Employment

If recruitment processes are reliable, we can usually expect that our employees will be able to do the job we hire them for. But we ask more and more of our staff these days and performance management is not reserved for cashiers who can’t count.

Approaches to performance management are different in every organisation. If the system is properly tailored and applied consistently, it can influence culture for the good. But employment lawyers and HR are often involved in the cases that arise in spite of how effective the process is. In the hands of ordinary mortals, no system is perfect.

Pointing out someone’s failings (or their ‘weaker strengths’) puts a strain on a relationship. There is usually a build up to the use of formal procedure. During this time the employee may become defensive and insecure. The manager finds the interaction difficult and withdraws as they are delivering the message – often reverting to scripts or the use of limited examples to illustrate the issue. They may be too impatient to wait for change, or under so much pressure themselves that they don’t have the time to devote to provide the right kind of support. The employee picks up on this – and becomes isolated, taking all challenges or correction personally. It is in these circumstances that bullying complaints are often made. Of course, sometimes it is a tactic. But that doesn’t mean you can ignore it.

So when it happens, what do you do? Start with a review and risk analysis. Forget about the formal process for a moment and stand back to look at what you know.

Begin by examining the procedure so far.

  • Are the issues clearly identified? – will the employee recognise them and understand what they are getting wrong? You need to look at that objectively. Bullying allegations frequently arise in circumstances where the real truth behind the performance concern has not been spelt out.
  • Has enough genuine support or training been offered? Or if that was not needed or possible, is everyone clear and agreed on that?
  • What kind of gaps are being left between the ‘stages’ or meetings? The length of time the process takes is directly related to (1) the nature of the work being measured and (2) how long the employee has been in the job or ‘allowed’ to underperform. If the employee feels that the pressure is unrelenting or that they do not have enough time to show measurable improvement they may kick back.

Then have a look at the relationships and backdrop.

  • Do you have a new line manager dealing with long-standing underperformance – this always leaves the new manager exposed and creates additional tension. From the employee’s perspective everything was fine until the new boss arrived. There is no relationship to fall back on and bullying allegations are much more likely to arise in this context.
  • Is there are personality clash involved? If the relationship can’t be salvaged, continued performance management is going to be very difficult for all concerned and will rarely have a ‘good’ outcome.
  • Do you have a line manager who is inexperienced or under particular pressure him or herself? In an ideal world performance management would be dealt with by senior managers who are secure in their own position. That is impossible to achieve every time but it is still very important to identify when you have a manager whose skills in this area are weak and give them the right support.

So in other words – is the right person dealing with it under the right conditions?

And are there any other obvious features that would create greater risk?

  • Are there clear examples of the employee being shouted at, or criticised openly in front of peers? Does the complaint have lots of these with ‘time, date and place’ included?
  • Is there anything else in the background? Has the employee been in conflict with the manager or perhaps blown the whistle? Is there any possibility that this is a reaction to another type of conflict – nothing to do with the performance issue?
  • If the employee has protected status for discrimination (ethnic minority, pregnant etc.) stop and think. Have they made any suggestion that their treatment is because of their status? Is there anything that might point to that? This is a situation in which an independent review and legal analysis of the background is important and will help to protect both the manager and the organisation.

It really helps to look at it systematically like this. The outcome of the exercise will help you make decisions about what to do next. Here are some things to think about.

  • Can you make some changes and ask the employee to agree to drop the complaint in return? We are often nervous about trying that because it seems to be pre-judging the outcome of the formal complaint or even accepting its validity, but if it is screamingly obvious that there is a solution or a fix, why not move straight to it? Can someone else to manage the process? Can you have a different approach to gaps between stages or warnings? If you do achieve agreed withdrawal, make sure you have it recorded clearly somewhere – even just by email exchange.
  • Can you carry on with performance management if you take the ‘bully’ out while the formal complaint is being addressed? That is not out of the question and it will be quite challenging for an employee who is hiding behind the allegations to avoid being managed. So long as you are making it clear that you are not ignoring the complaint and intend to deal with it, this should be achievable. Explain that if the employee is right when they say that they are being picked on, continued assessment of their work by someone (properly) independent is valuable for both them and the organisation.
  • If the serious risk factors are more obvious and in particular if there is a potential discrimination issue, we will usually tell you to deal with the complaint before carrying on – but we can of course help you work out just how real the risk is.

And one final thing. Try to avoid multiple layers of complaint about the same thing. Natural justice allows for a least one independent review of a decision – but not three or four. And if your policies are too complicated, creating multiple layers of complaint, perhaps now is the time to pick up the phone and ask us to help you fix them!

Joan Cradden

Partner at Brodies LLP
Joan is a partner at Brodies and is leading and managing the firm's employment team. She is an experienced litigator and has specialist expertise in TUPE, International and European employment law, discrimination, contracts, policy drafting and industrial relations.
Joan Cradden