The existence of multiple codes of practice relating to the issue of bullying at work has long presented a challenge to employers and employees in the effective management and resolution of disputes within the workplace.
In a welcome development, on 23 December 2020, a single joint Code of Practice1 (the “2020 Code”)2, has been developed by the Health and Safety Authority (“HSA”) and the Workplace Relations Commission (“WRC”).
The 2020 Code gives practical guidance to employers about processes and procedures when a complaint of bullying is made. A definition of bullying and a non-exhaustive list of what could be considered bullying in the workplace is provided. Of significance is that the new Code provides definition and specific examples of what is not considered workplace bullying, such as for example, ordinary performance management. This will act as a useful checklist in assessing whether management of workplace issues amounts to bullying behaviour.
The 2020 Code replaces the “Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work” which was issued by the HSA and the “Code of Practice Detailing Procedures for Addressing Bullying in the Workplace” issued by the then Labour Relations Commission LRC (now the WRC).
Employers should familiarise themselves with the 2020 Code and update their Anti- Bullying policies. We have highlighted below some items of note from the 2020 Code:
- The employer has a duty to manage and conduct work activities in such a way as to prevent any improper conduct or behaviour likely to put at risk an employee’s safety, health or welfare at work. Therefore, employers must act reasonably to prevent workplace bullying patterns developing and where there are complaints, the employer must react reasonably, assess a complaint, record actions and put in place a suitable response based on each case arising.
- Given the above, employers should develop a proper workplace Anti-Bullying policy to ensure a system is in place for dealing with complaints. As required under health and safety law and in keeping with normal industrial relations practice, there should be prior consultation, and participation where appropriate, regarding the Anti Bullying policy and its implementation, with employees or their representatives, including the Safety Representative or the Safety Committee. Where a staff handbook is distributed to employees as part of the induction process, the Anti-Bullying policy should be included in it.
- Employers have to assess the risk of bullying and preventive measures should be included, where necessary, in the employer’s Safety Statement.
- While the 2020 Code refers to workplace bullying only and does not include harassment cases, this does not prevent employers from having one policy/document encompassing procedures for processing both bullying and harassment cases, but the separate Code of Practice (Equality Act 1998 (Code of Practice) (Harassment) Order 2012) should then be taken into account then also if an employer opts to have the one policy covering both topics.
- The 2020 Code gives guidance on an informal and formal procedure for dealing with a workplace bullying complaint and emphasises the value of using internal or external mediators that are suitably qualified when aiming to resolve issues at any early stage. It also sets out the roles and powers of the WRC and the HSA when dealing with bullying complaints.
- The role of a “Contact Person” is referred to, which essentially is a supportive person who listens and offers guidance on the various options in line with company policy and procedures on a strictly confidential basis, but this person is not involved in the investigation of the complaint. Therefore, employers should consider who an appropriate Contact Person could be within their organisation and they should be appropriately trained.
- Widespread policy awareness and training on the policy is key, especially for those who will be involved in the complaints process as they should have appropriate training / experience and be familiar with the procedures involved.
- While failure to follow a code prepared under the Industrial Relations Act, 1990 is not an offence in itself, section 42 (4) provides that in any proceedings before a Court, the Labour Court or the WRC, a code of practice shall be admissible in evidence and any provision of the Code which appears to be relevant to any question arising in the proceedings will be taken into account in determining that question. Therefore, employers would be wise to adhere to the 2020 Code in practice.
1The 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.
2A copy of the 2020 Code can be found at http://www.irishstatutebook.ie/eli/2020/si/674/made/en/pdf