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Ask the expert: Confidentiality in bullying grievance

24th Feb 2009
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An HR department has received two grievances of bullying, which almost battle against each other. But should the identity of the complainants be kept confidential when investigating each claim? Esther Smith and James Kidd advise.

The question:

We have two, almost counter, grievances:

A team leader is complaining about the manager's favouritism towards other colleagues.

A team member (the favourite one) is complaining of bullying from the team leader making nasty comments behind her back.

There's a lot of "I want to bang their heads together", but my understanding is that we shouldn't tell the team leader and manager about who has made the complaints against them - is this right? If so, how, based on specific examples, am I meant to investigate whether the situations took place with the accused and other witnesses? Do I just need the agreement of the people complaining to bring their name into it?

Legal advice:

Esther Smith, partner, Thomas Eggar

I don't necessarily agree that you should not tell the individuals who has raised the grievance against them. The general principle is that an employer should be open when dealing with grievances and the employee against whom the grievance is raised should be provided with sufficient detail and information to enable them to be able to properly respond to it.

Usually there is only grounds for keeping the identity of the complainant confidential if there is some genuine fear of retribution. However, from the employee's point of view the identity of the complainant may well affect their response to the grievance, as they may have background issues with particular colleagues that the employer will need to be aware of to put the grievances into context.

"The identity of the complainant may well affect their response to the grievance."

Esther Smith, Thomas Eggar

In terms of dealing with the situation you outline above, where you get two grievances battling against each other, it is usually a case of timing, although dealing with the processes does become time consuming and arduous. Once someone has put in a grievance you have a statutory obligation to address that grievance in accordance with a prescribed procedure (at least until April 2009).

If the person against whom the grievance is levelled then raises their own grievance against their complainant, it is usually a case of looking at the content of that second grievance and seeing whether it relates to the same information and incidents as the first grievance; in which case the appropriate course of action is to deal with the second grievance as the employee’s response to the grievance lodged against them, rather than as a separate grievance process. However if the second grievance goes in any way wider than the first one, it must be dealt with under a separate grievance procedure. However, for practical reasons you might have to conclude the first grievance before then conducting the second grievance.

Such complex situations like this always turn on their own facts, so you really ought to take advice on this particular case if you are in any doubt.

Esther Smith is a partner in Thomas Eggar's Employment Law Unit. For further information, please visit Thomas Eggar.

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James Kidd, associate in the employment team, Mills & Reeve

In dealing with such grievances, unless the complainant agrees, you should not tell the team leader and manager about who has made the complaints or provide copies of the grievances. However, that will make investigating the complaints very difficult and this should be made clear to the complainants (so as to encourage them to consent if not to full disclosure at least to part).

You may still be able to undertake some investigations even if the complainants do not agree to the disclosure of their identities (such as checking the manager's appraisals of all team members/pay rise recommendations for them etc). You may also be able just to reveal part of a complaint if, when considering the bigger picture, to do otherwise might damage future working relationships within a team.

"You might consider trying to nip the issue of the bullying via nasty comments in the bud."

James Kidd, Mills & Reeve

You might consider trying to nip the issue of the bullying via nasty comments in the bud by you and/or the team member explaining to the team leader that the use of nasty comments by him or her are offensive and unacceptable (as this may avoid the full investigation without need for a full blown investigation), but ensure that you have complied withany contractual grievance process (and, assuming the action is before 6 April 2009, the statutory grievance procedure as well).

In terms of investigating the grievances, you will need to ascertain as many details from the complainants as possible (times, dates, other people present etc) and then use that information to see if there is any substance to the allegations. It may be sensible to see any witnesses first before you see the team leader and put the allegations to him/her.

Suspension may be appropriate here (more for the team leader than perhaps the manager with the less serious allegations) as it is a neutral act, but given that the team leader has raised a grievance, this would need to be handled very sensitively. However suspension should only be used exceptionally.

Once you have conducted the grievance hearings with both complainants (and offered a right of appeal), you will need to consider if disciplinary action is warranted against the team leader or manager (and on these limited facts, it is more likely to be against the team leader).

Going forward, I would recommend that you ensure that all team leaders and managers are trained appropriately on acceptable behaviour in the workplace.

James Kidd can be contacted at [email protected]. For further information, please visit Mills & Reeve.

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