New Code of Practice on Bullying at Work
A new Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work came into effect by way of Statutory Instrument on 23 December 2020.

 

A new Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work came into effect by way of Statutory Instrument on 23 December 2020 (Code). The Code was prepared jointly by the Health and Safety Authority (HSA) and Workplace Relations Commission (WRC), following a consultation process with several representative organisations. The aim of this process was to create a single joint-code, encompassing the remit and responsibilities of both bodies under the Safety, Health and Welfare at Work Act 2005 (2005 Act) and the Industrial Relations Act 1990. 

The Code replaces the HSA's 2007 code of practice and the Labour Relations Commission's (now the WRC) 2002 code of practice in respect of workplace bullying. 

The Code applies to all employment relationships whether or not employees are in the workplace or at home. 

The Code provides practical guidance for employers and employees on how to identify, prevent and manage workplace bullying in order to comply with their respective responsibilities under the 2005 Act. While largely replicating the content and tone of its forerunners, the Code offers new guidance and recommendations for employers.

The meaning of 'workplace bullying'

The definition of bullying in the Code has not been amended. In order to fall within the definition of bullying there must be a pattern or trend of behaviour that a reasonable person would regard as undermining an individual's right to dignity at work and which is intended to intimidate, offend or humiliate. 

Along with providing examples of what amounts to bullying, the Code provides a non-exhaustive list of what is not bullying such as "offering constructive feedback, guidance, or advice about work-related behaviour which is not of itself welcome" or "ordinary performance management". 

In a welcome development, the Code emphasises that bullying can be conducted by cyber or digital means. This emphasis is perhaps reflective of the current remote working situation in operation for many workplaces. 

As with previous codes, the Code reiterates that bullying and harassment are distinct concepts.  The issue of harassment, and sexual harassment, is dealt with under Employment Equality legislation. However, the Code confirms that an employer can deal with all such matters under one workplace policy. 

Prevention

The Code details the steps an employer should take in order to prevent bullying in the workplace. These include undertaking risk assessments in relation to workplace bullying and identifying the preventative responses which will be implemented to address this risk via the workplace safety statement.  In addition, an employer should develop and implement an effective anti-bullying policy which is regularly updated.  

Unlike previous codes, there is a new emphasis on the importance of creating a positive organisational culture to maintain a workplace free from bullying. Suggested methods to achieve this include widespread anti-bullying policy awareness, good leadership reflecting the intolerance of improper behaviour, regular communications on the topic and appropriate training for those tasked with managing complaints. 

The Code states that where feasible, "there may be value in appointing a Contact Person" as a first point of contact for an employee who has a complaint of workplace bullying. This Contact Person should have no role in the investigation of complaints and should be appointed only to offer support and guidance on a confidential basis.

The Code highlights the key benefits of mediation at an early stage in matters of workplace bullying, noting that "the earlier a mediation process is used, the greater the potential for resolving the matter satisfactorily."  

Bullying Complaint: Informal Process

While previous codes outlined the benefit of using an informal problem-solving approach to attempt to efficiently resolve complaints of bullying. The Code breaks the informal process into two distinct steps.  

Firstly, an "initial informal process" should be undertaken whereby an employee who feels they are being bullied, raises the issue directly with the respondent, if the employee is comfortable doing so.  Secondly, should the above step fail or where it is deemed inappropriate, the Code suggests a "secondary informal process". This involves appointing an independent person within the employer to deal with the complaint. This person should be given relevant guidance/training in order to enable them to take on this role. 

Once a complaint is resolved, the Code recommends that both parties should be given relevant support and periodical reviews if reasonable.  Employers are also encouraged to consider whether other support services such as counselling should be offered. 

Bullying Complaint: Formal Process

A formal process should only be invoked after all informal avenues have been exhausted.  The Code notes that a formal process is a "significant step" and "all parties should be aware of the possible consequences". 

The employee and the respondent need to be informed of the objectives, timeframe and possible outcome of the formal process. 

The Code refers, as did its predecessors, to a formal investigation process being governed by terms of reference to include the application of the employer's anti bullying policy, a timescale for completion, the scope of the investigation and the importance of confidentiality. 

The Code highlights that while a complainant is entitled to know whether the complaint is upheld in whole or in part, specific details of any disciplinary action relating to a respondent which might follow is strictly confidential. The Code also reiterates that both parties have a right to appeal against a formal investigation process outcome. 

In conclusion of the formal process, the Code suggests that teams may need reconciliation or team working sessions to restore a healthy working environment. Similarly, an employer should put control measures in place in order to prevent any future inappropriate behaviour from occurring and keep records of any actions taken. 

While previous codes touched on the issue of malicious complaints, the Code emphasises the seriousness of a complaint which is made either "knowingly or without regard to whether it is true or not".  Malicious complaints may have serious implications for a complainant and an alleged respondent. 

Next Steps 

The Code recommends that once a workplace bullying complaint is resolved, an employer should nominate someone to review its current practice in dealing with such matters.  It suggests a bullying awareness campaign may prove effective in enabling others to identify inappropriate behaviour. Equally, following a formal process where a safety hazard as a result of the bullying has been identified, employers must put measures in place to prevent re-occurrence of this behaviour and to put remedial actions in place if appropriate. 

Guidance for Employers 

A failure to observe or comply with the Code is not an offence.  However, the Code can be used in evidence before the WRC, the Labour Court and the criminal courts (in proceedings under the 2005 Act) to show compliance or non-compliance with the Code.

Employers should review their existing policies and procedures in order to ensure they meet the standards established by the Code.  

For further advice or assistance please contact our Employment & Benefits team at William Fry. 

 

Contributed by Aimee Carroll 

Key Contacts

Nuala Clayton Partner