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CYA - Manage performance, but don't leave yourself open to a bullying claim
Oct 10, 2013

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.  

 

 

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