Off-the-record complaints and how to handle them

There have been various news reports of high-profile workplace bullying or harassment allegations over the past few months.

For example, allegations of bullying against government minister, Dominic Raab, and allegations of harassment against Kanye West by staff at Adidas (in relation to its partnership with Yeezy). Sometimes the employer's failure to investigate is put down to the complaint not being made through official channels. But is this a good reason?

Complaints and how to handle them:

Workplace bullying: Employers can’t afford to bury their heads in the sand

Petty or not – ignore grievances at your peril

Checklist for preventing and dealing with misconduct

A common feature of bullying or harassment situations is that victims are fearful of making a formal complaint, but the employer becomes aware of those concerns in other ways.

There could be an anonymous complaint, for example using a speak-up hotline, or an employee may raise concerns off the record, which they ask to be kept confidential. Or there may be rumours and gossip around bullying or harassing behaviour, a so-called open secret.   

So, what should the employer do? If the employer is aware of a potential problem, it needs to take steps to deal with it. Otherwise, it could be liable for claims brought by any employees who are subjected to bullying or harassment by the same individual.


Investigating the concerns

First, the employer should try to investigate the concerns as far as possible. This could include obtaining more details from the employee – if an off-the-record complaint was raised – and investigating emails or other messages. 

It may also be appropriate to speak to other employees to find out whether they have any concerns, although questions need to be framed carefully to ensure this does not risk being seen as a witch-hunt against the individual suspected of bullying or harassment.

The correct approach will depend on the circumstances and could include, for example carrying out an informal feedback exercise across the business without revealing that allegations have been made or appointing an external party, such as legal advisers, to carry out a cultural review of the team or of the whole business. These options allow employees to raise issues without being identified.

In addition, there may be other data which could be reviewed for evidence of issues within a team, such as previous staff surveys or absence data.


Acting on the evidence 

The next steps will depend on the outcome of the investigation. If there is sufficient evidence of bullying or harassment, which the employer can disclose without breaching the confidentiality of employees who do not want to be identified, then it can approach the accused individual to explore the concerns and potentially commence a disciplinary process. 

Where some or all of the evidence is anonymous, extra care should be taken. The employer always needs to balance its duty towards the employees who have complained with its duty to the accused individual to follow a fair process. 

If the investigation does not produce any evidence that can be used without breaching the duty of confidentiality to the alleged victim, the employer will be limited in the action it can take. For example, it may only be able to carry out a broader exercise such as diversity or management training for all managers across the business.


Creating a speak-up culture

It is always difficult for employers to investigate in a situation where employees feel unable to raise a formal concern. It is particularly challenging for HR where an employee approaches a manager to raise a complaint confidentially and asks that it goes no further.

Managers should be made aware in diversity training that they should report any off-the-record complaints to HR, and that they should not commit to keeping any information confidential. 

Employers can take steps to foster an open culture in which employees feel that they speak up without fear of reprisals, including having clear speak-up policies and procedures, in which managers and employees are trained and have active support at the most senior levels of the business. Also, if employees see that the business takes action to address bullying or harassment, they will feel more confident about raising any concerns they may have in the future. 


Adam Wyman is a partner and Anna West, a knowledge counsel, both in the employment group at law firm Travers Smith