Oct 31

“Can I tell you something off the record?”

Often in workplace investigations and culture reviews, we are asked by an employee “Can I tell you something off the record?”. If you hear this phrase, handle it very carefully.

Most managers have been in a situation like this one:

An employee comes into your office and closes the door. He says Fatima uses inappropriate language and makes racist “jokes”, both in the tearoom and when speaking with customers. Someone told him that Fatima also inflates her time sheets so that she can claim overtime. When he entered the room, the employee’s frustration was clear. Now that he has unburdened himself, he looks relieved and says “You can’t tell Fatima that this came from me. I’m letting you know, off the record.”

Employees often keep upsetting issues and rumours to themselves, and avoid revealing them to their colleagues or to Human Resources. Often they have a genuine fear of reprisals or backlash from the people they accuse. Alternatively, their reluctance to be seen as a ‘dobber’ or disloyal to their colleagues can stop them from raising the matter.

‘Off the record’ in Journalism

‘Off the record’ is a phrase often used in the context of journalism, in which a code of practice exists in relation to protecting anonymous sources. The Code of Ethics of the Media and Entertainment Arts Alliance states that journalists should “aim to attribute information to its source”, and that:

“Where a source seeks anonymity, do not agree without first considering the source’s motives and any alternative attributable source. Where confidences are accepted, respect them in all circumstances.”

There have been many infamous incidents where well known people – usually politicians – have made statements which they believed to be “off the record”, only to find that their understanding of the phrase was different to that of the journalists who were present.

Peter Costello famously spoke of challenging John Howard in an “off the record” dinner with three journalists in 2005, and was forced to answer embarrassing questions when the story surfaced in 2007.

Barack Obama’s foreign policy adviser stepped down after it was reported that she called Hillary Clinton a “monster”. Her words to a reporter from the Scotsman were “She is a monster, too – that is off the record – she is stooping to anything”. A debate followed about whether the adviser’s claim of “off the record” after she made the comment was sufficient to keep the remark out of the newspaper.

Whistleblower Protections

There are also strict laws in every Australian state, as well as Commonwealth legislation such as the Corporations Act, which protect whistleblowers. People who wish to make disclosures of corrupt conduct or serious misconduct in public office, where the employer organisation in question is a public body or the individual a public servant, are given special protections under the law including the ability to remain anonymous. Such protections do not exist generally for any type of disclosure, and are very limited in the private sector.

Disclosures of Wrongdoing in the Workplace

Many employees believe that they can ‘anonymously’ tell someone else about another person’s behaviour in the workplace; it can make them feel relieved of the burden of the knowledge, or feel that they have ‘done something about it’.

The reality is that once the employee has told the employer (or a consultant working for their employer) about a particular matter, it can’t be taken back. The employer has knowledge of the matter from then on. By informing their employer of a particular fact or belief – even if the employee asked for the disclosure to be ‘off the record’ or didn’t want to be named as the source of the information – the employer cannot simply ignore what has been said.

Depending on the nature of the information that the employee discloses, the disclosure may raise issues for the employer, including:

  • Occupational health and safety obligations, if the employer has been put on notice that a risk exists in the workplace;
  • Privacy concerns, particularly if the disclosure includes information about the personal life or health situation of another individual;
  • Whistleblower protection, if the employer is covered by the relevant whistleblower legislation; and
  • Concerns for the wellbeing of all the employees involved, including the employee making the disclosure.

Handling Requests for Anonymity

For this reason, whenever an employee asks to disclose something ‘off the record’, or asks “Can you stop taking notes for a minute?”, politely tell them that in most circumstances, there is no such thing as ‘off the record’. It is possible for you to keep the information confidential until you make a decision about what to do next, but the employee shouldn’t be left with the idea that no one will ever know that the disclosure came from them.

There are, of course, some limited situations in which employees can remain anonymous, such as under whistleblower protection policies. But this can be difficult for the manager to determine quickly, when the employee is mid-sentence or already disclosing corruption or a breach of the Corporations Act. In our experience, it will rarely be appropriate to promise anonymity before knowing what the allegations are.

You should tell the employee that the employer might have a duty to act on anything he or she says, so you cannot guarantee their anonymity. Explain to the employee that some complaints raise serious matters which the company must responsibly deal with – such as sexual harassment, fraud, OHS or other legal and business risks – and that by taking action, the employee’s name may have to be revealed.

If the employee says that the matter is important but they are too fearful to tell you, talk to them about their fears, about any policies you may have about expectations of behaviour (including zero tolerance of victimisation). Encourage them to speak to Human Resources or an integrity officer, if your organisation has one.

Some other practical tips in dealing with employee complainants who want to remain anonymous:

  • Take notes of everything the employee tells you, including the time and date of the meeting;
  • Don’t assume that the employee has a strong basis for their allegations, but equally, don’t assume that the employee is lying and ignore the complaint; and
  • Act promptly, but don’t be rushed into action – think about what the next steps should be, and what internal and external advice you need.

If an employee wants to talk to a manager behind closed doors, it is unlikely that they want to complain about the state of the kitchen on level 4. There is probably good reason for their desire for secrecy – the seriousness of their allegations. So if the employee seeks anonymity, proceed with caution.

Tip: If the employer and employee both want a particular discussion to be strictly confidential – for example, negotiations about the employee resigning and taking a departure package, or ‘without prejudice’ attempts to settle a legal dispute, put the agreement to confidentiality in writing or in an email before the discussions commence. If in doubt, get legal advice first.

About Grevis Beard

Grevis BeardGrevis Beard is the co-founder and director of Worklogic. Grevis has significant knowledge of the dynamics of workplace disputes and their resolution. Grevis works with a range of clients to improve workplace communication, investigate inappropriate behaviour at work, manage workplace risks and handle complaints. He is an acclaimed speaker and author.

Worklogic works with employers to resolve workplace complaints and create a positive culture at work.
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