Focus on confidentiality when dealing with grievances

Handling employee grievances can be tricky for managers and HR practitioners alike. They inevitably involve matters that are personal to the employee. For this reason, the issue of confidentiality can play a significant role in the grievance process and is an area that can be particularly challenging. Employers often find themselves having to juggle competing obligations to the employee who has brought the grievance, any other employee who is involved in the complaint and of course the organisation itself. In this article we look at some top tips for employers when faced with confidentiality issues surrounding an employee grievance.

Keep the pool small

The general rule of thumb is that when handling grievances, it is best to keep the matter as confidential as possible, limiting both the number of people who are aware of the grievance and the information that each of those have access to. This approach will reduce the risk of confidential information being shared and the subsequent negative impact on the parties involved (and staff morale more generally). It will also make it more likely that the situation can be resolved smoothly and normal working arrangements can be resumed – particularly important where concerns are raised about colleagues with whom an individual will need to continue to work.

Work with the aggrieved employee

If you expect that confidentiality is going to be an issue, it is important to ensure that the employee in question fully understands the grievance process, how the company intends to handle confidentiality and that you have their interests in mind. It is normally a good idea to suggest a list of people that you think need to be aware of or involved in the grievance and specifically what details they need to know. You can then invite the individual’s feedback on this. It’s better to tackle this upfront rather than waiting until the employee raises it as an issue and then having to justify the actions taken.

Need to know

If you decide that someone needs to know about the grievance, then consider carefully how much detail that individual needs to know in order to fulfil their role in the process (e.g. if they are being interviewed regarding a specific point of the grievance). It will not always be necessary to reveal the name of the employee being investigated or the complainant in order to conduct a reasonable investigation.

An issue that often arises is whether the employee’s line manager needs to be informed of the grievance. Naturally the answer to this will depend on the exact circumstances of the grievance, including whether the manager is implicated or needs to be involved in the investigation or decision-making. The line manager may also be central to the resolution of the grievance. Each case will be different but thinking early about the role that the line manager is likely to play is always sensible.

Confidentiality for witnesses

It’s important to make sure that those being interviewed in the grievance process are made aware of some key details regarding their evidence. This includes:

• what their evidence might be used for. This is crucial to avoid misunderstandings and can be relevant in the event that an employee makes a subject access request to see the evidence which was given (for which see below);
• to what extent they are prepared to allow their evidence to be shared. If they are not willing to allow their evidence to be shared this can present problems in properly resolving the grievance so consideration of the reasons is advisable. It may be that offering safeguards (such as anonymising evidence) may help to resolve any concerns; and
• that the investigation itself and any information shared with them as part of it is highly confidential and that any breach of confidentiality will be considered a disciplinary matter.

Access to data

What an aggrieved employee is entitled to see in the context of their grievance is often the subject of dispute – are they for example entitled to see everything said to the investigator? It is also important to remember that the notes and other information collected as part of the grievance process could also be sought by way of a subject access request under the Data Protection Act or obtained in subsequent litigation. Following the steps above will help to ensure that the extent of disclosure is clearly understood, and having a clear note of any objections from employees to the sharing of their evidence can prove particularly important.

Each and every employee grievance is different, raising different issues and problems for the employer to handle. Confidentiality is an ever-present challenge and is one that can have potentially serious consequences if not handled correctly. It is essential to handle confidentiality sensitively, the issue in accordance with its individual circumstances and to communicate clearly the way information and evidence will be handled at every stage of the process. This will help to ensure that all those involved are properly informed, avoids unexpected surprises and ensures that confidentiality does not derail the effective handling of the grievance process.