There are two mistakes that employers often make when handling bullying complaints made during the disciplinary process
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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