The beginning of 2021 brings a fresh focus on the prevention and resolution of bullying in the workplace with the publication a new code of practice concerning these matters as reflected 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 674 of 2020) (the “new Code”). Aoife Newton of our Employment Law team discusses below.
The new Code has been developed by both the Health and Safety Authority (‘HSA’) and the Workplace Relations Commission (‘WRC’) and it replaces both the “Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work” issued by the HSA in March 2007 and the “Code of Practice Detailing Procedures for Addressing Bullying in the Workplace” issued by the then Labour Relations Commission (now, WRC) in 2002.
Employers should familiarise themselves with the new Code and update their Anti-Bullying policies in line with new guidance. The new Code applies to all employments in Ireland irrespective of whether employees work at a fixed location, at home or are mobile.
The new Code echoes the previous definition of workplace bullying 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 an affront to dignity at work, but, as a once off incident, is not considered to be bullying. The new Code distinguishes bullying and harassment as two separate issues and only seeks to address those issues which fall under the category of bullying.
One of the most notable and welcome changes for employers is that the new Code lists specific examples of what is not classified as bullying. An example of some of the behaviours which will not be considered bullying include:
The list of examples is not exhaustive, but it will provide employers with a useful checklist in assessing whether management of workplace issues amounts to bullying.
The new Code also acknowledges that bullying activities involve actions and behavioural patterns, directly or indirectly, spoken and/or written which could include the use of cyber or digital means for the goal of bullying.
The new code also includes examples of behaviour which makes for a bullying pattern which will likely include not just one but a range of behaviours such as:
The new Code provides guidance to employers on procedures to help with the prevention of workplace bullying. Employers should assess the risk of bullying and preventive measures should be included, where necessary, in the employer’s Safety Statement.
Employers should also develop (or revise) a formal workplace Anti-Bullying policy, in consultation with employees, to ensure a system is in place for dealing with complaints. Appendix 1 of the new Code provides updated guidance to employers on how to prepare an Anti-Bullying policy.
Employers should note that the new Code emphasises the value of having a carefully selected and trained ‘Contact Person’ whilst acknowledging that this may not be practical for all organisations. This person would act as the first step for employees enquiring about a possible bullying case and would supply confidential guidance on company policy. A ‘Contact Person’ will have no role in the investigation of complaints but is to provide support to help resolve matters more efficiently.
The recommendations provided in the new Code for the prevention of bullying include:
Another significant change in the new Code is the addition of a secondary informal procedure for the resolution of workplace bullying complaints. The new Code outlines an informal process, a secondary informal process and a formal complaint procedure (including an appeals process). The benefits of early intervention and the value of using a mediator (either internal or external) are highlighted.
The new Code also outlines the roles of the WRC and HSA in resolving bullying complaints. Whilst failure to follow the new Code is not an offence, in proceedings before a Court, the Labour Court or the WRC, the new Code shall be admissible in evidence. Employers are therefore advised to adhere to the new Code and update their policies (and perhaps their Safety Statement and training plans) in line with same.
The new Code provides employers and employees with guidance for preventing and dealing with workplace bullying. It also provides practical guidance for employers on the creation of an Anti-Bullying Policy. This will be beneficial to employees and employers alike, as a comprehensive Anti-Bullying Policy can be a highly effective tool in the prevention and effective resolution of bullying.
For further advice on the new Code, advice on updating workplace policies or any related area, please contact the Employment Law team at KPMG.