Anthony Brady, Industrial Relations and Employment Services Executive with the CIF, discusses the new Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work (S.I. No. 674 of 2020).
The Health and Safety Authority (HSA) and the Workplace Relations Commission (WRC) have jointly prepared a Code of Practice (COP) on workplace bullying. The new COP, which came into effect on 23rd December 2020, replaces the Codes of Practice on bullying prevention from the HSA (2007) and the Labour Relations Commission (2002). The new COP sets out the responsibilities of both employees and employers in both preventing and addressing workplace bullying.
What is Bullying at Work?
There can be a general misunderstanding of the meaning of both “bullying” and “harassment” in the workplace. A behaviour can be deemed as bullying or harassment, but not both. This COP references behaviours which come within the definition of workplace bullying only. However, this does not prevent employers from having one policy encompassing procedures for processing instances of both bullying and harassment.
For the purposes of the COP, workplace bullying is defined as:
“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 right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work, but, as a once off incident, is not considered to be bullying“.
To fall within the definition, the behaviour requires a pattern or series of offensive, targeted behaviours which undermine a person’s esteem and standing in an intimidating, humiliating and sustained way. It is important to distinguish bullying from other inappropriate behaviours, or indeed appropriate workplace engagement. A once-off incident of bullying behaviour may be an affront to dignity at work and may be unsettling, but does not of itself constitute bullying and other remedies should be sought for these scenarios. While the COP helpfully outlines examples of what can constitute bullying, it also provides examples of what does not fall under the definition of bullying. Examples include differences of opinion, constructive feedback, taking reasonable disciplinary action and general workplace conflict.
An aspect which may be more relevant now than ever before, with a high percentage of the workforce working remotely, is that the COP specifically highlights that bullying can be carried out using cyber or digital means. With this in mind, it is important that remote workers are informed that they must follow the company’s policies and procedures as if they were office-based.
The COP outlines that an initial prompt and informal problem-solving approach offers the best potential for a good outcome, particularly in situations where people must continue to work together in the future. Initially, it is recommended that the unacceptable behaviour should be raised by the person who feels bullied with the person involved but only if they feel comfortable in doing so. Sometimes the person who is alleged to be engaging in the behaviour is genuinely unaware that the behaviour being complained of is disrespectful or unwelcome.
Where such an initial process is either unsuccessful or deemed inappropriate, it is recommended that a “secondary informal process” should be initiated. This involves the employer appointing a person who has had appropriate training to assist the parties reach a resolution. Records of such a process should be kept, and any information given or gathered at the informal stage must remain confidential and separate to any potential subsequent formal investigation.
It is noted that in smaller organisations, the employer should not be involved in any informal stage, as to keep them impartial should they be required to conduct a formal investigation / appeal / disciplinary. Where a complaint of bullying is made against a senior member of management, and there are not adequate resources to address the complaint in-house, the COP outlines that it may be necessary to refer the matter to mediation, conciliation or other forms of external assistance.
The COP recommends as good practice that all informal avenues are exhausted before escalating to a formal process. Records should be kept of the decision to escalate to the formal stage. The investigation should be conducted by either a designated member of management or, if necessary, an independent third party. The COP states that formal investigations should be governed by terms of reference, that statements from all parties should be documented in writing and furnished to the parties and that parties should be permitted the right to be accompanied throughout such a formal process by a work colleague or employee/trade union representative.
An investigator’s role is to determine whether the behaviour complained of did or did not, on the balance of probabilities, occur. The investigator should not uphold or dismiss the allegations and/or suggest or impose sanctions. However, they may recommend whether or not the employer should invoke the Disciplinary Procedure.
Once an outcome has been issued, the opportunity to appeal the outcome should be afforded to both parties. An appeal should be heard by another party, of at least the same level of seniority, but preferably more senior, than the investigator. After the investigator’s outcome has been issued to the person who appointed them i.e., HR, member of management, and if an appeal is not lodged by either party, a decision must then be made on whether any further action is warranted. If there is a case to be answered, and the disciplinary process is invoked, this should be conducted by a different designated member of management or, if necessary, an independent third party.
Both parties have an entitlement to know whether the complaint was upheld or not, however any further action under the disciplinary procedure is to be kept confidential. Again, records of any actions taken should be kept in line with relevant retention periods.
In developing an Anti-Bullying Policy, the COP confirms that this should be done in consultation with employees. It is therefore recommended that members now review their Anti-Bullying Policy, in consultation with employees, in line with the new COP and update where appropriate. Members will find an updated Anti-Bullying Policy in our draft Employee Handbook, which can be downloaded from the CIF website at https://cif.ie/member-area/hr-documentation/. Relevant to this topic, you will also find Anti-Harassment and Disciplinary Policies, amongst others, within the draft Employee Handbook.
For any members who would like to discuss the above in further detail, please contact a member of the Industrial Relations & Employment Services Department at 01 406 6000. For any company considering CIF membership, please reach out for a conversation on the benefits of same.
Anthony Brady, Industrial Relations and Employment Services, CIF