What to do about the reluctant complainer?

It’s a difficult situation. Employee A approaches a member of the HR team and describes how they feel they have been discriminated against by colleagues but say they don't want to take the issue any further. What should HR do next? 

In our experience there is no right or wrong answer, particularly in complicated organisations like Universities.  Each case will be different and must be looked at in the round. 

However, it is likely that the first step will be to explore why the employee does not want to take matters further.  There may be a concern that can easily be addressed. Alternatively, it may be that the concerns raised can be dealt with through support for the employee rather than any sort of formal process. 

Ideally, an agreed approach can be found through dialogue. Some form of record should be kept evidencing what has been discussed. 

But what if the employee refuses to consent to any sort of process, despite raising serious allegations of discrimination? At that stage there is the option of pressing ahead with an investigation against the wishes of the person complaining. This is not ideal and should be seen as a last resort if dialogue and discussion has failed. 

There are several reasons why it may be necessary to press ahead. There may be serious concerns about the welfare of the person bringing the complaint. There also may be concerns about the alleged perpetrators - they have a right of reply if serious allegations are raised against them. Finally, the University itself may need to take action to ensure that equalities policies and standards are complied with. 

All of this needs to be balanced against the potentially legitimate concerns of the employee, who may point to the difficulties a formal investigation would cause. 

Whatever the course of action decided upon, it is important to set out to the employee the factors that have been considered and demonstrate how competing interests have been balanced. 

If all this is done, and a proportionate view has been taken, it may be difficult for the employee to later allege that they have been subjected to unlawful treatment.  As a recent case we have dealt with demonstrated, an Employment Judge is likely to have sympathy for an HR team which, after careful thought and communication, has decided start an investigation without the consent of the person complaining.  In the case in question the Judge referenced this sort of issue as a stark example of the 'damned if you do, damned if you don't' problem.  The Judge accepted that the employee's conduct put the HR team in a position that was impossible to resolve and quoted extensively from the emails in which the HR team communicated their predicament to the employee complaining. 

Finally, the Judge commented that HR was not bound in a legal or moral sense by the employee's request not to take matters further. The obligation was to weigh up the competing factors and take proportionate action. 

As we said at the start, this sort of situation will always be difficult to manage and there is no 'one size fits all' solution. If you are interested in hearing more, please tune in to the VWV webinar session at 2pm on 11 May where we will be talking about the reluctant complainer as well as positive action/discrimination and disability discrimination.