The Christian Horner case shows how difficult it is for fair investigations to be conducted in the media glare in which confidentiality is hard to maintain, writes Sophia Zand of Wilsons Solicitors.
The anonymous woman who raised allegations about Red Bull Racing’s principal Christian Horner has appealed the decision to dismiss her grievance and has lodged a complaint with the FIA’s ethics committee. The story still has a way to go before a resolution can be reached; but so far, here are the main questions for organisations to consider.
What happened once the allegations were raised?
On 5 February, Red Bull Racing confirmed that it had appointed a barrister to investigate inappropriate behaviour allegations made against Horner after he was accused of inappropriate behaviour towards a female member of the Red Bull team. Horner denied the allegations against him. On 28 February, Red Bull gave a statement advising the investigation had been completed and that the woman’s grievance had been dismissed.
A mere 24 hours later, WhatsApp messages and pictures allegedly between Horner and the female employee were leaked to various individuals in Formula One, the FIA, racing principals and the media via Google Drive. The contents of the drive remain unverified. It was later reported that the female accuser had been suspended from her job at Red Bull, allegedly because of dishonesty.
Has there been a breach of confidentiality?
If the contents of the drive can be authenticated and are real, possibly. If it was leaked by a worker at Red Bull, they will have, at the very least, an implied duty of confidentiality. They will most likely also have an express confidentiality clause in their contract prohibiting them from disclosing confidential information to others.
However, express or implied confidentiality does not prevent workers from blowing the whistle in appropriate circumstances and in the correct way. To be covered by whistleblowing legislation, the worker must make a disclosure of information and have a reasonable belief that the disclosure is in the public interest and shows one or more of six specified types of wrongdoing.
Workplace investigations
How to conduct a workplace investigation
What should an investigation into employee misconduct involve?
A disclosure will be protected if it is made to the employer or a “responsible” third party. Potentially the FIA (as the governing body for world motorsport) could qualify as a responsible party.
Disclosures to the media will only qualify in very limited cases. Disclosures made to other individuals in Formula One, such as the racing principals, will not be protected.
Therefore, sending the Google Drive to some of the recipients could potentially be covered by whistleblowing law, but we would need to know more about the disclosures and the allegations made.
Was Red Bull right to keep the investigation confidential?
Yes. When confirming the outcome of the investigation, Red Bull said “the investigation report is confidential and contains the private information of the parties and third parties who assisted in the investigation, and therefore we will not be commenting further out of respect for all concerned”.
It is entirely appropriate and correct to keep workplace investigations confidential. This ensures the fairness of the process and protects both the accuser and the subject of the complaint (who both remained at work at that time). Those involved in the investigation should have been advised not to discuss it with others and reminded of their duties of confidentiality. Red Bull’s statement also referred to data protection considerations that also apply.
The problem for Red Bull is that Formula One is a major sport with a huge worldwide following, which has become even more popular following the documentary series Drive to Survive. The sport faces increasing scrutiny and media attention which brings with it a greater need for the industry to have an open, transparent and safe working environment. This, inevitably, will clash with issues of confidentiality.
The MeToo movement has also brought greater scrutiny to how organisations should deal with accusations of unacceptable behaviour in the workplace. Given that the female accuser has been suspended, will staff at Red Bull (or indeed generally within the sport) feel confident and supported in raising concerns? Or will they fear retribution if they do come forward? There may now be an inference in the F1 paddock that confidentiality is trumping openness, transparency, fairness and therefore a safe working environment.
Should Red Bull have appointed a barrister to investigate?
Acas guidance on conducting investigations states that “in exceptional circumstances, it may be appropriate to appoint someone who is as detached from the matter as is practical, such as an external consultant”.
Red Bull’s decision to appoint an external barrister to investigate was a good move from both a legal and reputational perspective. Appointing someone within Red Bull would have called into question the impartiality of the investigation and likely resulted in further accusations that the outcome had been whitewashed.
The importance of thorough investigations
Carrying out an investigation is key to any grievance process. If a decision is made on a grievance without carrying out a fair and reasonable investigation, it could expose an employer to potential claims.
What is reasonable will depend on the nature of the grievance and the seriousness of the concerns being raised. The investigation must be sufficiently thorough, establish the essential facts of the matter and the investigator should reach a conclusion on what did or did not happen.
While we do not know the scope of the Red Bull investigation, we do know that Horner and other third parties were involved. This suggests individuals outside of Red Bull may have been spoken to.
Employers may need to speak to external witnesses (such as a supplier or a customer) if they have evidence in relation to a grievance. There are, however, practical considerations when dealing with external parties. Firstly, they may not be willing to help your investigation and may want to avoid getting involved. Secondly, if they are happy to assist, you may need to ask them to enter into a confidentiality agreement to ensure that the evidence is not shared outside of the investigation.
What next?
Horner has reportedly said that he is confident that he will remain principal for the entire season but with an FIA complaint and appeal outcome outstanding, he remains under continued scrutiny from the stakeholders, Formula One, FIA and the media.
Whether Red Bull Racing ultimately decides his position is no longer tenable because of the reputational risks or on the grounds that there has been a breakdown in trust and confidence (even if, as is the position currently, he is not guilty of any misconduct or wrongdoing), we shall have to wait and see. A dismissal on this basis would be for “some other substantial reason” which is widely considered to be a catch-all for a potentially fair dismissal.
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