In December 2020 the new Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work entered into force. This article reviews the main points that employers should consider.
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 (eg, strongly expressing differences of opinion and constructive feedback that is unwelcomed). The code sets out the steps that employers should take to prevent bullying (eg, good leadership) and the measures that 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).
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 states that employers should focus on:
- developing a suitable workplace anti-bullying policy in consultation with employees;
- promoting and reinforcing a positive workplace culture; and
- providing appropriate training for those managing complaints and managers.
With regard to complaints processes, the code advises that employers:
- 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; and
- institute a formal process (where required) incorporating the following stages:
- a formal complaint in writing;
- an investigation by a designated manager or independent third party;
- a right of appeal; and
- the conclusion of the formal process and follow up.
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, which can assess whether their complaint is in fact one that concerns bullying. If an employee is unhappy with the actions that 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 their employer's handling of the matter.
If the HSA determines that an 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 the sending of a file to the director of public prosecution for a decision on whether the employer should be prosecuted for failing to protect the employee 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, but it is admissible in evidence and may be considered 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.
There is a separate Code of Practice on Sexual Harassment and Harassment at Work, which employers must consider when dealing with sexual harassment or harassment because of a protected ground – namely:
- civil status;
- family status;
- sexual orientation;
- age; or
- membership of the Traveller community.
Employers' bullying policies should also comply with this separate code, setting out that the workplace harassment which 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 must take bullying complaints seriously, otherwise the damaging effects for their business and employees can be profound.