by Deirdre Malone, Partner with Ronan Daly Jermyn
It’s time to review all “Dignity at Work” policies and introduce updated “Anti-Bullying” policies to comply with the recently published “Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work” (“the Code”). The Code repeals the previous Health and Safety Authority (HSA) and Workplace Relations Commission (WRC) Codes of Practice and introduces new procedures for the management of workplace bullying.
What is Bullying?
There is no change to the definition of bullying that has been in use since 2001:
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 be reasonably regarded as undermining the individual’s to dignity at work. An isolated incident of the behaviour described in the definition may be an affront to dignity at work, but, as a once off incident, is not considered to be bullying.
The Code reminds employers that behaviour can be either bullying or harassment, but not both, as they are two legally distinct concepts. The Code does not address harassment/sexual harassment at all, nor does it aim to address issues of physical assault.
However, it is not simply a case of meeting the definition above, the Code also requires workplace bullying to show an ongoing series of seriously negative targeted behaviours intended to undermine a person’s esteem and standing, in a harmful and sustained way. This aligns with common law high threshold established before the Supreme Court in the Ruffley decision. A pattern and trend of wrongdoing is required, rather than a one-off incident/behaviour, and for the first time, we see reference to cyber and digital bullying.
Recognising the Supreme Court’s comments on the level of destructiveness required to establish bullying, the Code identifies behaviours that will not qualify as bullying. Included in the examples are offers of constructive feedback and guidance about work-related behaviour to employees, ordinary performance management, and reasonable corrective action. Disrespectful behaviour does not meet the threshold to qualify as workplace bullying.
Management of Bullying at Work
The Code suggests a value in appointing a Contact Person. This person will be the first port of call to any employee who requires confidential support or guidance and information on how the Anti-Bullying Policy works.
The Contact Person cannot be involved at any later stage in the process. As such, many employers will not have sufficient resources available to dedicate a person to this role.
Intervention is divided into a number of stages, with emphasis placed on early resolution. Mediation, through the use of suitably qualified mediators, is recognised as a key tool to resolve workplace conflict.
a. Initial informal process
An informal collaborative and non-adversarial approach is suggested to address workplace bullying allegations. It mirrors the informal process currently adopted by many employers, noting the following key components:
- Confidence in the process
- Verbal or written complaints
- Capable managers who will listen to, and take employees’ complaints seriously
- Assessments made fairly, quickly and effectively
- Retaining a brief written record (GDPR compliant) of agreed outcomes and dates
New preventative steps include:
- Using an awareness campaign to highlight examples of appropriate and inappropriate behaviour
- Providing employees with access to the support of the Contact Person
b. Secondary informal process
The new concept of a second informal stage is outlined. The importance of this informal stage, and how effectively complaints are managed, is identified as pivotal in altering a bullying culture within a workplace
An employer can nominate an appropriately trained and experienced supervisor/manager, to manage a complaint.
Clear steps are outlined for the nominated person to establish facts, context and the next course of action. This includes, identifying whether or not the person complained against should receive a copy of the complaint, which is an interesting step forward from existing practices. Guidance is given on how to manage complaints with and without concrete examples of behaviours.
The nominated person holds responsibility for keeping “nominal records” of all stages and steps taken in the process. This provides an employer with the required evidence it may need at a later stage to show that it has complied with its statutory obligations.
c. Formal process
The formal process is something to use only once the informal process has been exhausted. Many employees comment that employees who make complaints of workplace bullying do not wish to engage in any informal process prior to invoking the formal procedures. This will be a cultural change for many companies.
Once details of the written complaint are recorded, and an investigator is appointed, Terms of Reference must be prepared.
The Investigator’s job is to determine, having gathered the facts, whether the behaviour complained of may, on the balance of probabilities, have occurred or not. The Investigator is also tasked with recommending whether or not the employer should invoke the Disciplinary Procedure.
An appeal process is available to both parties. It is not intended to be a re-hearing. The focus should be placed on the conduct of the investigation, fair process and adherence to the procedures set out in the policy.
The Code recommends a proper conclusion at each stage in the process. There is a significant focus on communication, to best preserve working relations. The damage that can be caused by workplace bullying complaints and investigations is not underestimated. Employers are advised to look at reconciliation or rehabilitative meetings to try to promote healthy working communication.
At the conclusion of a formal process, the employer is obliged to notify the complainant and person complained of about the next steps. This does not include providing the complainant with any information about disciplinary action that may be taken against any other employee.
External Support for Employees
The HSA and the WRC are both available as external resources to employees, should their complaint not be resolved satisfactorily internally.
While it is not an offence to fail to observe or comply with the Code, it is admissible as evidence in criminal proceedings under the 2005 Act, and before the WRC.
The HSA offers a Workplace Contact Unit to employees to report bullying. An employee may also make contact to request information about workplace bullying.
The HSA’s statutory obligation is to ensure employers comply with their duty of care to all employees to prevent improper conduct at work. The HSA has the authority to review steps taken by an employer to assess whether the employer’s actions were adequate. If the HSA deems that an employer has failed to act reasonably, it may issue enforcement actions, to include verbal or written advice, and Improvement Directions or Improvement Notices. The HSA may also refer a file to the DPP for the prosecution of an employer where there is evidence of failing to protect an employee from the harmful fallout of bullying.
An employee may also refer a “trade dispute” under the Industrial Relations Act to the WRC for adjudication. The Adjudicator will not re-hear the case, their focus will be on whether the investigation was conducted properly and fairly. A non-binding recommendation may issue.
In conclusion, most employers will need to overhaul their Anti-Bullying Policy to address the new procedures outlined above.