In a welcome development for employers and employees, the Health and Safety Authority (HSA) and Workplace Relations Commission (WRC) have developed a single joint Code of Practice on the Prevention and Resolution of Bullying at Work. (the Code).
The new Code replaces the Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work 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.
The purpose and aim of the Code is to provide employers and employees with practical guidance and recommendations on identifying, managing, and preventing bullying in the workplace. The Code aims to ensure that the respective responsibilities therein encompass the remit and obligations within the Safety, Health and Welfare at Work Act 2005 and the Industrial Relations Act 1990. A number of points from the Code are considered below.
The Code provides helpful guidance on what amounts to Harassment and Bullying at work, two very distinct behaviours. The issues of harassment and sexual harassment are dealt with under the Employment Equality legislation and the Code of Practice on Harassment. However, employers are not prevented for covering procedures on bullying and harassment in the same policy document, once both Codes of Practice are considered.
The definition of Bullying has not been replaced by the Code and still falls to be defined as a pattern or trend of behaviour that a reasonable person would regard as undermining an individual’s right to dignity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. The Code offers a range of behaviours which make for a bullying pattern and should be considered when assessing workplace activities. Also, of note, the Code provides a non-exhaustive list of behaviours that are not considered bullying at work.
A welcome addition to the Code is the concept of bullying by way of cyber or digital means, which is reflective and useful for the current times where remote working is commonplace.
Guidance is provided on the management of bullying at work and the roles to be played by employers and employees in promoting a positive workplace free from bullying behaviour. Key for employers, is development and implementation of an effective anti-bullying policy, undertaking risk assessments in relation to workplace bullying. There is also helpful assistance in How to Prepare an Anti-Bullying Policy attached to the Code, which should be considered in any review of policies.
Additionally, the Code also emphasises the value of appointing a carefully selected and trained Contact Person for anyone enquiring about a possible bullying case, who will generally act in a supportive and informative capacity only. The person appointed to this role is distinct from the person who will investigate any complaint and is also not a representative for the employee.
The Code offers guidance on an informal process (broken into two distinct steps) and formal process when dealing with a workplace bullying complaint and emphasises, where it is possible, the use of suitably qualified internal or external mediators when aiming to resolve issues and complaints at any early stage.
Given that the Code has been developed by two State agencies, the roles and powers of the WRC and the HSA when dealing with bullying complaints are also covered.
Takeaway for Employers
It is key that Employers familiarise themselves with the new Code and update their Anti-Bullying Policies and procedures accordingly. While it is not an offence for failure to comply with the Code, non-compliance may be looked upon unfavourably and can be used as evidence in any proceedings before a Court, the WRC or Labour Court.
Helpful Links:
http://www.irishstatutebook.ie/eli/2020/si/674/made/en/pdf
http://www.irishstatutebook.ie/eli/2012/si/208/made/en/pdf
Authors – Anne O’Connell & Ethna Dillon
29th January 2021
Anne O’Connell Solicitors
19-22 Lower Baggot Street
Dublin 2.
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