Speaking recently on an episode of The HR Leader podcast (from Lawyers Weekly’s newest sister brand, HR Leader), HR Blueprint director Maureen Kyne discussed the phenomenon of upward bullying, describing it as a form of subordinate retaliation against their workplace superiors.

“It’s an act of subordinate staff members inflicting intentional or unintentional bullying behaviours towards their manager,” she explained.

“We generally see it playing out as either passive or aggressive in nature. It includes refusing to accept or complete work assignments, missing work, sometimes showing up late for meetings, or those scheduled work meetings, spreading professionally damaging rumours, sometimes withholding information, and making false claims of work prosecution in attempts to avoid discipline reactions and sabotaging the manager.”

It certainly exists, said Coaching Advocates co-founder and director Lara Wentworth, “and I’ve seen it firsthand throughout my career”.

“I remember managing a junior lawyer who constantly would undermine me, disregard my requests, or if he would follow direction, would not do all I asked as though to prove a point. He would try to make [me] doubt myself and question whether I asked him to do something or if I know what I’m doing,” she recalled.

“I also coach some partners and law firm owners who experience this type of behaviour from juniors and subordinates. I’ve heard many stories from BigLaw partners who also struggled with this.”

Swaab managing partner Mary Digiglio is a long-term law firm leader, experienced practitioner and wellness advocate; however, she said she has recently come to realise that “during my career, by my own inaction, I have enabled ‘upward bullying’ to be directed at me”.

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In her podcast episode with HR Leader, Ms Kyne described upward bullying as a “cancer”. Ms Digiglio said that she agrees with this analogy.

“It can spread across a workplace slowly over an extended period of time. As the bad behaviour is directed at the leader, as opposed to someone for whose welfare they are responsible, the leader is more likely to (subconsciously or consciously) allow the bad behaviour to continue unaddressed,” she said.

We know enough, Ms Digiglio proclaimed, to acknowledge that upward bullying exists in law firms.

“Upward bullying has the potential to compromise brand, reputation, firm dynamics, harmony and create a toxic and unpleasant environment if it is not called out early and addressed,” she said.

Prevalence of upward bullying

Upward bullying occurs, PyschSafe managing director Dr Rebecca Michalak outlined, “in pretty much in every industry and profession”.

Prevalence research tells us, she detailed, that such bullying in organisations is quite common. In academia, for example, some 70.6 per cent of respondents report engaging in bullying behaviour toward their academic supervisors/lecturers.

“Upward bullying makes more sense once you wrap your head around two key facts: one, that bullying of any sort, like sexual harassment, is not about gender, but about power, and two, that there are many different sources of power,” Dr Michalak said.

Moreover, Dr Michalak added, poor interpersonal conduct, in general, goes largely unreported, so it is difficult to give explicit numbers, and managerial targets who feel they should be able to stop or copy upward bullying are even less likely to report it.

There is currently no empirical data to be relied on regarding the existence of upward bullying in law, said Hall & Wilcox partner Fay Calderone, who — late last month — won the Employment category at the 2022 Partner of the Year Awards.

However, she said, the legal profession shares a lot of similarities with workplace environments where it has been found to take place.

“Current data from surveys suggests that upward bullying is experienced by between 2 per cent and 27 per cent of the workforce, across all sectors,” Ms Calderone said.

“From what we understand, a significant factor in environments where upward bullying is prevalent can be the interaction between deadlines and delegation. The legal profession is no stranger to either of these things — deadlines are often tight and senior practitioners are required to share the workload by delegating to their subordinates.

“As such, it would not be unrealistic to presume, that reported or not, some form of upward bullying is likely taking place within law practices.”

How upward bullying manifests

Upward bullying, Ms Digiglio said, has the potential to “break” leaders if not addressed. She listed examples of how it can unfold, as well as the potential impact of such actions:

1. “Punishing the leader by ‘calling in sick’ when the leader is on annual leave or out of the office, increasing the leader’s workload at a time when the leader is relying on the support of the bully;
2. Freezing out (by not talking to) the leader for an extended period when something happens in the firm that the bully doesn’t support, for example: promoting a colleague whom the bully doesn’t think is worthy or whose promotion creates a threat to the bully, creating uncomfortable and negative dynamics in the team;
3. Willingly accepting work delegated by the leader, intentionally not attending to it and misrepresenting to the client that the work is with the leader for review, to create pressure on the leader where it really matters (with the client);
4. Receiving new instructions and issuing work directly to the client without informing or consulting with the leader, compromising the firm’s supervision protocol, depriving the leader of quality control and client management protocol; or
5. Gravitating to junior, new and young impressionable staff and indoctrinating those staff into the bully’s perspective of the manager, in an attempt to build an army intended to sabotage and undermine the leader.”

Impact of upward bullying

The impacts can be quite severe, Dr Michalak advised, up to and including severe physiological distress, suicide ideation and self-harm, as well as increased risk of cardiovascular and other serious physical health problems.

“Problematically, these impacts are not only experienced by the target, but by others around them as well. For example, we know that witnesses to such conduct can develop anticipatory fear that they will be the next target, and through emotional contagion, can take on equal and in some cases even worse stress effects than the target,” she said.

This behaviour can adversely affect the line manager’s confidence and wellbeing, Ms Wentworth submitted.

“The legal profession is not big on leadership training, and in many situations, people are promoted based on their billables and/or ability to bring in work. Their leadership skills are often a nice add-on if they have them. Lawyer leaders can sometimes be at a loss of how to deal with this behaviour and manage the situation,” she said.

In some situations, Ms Wentworth continued, avoidance becomes the coping mechanism for the manager, where the staff member is left to their own devices and there’s almost a fear of dealing with them.

“I remember a coaching client where the junior lawyer was so arrogant that the partner was intimidated by them and as a result did not feel confident to stand up to him and manage him. If you are subject to upward bullying, then you have clearly given your personal power away and it might be time to work on you and enhance your confidence, assertiveness and take action,” she said.

Upward mobbing

Those in management roles hold positional power (derived from reward, coercive, and legitimate bases), but power also comes from relational sources, such as being an expert, referent (well-liked and “attractive”), networks (being well connected) and informational (e.g. holding valued information and controlling the information flow), Dr Michalak listed.

“Being members of a given in-group is a power source,”, she said.

“And, very simply, power can come from sheer numbers; a collective over individual effort (e.g. as we see with enterprise bargaining and union membership). So, a manager can have difficulty defending themselves against perpetrators, just like a subordinate with a bully manager — the power sources at play merely vary.”

There is upward bullying (dyadic) and upward mobbing (group), Dr Michalak noted.

“Group bullying — formally known as mobbing — has its roots in bird flock behaviour. If a strange (by any definition) bird attempts to join the flock, the flock pecks, harasses, and chases the intruder until it leaves, or dies from its wounds. In the workplace, mobbing has a very specific intent — get the target to leave,” she said.

“Some join the mob as a method of personal protection — if you aren’t in the in-group, you are by default also a target. So, finding there is a key ringleader or two driving the conduct helped by both active and passive supporters is also not uncommon. Passive supporters are those who turn a blind eye, for want of a better way to put it.”

Evolution of upward bullying amidst COVID-19

The advent of work-from-home arrangements is likely, Ms Calderone suggested, to limit the understanding that leaders have of their employee’s workloads.

Because of this breakdown in communication, she said, if employers can’t physically see employees in the office in order to gauge their workloads and potential stress levels, it may be that lawyers ignore or are not responsive to requests to undertake work by particular supervises, or withdraw resources or support from them, ultimately leaving them overworked to meet client expectations on their own.

“Upward bullying, like traditional bullying, ultimately thrives on the nebulous nature of, and therefore difficulty in, proving these claims. COVID-19 has led to the isolation of employees as well as leaders, which inevitably leads to a lack of witnesses who can verify bullying behaviour. This has meant that issues of upward bullying are often the victim’s word against the perpetrator’s, rather than claims with a factual basis,” she espoused.

“While senior staff have the ongoing responsibility to manage the health, safety and welfare of their team also have the pressure to deliver results in a professional sense. These pressures of performance when mixed with the health concerns and stresses of employees makes it easy to see why the lashing out of employees and ultimately bullying of their superiors could occur.”

Ms Wentworth supported this, noting that the age of coronavirus has “certainly shifted” the balance of power from the firms to the employees.

“Staff have different values and are rethinking their purpose when it comes to work and are in a position to pick and choose from roles that were once hard to come by. In remote working environment where there are less eyes on staff and juniors, those who are more prone to upward bully could be in perfect territories to do so with less hands-on management and more trust being offered to staff to do the right thing,” she said.

“As leaders and managers, we need to know our team, that means we need to exercise leadership, be flexible in our communication and our approach and keep our finger on the pulse. This can be very challenging in remote working which is why leadership skills and confidence is important now more than ever.”

Strategies for leaders

In an attempt to stifle the development of upward bullying, Ms Digiglio suggested, leaders might consider taking more measures generally to create accountability at all levels, such as daily morning group meetings, whether physically meeting or virtually via MS Teams.

They can also, she said, “re-establish regular one-on-one, face-to-face catch-ups with staff so that people have the opportunity to develop their own relationship with the leader, set clear cultural expectation and professional boundaries within the workplace, and define and set performance expectations early on, including behavioral expectations”.

Moreover, Ms Digiglio went on, leaders can “confide in their HR manager and ask for assistance in managing the bully, as third-party intervention is likely to be required to effect any meaningful change, investigate claims of micromanagement, harassment and bullying and hold individuals accountable to the outcome, and call out the upward bully behaviour early — irrespective of the consequences if the bully leaves the firm, as part of the misplaced confidence of the upward bully is their perception of being in a position of power”.

Duties of employers and individuals

The prevailing HR approach is “utterly ineffective”, Dr Michalak argued, describing it as “reactive, with a harm management aim”. What is legally required is harm prevention, she said.

“With the Model WHS Law Amendments, increased regulation, and relevant Codes of Practice in effect in multiple jurisdictions — not to mention industrial manslaughter provisions — legal employers that dogmatically persist with keeping bullying and other psychosocial hazards (e.g. sexual harassment) under a HR umbrella are sitting ducks for prosecution.

“And no, ‘we have an anti-bullying policy’ will not suffice,” Dr Michalak pointed out.

“At best, this is an administrative control — that’s only one step up from PPE. Legal employers must be actively endeavouring to eliminate the hazard. It requires proactive identification of potential hazards, and a detailed psychosocial risk management plan focused on eliminating the hazard, and thus preventing harm.

“Getting psychosocial risk management right doesn’t just save costs; it value-adds. Bullying and other psychosocial hazards are also critical business risks. Flourishing workforces are much better for business than those in which mere compliance is the objective,” she continued.

Holding people accountable for this kind of behaviour is important for team morale, culture and achieving results, Ms Wentworth posited, as a lack of accountability in a team can lead to dysfunction.

“Any kind of bullying needs to be combatted, this kind is usually understated because it is assumed that those who have positional power have respect. Legal employers have a duty to combat and prevent any type of bullying either from the top down or otherwise,” she said.

“Understanding this type of bullying and being able to recognise it when it takes place is probably the challenge as we usually don’t identify subordinates’ behaviour as bullying, simply because they seemingly don’t have the same level of power as the managers they answer to.”

The lack of empirical data on upward bullying occurrences in the legal profession, Ms Calderone mused, makes it difficult to give specific examples of ways in which the issue can be addressed any differently to other workplaces. Like all professions, a firm’s policies can assist in promulgating what is and isn’t acceptable, she said.

“Ensuring expectations are clear and policies are communicated effectively though employee training programs and indiscriminately enforced against all employees — including those that may be perceived as top performers and therefore ‘untouchable’ in the eyes of some leaders,” she advised.

“These differing standards should not be tolerated under any circumstances as dysfunction arising from them will perpetuate. Awareness needs to be raised that this issue exists, so that it can be in the forefront of employees’ minds if contentions arise at work.”

A recent case

Whilst the issue of upward bullying is seemingly unreported in the legal profession, Ms Calderone added, the law has made it clear that it will not be tolerated, with the Queensland Industrial Relations Commission having considered a case of upward bullying earlier this year, in the matter of Cummings v State of Queensland (Queensland Health).

“In this case, an employee lodged an appeal notice after their employee had proposed disciplinary action in relation to an alleged upward bullying issue. It was alleged that the employee colluded with other employees to undermine the manager by intimidating her and being aggressive and offensive toward her,” she outlined.

“The employee was denied these allegations and the employer issues her with a reprimand and required her to attend a meeting to discuss her professional standards. She also imposed a performance improvement plan.

“The QIRC held that the employer took an ‘entirely sensible approach’ in dealing with the allegations, and dismissed the appeal on the grounds that the disciplinary action was fair and reasonable.”

For the legal profession and other workplaces alike, Ms Calderone deduced, this result will be looked to for future claims of upward bullying at work.