There are lots of reasons why an employee may want to have a confidential conversation with someone, and HR can be a great starting place. In some cases, HR will be part of an internal department or an individual in the business with responsibility for HR. In other cases, it may be an outsourced HR provision. Although not obviously classified as an HR conversation, it may be that the employee turns to their line manager for their confidential ‘HR’ conversation. For the purposes of this question, I’ll stick to the generic term HR to mean the person to who the employee is talking to.
Whoever is doing the talking will probably make clear that they want to have a confidential conversation. They may use the term confidential, but other terms such as ‘private’, ‘off the record’ or ‘without prejudice’ may be used.
I think it is dangerous for HR to guarantee a conversation to be fully confidential because you don’t know what you are about to hear and there may be legal reasons why you can’t keep the conversation confidential.
Good practice would always be to say, “let’s start confidentially and then we can discuss and agree what needs to be disclosed to who, how and when. Are you comfortable with that?”
HR can provide a confidential listening service, but as long as a conversation remains confidential, the options available to resolving an issue may be limited. It may be that the employee just wants to talk, but in most cases, there will be a desired outcome, even if the employee doesn’t initially know what it is.
The first part to being a good listener for a confidential conversation is to ensure you have sufficient time and appropriate space. Five minutes before a meeting in an open plan office is not the time or place to have a sensitive conversation. If circumstances allow, book a room if necessary and move a meeting if required so that you can really listen and not be worried about the rest of your diary. If someone approaches you clearly distraught, move them to a more suitable place and ask someone else to manage your diary if required.
Once the scene and rules of engagement are set, HR is in listening mode. Check if it is ok to make notes. Actively listen, seek clarification if required, paraphrase if you need to. Do not make suggestions, do not seek to solve problems, you are there to listen….. at least initially.
The types of issues which are typically discussed vary hugely, but may include problems with another employee or line manager such as bullying, discrimination or harassment; workload issues such as volume, lack of resources, the need for training; medical issues such as depression, anxiety, stress, a mystery illness or a medical diagnosis requiring treatment; family issues such as pregnancy, death, abuse or sickness; or financial issues such as debt, or lack of a pay increase.
As an HR professional, you may be able to resolve some of these issues, but most you won’t. For anything outside of the workplace, being able to signpost the employee to people who can assist is essential. You may know who can help i.e. “have you spoken to your GP about this” but in some cases you will need to go away and do some research to help find the most appropriate person / organisation.
Always agree on what you are going to do and when you will do it by. Book another meeting or agree to follow up by email if more appropriate. The employee may be scared to speak to others, to ask for help or to actually admit there is a problem. You need to acknowledge that they have taken a great first step, but that they now need to take the next and speak to the right person. You could be an advocate for them if this is what they want and need, but be careful not to get drawn into situations beyond your work boundaries.
Impact on Work
It is possible that the situation will have an impact on their performance at work, so discussing this with them is an important element of supporting them. What might that look like? Who would need to be aware? This is where you agree on a plan and I advise you to confirm that plan in writing so there can be no doubt at a later stage. In some organisations a note may be put on the employee’s file, but in doing so, you need to think about confidentiality and data protection. An employee has the right to see everything you hold on them and the notes from a meeting such as this would be included. The handwritten notes which you may have taken during the meeting, would also form part of the employee’s file unless you ‘tear them up’.
If the confidential conversation leads to allegations of ‘misbehaviour’ at work, then HR does have a role to play. The obvious one is to support the employee and, in many cases, it is about encouraging them to make a formal, on the record complaint. This may be a step too far initially, but without a formal process such as a grievance procedure to follow, it may not be possible to resolve the situation. The employee would probably need to be given a copy of the grievance policy and need assurances around their safety and what happens next.
If the employee does put in a formal grievance, then your normal processes kick in.
If the employee remains adamant that they want to keep things confidential, then it will only be possible to do companywide initiatives to remind people of the standards of behaviour required, to educate people on your zero-tolerance approach to harassment (or whatever the issue is).
Duty of Care
There is a duty of care on the employer and as soon as they are made aware of an issue, they must act. How they act will be dependent on the specific circumstances, who the ‘HR’ person was and what position they are in to act, but if the employee wishes the situation to remain confidential, despite assurances of safety, then HR would need to have very good reasons for breaking that confidentiality.
It may be that during the conversation HR persuades the employee to discuss the situation with their line manager or a senior manager if appropriate. It may be that HR asks for permission to discuss the situation with the business owner (this could be done with or without the employee being named).
Legally, regardless of who HR is, the employer has a duty of care and if they don’t take steps to protect the employee, they could find themselves in an employment tribunal for failure to protect. To some extent, the employer is stuck between a rock and a hard place.
A good HR professional will not only be aware of the risks but will have the listening skills to identify the real problem and the experience to support the employee into enabling the business to deal with the situation.
There are a lot of issues raised above, and how any of the advice is applied will depend on the specific circumstances. Always seek advice from an experienced professional, if you have any concerns about the physical or psychological health and safety of your employees.