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Bullying in the Workplace – New Code of Practice and Next Steps for Employers

All Employees have a right to be treated with dignity and respect and provided with a safe working environment which is free from all forms of bullying, sexual harassment and harassment.

Workplace bullying and harassment can result in increased Employee turnover, unhealthy workplace culture and ongoing conflicts, a damaged Employer brand and costly litigation procedures and negative publicity.

Where a complaint of bullying does arise, the Employer must be seen to act fairly in dealing with the issue. Following the correct procedure is fundamental in reducing exposure to future legal claims for compensation in relation to bullying. Organisations are advised to always take appropriate care where a complaint is received, or where there is a suspicion of bullying occurring in the workplace.

  • Under the relevant Codes of Practice, the Employer is required to take steps to put in place anti-bullying policies, including informal and formal complaints procedures.

  • The Codes of Practice set out the format that these policies and procedures should follow in order to best assist an Employer to reduce the risk of bullying occurring.

  • A failure to adhere to a Code of Practice will weaken an Employer’s argument that reasonable steps were taken and, as a result, the Employer is more likely to be found guilty of an offence and liable to pay compensation to a complainant.


A new Code of Practice concerning the prevention and resolution of bullying at work has been made by way of a statutory instrument published on 5th January 2021. The Statutory Instrument is No. 674/2020 entitled-Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020.

The Statutory Instrument:

  • defines bullying at work

  • sets out the management of bullying at work and the preventative measures and actions that should be taken

  • the formal process which should be implemented

  • describes the role of the Health and Safety Authority and Workplace Relations Commission (WRC).


This Code of Practice came into effect on 23rd December 2020 and replaces the previous Code of Practice issued by the Health and Safety Authority in March 2007. The purpose is to provide practical guidance to Employers on identifying and preventing bullying in the workplace. It applies to all employments in Ireland irrespective of whether Employees work at a fixed location, at home or are mobile.


New Code of Practice – Key Points

Definition

  • There is no change to the definition of bullying that has been in use since 2001.


Bullying at Work

  • The Code highlights that the interchangeable use of the words harassment and bullying can lead to a misunderstanding of what each one relates to. They are legally distinct concepts and so a behaviour can be deemed either bullying or harassment, not both. The Code refers to behaviours which come within the definition of workplace bullying only. The Code does not extend to harassment under the Employment Equality Acts 1998-2015.

  • The Code does not aim to address physical assault at work either. It is advised that Employers have a dedicated policy concerning violence and assault and retain and promote a zero-tolerance approach to such behaviour. Violence is a criminal matter and should also be reported to An Garda Síochána.

  • The Code requires that workplace bullying should meet the criteria of an on-going series of accumulation of seriously negative targeted behaviours against a person or persons to undermine their esteem and standing in a harmful, sustained way. Bullying behaviour is offensive, on-going, targeted and outside any reasonable ‘norm’. A pattern and trend are involved so that a reasonable person would regard such behaviour as clearly wrong, undermining and humiliating. It involves repeated incidents or a pattern of behaviour that is usually intended to intimidate, offend, degrade or humiliate a particular person or group of people - but the intention is not important in the identification process.

  • The Code also references cyber or digital bullying which may be covered by the requirements of the Safety, Health and Welfare at Work Act 2005.


Management of Bullying at Work – The Process

Contact Person

  • The Code sees a value in appointing a Contact Person who would act as the first step for anyone enquiring about a possible bullying case. Where the Organisation can support this, it often helps to resolve matters earlier and more effectively. The main purpose of the role is supportive listening and information provision. The Contact Person will have no role in the investigation of any complaints and should not be tasked with any further involvement in the details or right and wrongs of a complaint.

 
The Value of Mediation

  • The Code emphasises that Mediation is an important consideration for resolving issues. It is a valuable tool at any stage in a procedure, but particularly beneficial at the earliest possible stage.

 
Initial Informal Process

  • The Code suggests that a prompt and informal problem-solving approach offers the best potential for addressing allegations of bullying effectively. A number of elements are highlighted in the Code related to this process.

 
Secondary Informal Process

  • The Code outlines this process in the event the initial informal process is unsuccessful or if the complainant or the Employer deem it inappropriate for the seriousness of the issues. The Employer may nominate a separate person who has had appropriate training and experience and who is familiar with the procedures involved to deal with the complaint on behalf of the Organisation. This person should not be the Contact Person. They may be a supervisor/manager or someone in authority within the Organisation. For each complaint that arises, such a person should be assigned to deal with that particular case. This is a very important role and pivotal in altering bullying cultures and handling complaints effectively at the informal stage. Effective guidance and training should be in place for those who are engaged at this level with the process.

 
Formal Process

  • The Code recommends that a formal process should only be invoked after all informal avenues have been exhausted. As the formal process is a significant step, all parties should be aware of possible consequences. In particular, an investigation will make it more difficult to restore normal workplace relations and may not have the desired outcome for the parties concerned.

  • In line with the previous Code, the New Code notes that a formal investigation process should be governed by terms of reference to include the application of the Employer's Anti Bullying policy, a timescale for completion, the scope of the investigation and the importance of confidentiality. Both parties must be informed of the objectives, timeframe and possible outcome of the formal process. An appeal process should also be available to both parties.

  • The New Code emphasises that investigations can result in very divisive relationships for individuals, teams and departments and some type of reconciliation or rehabilitative meetings, or team working session may be considered as appropriate to restore healthier working communication for the future.

  • An Employer should put control measures in place in order to prevent any future inappropriate behaviour from occurring. Documentation should be kept by the Employer, in line with the relevant Data Protection Legislation.

  • While previous codes touched on the issue of malicious complaints, the Code emphasises the seriousness of a complaint which is made either "knowingly or without regard to whether it is true or not". Malicious complaints may have serious implications for a complainant and an alleged respondent.


Next Steps for Employers
  1. Employers should review their existing policies and procedures in order to ensure they meet the new procedures outlined in the New Code of Practice.  While a failure to comply with the Code is not an offence, it can be used by Employees to support a claim before the Workplace Relations Commission and the Labour Court.

  2. The New Code notes that in the context of being aware of an allegation by an Employee, and whether the matter has been resolved, there may be value in the Employer nominating a person to review good practice generally in the workplace around dealing with such matters. For example, an awareness campaign highlighting examples of appropriate behaviour as well as improper behaviour and some explanation of effects to be brought to everyone’s attention.

  3. A brief written record, in line with relevant Data Protection legislation, should be kept of the matter and agreed outcomes and dates noted by the relevant person responsible for managing the complaint. In smaller Organisations, the Employer, or person heading that Organisation, should not try to informally resolve a complaint personally but should instead refer the matter for resolution / management to a senior manager, or such other persons as may be agreed. This is to prevent any duplication of roles of the Employer, should the issue be later on referred to them for a judgement/appeal.

  4. Finally, Employers should update / review their current Safety Statement, based on an identification of the hazards to safety, health and welfare at the place of work and set down the preventive measures necessary to protect safety, health and welfare. Where a safety hazard as a result of the bullying has been identified, Employers should put measures in place to prevent re-occurrence of this behaviour.

 

Contact the team in Adare Human Resource Management now to assist you with the required next steps.

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