New Workplace Bullying Code of Practice
A new code on workplace bullying has been published by the Workplace Relations Commission (“WRC”) in conjunction with the Health Safety Authority (“HSA”). The Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work 2020 (the “Code”) was introduced by way of Statutory Instrument (S.I. No. 674 of 2020) and replaced previous workplace bullying guidelines issued by the HSA and the Labour Relations Commission, now the WRC.
The aim of the Code is to provide guidance for employers, employees and their representatives on good practice and procedures for addressing and resolving workplace bullying issues. It applies to all employments in Ireland regardless of where the employee works, be it in the office, working from home or elsewhere.
One of the key highlights of the code is the procedure to be put in place and the need to clearly state that bullying in the workplace is unacceptable and that any related complaints will be dealt with sensitively. Although the Code relates only to workplace bullying, it defines both bullying and harassment but points out that they are distinct legal concepts which are mutually exclusive. i.e. conduct can either be “bullying” or “harassment”, but not both.
“Harassment/sexual harassment” is defined as “any unwanted conducted related to any of the discriminatory grounds under the Employment Equality Acts. Sexual harassment is any form of unwanted verbal, non-verbal or physical conduct of a sexual nature”.
“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. An isolated incident of the behaviour described in this definition may be affront to dignity at work, but as a once off incident, is not considered to be bullying”. Helpfully, the Code also sets out a non-exhaustive list conduct that does not constitute bullying such as:
- Expressing differences of opinion strongly
- Offering constructive feedback, guidance, or advice about work-related behaviour which is not of itself welcome
- Ordinary performance management
- Reasonable corrective action taken by an employer or supervisor relating to the management and direction of employees (for example managing a worker’s performance, taking reasonable disciplinary actions, or assigning work)
- Workplace conflict where people disagree or disregard the others’ point of view
Whilst much of the content of the new Code is similar to its predecessors, there are a number of key items to note below:
Early Intervention – The Code stresses that early intervention is crucial.
Mediation – The Code places important value on Mediation as part of resolving any issues at the early stage.
Informal Process for Resolving Issues – the Code provides for a two-part process for resolving matters informally; the Initial Informal Process and the Secondary Informal Process.
Investigations – the Code provides that an investigation should be governed by its Terms of Reference. The Terms of Reference should contain all usual relevant information including a timeframe for completion and rationale for this period explained. However, of particular note, the Code now provides that the investigator’s role is to determine whether the alleged events occurred on the balance of probabilities and not whether bullying took place.
Appeals – the Code confirms that any appeal should be heard by someone who had no involvement in the investigation and any appeal need not be a re-hearing of the investigation but rather a review of the conduct during the investigation in terms of fair procedures and adherences to policies.
Conclusion of formal process – once an investigation has been concluded, the employer should decide what action to take arising from the investigators report. The employer should then notify all parties in writing of the next step. However, if the internal procedures does not resolve a bullying complaint, the matter may be referred to the WRC under section 13 of the Industrial Relations Act 1969. A number of outcomes are possible; the Adjudication Officer may conclude that the investigation was conducted properly, and its conclusions stand. The Adjudication Officer may conclude the investigation process was flawed and recommend that it be reheard.
Whilst a failure to follow the Code is not an offence in itself, Section 42 (4) of the Industrial Relations Act 1990 provides that in any proceedings before a Court, the Labour Court or the Workplace Relations Commission, a code of practice shall be admissible in evidence. If an employer chooses not to follow the Code, it may make it harder to defend any claims for bullying down the line.
Employers should be reviewing all existing policies in light of the recently published Code and ensure compliance while providing up to date training to all employees. If the employer is a small organisation, consideration should be had as to what role senior management will play in any complaint for bullying so as to ensure impartiality and to consider whether external assistance may be required also.