Promised confidentiality of Statements

2284103

An employee was questioned about the actions of another employee. She did not want to say anything if the other employee would find out that she "squealed" on her. She was promised complete confidentiality by the investigator, who was the manager of the accused.

Two days later, both the employee and the accused were brought into the investigator's office. The accused had apparently denied any wrong doing and the employee was told to again make her statement, this time in front of the accused. She was horrified.

In tears, she went to her own manager with her complaint. He simply said he was sorry she was placed in such an awkward position.

Once promised confidentiality, can an employer/manager put an employee in such a position? Does the employee have any recourse for being lied to and humiliated?

Parabeagle

I'm afraid you're going to find yourself closing the barn door after the horse has escaped. The investigator was wrong (not to mention dumb) to promise confidentiality when he could not deliver on the promise, and you're stuck with the consequences. I think whether or not the employee has any legal recourse would depend upon the circumstances, nature of the disclosure, etc. I strongly recommend that you never have that manager "investigate" again.

2284103

Thanks for the response.
What's ironic is that the accused allegedly breached a confidentiality agreement. She is an executive assistant who had full knowledge of the who's and when's of a downsizing. She told a co-worker who told a co-worker, and so on and so on. You get the picture! Now, we have a manager who breached a "promise of confidentiality"!

TN HR

Boy, this is a tough one. First, the manager should have never promised confidentiality in this matter since he obviously had the intention of taking action to a level which would have required the confidentiality to be broken. In other words, don't make a promise that you either cannot or are not willing to keep.

Not sure what recourse, if any, the ee has at this point. Personally, I think the hidden damage here is worse. This supervisor has potentially just lost the respect of many. His integrity is certainly questionable at this point, at least in the eyes of his subordinates.

Gene

Whirlwind2

I never promise confidentiality to an employee in an investigation. I tell the ee being questioned that I will not reveal his/her identity unless it becomes necessary in the course of completing the investigation and coming to a finding. But I also tell them that the accused person will usually discern their identity just from the circumstances.

Of course, in your case, that ship has already sailed. And forcing the informant to repeat the story to the alleged perpetrator went way beyond the pale. Now what do you do? Well, first, as the HR director, I would apologize to the ee and tell her that the manager/investigator who promised her confidentiality had no authority to do so. I would also see if it were possibility to make some sort of re-assignment so that the accusor and the accusee would not have to work together (assuming the accusee didn't get fired). Next, I would consider disciplinary action against the manager who promised confidentiality. Last but not least, I would establish a policy/protocol - if you don't already have one - on investigations...who does them and how, etc. Leaving investigations in the hands of untrained managers is risky business.

Regarding the ee's recourse -- I guess she could go off the deep end and contrive some kind of tort claim, or maybe just an internal grievance. But, hopefully, a genuine apology from someone other than her own boss will be a sufficient remedy.

2284103

Thanks for the help.
The employee is crying that the original conversation was private between her and the investigating manager. Can she do something from a privacy standpoint?

Whirlwind2

I kinda doubt it, unless she can prove that she was damaged in some way by the breach of privacy. But, then again, if she's mad enough and finds a creative-yet-desperate attorney, anything's possible.

Parabeagle

Just depends, I think. As Whirlwind2 says, some lawyers can be very creative and there's a wealth of tort claim theory out there just waiting to be exploited.

mwild31

I'll echo the last two posts - I don't think this employee has much to build a case on here - what is it - embarrassment about 'squealing' on a fellow employee? Unless there was something written promising confidentiality, or the investigator was a priest, a lawyer, a psychologist, or the information was medically related - it's my understanding that there are few legal rights to confidentiality in the workplace. I think the investigator blew it & you should call them in on the carpet - follow the previous poster's advice on how to address confidentiality & I think the employee needs to get over his/her embarrassment and move on. Just my thoughts.

marc

I'm sure it is obvious to you now, but the promise of confidentiality is a mistake. Management can frequently become burdened with knowledge that requires some sort of action. When that occurs, you must protect the company first. I always make the speech regarding the 'burden' when EEs are attempting to put me in that situation. I also have a speech about stepping up to responsibility and that we all have a burden to carry if we want to live with ourselves and improve our lot in life. Between the two speeches, you usually get the information you need to do your job.

It is sad that the person who gives up the information gets in more trouble than the original gossiper or wrong doer. From your post, it sounds like several people had this info. Maybe they should have been approached separately. Once you have enough fingers pointing to the leak, you have enough info to take the next step and confront the situatin.

Don D

Every HR bookshelf and office library has at least one copy of a book or two titled, "How To Conduct An Internal Investigation". This investigation was improperly, not to mention poorly, handled. Nobody had control of the investigatory process. Managers apparently were on their own, conducting their own bumbling Columbo inquiries and promising the undeliverable. First of all, was it worth investigating? If so, somebody should have seized control of the process and insisted on handling it properly. If that wasn't workable, one manager cannot be responsible for sweeping up the mess of the other. "All the king's horses and all the king's men....."

Whatever

One of the worst things a manager can do is make a promise they know they cannot keep. Credibility goes out the window. If there is a problem in the future, who will speak to the manager. Changes need to be made. On issues that could impact on the company, we always advise the ee that there may be no confidentiality and if it has to go further, advise them of who is being told.

As to the ee, has anybody, in a very senior position, sat down and talked to her. Admitting that there was a colossal goof and apologizing will help a little. Make changes and then let the ee know what has been done so that a similar problem does not occur in the future.

2284103

Thanks to all of you. Other than handling the bumbling manager, I think the suggestion to have someone who has position and respect of the employees should apologize to her for being compromised and assure her that because of her courage and honesty new rules will be put in place. I think it wounded just as much when her own manager tried to make light of it, not even considering how upset she was. He could have done a great deal to settle down the situation but did not. It just shows that management needs some training in human nature. Thanks, again.

Balloonman

Uh what about finishing the investigation, seeing if you can get the person who breached the confidentiality agreement about the downsizing to begin with to acknowedge that.....then fire them.
My $0.02 worth.
DJ The Balloonman