Legal

When firm management turns into bullying

28 Feb 2018 By Rhian Radia

When does an ‘assertive’ style cross the line, and what can employers do to prevent it? Rhian Radia reports

Manchester United’s glory years owe much to Alex Ferguson’s firm management style. However, kicking footwear directly between the eyes of a star player crosses a line. Does Lord Alan Sugar’s management style though? Lord Sugar probably considers himself merely to be providing an honest critique of a potential apprentice’s performance. He is, in his eyes, one would think, the master of delivering a difficult message.

Communicating unpalatable news to an employee is something generally not done well, and the temptation is to be unlike Lord Sugar and deploy an avoidance technique. But what happens when an employer communicates concerns and then faces a grievance and accusations of bullying? Is this a no-win situation?

There is no statutory definition of bullying. This is important as there appears to be a wide-held belief that bullying is a type of claim to be ticked on the employment tribunal claim form. Harassment is a type of claim but it needs to be linked to a protected characteristic (sex, race, age etc) to qualify as harassment under the Equality Act 2010. Sometimes bullying is not because of any of those things. It is bullying not for a discriminatory reason but because the manager is a bully, nothing more.

Bullying is described by Acas as “offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient”. The key point here and why managers should proceed with caution is that one person’s bullying may not be another’s. Vulnerabilities and subjectivity all come into play in this area of the law, which is precisely what makes it a difficult area.

So if bullying is not a type of claim, why would employees raise it? Bullying is most often used in the employment law context as the foundation for a constructive dismissal claim where employees can argue that the term of mutual trust and confidence implied into every employment relationship has been breached. This could entitle the employee to resign with or without notice and bring a constructive (unfair if two years of service) dismissal claim and to walk free from restrictive covenants. Also, bullying can lead to personal injury claims.

Here are some tips for achieving proactive assertive management that does not stray into bullying:

  • Set clear objectives that are regularly reviewed. Addressing performance is a key part of any manager’s job and it can be made easier if employees are fully aware of what is expected of them. This gives the manager a way to raise concerns in a calm and non-confrontational manner at review meetings.
  • Do not get personal. Do not target an individual’s personal characteristics as this is a sure-fire way to sour a relationship and could lead employers into discrimination territory. Keep it neutral and unemotional.
  • Communication is everything. Two people can communicate the same message and it can sound entirely different. Send managers on training courses so they understand how to communicate effectively with their teams.
  • Understand workloads and listen to the employee. Many employees have more than one manager setting different and competing tasks. Managers should bear this in mind and understand the capacities of and demands on their team. An employee may have a perfectly acceptable reason for falling beneath required standards temporarily. Listen to these justifications and take them on board to see if that changes things.
  • Keep it private. This should be obvious but it does not play out in this way. Shouting at an employee in an open-plan area (or in a room for that matter) crosses the line. The employee will quickly be able to satisfy the Acas definition of bullying in feeling humiliated by any sort of public outburst.
  • Praise. Praise is a motivator much overlooked. Introduce positivity where possible.

Rhian Radia is head of employment at Hodge Jones & Allen

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