What to do when performance management leads to a bullying claim

Occasionally, an employee will genuinely believe they are being bullied during performance management - which might indeed be the case.

Special counsel Felicity Clarke and senior associate Jillian Howard at Hall & Willcox say the biggest mistake an employer can make in this scenario is terminating the employee.

The second biggest mistake is using the same manager to investigate a bullying claim. The most important thing is not to panic.

Clarke and Howard say it’s essential to consider the following steps:

Separate the performance management from the bullying:
Employers can become overwhelmed because they are now dealing with two things: an underperforming employee; and a bullying investigation.

Employers must realise they can deal with both, but it’s best if they are treated separately.

Assess whether a formal investigation is required:
Investigations almost always result in one or more employees leaving – there must be caution, and a policy and procedure on when to conduct formal investigations.

As part of an initial assessment:

• Ask, could it amount to bullying if substantiated?
• Be careful about declaring behaviour as “not bullying” because there are significant risks in getting it wrong.
• Acknowledge any complaint soon after it comes in; advise the employee an initial assessment is being conducted.

Does the accused bully need to be suspended?
Suspension is a drastic measure not to be taken lightly. Some key questions:

• Is the alleged misconduct serious enough it could result in dismissal if substantiated? If so, there is safe ground to suspend.
• Is there a risk the employee will commit further misconduct? This provides safe ground to suspend.
• Is there a risk the employee will interfere in the investigation? Might they attempt to destroy evidence or influence witnesses? All these factors go towards suspension.
• In all cases, suspension must be on full pay and for no longer than is necessary to complete the investigation.

Proceeding to investigation:
Some key points before proceeding to investigation:

• Find the right investigator: The investigator must be as independent as possible to avoid bias allegations; the investigator must be at least as senior as the employee being investigated; and often an external investigator is best.
• Follow the correct policy: employers with policies and procedures in place for conducting investigations increase their chances of success. If you have a policy and you've followed the process, then you'll be in a more defensible position if a claim is later brought by one of the employees involved.
• A note on policies: Good policies aren’t too heavy on detailed and prescriptive procedures – as you may later be challenged about not following your own policy. Good policies just cover the basics.
• Consider legal professional privilege: Employers often funnel all communication through lawyers, who are protected by legal professional privilege, meaning investigation documents and communications cannot be disclosed publicly.

In conclusion:
Employers who avoid making basic mistakes generally have the following in place:

• Well drafted policies and procedures
• Clear performance management process
• Established investigation procedure
• They follow policies and procedures, and keep a paper trail
• They show consistency in approach
• Appoint an appropriate investigator
• Avoid delay
• Communicate clearly on process and possible outcomes

Every complaint is different, and every complaint needs to be handled with fresh eyes. There is no one-size-fits-all approach.

Felicity Clarke is a special counsel and Jillian Howard a senior associate at Hall & Wilcox

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