How do you discipline an employee without being accused of bullying?

A common fear for employers nowadays is that employers who try and discipline their staff are worried that they will be accused of bullying if they do.  This is one area that receives a lot of coverage in the media in general and there are certainly large volumes of litigation and complaints made in courts and tribunals.  As with a lot of these types of issues it is not often clear for an employer as to how they can comply with their legal obligations and to avoid successful actions for bullying in the workplace.  However, recent developments have made some progress in clarifying these matters for employers and I thought it would be useful to go through some of these for you.

What is Bullying?

There is no one piece of legislation that deals directly with bullying but a good source of information as to what behaviour is defined as bullying is contained in the Code of Practice for Employers and Employees on the Prevention and Resolution of Workplace Bullying that is published by the Health and Safety Authority.  The Code defines bullying as follows: -

“Workplace bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise conducted by one or more persons against another or others at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work.  An isolated incident of the behaviour described in this definition may be an affront to dignity at work, but, as a once-off incident, is not considered to be bullying.”

Any Examples?

The Code also sets out a comprehensive, but non-exhaustive list of the types of behaviours that are examples of bullying: 

  • Exclusion
  • Verbal abuse/insults
  • Physical abuse
  • Being treated less favourably than colleagues
  • Intrusion-pestering, spying, stalking
  • Menacing behaviour
  • Intimidation
  • Aggression
  • Undermining Behaviour
  • Excessive monitoring of work
  • Humiliation
  • Withholding work related information
  • Repeatedly manipulating a persons job content or description
  • Blame for things beyond a persons control

What can I do as an employer?

Also, and somewhat unusually the Code attempts to clarify what is not bullying at work. The definition states that bullying at work does not include reasonable and essential discipline arising from good management of the performance of an employee at work or actions taken which can be justified as regards the safety, health and welfare of employees.  The Code also gives an example of an employee who is continuously being told that their job performance is below the required targets and who therefore feel threatened and insecure in their work.  The Code confirms that this in itself does not indicate bullying and this is helpful to employers who feel that they might be accused of bullying where they are carrying out legitimate disciplinary or performance appraisals of an employee. 

It follows that by following the disciplinary procedure as set out in your handbook that you will significantly reduce the risk of having allegations of this nature made against you.  Where performance appraisals are concerned it would be useful to have an appraisal system in place so that the focus is on the employees performance and development rather than on issues that are not relevant to the appraisal but could be a source of contention that leads to clashes with the employee. 

In conclusion a lot of employers are concerned about this issue, particularly in the current climate.  Whilst the whole area is changing all the time the recent publication of the Code has given employers and employees alike a better idea of what type of behaviour is or isn’t acceptable and the difference between an employer carrying out reasonable and necessary action in terms of discipline and job performance of an employee and an employer who is bullying an employee. 

However, as with all matters between employers and employees you should ensure that you should be reasonable in dealing with your employees and, where you have a policy in place ensure that you keep to the terms of that policy to best protect yourself from the risk of litigation.

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David Bell, Managing Director

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