knowledge 13 January 2021 |

New Guidance on Workplace Bullying Published

Effect has been given to the new code of practice in the Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020 (SI No. 674/2020, the “Code”). The Code is intended to replace the most recently-issued codes of practice from the HSA and the Labour Relations Commission, a predecessor to the WRC. While the basic tenets of the Code will be familiar to employers, certain features may require changes to the manner in which employers ordinarily address the thorny and sensitive issue of workplace bullying. Others may be familiar to employers but have not previously been included in codes of practice on this topic.

What is bullying?

The definition of bullying mirrors that included in the previous codes of practice as “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”. This requires a pattern or series of offensive, targeted behaviours which undermine a person’s esteem and standing in an intimidating, humiliating and sustained way.

The Code acknowledges that bullying can be conducted using cyber or digital means and employers should be mindful of this in the context of remote working. It also helpfully distinguishes bullying from other workplace interactions such as offering feedback, ordinary performance management, reasonable disciplinary actions and indeed workplace conflict.

Bullying can be conducted at all levels and the Code indicates that bullying can be conducted by customers, clients and business contacts. In this regard, the Code recommends that workplace policies indicate that such behaviour will not be tolerated and may lead to the termination or suspension of contracts or services or exclusion from premises. A summary of the policy should be displayed prominently at a place where such customers and clients might attend.

Managing bullying at work

The Code sets out the responsibilities of both employees and employers. Regarding the latter, employers must manage work activities so as to prevent bullying patterns developing and where there are complaints, employers must assess the complaint, record actions taken and put in place a suitable response in each case. Based on the assessment of the risk of bullying, preventative measures may need to be included in an employer’s Safety Statement.

The Code also states that employers must develop and use a robust anti-bullying policy “in consultation with staff”, in particular the Safety Representative, as is required for health and safety measures under the 2005 Act. This policy, which should be signed by a “responsible person at senior management level”, should be implemented, monitored and where necessary updated, and should be accessible to staff. Effective means of communicating a policy include, according to the Code, newsletters, training materials, websites, emails and notice boards. The Code also requires that existing employees should receive “regular communication” on the policy.

The Code indicates that “there may be value” in appointing a “Contact Person”, though this may not be practical for all organisations. This person would act as a first responder for anyone enquiring about bullying, would offer confidential guidance in line with workplace policies and would have no further role in the investigation of complaints.

Informal response

The Code emphasises that early intervention offers the best potential for a good outcome and mediation, whether internal or external, can be a useful tool to resolve matters satisfactorily. A non-adversarial, informal approach is helpful where individuals must continue to work together into the future and may resolve matters by agreement without recourse to more formal action. Where such a process is unsuccessful or inappropriate, the Code suggests that a more protracted “secondary informal process” may address the concerns. This involves someone within the organisation with appropriate training being assigned to deal with a particular case and seeking to progress the parties towards a resolution.  Only nominal records of such a process would be kept, and the information given during the process must remain confidential in any subsequent investigation.

The Code indicates that, where allegations are raised, there may be value in conducting a review of good practice generally within the workplace, such as by running an awareness campaign which highlights examples of proper and improper behaviour. The Code also suggests that, where resolution is found through informal procedures, both parties should be given support or periodic reviews which may include counselling or other support services.

On a practical level, the Code notes that in smaller organisations, the head of the organisation should not be involved in resolving a complaint at an early stage, to prevent any duplication of the role of the employer should the issue later be referred to them for decision or by way of an appeal. Where a complaint relates to a senior person within the organisation, the Code states that it may be necessary to refer the matter to mediation, conciliation or other forms of external assistance.

Formal response

Where a complaint is escalated to a formal process involving a formal complaint and investigation, the Code recommends that a record be kept of the decision to so escalate the matter. It also states that the complainant and the respondent should be assured of support throughout the process. The Code states that fact-finding investigations conducted by senior management or external parties should be governed by terms of reference which reflect, inter alia, the scope of and indicative timeframe for, the investigation. Statements from all parties should be recorded in writing and copies given to the parties. Where an investigator determines that a respondent to a complaint has a case to answer on the balance of probabilities, s/he may recommend that the employer invoke its disciplinary procedures. Within the formal system, an appeals process for both parties should be in place.

The Code notes that investigations can be divisive and some reconciliation or team-building workshops may be appropriate to restore harmonious relations. While parties to the complaint are entitled to know whether the complaint is upheld, the Code confirms that specific details of any disciplinary action are, in the normal course, confidential. Employers should also keep records of any preventative or protective measures and remedial actions taken in response to the risks identified.

Concluding remarks

Employers should review their workplace practices and procedures in this area now, as the Code takes effect as of 23 December 2020. While failure to adhere to the requirements of the Code is not actionable in itself, it should be noted that the Code is broadly admissible in criminal proceedings under health and safety legislation as well as in proceedings before the WRC, Labour Court or other court. Indeed, compliance with the Code may become a significant factor in defending certain complaints of workplace bullying.

The Code does not purport to provide guidance on the related but distinct area of workplace harassment or sexual harassment, with the most recent code of practice on these topics dating from 2012. Addressing complaints of this nature following the #MeToo movement can be fraught with difficulty and it is hoped therefore that updated guidance in this area such as that provided by the Equality and Human Rights Commission in the UK is forthcoming.

The Employment, Pensions & Incentives Group at McCann FitzGerald advises on all aspects of bullying and harassment issues in the workplace, including the investigation of complaints and any consequent disciplinary processes. Your usual contact would be pleased to offer further guidance.

Also contributed by David McCauley.