There are a wide variety of scenarios in which an employee may want to discuss sensitive manners in a confidential setting. Often, the obvious place to go to will be HR, but can conversations with HR ever be considered confidential?
This depends on several factors, which include the matter being disclosed and the action that the employee wants to be taken on that matter. Below, we go into more detail on the subject, to help clarify some common confidentiality concerns that employees and HR professionals may have in the workplace.
Whilst we outline the need-to-know facts in this article, you may require further advice on what’s often a nuanced issue. Seek help from a professional team if you do have any questions.
What exactly is HR?
Human resources, or HR, is a term that is often used to refer to different departments or individuals that carry out a similar function. In some businesses, it may be a whole internal department, or an individual who is solely responsible for the role.
In other businesses, HR responsibilities may be outsourced. In some cases, employees may informally refer to their conversation about an issue, no matter who it’s with, as an ‘HR conversation’. Obviously, each of these individuals and entities will be able to abide by different rules of confidentiality.
Legally speaking, only solicitors can guarantee the confidentiality of information shared with a client. This is protected via the legal professional privilege (LPP), which means that solicitors are legally bound to confidentiality on certain communications. This information cannot even be disclosed in court without first receiving the client’s permission.
If a matter is truly sensitive, the only way that the confidentiality of a conversation can be legally guaranteed is if it takes place between a lawyer and their client. HR professionals cannot extend the same privileges. As a result, a more colloquial definition of confidentiality must be adopted when discussing it in relation to HR conversations.
It’s important that HR professionals make this legal distinction about types of confidentiality clear to employees who approach them with a sensitive issue, as not everyone will be aware of them.
Who does HR serve?
Ultimately, HR departments exist to serve the best interests of the organisation that hires them. This is an important fact to remember when considering the issue of confidentiality. While it’s important for HR to create an environment of trust, if there is a severe conflict of interest between the organisation and an employee, in many scenarios HR will be duty-bound to side with the interests of the organisation.
Of course, any organisation is only as capable as its employees. That means that in many situations, where an employee comes to HR with an issue that they need help with, solving that issue will help the employee to perform at their best, simultaneously making them a better asset for their employer. While conflicts of interest may occasionally arise, this tends to be the dominant ideology that informs the decisions that HR professionals make.
Deciding factors on confidentiality
There are a number of different factions that will decide if the conversation can be kept confidential, both legally and practically. These consist of the following concerns:
What information is being disclosed?
Generally, HR conversations will be about discrimination or other issues being faced. There are certain cases where it is justified for HR to disclose the information gathered during the conversation to other parties. These cases include the following:
Cases where the is a significant risk that the employee might put themself or others at risk. This is even more crucial if there is a vulnerable person or child involved.
Cases where it’s safe to disclose the information (according to the terms of the Public Disclosure Act 1998).
Cases where sharing the information gathered from the conversation is necessary in order to achieve legal compliance.
These cases can cover a broad variety of different situations, meaning it is often justifiable for confidentiality to be broken.
What action does the employee want to have taken?
Often, HR departments won’t be able to directly solve issues themselves. Rather, they will be able to give advice, whether medical, professional or emotional. Confidentiality can often put further limits on the actions that an HR professional can take to help solve issues that employees come to them with, and it’s important that this is communicated to employees.
It can often be a good idea to state the following in these situations: that you will start off confidentially, and then based on the actions that need to be taken, can discuss whether it might be beneficial to disclose that information to other parties who might be able to provide further assistance.
Duty of care
All employers have a duty of care that extends to all of their employees. Failure to protect employees when an employer becomes aware that they’re in danger can result in legal action being taken against them, potentially resulting in hefty fines. This can often further complicate the matter of confidentiality.
With these matters, it’s important that HR professionals use their professional judgement to consider what kinds of risks the employee who has come to them might face. In some cases, it might be necessary to contact an employment law solicitor, to receive sound legal advice on what action should be taken in that exact scenario.
How HR professionals can approach the topic of confidentiality
In order to help maintain an environment of trust where employees feel confident to come forward with issues, it’s important that HR professionals approach the topic of confidentiality with caution.
Before a conversation takes place, it’s important to lay out the limits that apply to confidentiality between HR departments and employees. This helps to ensure that the employee doesn’t feel betrayed if that information later needs to be disclosed, helping to develop a positive work environment. The process could look like this:
Find an appropriate space: first, you want to make sure the meeting happens in a comfortable environment, where no-one else can listen or peer in. Asking the employee if they’re comfortable with the environment you’ve chosen can also help put them at ease.
Lay out the limitations: explain that there may be limitations to your confidentiality. First that you may be required to disclose any criminal activity to the relevant authorities, and second that any remedial action to their issues may be limited if the issue can’t be shared.
Continue with the conversation: once you’re sure that the employee understands the limits to confidentiality, you can allow them to continue. If they mention something that you will be required to disclose, you may want to alert them to that fact, in a sensitive manner.
Obviously, the right thing to do will differ case by case. HR professionals should use their best professional judgement at all times, and must not be hesitant to reach out for legal advice if they suspect an issue is beyond their capabilities.
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