Is there a duty to address a personal conversation that took place at a colleague's leaving do under company policies, or can it be kept private?

Posted in : Seamus Says - Employment Law Discussion on 3 August 2018
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered:

Q: "I am an HR manager in a small organisation and attended a colleague's leaving do one evening. During the course of the evening, another employee became particularly upset and disclosed information to me about her personal life and a grievance which she had a formerly raised. Do I have a duty to address this conversation under company policies, or can it be kept private?"

Seamus: So there are two aspects here. There is the information disclosed about her personal life and, second of all, this grievance which she had formerly raised. We're not sure whether or not the grievance was completed or if there was an outcome in respect of the grievance or what the situation is, but it's clearly still an issue that is annoying the employee.

My view on this would be, say that this happened on a Friday night, there may have been a few drinks taken, and maybe it's opened the person up more than what they would normally do. But I think your best practice in this scenario would be - where there are concerning issues that an employee has and as an HR manager you're aware of those - my feeling would be that there should be some follow-up with the employee about that.

Now, in terms of the level of follow-up, you have to take a sensible view, and I think that you have to take a careful view. And maybe if there are personal issues that the employee has raised, they may be very embarrassed and don't want to discuss that with you. So the approach could be something along the lines of, "We were talking on Friday evening. You made some comments. If there's anything further that you want to talk to me or if you want a friendly ear, don't hesitate to do that. If you don't want to talk to me about it, that's completely fine. But I'm just opening the door for you there if there is anything."

In terms of the grievance, I think that's a slightly different matter. It's a work-related matter. Again, it may be that a formal approach is made to the employee to ask the background to the grievance:

  • Was it dealt with?
  • Was there an outcome?
  • Was there an appeal in respect to the grievance?
  • Is it still something that's vexing the employee?
  • Is it still something that's going on?
  • Is there new evidence?

Those sorts of issues.

Again, the employee may back off and say, "I shouldn't have raised that. It's a closed matter, but it does still annoy me, but I don't feel that I'm prepared to take anything or to do anything further about it."

Scott: The HR manager can't unlearn it.

Seamus: No. They know about it.

Scott: So you still have to make a value judgement about whether you go along with the employee's wishes and do nothing, or whether you say like what you said is if it were a criminal activity or something, you would be pretty much duty-bound to go through that. If it's a safeguarding thing, you were in education, you would be duty-bound to do that. So coaches have certain rules and such like, but they still have a duty to report things that are breaches.

So assuming this is a personal thing, assuming that the person doesn't want to go ahead with it, would you advise that the HR person says to them, "Look, if you really don't want me to deal with it, that's fine, but I want you to put something in writing," or even just record it somewhere in their diary and say, "I spoke to X and they insisted I do nothing about this."

Seamus: I think just in order to keep the HR manager right, that's the appropriate thing to do. It may be that the employee just will want to bury their head in the sand and not have any conversation or not get involved in it further at all. In that sense, then I think it's important that a written note is made by putting on the personnel file or, as you say, kept in the HR diary, just to record that the issue was raised but the employee doesn't want to do anything further.

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This article is correct at 03/08/2018

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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