More often than we'd like, we see clients as employers receiving bullying claims in response to their attempts at employee performance management. These unfortunate situations can sometimes arise from an employer simply mishandling, or neglecting to, manage performance correctly. In this article we outline what does and does not constitute bullying in the workplace, and steps employers can take to avoid the types of scenarios that may lead to bullying claims.
What is bullying? Bullying is a form of harassment. It may involve aggressive, intimidating behaviour that leaves the person in question feeling upset, distressed and perhaps fearful. Actions that may be referred to as bullying can vary, from repeated shouting to physically aggressive behaviour. There is currently no statutory definition of bullying although there are moves afoot to introduce stronger anti-bullying measures and a standardised definition of what constitutes ‘bullying behaviour’.
Rigorous performance management: Performance management usually becomes necessary when there are problems with an employee’s work. It is important that feedback given to employees is constructive and delivered in a reasonable way. The employer should consider the communication style and avoid an aggressive approach or tactics that could be perceived as intimidating.
If raising performance problems, be organised in your approach. Some points to consider are:
- Have a third party (e.g. HR advisor) present for the meeting and offer for the employee to have a support person present.
- Prior to meeting with employee, consider the issues and ensure you can refer to examples.
- Performance issues should relate to work only and not be personal.
- Consider what support you could provide to address issues (additional training; extra help; review of work etc.)
- Offer the employee an opportunity to respond and be involved in creating a plan.
- Consider a defined timeline and action plan to ensure the issues are resolved.
Regular performance reviews: Consider regular performance reviews for all employees. These provide an opportunity to engage with and motivate employees and also enable both parties to raise any issues. The annual performance appraisal is an important part of this process but there should be other times where feedback can be exchanged between the employer and the employee.
What is discussed and agreed upon during the performance review should be documented. This provides a useful reference point for subsequent reviews and also provides a paper trail if problems occur later (e.g. were performance issues raised and acted upon?).
Prevention is the best remedy
Considered, consistent HR policy and practice can go a long way towards mitigating legal risks. If problems do arise, ensure they are dealt with quickly, fairly and transparently.
Sarah Waterhouse – Solicitor
Andrew Bland - Principal
Image courtesy of David Castillo Dominici at FreeDigitalPhotos.net