Is silencing employees, during workplace investigations, a no-brainer?

Last month, two separate US agencies made news in HR circles, about silencing witnesses in workplace investigations.

The US National Labor Relations Board found that routinely instructing employees not to discuss disciplinary investigations breached employees’ rights. Specifically, doing so breached employees’ right to act in concert for the purpose of mutual aid or protection. US law gives employees that right. A few days later, an Equal Employment Opportunity Commission branch office expressed an opinion that imposing confidentiality on witnesses breached a right to oppose discrimination.

Both events have attracted strong criticisms from US human resources practitioners.

The arguments for requiring witnesses (including complainants) to keep silent are varied. The NLRB considered whether the direction was required to protect the integrity of the investigation. The majority decision said no. They referred to an earlier decision to say that it was up to the employer to show that witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or there was a need to prevent a cover-up. That is, it was not enough for the employer just to claim a general interest in protecting the investigation’s integrity; the employer had to show why the integrity was in danger if employees weren’t silenced.

In addition to investigation integrity, other arguments for a general gag include protecting the complainant from retaliation, and protecting everyone involved from reputational damage and other forms of harm that could arise from workplace gossip, including serious forms like anxiety and psychological injury.

As well as affecting the people immediately involved, there is a broader interest in employees feeling as though they can make complaints safely. Without those protections, others who are discriminated against, are harassed, or have witnessed some maladministration, may be more reluctant to complain.

And of course, a gag particularly serves the employer’s interests in limiting the effect on the workplace as a whole, including damage to morale, gossip, and division, limiting damage to the employer’s reputation, and, possibly, limiting liability for psychological injury, or liability for employees’ reprisals against other employees. Examples of the latter would be victimisation in breach of anti-discrimination laws, or possibly breaches of whistleblower protection laws.

With those aims in mind, employers direct employees to keep investigations confidential as a matter of course. The Queensland Public Service Commission guidelines require that all “parties” are to be directed to keep any disciplinary investigation confidential. Queensland government departments comply with those guidelines. In the private sector, similar directions are given and are seen as best practice. But is a general gag appropriate and lawful?

When you are dealing with grievances, or possible disciplinary action, serious enough to warrant investigation, you are dealing with people’s lives. For complainants, the matter is probably so serious that it may have caused them an injury or otherwise seriously disrupted their life. There is also the possibility of reputational damage if their complaint does not succeed. Their interests include being able to present detailed information to the employer, and opposing any unlawful treatment. For people about whom complaints have been made – respondents – there is the anxiety of losing their job and possibly career, having their reputation ruined, and possibly facing legal proceedings. Their interest is in having a reasonable opportunity to defend against any allegations. They often feel as though they have one hand tied behind their back in responding, because they are directed not to talk to colleagues, including those who may have witnessed events relevant to the allegations made.

The interests of the complainant and the respondent should, at least, allow for some argument as to whether they (as distinct from other witnesses) should be gagged, and, if so, what conditions should attach to the gag.

That is particularly the case where a number of their colleagues are interviewed in a workplace investigation. If an HR manager or external investigator is meeting with a series of co-workers one-on-one, interviewing them about certain events, then those people will likely put two and two together and work out who is under investigation, and for what. Under a gag, neither the complainant nor the respondent can do anything positive to protect their reputation.

There are various legal considerations. We do not have the same employee rights laws as the US, and we do not have the same “right to oppose” laws in relation to equal employment opportunity. However, we do have laws of the same species: freedom of association laws, and anti-victimisation laws. It remains to be seen whether the recent NLRB decision can have any analogous application here.

We also have natural justice and procedural fairness rights, in different forms. Queensland public servants have an express right to natural justice in disciplinary matters. Private sector employees generally don’t have the same express right, but if the action leads to dismissal, they can often claim unfair dismissal because they did not get procedural fairness.

Those rights, simply put, are a right to a fair hearing with an impartial decision-maker, and an opportunity to respond to the allegations against you.

In some cases, your ability to respond is significantly curtailed if you can’t speak with others. Situations can arise where person A complains about the way that person B has treated person C. But person A is expressly forbidden to talk to person C. How can they respond properly?

The specific requirements of procedural fairness depend on the circumstances. In that sort of case, I would say that procedural fairness – specifically, the right to an opportunity to respond – would require allowing the respondent to get information from co-workers who are witnesses.

That does not mean a respondent would be entitled to intimidate, bully or harass witnesses. Doing so would in itself be grounds for disciplinary action. But there should not be a default expectation that a respondent would do the wrong thing. That sort of expectation suggests that the decision maker has already made up their mind, against the respondent’s interests – which would itself mean the respondent was not getting procedural fairness, because they wouldn’t be getting a fair hearing.

Once the matter is before a court, the situation is clear. There is no property in a witness, and if an employer was to interfere with one of the employees’ lawyer’s reasonable and proper attempts to identify and interview witnesses, that would be contempt. Industrial tribunals like Fair Work Australia have contempt rules similar to courts’. Conversely, attempts to intimidate or retaliate against witnesses can bring sanctions, and can even constitute a criminal offence.