HR professionals will know the conversation well. It starts with a disgruntled employee walking into the office, professing that they don’t want to complain ‘but...’ and ends with a detailed account of a colleague's perceived misdemeanours. These conversations can be something of a minefield: is the employee simply looking for a sympathetic ear, or is there something more to their complaint? What action, if any, should HR take in response to such complaints?
As with many HR matters, the answer is not always clear. While guidance is available from the Acas Code, each matter must be dealt with and assessed on an individual basis.
Just because a complaint is expressed to be ‘off the record’ it should not be sidelined. The complaint needs to be treated seriously and dealt with in a fair and timely manner. Sometimes the most serious matters are raised informally by an employee who is perhaps too embarrassed to make a formal complaint. Think of the female employee whose boss, perhaps having had a few too many drinks at the Christmas party, makes an inappropriate comment about the length of her dress.
Assess the nature of the complaint and let this dictate how you proceed. If the matter is not serious, and the employee is adamant that they do not want a formal process to be commenced, is tea and sympathy enough? If so, make it clear that you will not be taking any action unless the employee tells you otherwise. Make a note of this in case the issue recurs in future. In some cases an informal preliminary investigation may be appropriate. This could include a fact-finding mission, assessing documents and timelines to establish whether a further investigation should take place. It may also be possible to resolve the issue without revealing the complaint or the complainant. In a case of poor management, training could be arranged; if this training is team wide, it will not necessarily be obvious that it relates to a complaint.
If the matter is serious, consider whether the employee can be persuaded to formalise their complaint. Reassurance that they will not be treated unfairly or detrimentally if they make a complaint in good faith may help. However, be wary of offering the employee anonymity; this will be unreasonable in all but a few cases.
It may be appropriate for you to treat the off the record complaint as a grievance and try to resolve the matter formally irrespective of the employee’s wishes. This may be the case, for example, if the complaint relates to alleged harassment that is negatively affecting an employee's mental health.
Consider also whether company policy requires an investigation. Many firms' policies on equality or bullying state that the company will investigate any allegation of discrimination or bullying. If so, an investigation must be undertaken. It is easy to imagine an employment tribunal being sceptical of the employer that waxes lyrical about its commitment to equality and denies discrimination but has failed to comply with its own equality policy. An employer could also lose the defence afforded to it by section 109(4) of the Equality Act 2010 if it has not taken all reasonable steps to prevent an act of discrimination.
If a formal investigation is necessary, strike a balance between the rights of the complainant and the subject of the complaint. The same duty of care is owed to both employees and the accused should have the opportunity to present a full defence.
When the investigation is complete, assess what action is necessary. Is disciplinary action necessary or desirable – perhaps to act as a deterrent in future? Has the working relationship between the two employees broken down and, if so, would mediation or redeployment be appropriate?
Failing to deal with off the record complaints can be risky for employers. Disgruntled employees are likely to be disengaged and may resign and issue claims for discrimination and/or constructive dismissal. Acting reasonably in a well thought through and documented manner will likely help keep your workforce motivated and assist in defending such claims.
Maria Krishnan is a solicitor in the employment team at Thrings