a resource, my insights, and news

She is just being 'oversensitive'.

The most introspective of souls are often those that have been hurt the most

- Shannon Alder 

 

One of the many reasons I love Foxtel is the fact that on any given day there is at least one episode of Law & Order or CSI I can record to watch at some later point.  I quite enjoy the forensic nature of this stable of shows (for obvious reasons).  In addition, I quite enjoy seeing rapists,  murderers and child molesters get their come-uppance.  It’s very rare that I don't have a wide selection of these shows on my planner to watch at my leisure.

In Law & Order: Criminal Intent recently (Ok , it was a repeat, as are most of them) – a show called Baggage – Goren and Eames were investigating the murder of a female supervisor at an airline.  The woman supervised a number of  baggage handlers, all men, some of whom had been sexually harassing her.  At the risk of spoiling the ending, the murder actually had nothing to do with the sexual harassment, but her promotion to a management position.

This was a fictional story, yet it was easy to imagine this happening in real life

I found my blood boiling though at some of the detail of her claims of sexual harassment and bullying and how they were investigated.  The victim had kept a journal detailing the harassment, which included:

  • physical intimidation (standing in her way in passageways, requiring her to brush past them, standing over her desk)
  • organising team drinks at strip clubs
  • putting up playboy posters next to her locker
  • sexual, anonymous phone calls
  • unwelcome text messages
  • comments on her clothing and looks
  • threats of rape if she reported the harassment
  • urine and semen on her belongings in her locker

As well as her journal, she had told her father about the harassment.  His advice was to ignore it, and it would go away.  Which of course it didn't.

Regrettably, the HR Manager did not engage an external, independent investigator when the employee raised her concerns.  In the words of the Manager, it was determined, without investigating thoroughly, that she was ‘over-sensitive’ and exaggerating. 

Investigations involving sexual harassment are often difficult when only the complainant and the respondent have their versions of events. If this were a real case, a good investigator would have been able to speak to the father, would have seen her journal, and accessed phone records to back up claims of the harassing phone calls and texts, without pre-judging the issue based on personalities or biases.

Why an external investigator?

Dispassionate objectivity is itself a passion, for the real and for the truth.

- Abraham Maslow

Many organisations, when faced with a complaint of bullying or sexual harassment, or other misconduct, elect to conduct the investigation ‘in-house’.  The ‘easy’ path is not necessarily the best one.  There are numerous examples of flawed or incomplete internal investigations resulting in criticisms from the Fair Work Commission and in some cases reinstatement following termination.  This, to be honest, is just awkward.

There are many advantages in engaging one:

  • Your internal resources may be stretched.  Investigations can be very time consuming and an external investigator can dedicate the necessary time and resources to get it completed in a timely way.
  • It is a stressful process for all involved — complainant, respondent and the witnesses, as well as other senior staff.  An external investigator can complete the investigation in a way that reduces the stress for the parties, and your internal HR team.
  • Investigations can have an enormous emotional impact on staff when they are conducted internally, when they know the people involved, as well as a strain on them intellectually, if they are not familiar with process and procedure.  External investigators are not emotionally invested in the outcome of the investigation, being engaged to investigate and report on the facts.  
  • An external investigator is completely impartial.  Without knowing the personalities of the people involved an external investigator brings no pre-conceived ideas or biases to the investigation.  This means it is likely to be perceived as a 'fairer' process.
  • Having an external investigator means that your HR Manager, or other senior staff member who would ordinarily conduct the investigation, is able to provide 'emotional scaffolding', if needed, to the staff involved.
  • The seniority of the people involved may require an external investigator.  If, for example, the complaint involves someone to whom your HR Manager reports, it is not appropriate for that person to conduct the investigation.
  • Perceptions of other staff can be more easily managed — internal investigations might be perceived as a ‘white wash’ or a ‘ticking boxes’ exercise, and looked upon with cynicism.  Bringing in an external investigator shows staff that management takes the issue seriously.
  • An external investigator is more experienced in conducting investigations and able to extract information others may not be able to.  Professional investigators are very used to the charmers, the silent aggressors, the blamers, the people who don’t want to be involved and the underminers, and know how to deal with them.
  • When an external investigator is engaged, it is unlikely to result in allegations of a lack of natural justice.
  • Where recommendations are called for, management can act on them, as advice from the Investigator.  This takes some pressure off management in terms of perceptions of staff in how the matter has been handled.

There is always a place for investigations to be conducted internally, but don’t under-estimate the value in having an external investigator deal with a difficult issue for you.

 

Lawyers and the ripple effect of poor work environments

It is health that is real wealth and not pieces of gold and silver

- Mahatma Ghandi

A recent study by Dr Rebecca Michalak of PsychSafe, has shown that the legal profession has the lowest levels of health and well being of white collar workers, and that they are also the highest users of drugs, alcohol and tobacco.  In fact substance abuse is approximately double that of other white collar workers.  You can read a summary of her report here.

It is no secret that the very nature of the legal profession is inherently stressful — long working hours, the tyranny of time sheets and budgets, demanding clients, competition, and a pessimistic view of the world as a result of always having to look for the worst case scenario and plan for it, all contribute to stress, which over a long period of time cam lead to many health problems.  These health problems include many physical illnesses and also mental illnesses.

Sadly, substance abuse can be a by-product of mental health issues as those suffering from it attempt to self medicate, rather than admit to it.

Dr Michalak said that rather than teaching resilience, to cope with stress,  law firms needed to take proactive, preventative measures around the systemic failings and work environments to prevent it happening at all.

I agree with Dr Michalak - at present the legal profession has almost double the rate of mental health diagnoses as the general population.  This is a systemic issue not a personal one.

Disturbingly, her report also found that:

Lawyers were also more likely than other professionals to be exposed to toxic behaviour in the workplace, including verbal abuse, mistreatment, bullying, competition, and destabilisation from colleagues, as well as sexual harassment

The ripple effect of poor work practices and environments is large, and getting bigger.

 

Power, Position, Prestige - and deafening silence

Every closed eye is not sleeping, and every open eye is not seeing.

- Bill Cosby

I used to be a huge Bill Cosby fan.  I was a fan long before his days as Dr Cliff Huxtable, the patriarch of the Huxtable family in The Cosby Show (it never occurred to me to query then why it was called The Cosby Show when the main character was Dr Huxtable, but I suspect narcissism is the answer.  But I digress...)

When he was just a comedian, I used to listen to many audio recordings of his comedy routines including Fat Albert (“Fat Albert had a car”) and his hilarious take on parenthood (“I ran out of petrol, just shutting the car door”).  When he starred in The Cosby Show as Dr Huxtable, the head of a household of five children with a working wife (a lawyer, no less) it was both hilarious and honest, and he became much admired as not just a comedian, but a successful TV star and an admired family man.  Many grieved when his only son was killed in a tragic accident, because they felt they knew him.

Sadly my fan girl days for Bill Cosby are long gone with the increasingly long line of women alleging sexual harassment, sexual assault and rape at his hands.  At last count there were more than 50 women who have come forward with these allegations.

I am far from a fan of trial by media; however even if only 10% of the claims are true, they are horrifying.  It is not a numbers game — that figure of 10% is to answer the many people who are asking 'why now?', and 'are they just in it for the money?'.  Let’s assume for a moment that all of the claims are true (and note that none of these claims have yet been tested in Court) —  how is it possible for a man to avoid prosecution or publicity over the course of  such a long career of harassing women?

The answer is that power, prestige and position engender silence.

Clint Smith (educator and poet), in an excellent, and short, TED talk on the danger of silence, said:

“Silence is the residue of fear.”

He was not talking about sexual harassment specifically, but his words are very true.

In my work as an Investigator, I find that very often women who claim to have been sexually harassed have been reluctant to make the allegations, and this is largely borne out of fear.  They are still fearful even once they have plucked up the courage to come forward- and that decision is not taken lightly.

Fear takes many forms.  One of them is fear for your job.  For example, I once listened to a single mother of two children who was, or had been, on probation in a new job when she experienced sexual harassment.  She said at the time that she feared being terminated while on probation if she raised the issue at the time.  She said “What chance did I have of succeeding in bringing this to a good resolution, when he could have terminated me at any time, and for no reason?  I had two children to feed and I needed that job”.  Unfortunately she tolerated sexual harassment and, from what she told me, sexual assault for fear of being sacked, until she found another job and left.  She left, and her boss is probably treating someone else the same way.

Another very genuine fear  for women is job prospects.  If the person doing the harassing is someone with decision making power over salary or promotions, raising an allegation of sexual harassment can put someone in a difficult position, particularly when there was no one else able to make that kind of decision.  Also, in a structure where the perpetrator is the only one 'talking up' to his immediate supervisor, the likeliood of support is perceived as low.

In Bill Cosby’s case, many of the women were young actresses hoping for a “break” in the industry who needed to work, and the old adage that “You’ll never work in this town again” was no doubt going through their minds at the thought of raising an allegation against the much loved Bill Cosby, after the shock of discovering that the person they were meeting with was not the loveable Cliff Huxtable, but a sexual predator.

Fear of not being believed is  another very genuine fear that women have.  And this is more relevant where the perpetrator does have power, prestige and position.  Who would believe that Dr Cliff Huxtable, the loveable father of five (and note Bill Cosby was also a “happily married” father of five children at the time) could be responsible for such despicable acts?

The same goes for senior men in organisations who appear to have a lot of power and prestige that goes with their position.  When men put on a public face of being happily married, a good boss, kind to animals, or whatever else they want people to believe, it is hard for people to believe they could be capable of assualt or sexual harassment.  In fact, peopld don't want to believe it.

At work, as much as in Hollywood, women fear not being believed, fear losing their jobs or fear that their careers will stall if they speak up.

Silence can be deafening.  Shame associated with the events surrounding the allegations can also be responsible for the silence around this issue.  In cases where alcohol or drug use is involved, after hours, many women feel partially or completely responsible for what happened and do not want the spotlight turned on them, questioning their own behaviour and their contribution to the events that transpired.  This is so akin to victim blaming in rape cases it’s not funny — it's just a question of degrees.  In the words of Beverly Johnson in Vanity Fair:

“I sat there still stunned by what happened the night before, confused and devastated by the idea that someone I admired so much had tried to take advantage of me, and use drugs to do so.  Had I done something to encourage his actions? …

For a long time I thought it was something that only happened to me, and that I was somehow responsible.  So I kept my secret to myself, believing this truth needed to remain in the darkness.  But the last four weeks have changed everything, as so many women have shared similar stories, of which the press have belatedly taken heed.”

Shame is easy to come by; hard to get rid of.  A client I spoke to recently said that she once offered to drive her very drunk boss home from a work function, and that he made a pass at her in the car — at the time she was embarrassed but made no complaint.  However, having rejected his advances, she then became the target of bullying behaviour.  When she plucked up the courage to speak to HR, the first words she was greeted with was 'Why on earth did you get into a car with him?'.  The first reaction was to somehow hold her responsible for his actions.

What is interesting is that in the Bill Cosby case, once someone came forward, other alleged victims of Bill Cosby have also come forward and their stories are disturbingly similar.  In workplaces, it is unlikely that someone who indulges in the sexual harassment of female employees does it only once.  Whilst silence can be golden, it can also mean that the act goes unpunished and other women will suffer the consequences.

Break the silence.  Tell your truth.

 

 

Psychopaths in the workplace

If you know someone who cares more about power and material things than people, watch them very closely. You may be dealing with a psychopath.

- Michelle Parsons

 

Workplace psychopaths can appear normal.  They are also mostly charming, on the surface at least, because charm is one of the many tricks they use to manipulate others, and they  lack empathy, meaning that they cannot understand the feelings of others, or put themselves in the shoes of others.  They are almost always narcissists as well – making every situation all about them, particularly if something has gone wrong – it becomes about what they did right and everyone else did wrong.  These people are walking amongst us!

By the time you recognise an office psychopath it may be too late, as the damage they have done to the workplace will be enormous.

Professor Robert Hare, a criminal psychologist, developed a diagnostic test to determine whether someone is a psychopath or not (called the PCL-R).  For more information see the article here.  

This is a list of 20 criteria, each given a score of 0 if it doesn’t apply, 1 if it somewhat applies and 2 if it fully applies.

Some of these (and I am not including those relating to criminal psychopathic behaviour here) include:

  • Glibness/superficial charm
  • Grandiose sense of self-worth
  • Pathological lying
  • Being cunning/manipulative
  • Lack of remorse or guilt
  • Emotional Shallowness (genuine emotion is very short-lived, probably fake  and egocentric, i.e. it becomes about them)
  • Callousness; lack of empathy
  • Unwillingness to accept responsibility for own actions
  • Tendency  to be bored easily
  • Parasitic lifestyle
  • Lack of behavioural control
  • Lack of realistic long-term goals
  • Impulsivity
  • Irresponsibility

 

A score of 30 or more  out of a possible 40 would qualify someone as psychopathic, according to Hare.

Recognise anyone with whom you work?  Or live with? The latter is potentially scary.

Psychopaths can be fun to work with, for a while – a tendency to be bored can be seen as someone who is always coming up with good and interesting ideas.  Being charming means that they are good at giving compliments (even if they are manipulating you by doing so).  A grandiose sense of self worth will at first appear to be nothing more than confidence.  Impulsivity can extrovert as having a keen sense of fun.

But be warned – a psychopath is a dangerous work colleague or employee.  They  will never accept responsibility for a failed project; any goals they fail to achieve (no matter how unrealistic)  will be the fault of someone else; they will lie to get out of any difficulty; they will turn any success into being about them.  If a psychopath is in a position of power and the only one doing the talking to management senior to him or her, you can be sure nothing good is being said about any work colleagues or junior employees.  Because they are so charming and often, as I call them ‘kiss up and kick down’ people’, senior management is unlikely to believe someone who raises a concern about their behaviour.

Psychopaths are also unlikely to bully anyone overtly – bullying will take the form of undermining, isolation, exclusion, gossip, and other subtle means.

A recent article listed the top 10 careers for the highest percentages of psychopaths – there are few surprises here (although I was surprised by the addition of clergy on the list).   

Of course the good news is that only 4% of CEOs are diagnosable as psychopaths – 4 times that of the general population.  But it is important to focus on the positive – that 96% of CEOs are not. Of course where does that leave lawyers who become CEOs?  Is that a double whammy?

As an investigator, I am always on the lookout for psychopathic traits that could impact evidence - particularly the tendency to be charming, as they will no doubt try to charm me to influence the outcome.  I am not easily fooled.

 

 

From Class Room to Tea Room

The events of childhood do not pass but repeat themselves like seasons of the year.

Eleanor Farjeon

Bullies are everywhere. I don't know of a single person who has not experienced either first hand bullying or witnessed bullying, whether it be in the classroom or the workplace.

Real bullies have an enormous impact on their victims - from developing lack of confidence, to anxiety and depression, and sadly some of this behaviour and the results of it start at school.  Studies have linked the onset of depression in adulthood to being bullied as a child - you can read more about that in this Forbes article.

I am a fan of the show Seinfeld, and recall an episode in which a lost school library book comes to haunt Jerry, by way of a large fine. In his quest to recall what happened to the book, and discovering along the way that their bullying gym teacher was now homeless, and living on the street outside the library, Jerry and George remembered the treatment dished out to them at school - George and Jerry's gym teacher referred to George Costanza as 'Cantstandya', which the jocks at school of course enjoyed. But the epitome of the bullying was 'the wedgie' where the jocks would give them a wedgie (pulling one's underpants up through the shorts). An 'atomic wedgie' occurred when the waistband was ripped off. Elaine is quite horrified by this and the conversation goes like this:

Elaine:  Boys are sick

Jerry: What do girls do?

Elaine:  We just tease someone til they develop an eating disorder

Cue the canned laughter!  The delivery of these lines make it funny but the reality  is that for the victims of bullying it is no laughing matter, whether as a child or an adult. While I have no doubt atomic wedgies could still be 'a thing' in some workplaces, they are hopefully very uncommon.  Other forms of school room bullying which are still very common in the workplace include:

  • Name calling
  • Humiliation
  • Teasing
  • Exclusion
  • Isolation
  • 'Ganging up'
  • Withholding information
  • Withholding invitations
  • Physical intimidation
  • Actual physical violence
  • Gossiping - spreading misinformation or malicious rumours
  • Use of social media to humiliate and intimidate

At school, a bully may invite the whole class except one person to a party.  At work, a bully might invite the whole team to drinks after work, except one person. At school, a bully may stand over a classmate and threaten to hurt them if they don't hand over their lunch or lunch money.  At work, a bully might stand over a colleague and threaten to hurt them if they don't do something for them.  At school a group of students might 'gang up' on a classmate and tease and humiliate them.  At work, a group of workers might similarly 'gang up' on a work colleague.

Of course, to be bullying the behaviour has to fall within the legal definition of bullying, but you get the idea.

When you think about it, adult bullying is incredibly childish. It is the same as schoolyard bullying - the only differences are in demographics and geography.  The impact on the victims is the same, if not worse. It is a source of hope that the many programs being introduced in schools will see a positiove impact in years to come in workplaces.  If not,  perhaps bullies in the workplace should be treated as children - give them detention, groundings, suspension and expulsion!

Investigations - so you think your Facebook is private?

A team is not a group of people who work together.  A team is a group of people who trust each other

- Simon Sinek

More and more in my work as an investigator, the use of social media is brought into complaints about behaviour, predominantly as evidence of bullying or other misconduct.

A recent investigation into bullying produced an interesting turn of events.  A witness produced a screen shot of a Facebook group message sent to her and others in the workplace.  She said she had felt uncomfortable about it at the time, but had mentioned it to no one at the time at the time either, not wanting to 'get involved'.  She told me that she had not participated in the conversation and had 'left' the conversation once other messages came in so she only had the one screen shot.  What was telling, was that the respondent to the bullying allegation had sent a group message saying:

'I can't stand that stupid bitch. I  am determined to make her life so f***ing miserable that she'll wish she had never applied for the job in the first place.  Who's with me?'

Case closed?  Not so fast, unfortunately.  Bullying has to happen 'at work' for it to be considered to be workplace bullying, so the usefulness of this one Facebook message, between several people from the workplace, sent at night outside work hours, only goes so far.  It is important to note that no name was mentioned in the Facebook message, even though the witness said she understood it to be referring to the complainant.

The behaviour complained of 'at work' needs to meet the litmus test, on the balance of probabilities, that it is bullying.  The screen shot however was useful as supporting material as to intent, and the probability that the behaviour was unreasonable.  The evidence of bullying was such that it was proven, on the balance of probabilities, to have occurred, over several months and in several different ways.  The person who sent the message was the respondent, and the behaviour complained of commenced at approximately the same time as the message.  But the message itself, was not sufficient.

The important lesson for both employees and employers is that even if Facebook pages and other forms of social media are set to 'private', it is still possible to access this information.  Others may copy or print off posts or forward them to other people, in the workplace and to a wider audience.  Technological advances also mean that employees with smart phones provided by their employer may have their private social media presence monitored from time to time.  Employers must review their policies on a regular basis to ensure their policies keep pace with technology, and that staff are aware of those policies.  This client also amended their policy to include a 'bystander' clause to encourage those who witness inappropriate behaviour to step up and support the recipient.

Of course, the number one lesson is that people should always treat their work colleagues with respect - it is not that hard to be kind, to be honest.

Social media has many advantages but it comes with great responsibility as well.  Anything you post, even if you think it is private, can still be used as evidence against you, and others in some cases,  in an investigation

 

 

Inclusive behaviour may prevent bullying claims

There is only one way to look at things until someone shows us how to look at them with different eyes.

-Pablo Picasso

In my work, I am often appointed as an independent investigator in relation to complaints of workplace behaviour – most often these are bullying complaints and occasionally sexual harassment.    Complaints of sexual  harassment are often difficult because without witnesses it is usually a case of ‘he said, she said’.  Occasionally there will be a ‘smoking gun’.

In relation to bullying, these cases are difficult for entirely different reasons.  I often say that ‘bullying is in the eye of the beholder’.  What might be perceived as bullying by one person would not bother another.  Regardless of the sensitivities of the complainant, bullying claims all have to be investigated in light of the relevant legislative definitions, which involve what is meant to be an objective test but is in fact the very subjective test of reasonableness.

A few things have been made clear over the course of my work in this area, combined with the work I have done with Diversity Partners recently in relation to inclusive leadership.  Inclusion is about how people feel at work, and it is possible to bully by exclusion.  So the very behaviours that go with being an inclusive leader can also help prevent  a bullying claim.

We often attribute certain behaviours to a person rather than a situation they are in.  I can recall starting a new school in year 6 – it was a small school and I started in the middle of a term. There were 16 eleven year olds in the class before I joined.  Binna Kandola talks about the effects of ‘In Groups’ and ‘Out Groups’ in his book ‘The Value of Difference:  Eliminating Bias in Organisations' and I was very much a one girl member of the out group that year.  That group of students made me feel isolated, strange, different and unwelcome.  I can recall walking into the classroom and they were looking at my report card from my previous school which had been on the teacher’s desk, and one of them said ‘you must think you’re really smart’.  I said nothing.  I was very quiet and tried to physically shrink in the classroom.  After a while I became angry and my natural extraversion kicked in and I started fighting back verbally.  This made it worse of course.

I was then labelled arrogant, rude, and bitchy.

Did I feel bullied?  Absolutely.  Did they intend to make me feel like that?  Probably not. 

Children of course don’t think as adults – but imagine the above scenario in a work situation.  A new team member starts, and feels excluded, different.  She sees the team members looking at her CV or performance review documents and making snarky comments.  She goes quiet then gets angry.  Does she feel bullied? Absolutely.  Did they intend to make her feel like that?  Probably not.  But the potential for a bullying claim is there.

Had this behaviour been properly attributed to the situation and NOT the person, the result would have been entirely different.  Had those school children or the team members chosen to think and act inclusively, the situation would never have deteriorated.  So think about your behaviour – are you acting inclusively?  Are you inviting this person to be involved, getting to know them, asking how they are getting on, offering to help with the new environment and introducing them to the people they need to know?

Inclusive behaviour, along with reflection on your communication style, will go a long way to preventing a bullying claim

CYA - Manage performance, but don't leave yourself open to a bullying claim

'There's a fine line between character building and soul destroying'

Colin Hay

In my line of work I have seen and investigated far too many genuine cases of bullying, and have witnessed the effects this has on the victims of it.  I have also seen far too many disingenuous claims, used as a tactic against a manager for various reasons, but usually when a manager has been addressing performance issues.   Regardless of the outcome, an investigation into bullying or workplace harassment is very stressful for all involved.  So of course the easy solution is — don't be a bully, and even if you're not, don't set yourself up for a bullying claim.

So if you are a manager of people, experienced or not, and you need to address some performance issues with one of your staff, how do you avoid a bullying claim when you genuinely want only the best for your employee and the business?  I have previously give some 'how to' tips in relation to giving effective feedback here .  Given that the definition of bullying is that it is repeated unreasonable behaviour etc, there should be no confusion between  the process of managers or supervisors giving feedback on performance, and bullying. Sounds simple, doesn't it? Unfortunately, bullying is sometimes in the eye of the beholder, and there is nothing to STOP a claim being made regardless of the merits.  So how best to protect yourself?

First of all there is a difference between giving general performance feedback and formal performance management.  Giving feedback on an employee's performance should be regular.  And it should be often, especially if it is positive feedback. Positive feedback builds confidence and engagement. Oftentimes people tell me they only get feedback when they've done something wrong or at their annual performance review.  Annual reviews should be seen as an opportunity to record a formal discussion and set goals, and there should be no surprises for the employee if regular feedback has been given. Performance management is of course more serious — where you need a fundamental change in order for someone's employment to continue. 

There are a number of ways to reduce the risk of a bullying claim following or during the process of performance feedback or management in any form.  Essentially, put yourself in the shoes of the employee and see things from their perspective. Little things can add up to big trouble for you, especially where nuances of behaviour or perceptions come into play.

Regardless of whether it is general performance feedback or performance management, document all discussions, whatever the behaviour that needs improving; big issue or relatively minor.  I call this 'CYA' or 'Cover your Arse'.  You never know when a conversation, combined with other events, can come back to bite you!

Keep it confidential.  Other than having a confidential discussion with your own supervisor, if you have one, never discuss it with another employee.  Small things and changes in behaviour can lead to unwarranted perceptions on the part of the employee.

Don't try to soften the blow, by, for example suggesting you go for a coffee, or have a chat.  Be clear about what the conversation is going to be about, to avoid allegations that the employee was unable to prepare or was 'ambushed'.  If it is the first time you have had to speak to them, make sure they understand they have the opportunity to come back to you at a later stage if they want to address any issues.  This is particularly important if you are dealing with an introvert. Introverts need time to process their thoughts and may wish to have the opportunity to address your concerns after they have had a chance to think about the feedback they have been given.  So be alert to an employee who sits there in silence.  You may well go back to your office, breathing a sigh of relief,  thinking 'so that went well' while your employee is seething with resentment.

Give the employee an opportunity to come up with solutions to the problem themselves, rather than necessarily dictating them.  They are far more likely to be engaged in the process of improvement if they themselves have thought of ways to improve.

Beware of  your body language after the discussion - I know it can be uncomfortable having had a difficult discussion, but if your employee perceives you to be behaving differently afterwards, this can add to any negative feelings they may have towards you.  Related to this — keep an eye on other team members' behaviour as well.  If they know or suspect a colleague has been having performance discussions, they may change their behaviour, and avoid eye contact or any contact at all, just due to discomfort with the situation.  

Don't try to make it easy for them, even if you feel some sympathy for them, by taking work away from them without discussing it first.  If they suddenly feel like they are being excluded from certain work, or opportunities, not included in emails and so on,  a small resentment can easily develop into a view that 'they're trying to get rid of me'.

Don't suddenly start micro managing the employee — again this will lead to a perception that they are being watched, picked on, etc.

And whatever you do, do not, ever, lose your temper with that person.  While being angry once in a blue moon is certainly not bullying in any definition, and perfectly understandable from time to time, combined with all of the above, it will form of a bullying claim.

Many different behaviours, taken together, rather than in isolation, are likely to form the basis of a bullying claim given that there has to be a 'repeated behaviour' to establish a claim — make sure your intentions are genuine, and your own behaviour is beyond reproach.  If a bullying claim is made, regardless of merit, you will need to be able to answer all allegations.

Most good workplace behaviour policies and the new legislation have a definition of what bullying is NOT - reasonable management action conducted in a reasonable way.  So while discussing performance issues is of course reasonable management action, it must also be conducted in a reasonable way.  Shouting, banging the desk, swearing, telling someone they're useless, excluding them from work opportunities, ignoring them, is NOT reasonable and a bullying claim is likely to be proven.

There is no definition of what is reasonable in these circumstances and there will be cases no doubt that will define it or give examples of it.  The easiest test is: Ask yourself — how would I like to be treated in this situation?  That's usually the best test of reasonableness.