Our legal advisers explain how to avoid allegations of bullying or harassment when managing poor performance.

Carrying out appraisals is often a challenging process for managers, particularly when difficult conversations about poor performance are required. There has been a recent increase in MiP members reporting that they have been accused of bullying and harassment when tackling poor performance. Such accusations can have severe implications – including suspensions or unpleasant, protracted investigations, so it’s important that managers understand how the law deals with accusations of bullying.

‘Bullying’ is not defined in law but is described in the ACAS guidelines on bullying and harassment at work as “offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient”.

While most people will recognise extreme cases, when it’s less obvious there is a thin line, often open to interpretation, between what is and what’s not bullying.

A manager may feel they are being completely fair by pointing out poor performance and attempting to put in place measures to rectify the problem. Indeed, this is part and parcel of the job. However, this same process may make the employee feel they are being singled out for criticism, victimised and undermined for no reason.

There are a number of ways in which managers can address poor performance while doing their best to avoid allegations of bullying. Managers should always ensure that conversations about poor performance are dealt with privately and confidentially – they should never take place in front of other members of staff.

It’s also important to prepare evidence of poor performance before the discussion. This could be from previous appraisals, measures of performance against targets or examples where the employee has fallen short of expectations. Where targets or standards have been set, check that the employee has agreed these and, where they are not being met, that the employee is aware of concerns about their performance and has received support and guidance.

Lastly, all criticism should be constructive. While this may seem obvious, it is not always easy to do and a member of staff is far more likely to feel victimised if they feel that they are being criticised without any evidence or suggestions on how to improve their performance.

Managers should ensure that the reason for any criticism has nothing to do with the employee characteristics protected under the Equality Act 2010: age, disability, gender (including gender reassignment), race, religion or belief, sex, and sexual orientation. While a manager may not be taking any of these into consideration when criticising poor performance, an employee may nevertheless believe that the reason for any criticism is because of a protected characteristic and claim that they have been subject to harassment.

Unlike bullying, harassment is defined in law as: “Unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.” Even if the harassment is unproven, an allegation can still do serious damage to a manager’s reputation.

We recommend that workplaces should have a clear policy aimed at avoiding bullying and harassment, which staff can access easily. Training should also be provided on the policy, the procedure for reporting accusations and how any complaint should be taken forward.

If you are accused of bullying at work, your first port of call should be your union. Your MiP rep or national officer will be able to give you expert advice on your case and inform you on the next steps to take to protect your reputation against spurious allegations.

Jo Seery is an employment rights professional support lawyer at Thompsons Solicitors. Legal Eye does not offer legal advice on individual cases. MiP members in need of personal advice should immediately contact their MiP rep or national officer.