22/02/2021 Briefing

The Code is effective from 23 December 2020.  It replaces the two previous codes that had established employers’ obligations in relation to workplace bullying (namely, the “Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work” issued by the HSA in 2007; and the “Code of Practice Detailing Procedures for Addressing Bullying in the Workplace” issued by the then Labour Relations Commission in 2002).

Now, employers and employees’ obligations in relation to the prevention and resolution of workplace bullying under both health and safety legislation and workplace relations legislation are contained in the Code.

The Code stresses that “bullying” and “harassment” remain two distinct concepts and the Code solely addresses the question of workplace bullying.  That stated, the Code notes that an employer can have one policy document containing its policy and procedures in relation to both bullying and harassment.

 

Definition of “Bullying at Work”

The Code retains the definition of bullying as contained in previous codes.  Bullying is defined 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”.

Therefore, in order to be considered as workplace bullying, the conduct must be:

  1. repeated;
  2. inappropriate;
  3. workplace connected i.e. at the place of work and/or in the course of employment; and
  4. “reasonably regarded as undermining the individual’s right to dignity at work”.

The Code elaborates on these elements.  It describes bullying in terms of “seriously negative targeted behaviours”, and this behaviour must “undermine their esteem and standing in a harmful, sustained way”.  It further states that the behaviour must be “clearly wrong, undermining and humiliating”.  Moreover, in determining if the conduct is bullying, the “‘reasonableness’ of behaviours over time must be considered”.

The Code must be read in light of Ruffley v Board of Management of St Anne’s School [2017] IESC 33, a decision of the Irish Supreme Court which addressed the various components of the definition of workplace bullying (see our client briefing here.)  In Ruffley, O’Donnell J noted that in order to be considered workplace bullying, “conduct must be repeated, not merely consist of a number of incidents; it must be inappropriate, not merely wrong; and it is not enough that it be inappropriate and even offensive: it must be capable of being reasonably regarded as undermining the individual’s right to dignity at work.”

Furthermore, in addressing whether the behaviour constitutes “repeated” behaviour for the purposes of workplace bullying, O’Donnell J stated that “What must be repeated is inappropriate behaviour undermining the personal dignity of the individual.”  On the question of “inappropriate” behaviour, he noted that this test “looks to the question of propriety in human relations, rather than legality.”  Furthermore, O’Donnell J stressed that “dignity at work” is a distinct component of workplace bullying which identifies the interests sought to be protected by the law, and just as importantly limits the claims which may be made to those which can be described as outrageous, unacceptable, and exceeding all bounds tolerated by decent society”.

It is evident from both the Code and the Ruffley case that it is not sufficient for the behaviour to merely be repeated and inappropriate.  The inappropriate nature of the alleged behaviour must meet a certain minimum threshold if it is to constitute bullying.

Interestingly, the Code also provides clarity on what is not bullying.  It notes that while disrespectful behaviour, conflicts and relationship breakdowns are not ideal in the workplace, they do not automatically reach the “adequate level of destructiveness” to be considered bullying.

The Code provides a non-exhaustive list of what is not bullying, which includes:

  • strongly expressing differences of opinion;
  • offering constructive feedback, guidance, or advice about work-related behaviour, which is not of itself welcome; and
  • ordinary performance management.

 

Management of Bullying

A fundamental aspect of managing bullying in the workplace is the prevention of its occurrence in the first instance.  In that regard, both employers and employees have obligations in establishing a positive environment that is free from bullying, intimidation and ongoing negative behaviour.

Employer’s Role
The Code identifies three key aspects to an employer’s role in effectively managing workplace bullying, namely:

  • to act reasonably to prevent workplace bullying patterns developing and to resolve complaints, which includes assessing the complaint, recording actions and putting in place a suitable response based on each case arising;
  • to prepare a Safety Statement under section 20 of the Safety, Health and Welfare at Work Act 2005 (the “2005 Act”); and
  • to develop a proper workplace anti-bullying policy, in consultation with employees.

 

Employee Obligations
Employees have an obligation to “create a co-operative relational climate” and to relate in “clear, civil and respectful ways to everybody in the workplace”.  They also have statutory obligations under section 13 of the 2005 Act, which requires employees, for example:

  • to comply with relevant statutory provisions and take reasonable care to protect their own safety, health and welfare and that of any other person who might be affected by their act or omissions;
  • to co-operate with their employer to enable their employer comply with its statutory obligations; and
  • to not engage in any improper conduct that is likely to endanger their own safety, health and welfare at work or that of anyone else.

 

Organisational Culture
The Code also identifies another key player in the prevention of workplace bullying – namely the role of the organisational culture.  The Code identifies a number of essential elements required for the creation of a positive organisational culture.  This includes good leadership, proper communication and staff training, and the resolution of complaints in a supportive, effective and fair manner.

 

Resolving Bullying at Work

A key of focus of the Code is the resolution of bullying in the workplace through informal means.  The Code notes that the prompt and informal problem-solving approach can offer the best method for addressing allegations of bullying effectively, especially where the individuals involved will continue to work together.

To that end, the Code introduces the concept of an “initial informal process” and a “secondary informal process”.  The concept of a “secondary informal process” is entirely new and accordingly introduces what might be termed a three-stage process of resolution – an initial informal process, a secondary informal process and a formal process.

 

Initial informal process
The initial informal process seeks to resolve an allegation of bullying informally by agreement between the individuals, through an informal discussion with the appropriate manager.

Regard must be had to the principles of natural justice and fair procedure when implementing all stages of the resolution process, including the initial informal stage.  For example, the Code notes that in instances of smaller organisations, it may not be appropriate for the person managing the organisation in question to play a role at this initial informal stage as they may be required at a later appeal or judgement.  In those circumstances, it may be necessary to use an independent professional body to mediate or otherwise resolve the complaint.  Employers are advised to give due consideration to the option of mediation, as it can be a quick and effective mechanism to resolve workplace complaints.

 

Secondary informal process
The secondary informal process can be invoked if the initial informal process is unsuccessful or unsuitable in light of the nature of the complaint.  Key steps in the secondary informal process include:

  • The nomination by the employer of a separate individual to deal with the particular complaint on behalf of the organisation. This person must be someone in authority within the organisation who has appropriate training and experience;
  • The nominated individual establishes the facts, the context and the next course of action (albeit still in an informal manner);
  • Concrete examples of bullying behaviour are put before the person complained against, who is given the opportunity to respond;
  • A course of action is agreed to progress the issue to resolution; and
  • Steps to stop bullying and to monitor the progress of resolution are implemented. A proposal for a long term course of action should ideally be signed and dated by both parties.

 

Formal Process
The Code recommends that management explore and, if appropriate exhaust, all informal avenues of resolution before initiating a formal process.  Management should consider the circumstances of the complaint and make a reasonable evidence-based decision to invoke the formal process.

The formal resolution process includes two steps – a formal complaint and a formal investigation.  The Code outlines the process organisations should follow when instigating a formal investigation.  Any investigation should be conducted in line with terms of reference, which establishes an indicative timeline for completion.

Individuals who have the appropriate training and experience should conduct the investigation, be they a nominated member of management or an independent third party.  Of note, there is no obligation in the Code to consult on the identity of the internal or external person as investigator.

It should be noted that there is some ambiguity in the Code in relation to the function of the investigation.  The stated objective of the investigation “is to ascertain whether, on the balance of probabilities, the behaviours complained of occurred, it having already been established that the behaviours come within the description of workplace bullying”.  However, the Code goes on to state that the test to be established is “whether the complaint is valid” and whether the accused employee “has a case to answer”.  There appears to be ambiguity between ascertaining “whether…the behaviours complained of occurred” and whether the employee “has a case to answer”.  This apparent distinction is akin to the distinction between the establishment, as a matter of fact, of what occurred and the establishment of a prima facie case.

 

Communication of Outcome
The Code notes that the effective communication of any outcome is critical to the resolution process.  Communication must be done in a sensitive and fair manner.  All parties directly involved in the complaint are entitled to

know if the complaint was upheld in whole or in part, and the reasons for any such decision.  However, specific details regarding any disciplinary action being taken against any particular party on foot of the process are confidential.  Other parties are not entitled to receive this information as part of the communication of the outcome.

 

Principles of Fair Procedure and Natural Justice

The Code enshrines the principles of fair procedure and natural justice in the formal process, by expressly providing for the following:

  1. right to representation: the Code provides that “A work colleague or employee/trade union representation (provided the person has representation in line with the principles of natural justice and fair procedure) may accompany the complainant and the person complained of, if so desired.” It is notable that no provision is made for parties to be accompanied by lawyers; and
  2. right of appeal: the Code provides that both parties have the right of appeal within the formal process, this right appearing as a pre-disciplinary right of appeal in the case of a respondent where the investigation upholds the complaints. Furthermore, it should be noted that any such appeal it is not an appeal on the merits or a de novo hearing.  The Code states that any such appeal “should focus on the conduct of the investigation in terms of fair process and adherence to procedure.  It should be noted that an appeal is not a re-hearing of original issues.”  Therefore, any appeal must relate to process and procedure grounds.

The Code notes that the “outcome of the appeal shall be final insofar as the employer duties under health and safety legislation is required”.  However, surprisingly, the Code does not address what will happen if an appeal is upheld.  Presumably, in such circumstances, the appeal outcome might be that the matter should be re-investigated.  Accordingly, it follows that in those circumstances the outcome of the appeal is not “final” insofar as the employer is concerned.

 

A Malicious Complaint
The Code also addresses the making of a malicious complaint, being “an allegation being made without foundation, and with malicious intent, where a person knowingly or without regard to whether it is true or not, accuses another person of allegedly bullying them”.  Such complaints can have significant consequences in terms of reputational damage to the accused, and may result in disciplinary action being brought against any employee making such complaints.

 

Requirement to keep records

The Code emphasises the requirement of employers to keep and maintain records of complaints and investigations in line with the GDPR and the Data Protection Act 2018.  The Code outlines the obligations of an employer at each stage:

  • initial informal stage: a written record of the matter should be kept, including any determination that the alleged behaviour does not constitute bullying;
  • secondary informal stage: the nominated individual should keep nominal records of all stages of the process, including the complaint raised, the initial meeting, outcomes reached and actions agreed. The purpose of these nominal records is to evidence an organisational response to a complaint made and an attempt at its resolution;
  • formal process: a written record should be kept of all stages of the formal process, which includes statements of all parties, including witnesses, any decisions made and any preventative, protective or remedial action taken. Furthermore, any decision to escalate a complaint to the formal process should also be recorded; and
  • workplace policy: in developing and implementing workplace policies, employers should keep a record of any consultation with employees and any training provided to employees.

Employers are advised to be mindful of their obligations under data protection legislation in relation to the sharing and retention of any of such records.

 

Role of the HSA and the WRC

The Code elaborates on the role of both the HSA and WRC in relation to the processing of complaints and the prevention of bullying in the workplace.

The HSA, operating under the statutory powers of the 2005 Act, has the ultimate aim of protecting employees through overseeing the employer duty to provide a safe workplace and system of work.  One aspect of this is through its operation of the Workplace Contact Unit (the “WCU”).  Employees who consider themselves to be bullied can submit a complaint to the WCU about the way in which their employer handled their complaint, or seek further information in relation to their treatment.  The HSA can ultimately assesses the employer’s processing of the complaint to determine if their actions were adequate.  In circumstances where it determines that an employer has failed to act reasonably in relation to a complaint of bullying, the HSA can issue enforcement action ranging from verbal advice to an Improvement Notice.  The Code clarifies that the HSA has no role in relation to disciplinary action or in relation to conflict resolution between parties to a bullying complaint.

The objective of the WRC, as noted by the Code, is “to achieve harmonious working relations between employers and employees”.  It offers a range of services that may assist in the resolution of workplace bullying, such as individual and collective workplace mediation and an overall review of workplace relations generally.  Furthermore, per section 13 of the Industrial Relations Act 1969, a matter can be referred to the WRC for adjudication, after internal processes have been exhausted.  Any such referral for adjudication relates to the conduct of an investigation on grounds of fair process and procedure.

 

Key Considerations for Employers

  • Employers are reminded that their obligations under the Code apply irrespective of whether employees are based at a fixed location, at home or are mobile. Furthermore, the Code expressly provides that bullying can occur through digital or cyber means.  Therefore, employers still have obligations to prevent workplace bullying, even in circumstances where the majority of their workforce might not be physically present in the workplace;
  • Employers are advised to review and update their anti-bullying policies to bring them in line with the Code;
  • It is also recommended that employers take pro-active steps to promote a positive workplace culture. This includes effectively developing and promoting their anti-bullying policies, training staff appropriately on these policies and ensuring all complaints are dealt with respectfully, sensitively and in complete confidence;
  • Employers are further advised to attempt to effectively resolve complaints though informal mechanisms, if possible. Employers should take steps to ensure complaints of bullying are fully and effectively resolved on a long-term basis.  This can be achieved through for example, on-going monitoring, team building exercises or specific anti-bullying awareness programmes; and
  • Failure to adhere to the Code is admissible in evidence in any criminal proceedings under the 2005 Act. Furthermore, the Code is admissible in any proceedings before a court, the WRC or the Labour Court, in accordance with the Industrial Relations Act 1990.

 

The author would like to acknowledge the input of Mary Heavey to this briefing.

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