Q&A: Bullying and underperformance

HRD chats to Jonathon Hadley, partner at Gadens, about the legal issues relating to bullying and underperformance

Can a disciplinary process be conducted concurrently with a bullying investigation?\
One of the most common issues arising from a performance management process is a complaint of bullying or harassment. The complaint can either be in relation to a person conducting the disciplinary process, or another person within the organisation. Complaints of bullying or harassment will more often arise as a result of the disciplinary process; however, they may also arise shortly beforehand if an employee senses that they may be the subject of an investigation.

In either circumstance, employers are not automatically restricted from proceeding with both processes concurrently. There is no specific legislative requirement which requires the suspension of either process. In some cases, it may be operationally vital that the disciplinary process is undertaken and finalised expediently (for instance, where an employer’s policy requires it).

However, when assessing whether it is appropriate to continue both processes concurrently, employers are encouraged to first consider whether the claim of bullying could be related to, or adversely affect the legitimacy of, the disciplinary process. An example of this may be where the disciplinary process relates to performance issues and the complaint relates to the person responsible for assessing the employee’s performance.

• How should HR proceed while handling these two processes?

Employers wishing to proceed with both processes concurrently should ensure that the following steps are taken, where appropriate:

(a) Both processes are kept separate and distinct. It is essential that the persons involved in the disciplinary process are not also involved in investigating the complaint. Where HR cannot facilitate this, or where the complaint involves senior management, employers should consider engaging an external resource to investigate the complaint.

(b) Follow internal policies and procedures. Employers should ensure that they follow all internal policies and procedures when undertaking both processes.

(c) A clear and defined process for investigating the complaint is established. Employers should ensure that there is a clear process in place for investigating the complaint.

(d) If possible, remove the subject officer from both processes. It is often the case that the subject of the complaint will be a person intricately involved in the disciplinary process. Where possible, this person should be removed from a decision-making role in the disciplinary process.

(e) Keep clear and comprehensive written evidence of the decision-making process. In addition to further bullying claims, employers also risk a claim under the general protections provisions where disciplinary action has been taken following a complaint of bullying.