Sending employees hard messages - is there a need for Special Delivery?

I am the Head of HR for a medium-sized software house. Mark, a junior developer, has been  moaning that he is being bullied and harassed by his line manager, Tony. Tony says Mark needs a firm hand to keep him on track and he’s probably right. Ten years ago, I’d have called him work-shy, but I’m probably not allowed to say things like that any more!  However, equally I know that Tony can be a bit, errmm, “direct”. He doesn’t suffer fools gladly.

I’m worried about a claim and want to give Tony some guidance on where the line lies between tough management and bullying, but I’m not sure myself! Can you help?

Yours,

Willie Sewus

 

Dear Willie

A very good question! But like most good questions, it doesn’t have a simple answer I’m afraid.

The good news is that employment law does not (or, at least, should not) prevent Tony from being able to manage Mark effectively, including administering criticism and close supervision where necessary. In the same way that good work should be acknowledged and rewarded, sub-standard work must be identified and addressed, not just to meet your needs as an employer but also to enable Mark and other employees to reach full potential.

The bad news is that there is no one clear characteristic which legally distinguishes bullying and harassment from legitimate management intervention to get the best from your staff. Bullying is a bit like an elephant: it’s hard to describe but you know it when you see it. ACAS characterises bullying as “offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient”.

ACAS also gives examples of bullying/harassing behaviour, which include:

  • copying memos that are critical about someone to others who do not need to know;
  • ridiculing or demeaning someone - picking on them or setting them up to fail;
  • exclusion or victimisation;
  • unfair treatment;
  • overbearing supervision or other misuse of power or position;
  • making threats or comments about job security without foundation;
  • deliberately undermining a competent worker by overloading and constant criticism;
  • preventing individuals progressing by intentionally blocking promotion or training opportunities 

Looking at this guidance, one could fairly “reverse engineer” a set of hallmarks of appropriate managerial actions, to the effect that appropriate (and defensible) criticism will be:

  • justified;
  • clear;
  • dispassionate and evidence-based;
  • consistently, calmly and privately administered;
  • aimed at achieving improvement and illustrating to the recipient what they have done wrong.

In the event that there is a dispute, evidence about the reasons for criticism will be critical, so please do make sure that Tony is relying on concrete, demonstrable failings on Mark’s part rather than a vague, nagging sense that he isn’t pulling his weight. This is particularly important because, while these vague perceptions may actually be prompted by legitimate observations, people only half-realise themselves what has caused them to form a particular impression. If Tony doesn’t actively focus on, and record, what these were then it is unlikely that he will be able to evidence his concerns when discussing the matter with Mark.

Please encourage Tony to be very careful both in his use of language and to be conscious of actually communicating something meaningful to Mark more than just the fact of his irritation or disappointment. “You need to raise your productivity levels and focus more on attention to detail” is a less offensive exhortation than “you are lazy (or work-shy!) and stupid”, but neither statement actually helps the recipient to understand what he needs to achieve or how to do it.  This can lead to the sense on the employee’s part (and, worse, on the employment tribunal’s) that the objective is to demean rather than to guide. More helpful and less dangerous would be a clear indication of expected levels of productivity (ideally measured by output) and accepted error tolerance levels. The SMART acronym is a helpful aide memoir in giving feedback – objectives should be Specific, Measurable, Achievable, Realistic and Timed. Remember also though that where such targets are generally applicable (such as error tolerance) it is helpful to set them across the board.

Having said all of this, tribunals do recognise that employers are human too! While it’s sensible to aim high in the standards you seek from line managers, displaying occasional visible irritation should not give rise to claims, provided no one is singled out.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.