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One of the most challenging moments for any manager can be when a team member entrusts you with information about possible inappropriate behaviour and then asks, “Please don’t say or do anything, and don’t identify me.” Immediately, the issue of vicarious liability comes up in the manager’s mind: “If I don’t take 'reasonable precautions' to prevent discrimination or harassment, I could be responsible for this behaviour." As they well know, for managers to know and not to act is not an option. But a formal response in haste and without preparation may also be unwise. So what can one do, without breaking the trust of staff who have reported their issues and yet, at the same time, taking reasonable or necessary action? Some important considerations and possible courses of action are outlined below. Reasonable Action to fulfil Duty of Care: 1. Identify the behaviour. First of all, your response will depend on the type of behaviour being reported. Generally, such behaviours could be categorised into the following:
It is important to enquire about specific behaviours being observed rather than relying on labels which mean different things to different people, e.g. “he bullies me”, or “she micro-manages”. Ask the person to describe exactly what they observed e.g. “If I was present in the room when it happens, what would I see or hear?” The responses will give you a clue about the behaviour being reported. 2. Assess the level of risk. Enquiring about the impact of this behaviour on the person reporting it will provide a useful basis for estimating the level of risk to the health of this individual and other team members. The risk of such behaviours can also be estimated more broadly for the organisation, for the community or other stakeholders, depending on the likelihood of consequences if no action were to occur. The intensity of emotion reported by the person will give you a clue about the level of risk to their psychological health. But it does not, by itself, necessarily imply an inappropriate behaviour has occurred. For example, someone can be understandably emotional following a negative (and appropriate) feedback about their performance. It is important to listen carefully, actively paying attention to the person’s emotions, without judging the other person. We need to fully hear the person’s story, remaining supportive, empathic and respectful. Irrespective of your chosen action, reassure the person of your concern, set up a follow up session to see how the situation progresses for them. Remind them also of the EAP support available, if needed. 3. Respond appropriately and promptly. Inaction is not an option, but wise action is informed by the risk assessment and it is commensurate with that risk. If the behaviour is of the more serious type or the risk is high, you need to act immediately and seek further advice about a possible investigation which can be initially informal. Your action also needs to be documented. If the behaviour falls into the lower risk category, further sensitive enquiries can also be appropriate and reasonable under the circumstances. Some suggestions are outlined below. Reasonable Action to fulfil Duty of Care: 1. Encourage direct resolution. Ideally, each employee should feel empowered and skilled to directly communicate with the person who displays the behaviour that is unacceptable to them. Providing some encouragement, skills and support may be sufficient for the direct communication to take place. A follow up discussion is vital. 2. Observe the behaviours yourself. Having an account of potentially inappropriate behaviour is one thing; if possible, it is obviously useful to observe it directly. If timing is not an issue, place yourself in a position where you can more frequently and directly observe the interactions between the individuals in question. If your observations lead you to conclude that the behaviours are inappropriate, you can take action based on this knowledge without identifying the informant. Your action in this case could be to directly describe the inappropriate behaviour and remind the person of their obligations to behave according to the organisational standards, and set up a monitoring and review process to ensure the behaviour does not recur. 3. Inquire informally. If it is impractical to observe the behaviour directly, you can have an informal chat with the person accused by asking indirectly about their experiences at work. Asking questions about their leadership style, their satisfaction at work, their challenges, or interpersonal communication styles can be helpful in assessing on the balance of probabilities as to whether the reported behaviour could have taken place. As you listen for the meaning beyond the words and observe their behaviour in your interactions, you may be able to determine whether the person’s preferred style is likely to be a factor, and whether coaching, a facilitated discussion or mediation between some individuals will assist them to improve their communication or resolve any issues. 4. Conduct a team health and wellbeing assessment. When the question of whether inappropriate behaviours occur in a team setting arises without any solid evidence or formal claims, it is useful to conduct an assessment of the team’s wellbeing through a series of one-one interviews. This process guarantees confidentiality to the team members, to the extent that the report to the manager does not attribute the words to any particular individual, while identifying themes and issues on which positive action can be taken. 5. Encourage reporting. Policies and processes for resolving issues are there to provide a sense of safety and fairness to all staff. As staff utilise them appropriately and see the process at work it will build their trust in the system. As the issues are reported more freely and resolution processes put into place, it is likely that staff will take greater responsibility for confronting and resolving the issues and managers will also have more information to act upon. 6. Communicate about healthy conflict. People generally avoid dealing with difficult personal issues as they fear unhealthy conflict. Training teams to expect and deal with conflict as a healthy part of team life can reduce this fear and enable teams to identify and resolve issues by themselves. 7. Intentionally and relentlessly build a positive work environment. Above all, as the best preventive measure, it should be the aim of every manager to constantly work towards the development of a positive environment: where respect for individual differences is fostered, positive behaviours are modelled by all leaders, and all organisational values are practised.
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