Christian Horner’s case shows how difficult it is to conduct fair investigations in a media environment where it is difficult to maintain confidentiality, writes Sophia Zand of Wilsons Solicitors.
The unnamed woman who raised allegations against Red Bull Racing boss Christian Horner has appealed the ruling to dismiss her complaint and filed a complaint with the FIA’s ethics committee. The story still has a long way to go before a solution can be found; But so far, these are the most sensible questions organizations want to consider.
On 5 February, Red Bull Racing showed that it had appointed a lawyer to investigate allegations of inappropriate behaviour against Horner after he was accused of inappropriate behaviour towards a female member of the Red Bull team. Horner has denied the allegations. On Feb. 28, Red Bull released a statement saying the investigation was complete and that the woman’s complaint had been denied.
Just 24 hours later, WhatsApp messages and photographs between Horner and the worker were leaked to others in Formula 1, the FIA, race administrators and the media via Google Drive. The contents of the disc are still unverified. It was later reported that the accuser had been suspended from her employment at Red Bull, allegedly for dishonesty.
If the contents of the disk can be authenticated and are real, maybe. If the leak is revealed through a Red Bull employee, that worker will have, at the very least, an implied duty of confidentiality. At most, you’ll probably have an explicit duty as well. confidentiality clause in their contract that prohibits them from disclosing confidential data to third parties.
However, confidentiality, whether explicit or implicit, does not prevent your staff from reporting the scenario in the right cases and in the right way. To be covered by whistleblowing legislation, the employee will need to disclose data and have moderate confidence that the disclosure is in the public interest and shows one or more of the six specified types of wrongdoing.
How to Conduct a Workplace Survey
What does a worker misconduct investigation involve?
Acas: Disputes cost employers around £30 billion a year
A disclosure will be if it is made to the employer or an “at-fault” third party. Potentially, the FIA (as the governing body of global motorsport) can be seen as a party to blame.
Disclosures to the media will only be admissible in very limited cases. Disclosures made to others in Formula 1, such as racing executives, will be protected.
Therefore, sending Google Drive to certain recipients may potentially be covered by the Whistleblowing Act, but we would like to know more about the disclosures and allegations made.
Confirming the effects of the investigation, Red Bull said that “the investigation report is confidential and comprises the personal details of the parties and third parties who assisted in the investigation, and we will not comment further out of respect for all involved. “”.
It is entirely appropriate and right to maintain the confidentiality of investigations in the office. This ensures the fairness of the procedure and protects both the accuser and the subject of the complaint (either of whom was on the job at the time). Those involved in the investigation deserve to be asked not to talk about it with others and have been reminded of their confidentiality duties. Red Bull also refers to knowledge coverage considerations that also apply.
The challenge for Red Bull is that Formula 1 is a mainstream game with massive global success, which has become even more popular after the Drive to Survive documentary series. The sport is receiving increased scrutiny and media attention, resulting in increased need from the industry. Have an open, transparent, and functioning environment. This will inevitably lead to privacy issues.
The MeToo motion has also led to a deeper look at how organizations deserve to deal with allegations of unacceptable workplace habits. Given that the accuser has been suspended, will Red Bull (or the sport in general) feel like it?Will they feel safe and supported to voice their concerns?Or will they fear retaliation if they show up? It can now be inferred in the F1 paddock that self-confidence takes precedence over openness, transparency, fairness and therefore a racing environment.
The ACAS rules on conducting research state that “in exceptional circumstances, it would be appropriate to appoint a user who is as indifferent as possible to the subject matter, such as an external consultant. “
Red Bull’s decision to appoint outside counsel to investigate someone smart, both from a legal standpoint and a reputational standpoint. Appointing someone within Red Bull would have called into question the impartiality of the investigation and, most likely, led to further allegations that the effects had been removed.
Conducting an investigation is key to any grievance process. If a resolution is made on a complaint without conducting a fair and moderate investigation, it may simply be disclosed to the employer in the face of potential claims.
What is moderate will depend on the nature of the grievance and the seriousness of the considerations raised. The investigation should be sufficiently thorough, identify the essential facts of the case, and the investigator should reach as appropriate a conclusion as possible. to what happened or didn’t happen.
While we don’t know the extent of Red Bull’s investigation, we do know that Horner and other third parties were involved. This suggests that other people outside of Red Bull may have been contacted.
Employers may want to speak with outside witnesses (such as a provider or customer) if they have evidence related to a complaint. However, there are practical considerations when dealing with external parties. First of all, they may not want to help you with your research and you may want to get involved. Second, if they agree to help you, you may want to ask them to sign a confidentiality agreement to make sure the evidence isn’t shared outside of the investigation.
Horner is quoted as saying that he is confident he will remain a director throughout the season, but with a complaint and appeal from the FIA pending, he remains the subject of continued scrutiny from stakeholders, Formula 1, the FIA and the media.
If Red Bull Racing finally makes the decision that its position is no longer tenable due to reputational hazards or on the basis that there has been a breach to accept it as true (even if, as has been the case lately, it is not the case). blame for any misconduct or wrongdoing), we’ll have to wait and see. A dismissal on this basis would be motivated by “another really extensive reason” that is widely regarded as a wild card for a potentially fair dismissal.
Sophia Zand is a senior partner in the employment team at Wilsons Solicitors. Sophia provides business and strategic recommendations to employers on a wide range of employment-related matters, aggregating contracts, handbooks, restructurings and layoffs, complex layoffs, and grievances and disciplinary matters. In hard-working court proceedings, he defends corporations in a wide variety of disputes.