notes should be taken at the hearing; this is particularly important in a-typical cases such as this where the risks of subsequent claims are higher.