An important objective of any manager’s job is to ensure that they get ‘a fair day’s work for a fair day’s pay’. However, for many managers, team leaders and supervisors, ensuring that their management style doesn’t give rise to bullying or harassment complaints is a constant concern. Their dilemma is that some interventions with some employees can provoke such accusations. In this article the distinction between performance management and bullying/harassment is explained. This explanation is reliant upon the provisions in the new Code of Practice on the subject, together with key pertinent decisions from the Circuit Court, the High Court and the Supreme Court.

New Code ⚓︎

For starters, the new Code is clear that behaviours associated with the management of performance may constitute a pattern of bullying. These can include:

• Belittling a person’s opinion.
• Intimidation/aggressive interactions.
• Excessive monitoring of work.
• Withholding information necessary for proper performance of a person’s job.
• Repeatedly manipulating a person’s job content and targets.
• Blaming a person for things beyond their control.

However, the Code is also clear that behaviour which is considered to be bullying by one person could be seen as a routine interaction by another. Hence, the ‘reasonableness’ of behaviours over time should be considered in any assessment. For example, conflicts and disagreements do not, of themselves, make for a bullying pattern. Notably, the Code also acknowledges that there are various workplace behavioural issues and relationship breakdowns which are troubling, upsetting and unsettling. However, they are not of an adequate level of destructiveness to meet the criteria required to constitute ‘bullying’.

The most relevant example offered by the Code is that ‘objective criticism and corrections that are intended to provide constructive feedback to an employee are not usually considered bullying, but rather are intended to assist the employee with their work’. On the same theme, the Code confirms that bullying does not include:

• Offering constructive feedback, guidance, or advice about work-related behaviour, which is not of itself welcome.
• Reasonable corrective action relating to the management and direction of employees (for example, managing a worker’s performance, taking reasonable disciplinary actions or assigning work).
• Workplace conflict, where people disagree or disregard other points of view.

In summary, the Code explains that ‘ordinary performance management’ is not bullying. It is also clear that the Circuit Court, the High Court and the Supreme Court are in accord with this stance.

Case 1 – The Circuit Court – 1999 ⚓︎

In 1999 the Circuit Court overturned a decision by the Employment Appeals Tribunal that had awarded £22,500 to the private secretary of the managing director (MD) of Glaxo Wellcome. The private secretary claimed she was constructively dismissed by reason of bullying and harassment. However, the Court held that incidents relayed to it, alleging harassment by the MD of his then private secretary, ‘came well within the boundaries of acceptable criticism’.

The complainant brought three incidents to the Court’s attention (that prompted her constructive dismissal). Firstly, she described how (over a one-and-a-half-hour period) the MD talked to her about her time keeping, pointing out that she had been late for work during the previous ten days. The second was when he said: ‘I want you to sit down there I need to talk to you’.  He then proceeded (for about an hour) to voice his dissatisfaction with a presentation she had prepared the previous week and was (allegedly) ‘livid with anger’. In the third incident, she had asked to leave early for a dental appointment when the MD said that he wanted to talk to her again and indicated he was dissatisfied with her performance.

The Court concluded that the manager did have legitimate complaints about her work and had ‘tried to talk to her about these with a view to improving her performance’. The judgement also explained that ‘a managing director relies heavily on his private secretary and it is entirely appropriate that he should offer criticism of her work with a view to bringing about changes in the future’. Reviewing the three incidents that gave rise to the complaint, the judge concluded that they ‘come well within the boundaries of acceptable criticism’ and do ‘not constitute conduct such as would make it reasonable to terminate employment. I find there was no constructive dismissal’.

In welcoming the decision, IBEC pointed to the key principles upheld in the case as: ‘the manager’s right to manage a worker’s performance where that performance does not reach an acceptable standard, and that workers do not use allegations of bullying as a mask for their own unsatisfactory work performance’.

Case 2 – The High Court – 2005
⚓︎

Further to incidents over two nights at the Kostal Ireland Ltd. plant in Limerick, in April 2000, a factory operative decided to lodge a claim (at the High Court) for damages for emotional shock and psychological injury (i.e. bullying), arising from a company performance management initiative. This initiative entailed management asking employees to complete a (new) document to account for their productivity on an hourly basis. Where hourly targets weren’t met, an explanation had to be given in this document.

The complainant factory operative initially refused to complete the document, as she felt that it should have been discussed with and approved by her union in advance. She eventually relented and was prepared to complete the form, albeit under protest.  But post-investigation, management decided that the employee’s stance constituted ‘misconduct’, giving rise to the implementation of disciplinary action (in the form of a final warning and suspension), as provided for in their procedural agreement with the union. This sanction was subsequently varied, being reduced to a lesser warning.

When the case came before a Rights Commissioner at the Labour (now Workplace) Relations Commission, he concluded that given her eventual willingness to complete the form, management had acted inappropriately in deciding to persist with any form of disciplinary action. Accordingly, he directed that the relevant warning should be removed from her file.

However, at the High Court, the judge held that he was satisfied that when asked to complete the document she wasn’t being picked on by management and that she had expressed her refusal in a ‘forcible fashion’. Furthermore, he held that it is the prerogative of management to decide what information they want from the processes that they supervise. He also pointed out that to succeed in a tort action for the wilful or reckless infliction of emotional harm, there must be conduct that any right-minded, right-thinking person, would consider gratuitous or reprehensible, done either with the intention of humiliating or embarrassing the person. In this case, the absence thereof led the High Court to conclude that one is not entitled to compensation for wounded pride or wounded feelings, merely because one perceives their treatment to be rude or insensitive.

The Court also concluded that management are entitled to manage and to ask employees to account for their productivity over time. With regard to allegations of victimisation, it was noted that as this employee was the person who objected to filling in the form, this explained why management had focused on her. The Court was also satisfied that whilst the complainant did not suffer from a recognised psychiatric condition, the psychological impact of the events would persist (for her).  However, this was simply a case of ‘management trying to manage’, with a request or a demand for information that they were prima facie entitled to receive. Accordingly, the complainant had an uphill struggle to convince the court that what was done was inexcusable and gratuitous. The court concluded that she had not discharged this onus, as a right-thinking person would say: ‘This is behaviour of a sort that cannot be tolerated that cannot be accepted that cannot be excused’.  The claim was dismissed with costs to Kostal Ireland Ltd.

Case 3 – The Supreme Court - 2017
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In 2017 the eagerly awaited Supreme Court decision in Ruffley v The Board of Management of Saint Anne’s School in Kildare was issued. The importance of the case is reflected in the Court’s statement that going forward ‘this novel case will set a benchmark for all bullying claims’. In this case the allegation was that the claimant was bullied in the course of a disciplinary process, resulting in a serious impact on her mental health, and in respect of which she sought damages in the High Court. In 2014 an aggregate damages award of €255,276 was made in her favour. However, this judgement was subsequently successfully appealed to the Court of Appeal.

In judgement at the Court of Appeal, Justice Charleton clarified that the ‘bullying test’ is objective, not subjective, and as a result an ‘employer is entitled to expect ordinary robustness from its employees’. Notably, he elaborated to distinguish normal management interactions from bullying, stating that: ‘correction and instruction are necessary in the functioning of any workplace and these are required to avoid accidents and to ensure that productive work is engaged in. It may be necessary to point to faults. It may be necessary to bring home a point by requesting engagement in an unusual task or longer or unsocial hours. It is a kindness to attempt to instil a work ethic or to save a job or a career by an early intervention. Bullying is not about being tough on employees. Appropriate interventions may not be pleasant and must simply be taken in the right spirit. Sometimes a disciplinary intervention may be necessary’.

Conclusion ⚓︎

Whilst the court’s position on the link between bullying and performance management is quite clear – with noteworthy precedents offering clarity and comfort to employers - it would be risky for managers to assume that they now have a ‘performance management carte blanche’ to behave with abandon. This is evident from the 2008 Melligan v Karmarton Ltd. constructive dismissal case, where the Employment Appeals Tribunal awarded €60,000 to the claimant, in response to his allegation that he had been ‘humiliated, harassed and bullied’, in tandem with the unilateral imposition of an increased sales target (by 150 per cent) on him.

Clearly, the most appropriate means of effectively managing performance is not by bullying and harassment, but via  progressive performance management with SMART objectives, appropriate PIP’s if required and a pattern of behaviour that – as the new Code points out - a ‘reasonable person’ wouldn’t describe as ‘clearly wrong, undermining and humiliating’.