Tackling bad behaviour

By Catherine Gannon, Managing Partner, Gannons Solicitors

Bullying is an increasingly relevant area for managers, as staff are becoming more aware of their rights and more willing to speak up. It is one the more difficult areas of people management to deal with, as it addresses the behaviour of individuals and appropriate conduct in modern business life. When those individuals are partners in a law firm, and used to autonomy in their areas, it can be especially difficult. Stress caused by the current economic environment and difficult trading conditions serves to compound the problems.

The significance of bullying as a problem can be underestimated. The first risk is a financial liability to the individual for things such as constructive unfair dismissal. For breach of the duty of care to employees, UK employers will be vicariously liable for the acts of their employees under the Health and Safety at Work Act (stress) and personal injury claims. Serious cases could even have criminal consequences.

More widely, the consequences of bullying for a law firm include: poor morale; loss of respect for managers; poor performance and lost productivity; absences; resignations and damage
to reputation.

Bullying is not capable of a precise definition. ACAS defines it as “offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient”.

This gives the impression that there must be an intention to cause harm. However, ACAS emphasises that the key to understanding whether bullying has occurred is not whether the conduct was intended on the part of the perpetrator, but whether it was unwanted on the part of the recipient. Bullying is often confused with harassment, which is a concept linked to a personal characteristic of the recipient, and hence to anti-discrimination law. Of course, the two often run together.

Is there a bullying problem in your firm? It is often difficult to know. You probably know who the ‘difficult’ partners are based on their behaviour at partners’ meetings, which may give an indication of how they treat junior staff.

It is tempting to ask whether this is really a problem. However, a culture of bullying is pervasive: if staff see bullying going unchecked, it spreads. It affects not only the direct victims but also morale throughout the firm.

It is not always obvious that bullying is happening. Victims are reluctant to speak out and colleagues who observe it often feel the same. If the victim does approach HR, he or she is often dissuaded from taking the matter further.

The keys to preventing and tackling bullying are:

• developing a strong culture and policy that bullying is unacceptable and that victims will be protected and supported;

• clear management support for the anti-bullying policy to ensure credibility;

• reinforcing this by monitoring tools that measure qualitative and quantitative improvements in the culture, for example through staff surveys and statistics from exit interviews; and

• resolving problems before they escalate – often the very senior managers need to confront the problem on behalf of other members of staff to be effective.

Exit interviews are a very useful tool for identifying various problems and issues, including bullying. People often speak more freely when they are leaving, but they can still be reluctant to raise the issue, so there should be a specific question in all exit interviews: “Have you been bullied here or do you know of anyone else who feels they have been bullied?” This gives the interviewee ‘permission to speak’ and they are often more forthcoming.

There will still be a need to address specific cases of bullying if they arise, but hopefully a strong anti-bullying culture will prevent their occurrence. Sometimes the issue won’t really be bullying. Criticising someone’s work, for example, is only bullying if the criticism is unfair or overly harsh. Talking to the employee might allow them to realise that they are not, in fact, being bullied.

If the bullying is very serious, however, it may be that only formal grievance and disciplinary proceedings are appropriate. In most cases, informal processes can find a workable solution and often improve working relationships. Informal processes can include talking to the person concerned (who may not appreciate the effect their behaviour is having), writing a letter about the behaviour (perhaps when talking has not had the required results), or mediation.

Informal processes are less likely to be effective when the offending party is reluctant to admit that there is a problem. However, mediation is often an effective tool, as the introduction of a neutral third party gives confidence to the victim and can encourage the offending party to re-evaluate their behaviour. In partnership situations it can also provide a buffer between the offending partner and management, which helps to preserve partner relationships.

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