Confidentiality and the grievance procedure
There is no such thing as a typical grievance – each one’s different and this means that it’s far more difficult for employers to make plans in advance. However, there are underlying themes to any grievance and one of the most important is confidentiality.
Grievance procedures involve matters that, whilst relatively routine to the employer, are very personal for the employee concerned.
Confidentiality, therefore, becomes even more important when carrying out the grievance process and that can be challenging if the person involved is unused to this.
What can employers do to successfully negotiate this potential minefield?
Smaller is better
The fewer people involved, the better when it comes to grievances. This will go a long way to preventing confidential information being inadvertently shared, which can have a detrimental effect on staff morale and relationships between colleagues and employer. After the grievance process has concluded, no matter what the result, a small number of involved employees means that it’ll be easier to go back to the status quo, which could be considerably more difficult if the knowledge about the grievance was more widespread.
Consult with the employee
In some circumstances, it may not be possible to guarantee complete confidentiality. If the employer suspects that this is going to be the case, they should consult with the involved employee at an early stage to ensure that they’re fully aware of what the procedure involves. This should be done in such a way that the employee understands their employer has their interests at heart and intends to carry out the grievance procedure as fairly and confidentially as possible.
The employee should be advised of the people who will be involved in the process and what information they will be privy to; the employee’s feedback can then be obtained and taken into account if practicable.
A need to know basis
If, after much deliberation, the employer considers that someone needs to be aware of the grievance, the type and depth of knowledge they’ll be required to have to carry out their function in the process should be very carefully thought about.
Depending on their role, that person may not necessarily need to know details about the case that would otherwise compromise confidentiality.
The employee’s line manager may need to be involved, depending on whether they’re part of the grievance or would normally be involved in the investigation process. This could depend to a certain degree on the size of the organisation and the resources at its disposal – larger organisations would be able to utilise other personnel for an investigation, thus circumventing the issue, whilst smaller businesses may be unable to use anyone else in the investigatory role.
Many grievance cases will involve witnesses and it’s likely that they’ll either be colleagues of the employee bringing the grievance or know someone who is. Either way, the repercussions of information leaking will be considerable and will have a detrimental effect on relationships and morale within the company. To ensure that all testimony is made and received in good faith, witnesses should be informed about the following:
The uses to which the evidence will be put.
Whether the evidence will be shared and whether the witness will approve this.
The consequences that will follow if confidential information is leaked, including the disciplinary action that will be taken.
Access to data
It’s important to establish the access to data that an employee pursuing a grievance can have.
Notes and other information that the investigation has gathered could be referred to in a Subject Access Request, and it is important that the employer takes expert advice on what can be withheld in the event that such a request is made.
Keeping people properly informed will help avoid the unexpected and ensures that confidentiality issues don’t threaten to derail an effective grievance process.