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A new code of practice for employers and employees on the prevention and resolution of bullying at work, 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 of 2020 (“the Code”) became effective on 23th December 2020.
The purpose of the code is to provide employers and employees with practical guidance and recommendations in identifying, managing, and preventing bullying in the workplace. The Code provides guidance to employers about processes and procedures when a complaint of bullying is made.
The code was developed jointly by the Health and Safety Authority (the “HSA”) and the Workplace Relations Commission (the “WRC”). The Code replaces and is the up to date consolidated position of the previous codes issued by the HSA and the Labour Relations Commission (now the WRC)
What constitutes bullying?
The Code reaffirms the existing definition of bullying from 2001 which is the “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 reasonably be regarded as undermining the individual’s right to dignity at work”. It provides a non-exhaustive list of what could be considered bullying in the workplace. It confirms that disrespectful behaviour or an isolated incident of the behaviour as described in the above definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.
Key takeaways from the code:
Employers should identify and assess the risk of bullying in the workplace and all preventative measures should be included in the Employers Safety Statement to protect safety, health and welfare.
Employers have a duty to manage and conduct work activities in such a way as to prevent any improper conduct or behaviour likely to put an employee’s safety, health or welfare at risk. Employers must act reasonably to prevent workplace bullying patterns developing and where there are complaints, the employer must react reasonably, appropriately assess any complaint, record actions and put in place a suitable response based on each case arising.
Employers should develop/ update their workplace anti-bullying policy now as the code took effect on the 23 December 2020 and ensure a system is in place for dealing with complaints. The policy should clearly state that disciplinary action may follow where bullying is found to have occurred. It is a requirement under the Safety, Health and Welfare at Work Act that there is prior consultation with employees and participation regarding the anti-bullying policy and its implementation. Employers should also ensure that their anti-bullying policy is distributed to all employees and that it forms part of the induction for new employees. The code also sets out that existing employees should receive updated and regular communication on the policy.
Employers should promote and reinforce at all times of a positive workplace culture.
The Code outlines that any policy should indicate that bullying at work by non-employees such as clients, customers and business contacts is not tolerated and may lead to termination of contracts, suspension of services, exclusion from a premises or other sanctions as appropriate.
The Code reminds Employers that behaviour can be either bullying or harassment, but not both, as they are two legally distinct concepts. The Code refers to Bullying only and does not address issues of physical assault, harassment or sexual harassment. Employers can have one policy covering both Bullying and Harassment but the policy should take into account both this code and the separate Code of Practice (Equality Act 1998 (Code of Practice) (Harassment) Order 2012).
The Code introduces the concept of bullying by use of cyber or digital means, this is particularly relevant where remote working is now commonplace.
The Code sets out an (i) informal procedure (broken into two steps) and (ii) formal procedure for dealing with a workplace bullying complaint. The formal procedure should only be utilised once the informal procedure has been exhausted.
The Code emphasises the importance of mediation for resolving issues at an early stage. It is an informal voluntary process where an impartial and competent third party enables individuals to work through conflict or disagreement, with a view to improving their relationship.
Employers should appoint a “Contact Person” who acts as the first step for anyone enquiring about a possible bullying case. The role of a Contact Person would be supportive and informative in nature– to listen and offer guidance on options in line with company policy and procedures, all on a strictly confidential basis. 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.
Employers failure to adhere to the Code is not an offence in itself and therefore an employee cannot bring a claim to the WRC for an employer’s failure to follow the Code. However, lack of adherence to the Code could impede employers defending actions before the Courts, the Labour Court or the WRC.
External support for employees
The HSA and the WRC are both available as external resources to employees, should their complaint not be resolved satisfactorily internally.
It is key that Employers familiarise themselves with the Code. It is of paramount importance that employers update their Anti-Bullying/ Bullying and Harassment policies in light of the code. Widespread policy awareness and training is essential for all in the workplace, especially those involved in the complaints process.
For further advice of the Code or for advice on updating policies and procedures/ employee handbooks, please contact Emer Murphy, Senior Associate and Marc Fitzgibbon, Senior Partner, both of whom specialise in employment law.