This article reviews the main points employers should consider in a new Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work that came into effect in Ireland last month.
The new Code replaces two previous documents on this topic. One had exactly the same title and the other was called the Code of Practice Detailing Procedures for Addressing Bullying in the Workplace.
The Code provides an updated definition of what bullying is and, importantly, what does not constitute bullying, for example, strongly expressing differences of opinion and constructive feedback that is not welcomed. The steps that employers should take to prevent bullying are then set out, such as good leadership, as well as the measures they should take to investigate any complaint. While thorough and reasonably exhaustive, the latter are broadly similar to those that were set out in the code issued by the Health and Safety Authority (HSA).
How should employers respond to the new Code?
Employers in Ireland should already have a policy which sets out both that bullying is not tolerated and the process for dealing with complaints. They should now review whether they need to update their current policy to reflect the new Code, especially taking into consideration its emphasis on mediation and an expanded informal process.
In relation to the prevention of bullying, the Code says that employers should focus on:
- developing a suitable workplace anti-bullying policy in consultation with employees;
- promoting and reinforcing a positive workplace culture;
- providing appropriate training for those managing complaints and managers.
Moving on to complaints processes, the Code advises as follows:
- Appoint a contact person that employees can contact if they have concerns about bullying (where feasible).
- Consider internal or external mediation (the Code emphasises the benefits of doing this at an early stage).
- Intervene promptly.
- Provide an informal complaint process, including an initial phase in which the employee raises concerns directly (if appropriate) followed by a second stage in which a nominated person looks into their concerns.
- Institute a formal process (where required) incorporating the following stages:
- (1) formal complaint in writing;
- (2) investigation by a designated manager or independent third party;
- (3) right of appeal;
- (4) conclusion of formal process and follow-up.
Roles of Health and Safety Authority and Workplace Relations Commission
The Code expressly sets out the role of the HSA and the Workplace Relations Commission (WRC) in dealing with complaints.
Employees can report a complaint of bullying to the HSA, who can assess whether their complaint is in fact one that concerns bullying. If an employee is unhappy with the actions their employer has taken to address their bullying complaint, the HSA can assess whether those steps were adequate. A person accused of bullying can similarly make a complaint to the HSA if they are unhappy with the employer’s handling of the matter.
If the HSA determines that the employer has failed to act reasonably, it can issue enforcement action. This can range from verbal or written advice to an improvement direction or notice, or even sending a file to the Director of Public Prosecution (DPP) for a decision on whether the employer should be prosecuted for failing to protect the employee(s) concerned from bullying.
The WRC can provide workplace mediation or employees can bring a trade dispute complaint to it under Ireland’s Industrial Relations legislation. Both the employer and employee must consent to mediation or a trade dispute complaint. Any recommendation as an outcome of a trade dispute complaint is not binding on the parties.
A failure to follow the new Code is not an offence in itself, but it is admissible in evidence and may be taken into account by the WRC in any employment claims concerning bullying, or by the courts in any prosecution for breach of health and safety laws relating to bullying.
Harassment at work
There is a separate Code of Practice on Sexual Harassment and Harassment at Work, which employers need to consider when dealing with sexual harassment or harassment because of a protected ground – gender, race, religion, disability, civil status, family status, sexual orientation, age or membership of the Traveller community.
An employer’s bullying policy should also comply with this separate Code, setting out that the workplace harassment that it covers is prohibited. The Code makes it clear that employers can deal with bullying and harassment issues under a single policy, which is a common practice for Irish employers to date.
In conclusion, the main importance of the new Code is to refresh and reinforce the message that employers need to take bullying complaints seriously, otherwise the damaging impacts for their business and the people it employs can be profound.