What to do when performance management leads to a bullying claim

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

BY Contributor 19 Feb 2018

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: