by Jill Gracey, Employment Team at A&L Goodbody
This week marks ‘Anti-bullying Week’ across the UK.
At some point, most employers in Ireland will have received employee grievances citing allegations of ‘bullying’, ‘harassment’ or ‘victimisation’. Some of these phrases have specific legal definitions which often are not understood by employees.
It is therefore essential that your Anti-Bullying and Harassment policies clearly set out accurate definitions of what your organisation recognises as bullying behaviour – which should be distinct from discrimination, harassment and victimisation definitions.
Many Anti-Bullying and Harassment and Diversity and Inclusion policies also confirm an employer’s ‘zero-tolerance approach’ to bullying behaviour in the workplace. However, a mere sentence in a policy will be insufficient to evidence to a tribunal that your organisation actively discourages such behaviour.
With the continuing advancement of the HR function across all industry sectors, Employment Judges will expect policies to be implemented through adequate staff training on those policies, to demonstrate an understanding of acceptable and unacceptable behaviour in the workplace – and importantly, to reduce an employer’s vicarious liability in respect of inappropriate behaviour by members of staff.
Banter -vs- Bullying
Too often we hear alleged perpetrators of bullying or discriminatory treatment making the argument that they did not intend for their words or actions to cause offence; the ‘it-was-just-a-bit-of-banter’ defence is not a legal defence and will be given short shrift in the course of litigation. It is critical to remember that it is the impact of the conduct – not the intention behind it, which the Courts focus on. Moreover, it is not sufficient to have a line in a policy which states this; the Courts will expect Employers to actively implement the policy by regular training, updates and visible application.
This further highlights the need to ensure staff understand what your organisation treats as unacceptable behaviour and the consequences of a failure to comply with those behavioural standards. This is especially the case as we approach the Christmas party season when conduct, behaviour and the ‘lived’ culture of the Employer is all too frequently under the microscope.
About the author
Jill qualified as a solicitor in 2014 and joined the Employment team in the Belfast office, following successful completion of her traineeship with the firm. Jill advises both public and private sector employers on a wide range of employment-related matters, from complex TUPE and redundancy scenarios, to ad hoc queries on the application of internal policies and procedures, such as disciplinary and grievance issues. Jill also assists clients with the defence of contentious employment litigation in the Industrial Tribunals and Fair Employment Tribunal of Northern Ireland, with a particular interest in defending allegations of discrimination.