Bullying

HSA Code on Bullying  I

The Health and Safety Authority Code of Practice on the prevention and resolution of bullying at work provides guidance for employers in identifying and preventing bullying at work, in the context of their duties under Health Safety and Welfare at Work legislation.

The Code provides guidance on how to manage and conduct work activities so as to prevent and limit in so far as reasonably practicable, improper conduct or behaviour, likely to put the safety, health, and welfare work of employees and other at risk.

The Code sets out appropriate provisions for the resolution of complaints.  There should be a contact point for persons who feel they are bullied.  The contact person does not act as an advocate.  He gives guidance in relation to complaint procedures available under the internal policy.

The Code does not have the force of law. It is taken into account in WRC and civil cases in which bullying or harassment at work is alleged. The definition of bullying in the Code has been accepted by the Irish Courts.


HSA Code on Bullying II

The HSA Code of Practice on the prevention and resolution of bullying at work defines bullying as repeated inappropriate behaviour, verbal or physical, direct or indirect, conducted by one and more persons against another or others at the workplace in the course of employment which could reasonably be regarded as undermining the person’s right to dignity at work. An isolated incident may be an affront to dignity but usually, would not constitute bullying.

The HSA Code of Practice sets out the employer’s duties in the context of Health Safety and Welfare legislation. The legislation obliges employers to manage and conduct work activities in a manner which prevents, in so far as reasonably practicable, improper conduct or behaviour which is likely to put the safety health and welfare work of employees at risk.

The Code of Practice recommends that there should be provision for the resolution of complaints in relation to bullying. There should be an internal policy on bullying. The policy should allow for informal and formal procedures. The preference is that complaints should be dealt with informally, with a view to minimising stress for the person concerned.


Procedure

The complainant may use an informal procedure. In the absence of successful conclusion, he should be able to proceed to a formal procedure.  A formal procedure requires that the complaint is made in writing and signed by the complainant. The person complained against should be notified in writing. A formal investigation should take place pursuant to the policy.  An appeals procedure should be available.

The employer should determine if the facts constitute bullying. The definition of bullying is repeated inappropriate behaviour, direct or indirect, verbal, physical, or otherwise conducted by one or more persons against others at the workplace in the course of employment, which could reasonably be regarded as undermining the individual’s dignity.

Where the complaint is made against a senior member of the organisation, it may be necessary to have recourse to external services, such as the mediation services of the WRC. More generally, where the internal procedures do not resolve a complaint, the WRC’s services should be used. The Commission’s officers may review the procedure or substance of the matter. It may carry out a new investigation.


Informal Process

The informal procedure seeks to deal with the matter in a low-key manner, without unnecessary escalation. The purpose of the informal procedure is to establish whether an agreement can be reached to bring an end to the behaviour.

There should be a contact point for persons who feel they have been bullied. This may be a colleague or a line manager, whose assistance can be called upon, if necessary. The contact person does not act as an advocate for the complainant. He is to hear the complaint and give guidance in relation to the procedures available under the internal policy. He may assist the complainant in raising the issue with the alleged perpetrator.

Where the internal procedure is to not sufficient to resolve the complaint, Workplace Relations Commission services are available to review the internal procedures or carry out a new investigation.


Formal Process

The complainant may proceed with the formal procedure either initially or after the informal procedure has failed to resolve the matter successfully. The employer should appoint a person at the appropriate layer of management to deal with the matter. Where the complaint is made against a senior member of the organisation, it may be necessary to have recourse to external bodies such as the mediation services of the Workplace Relations Commission.

The formal procedure requires the complaint to be made in writing and signed by the complainant. The person complained against should be notified in writing. A formal investigation should take place pursuant to the internal anti-bullying policy. An appeals procedure must be available.


Civil Liability

Occupational stress, bullying, and harassment raise issues of civil liability for employers, as well as issues of health, safety, and welfare legislation compliance.  Breach of much of the legislation constitutes an offence which can be enforced by administrative notices and ultimately by the prosecution, fines, and even imprisonment. The legislation is enforced by the Health and Safety Authority.

An employer has duties to employees under the law of tort (civil wrongs). This includes a duty to create a safe system of work and working environment. This may also be an express or implied term of the contract of employment. An employer is liable for the civil wrongs committed by his employees. The effect of these principles is that there is a high risk that an employer may be held liable to an employee for bullying and harassment by fellow employees.

The courts, in England and in Ireland, have recognised that the employer’s liability extends to psychiatric injury, typically arising from stress or bullying in the course of employment. The courts have found employers liable for negligence and breach of duty as a result of bullying, on the same general principles as apply in the context of stress.

If  distinct diagnosable mental injury arising from occupational stress caused  by harassment or bullying is reasonably foreseeable, then the failure by the employee to take countermeasures may constitute negligence / breach of duty.


Liability Basis

Under general principles of negligence, the employer has a duty to provide a safe system of work. The employer has statutory obligations in relation to workplace health, safety and welfare. These duties are highly relevant in the context of claims based on bullying and work-related stress.

The employer may be liable for its own failures, for system failures or it may be liable vicariously for the acts of fellow employees. Where an employer is, or should be aware of workplace matters, which have a potential effect on mental health, it is under a duty to take steps to deal with them and to protect the safety and welfare of its employees.

The employer may be liable for bullying on the part of other his employees, as a failure to provide a safe system of work or under principles of vicarious liability.   An employee may be found to have breached his duty where he fails to take steps to prevent bullying on the part of others.

The combined effect of these principles is that an employer may be held liable to pay compensation for the effects of a psychiatric injury caused by workplace stress as the result of bullying and harassment of the employee by a fellow employee or by a member of the public.


Bullying

Bullying consists of systematic and repeated aggression, both psychological and physical, conducted by an individual or group against one or more persons.  It can range from physical aggression to offensive words materials, isolation, workloads. A failure by an employer to take steps to against such conduct occurring may leave him liable to a claim for damages for the mental distress and illness caused.

The courts have recognised the definition of workplace bullying in the HSA Code. The HSA Code of Practice does not have the force of law, but it is taken into account in civil cases where damages are sought for alleged bullying and harassment at work. Many key parts of the Code, has been accepted by the Irish courts in deciding upon civil cases.

The HSA code defines bullying as repeated inappropriate behaviour, verbal or physical, direct or indirect, conducted by one of more persons against another or others at a workplace on the course of employment, which could reasonably be regarded as undermining the person’s right to dignity at work.  An isolated incident maybe an affront to dignity, but would not be considered bullying.


Instances

Bullying at work may lead to or may aggravate stress.  An employer might cause or aggravate stress induced by bullying, intentionally or unintentionally. It may be liable for breach of its duty to take reasonable care for the employee’s safety and its statutory duty to provide a safe working environment.

Negligence may be found where there has been a failure to respond to a bullying complaint, insufficient supervision or where bullying is permitted and tolerated as part of the culture.

Stress and Injury may arise by reason of bullying and harassment from fellow employees. This raises issues in relation to both the primary and vicarious liability of the employer.

In other cases, the bullying or harassment may come from management so that it is deemed the action of the employer itself, whether a personal employer or the controllers of a corporate employer.

Breach of duty and liability has been found in cases of unique supervision, excessive scrutiny, unfair criticism, inconsistency, lack of response to complaints, and insidious silence. It has also been found where an employer fails to address harassment by third parties.


High Bar to Claim I

There are significant hurdles to success in a civil claim for damages for bullying or harassment. There must be a demonstrable breach of duty. In some cases, employees have shown depression and psychological illness but have not been in a position to show that it was caused by the alleged workplace bullying.  Unless the employer is vicariously liable, it may not have been aware of the employee’s vulnerability.

Mental injury is more difficult to foresee than physical injury. Generally, an employer is entitled to assume that the employee can deal with the normal stresses of the job. If, however, the employer has knowledge or ought to have knowledge of the particular employee’s circumstances which show heightened risk, the duty to take steps to alleviate that risk may arise.

It must be shown that it was the employer’s negligence or breach of duty which caused the loss or damage. In some cases, employees have shown depression or psychological illness, but have not been in a position to show that it was caused by the bullying.


High Bar to Claim II

Mere unpleasant stress and distress are insufficient for the purposes of common law damages. Although damages will not be awarded for distress in itself, the circumstances and level of distress and humiliation may be relevant to the award of damages in a case where it is accompanied by loss or damage which is recognised at common law

However, mere stress and humiliation alone would not constitute sufficient loss or damage for the purpose of compensation at common law. There must be a demonstrable psychological effect or condition. There may be implications under Health Safety and Welfare legislation.

The Supreme Court in the 2017 Ruffley case indicated that the issue involves a careful focus on at least three terms used in the 2002 Order
  • repeated behaviour;
  • inappropriate behaviour; and
  • behaviour reasonably capable of undermining dignity at work.
It sought to set a relatively high bar for a successful claim.

References and Sources

Irish Books

Safety, Health and Welfare and at Work Law in Ireland 2nd Ed 2008 Byrne Ch 4

Civil Liability for Industrial Accidents 1993 White Vol 1 Part 1

The Law of Torts McMahon & Binchy 2013 4th Ed Ch18

Insurance Law Buckley 4rd Ed 2016 Ch 13

UK Books

Charlesworth & Percy on Negligence 2014 Walton Ch 10


 

Code on Bullying

CODE OF PRACTICE FOR EMPLOYERS AND EMPLOYEES ON THE PREVENTION AND RESOLUTION OF BULLYING AT WORK

The Health and Safety Authority, at the request of, and with the consent of, the Minister for Labour Affairs, Tony Killeen, T.D. and following public consultation, including with the social partners, publishes this Code of Practice entitled ‘Code of Practice for Employers and Employees on the Prevention and Resolution of Workplace Bullying’, in accordance with section 60 of the Safety, Health and Welfare at Work Act 2005 (No. 10 of 2005), called the “2005 Act” after this.

This Code of Practice provides practical guidance for employers on identifying and preventing bullying at work arising from their duties under section 8 (2) (b) of the 2005 Act as regards ‘managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health and welfare at work of his or her employees at risk’. It also applies to employees in relation to their duties under section 13 (1) (e) of the 2005 Act to ‘not engage in improper conduct or behaviour that is likely to endanger his or her own safety, health and welfare at work or that of any other person’.

This Code of Practice comes into effect on 1st May 2007 and from that date it replaces the Code of Practice entitled “Code of Practice on the Prevention of Workplace Bullying” which was issued by the Authority in March 2002 in accordance with the Safety, Health and Welfare at Work Act 1989.

Notice of issue of this Code of Practice, and the withdrawal of the 2002 Code of Practice, was published in the Iris Oifigiúil of Friday, 30th March, 2007.

As regards the use of Codes of Practice in criminal proceedings, section 61 of the 2005 Act provides as follows-

“61. (1) Where in proceedings for an offence under this Act relating to an alleged contravention of any requirement or prohibition imposed by or under a relevant statutory provision being a provision for which a code of practice had been published or approved by the Authority under section 60 at the time of the alleged contravention, subsection (2) shall have effect with respect to that code of practice in relation to those proceedings.

(2) (a) Where a code of practice referred to in subsection (1) appears to the court to give practical guidance as to the observance of the requirement or prohibition alleged to have been contravened, the code of practice shall be admissible in evidence.

(2) (b) Where it is proved that any act or omission of the defendant alleged to constitute the contravention:

(i) is a failure to observe a code of practice referred to in subsection (1), or

(ii) is a compliance with that code of practice,

then such failure or compliance is admissible in evidence.

(3) A document bearing the seal of the Authority and purporting to be a code of practice or part of a code of practice published or approved of by the Authority under this section shall be admissible as evidence in any proceedings under this Act.”

M. O’Halloran

Assistant Chief Executive and Secretary to the Board

Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work


1. INTRODUCTION

This Code of Practice, under the Safety, Health and Welfare at Work Act 2005, is aimed at preventing and dealing with bullying where it happens in Irish workplaces. It is a code for both employers and employees.

……


2. STATUS AND SCOPE OF THE CODE

This Code of Practice provides practical guidance for employers on identifying and preventing bullying at work arising from their duties under section 8 (2) (b) of the 2005 Act as regards ‘managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health and welfare at work of his or her employees at risk’. It also applies to employees in relation to their duties under section 13 (1) (e) of the 2005 Act to ‘not engage in improper conduct or behaviour that is likely to endanger his or her own safety, health and welfare at work or that of any other person’.

Extracts from the 2005 Act which are relevant are set out in Appendix 1:

• section 8. General duties of employer

• section 9. Information for employees

• section 10. Instruction, training and supervision of employees

• section 13. Duties of employee

• section 14. Interference, misuse, etc

• section 19. Hazard identification and risk assessment

• section 20. Safety Statement

• section 60. Codes of practice

• section 61. Use of codes of practice in criminal proceedings

• Schedule 3. General Principles of Prevention.

This Code:

• outlines some of the more common behaviours associated with bullying at work

• identifies situations where bullying commonly occurs at work

• describes how to prepare a Bullying Prevention Policy

• sets out procedures for resolving bullying complaints at work.

Failure to follow this Code is not an offence but the Code is admissible in evidence in criminal proceedings under section 61 of the 2005 Act.

This Code applies to all employments in Ireland whether employees work at a fixed location, at home or are mobile.


3. BULLYING AT WORK

3.1. What is Bullying at Work?

Bullying at work has been 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 reasonably be regarded as undermining the individual’s right to dignity at work’1.

An isolated incident of the behaviour in this definition may be an affront to dignity but as a once-off incident is not considered to be bullying.

Bullying puts at risk the safety, health and welfare of people at work.

A pattern of the following behaviours are examples of types of bullying.

• Exclusion with negative consequences

• Verbal abuse/insults

• Physical abuse*

• Being treated less favourably than colleagues

• Intrusion – pestering, spying or stalking

• Menacing behaviour

• Intimidation

• Aggression

• Undermining behaviour

• Excessive monitoring of work

• Humiliation

• Withholding work-related information

• Repeatedly manipulating a person’s job content and targets

• Blame for things beyond the person’s control.

This list is not exhaustive.

*This Code does not aim to address physical assault at work. The Authority advises that where it may be a risk, employers have a dedicated policy on violence and assault with no tolerance of such behaviour.

It is important to distinguish bullying from other inappropriate behaviours. For example, a once off incident of bullying behaviour may be an affront to dignity at work but is not considered to be bullying.

Harassment is closely related to bullying and whilst it is illegal and should not be tolerated in the workplace, it does not fit the definition. To assist in differentiating the two it is worth considering that harassment is governed by Equality legislation and is predicated on the person being a member of one of the nine categories specified within the anti-harassment legislation. Bullying is legally distinct from harassment as bullying behaviour is not predicated on membership of any distinct group.

Bullying at work does not include reasonable and essential discipline arising from the good management of the performance of an employee at work or actions taken which can be justified as regards the safety, health and welfare of the employees. For example, an employee whose performance is continuously signalled at a level below required targets may feel threatened and insecure in their work but this in itself does not indicate bullying.

Bullying at work can involve people in many different work situations and at all levels:

• manager/supervisor to employee

• employee to supervisor/manager

• one employee to another (or group to group)

• customer or business contact to employee

• employee/supervisor/manager to customer/business contact.

Factors which are known to signal a risk of bullying at work are:

• High turnover of staff, high absenteeism or poor morale

• Employment tenure – a bully may regard new, casual or contract employees as easier targets than permanent employees;

• Hierarchies – hierarchies involving, for example, technical or non-professional employees working to professionally qualified employees which can sometimes present higher levels of bullying;

• Changes in the workplace – workplace changes which can increase the risk include change in ownership, new manager or supervisor, introduction of new work performance measures or of new technology or internal re-organisation;

• Management of relationships in the workplace – bullying may be more likely to happen in workplaces that do not have an effective management system which respects persons and monitors and supports work relationships;

• Personality differences – petty jealousies, personal biases, taking advantage of vulnerable or less ‘street-wise’ individuals can contribute to bullying;

• Gender/age imbalance – bullying may be more likely where there is an age or a gender imbalance in the workplace;

• Other factors include the composition of the workforce, interface with the public, history of tolerance of unacceptable behaviour, lack of or inadequate procedures or disregard of procedures for dealing with bullying.

3.2. Who bullies at work?

It is not possible to describe all bullies but persons who engage in bullying at work may have certain personal characteristics such as poor communication skills, difficulty in working with others, difficulty in delegating responsibility, poor organisational skills or low self-esteem. Good job design, training and supervision can help overcome these difficulties.

Bullying is recognised as being present in other walks of life such as in schools and in the home and bullying at work may be part of a wider cultural background.

3.3. Why deal with Bullying at Work?

Recent research suggests that almost one in every twelve people have reported being bullied at work. Bullying can have serious effects for both the person bullied and for the employer. Stress, ill health, loss of confidence and self esteem and career difficulties can result for a victim. For the employer, a dysfunctional workplace, reduced productivity, poor morale, lost time, industrial relations problems and litigation can follow.

3.4. Role of Employees – Prevention

Employees have rights and duties as regards safety, health and welfare at work under the 2005 Act.

Employees have rights to be treated with dignity and respect at work and not to have their safety, health or welfare put at risk through bullying by the employer, by other employees or other persons. They have a right to complain to the employer if bullied and not to be victimised for so doing. They have a right under safety and health laws to be represented in raising this with the employer.

Employees have duties to behave and conduct themselves so as to respect the right of employers and other employees to dignity, courtesy and respect at work and the right not to be placed at risk as regards to their safety, health and welfare from bullying at work. Employees should also cooperate by providing any relevant information when an allegation of bullying at work is being looked into whether in an informal or formal stage.

3.5. Role of Employer – Prevention

Every 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 employee’s safety, health or welfare at work. The prevention of bullying must therefore be part of the management system.

Employers must prepare a Safety Statement under section 20 of the 2005 Act, based on an identification of the hazards to safety, health and welfare at the place of work, an assessment of the risks involved and setting down the preventive measures necessary to protect safety, health and welfare. Risk is the likelihood of a hazard causing harm and the extent of that harm.

The employer must consider if bullying at work is likely to be a hazard, the extent of risk involved and what preventive measures are necessary.

3.6. How to identify if bullying is a hazard at work

The following will help the employer to identify if bullying is a hazard at work:

• If unacceptable conduct or behaviour has been observed – see the examples under 3.1 above – What is bullying at work?

• If substantiated complaints of bullying at work have been made by employees or on their behalf;

• If the human resources unit, the company doctor, nurse, welfare officer or similar person reports bullying at work;

• If, perhaps taken with the above, there is sick leave above the norm, particularly with work related stress certified.

3.7. How to assess the risk

The risk assessment should be based on:

• The factors listed above under 3.1- What is bullying at work? and any information from these factors which signal risks to safety, health and welfare if bullying exists;

• Information derived from organisational climate or work environment assessments or similar feedback mechanisms that may exist in the company;

• Views gathered from consulting with employees and their representatives.

3.8. What preventive measures are recommended?

Measures to prevent bullying at work include:

• Having in place a Bullying Prevention Policy which adequately addresses the risks that have been assessed. The policy should be clear in how it will measure implementation. (Where bullying has been dentified as a risk, this policy must be referenced or included in the Safety Statement)

• Providing appropriate training and development at all levels but particularly for line manager roles;

• Ensuring clarity of individual and department goals, roles and accountabilities;

• Ensuring access to relevant competent and supportive structures both internal and external.


4. HOW TO PREPARE A BULLYING PREVENTION POLICY

Prevention is the best way to avoid the risk of bullying at work. An effective policy, and a strong commitment to implementing it is required. The purpose of an effective policy is not simply to prevent improper conduct and behaviour but also to encourage best practice and a safe and harmonious workplace where such behaviour is unlikely to occur.

Employers should therefore adopt, implement and monitor a comprehensive, effective and accessible policy  on bullying at work.

4.1. Preparing the Policy

Strategies to create and maintain a working environment in which the dignity and respect of employees are appreciated and upheld are most likely to be effective when they are jointly agreed. In this way, employers and other parties to the employment relationship can create an anti-bullying culture and share a sense of responsibility for that culture. In very small businesses which may not have an employee representative structure, the policy and strategy should be advised to all employees.

The policy and complaints procedure should be adopted, where appropriate, in so far as is practicable with clients, customers and other business contacts after consultation or negotiation with trade union or employee representatives, on its content and implementation. Simple direct language should be used in the policy.

Information given to employees should be in a form, manner and, as appropriate, language that is reasonably likely to be understood by the employees concerned.

The policy document should be written, dated and signed by a responsible person at senior management level and updated when appropriate, for example following a change that might impact the validity of the original risk assessment.

As required under safety and health laws and in keeping with normal industrial relations practice, there should be prior consultation, and participation where appropriate, regarding the policy and its implementation, with employees or their representatives, including the Safety Representative or the Safety Committee.

The policy should set out a complaints procedure as recommended within this Code.

It is prudent to keep a record of consultation actions in case of future requirement.

4.2. Core Elements and Implementation Steps

Employer’s declaration

The Bullying Prevention Policy should declare:

• the employer’s commitment to ensuring that the place of work is free from bullying at work and that the work environment is aimed at providing a high quality product or service in an atmosphere of respect, collaboration, openness, safety and equality;

• that all employees have the right to be treated with dignity and respect at work;

• that the risk of bullying has been assessed and preventive measures included, where necessary, in the Safety Statement;

• that consultation with employees or their representatives, including the Safety Representative and the Safety Committee, as appropriate, has taken place as regards the risk of bullying at work and preventive measures;

• that employees also have responsibility in creating and contributing to the maintenance of a work environment free from bullying or from conduct likely to contribute to bullying;

• that complaints by employees of bullying at work will be treated with fairness, sensitivity, respect and confidentiality for all parties concerned;

• that a person or persons alleged to have bullied will be afforded natural justice and treated with fairness, sensitivity and respecting the need for confidentiality with all parties concerned;

• that bullying at work by the employer, by employees and by non-employees, such as clients, customers, sub contractors and business contacts, will not be tolerated and the appropriate employing organisation should deal with the complaint in line with these procedures, which could lead to disciplinary procedures being applied;

• that a complaint of bullying which is found, following investigation, to be vexatious will be dealt with through the disciplinary procedure;

• that human resource management policies and practices will strive to prevent bullying at work;

• that the policy will be updated to reflect the company’s experiences in implementing it, relevant changes in the workplace and any external factors that are relevant.

Scope

The policy should

• describe what is meant by bullying at work as set out above under What is bullying at work?;

• include a non-exhaustive list of examples of bullying behavior relevant to the particular employment

(see also What is bullying at work?);

• give the name or job title of the person who may be approached by a person wishing to complain of bullying at work;

• state that the protection extends to:

• bullying at work by management, fellow employees, subordinates, clients, customers and other business contacts;

• beyond the place of work to off site and to work-related social events;

• state that all complaints of bullying will be taken seriously and will be followed through to resolution;

• employees who make a complaint will not be victimised.

4.3. Allocation of responsibilities as regards prevention of bullying at work

The policy should state that management, others in positions of authority and workplace representatives have a particular responsibility to ensure that bullying at work does not occur and that complaints are addressed speedily. The policy should state that in particular, management should:

• provide good example by treating all in the place of work wit courtesy and respect;

• promote awareness of the policy and complaints procedures;

• be vigilant for signs of bullying at work through observation and through seeking employee feedback and take action before a problem escalates;

• deal sensitively with employees involved in a bullying complaint whether as complainant or alleged bully;

• explain the procedures to be followed if a complaint of bullying at work is made;

• ensure that an employee making a complaint is not victimised for doing so;

• monitor and follow up the situation after a complaint is made so that the bullying at work does not recur.

Trade Unions

The policy should address the contribution to be made by the trade union/s, as appropriate, including as regards the prevention of bullying in the workplace through their participation in the development and implementation of policies and procedures, through their information and training services, and through the collective bargaining process. Trade unions may also play a role in providing information, advice and representation to employees who have been bullied at work, and to employees against whom allegations of bullying at work have been made.

Employees

The policy should indicate that employees can contribute to achieving a work environment which does not tolerate bullying at work. This could also include co-operating with preventive measures introduced by management, and also through trade union strategies to eliminate or avoid bullying at work. Employees should recognise that a finding of bullying at work will be dealt with through the disciplinary procedure. Equally a finding that the complaint was vexatious will be dealt with through the disciplinary procedure.

Non-Employees

The policy should indicate that bullying at work by non-employees such as clients, customers and business contacts is not tolerated and may lead to termination of contracts or suspension of services, or to exclusion from a premises or the imposition of other sanctions, as appropriate.

4.4 Communication of Policy

The policy should include a commitment to effective communication of the policy. It should be communicated effectively to all those potentially affected by it, including management, employees, customers, clients and other business contacts, such as those who supply and receive goods and services. Effective means of communicating a policy could include newsletters, training manuals, training courses, leaflets, websites, emails, toolbox talks and notice boards.

Health and Safety Authority

Communication to Employees

New employees, including those in management and all other positions of responsibility, should be made aware of the policy as part of any formal induction process to familiarise them with their job and their working environment and any rules and regulations that apply.

Where a staff handbook is distributed to employees as part of the induction process the Bullying Prevention Policy should be included.

Existing employees should receive updated and regular communication on the policy.

Communication to Non-Employees

A summary of the Bullying Prevention Policy should be prominently displayed where appropriate and as identified on the risk assessment, such as at places where members of the public, clients, and customers attend.

4.5 Monitoring

The policy should include a commitment to monitoring and recording incidents of bullying at work.

Statistics and information gathered from such monitoring should be recorded and used to assist the employer take corrective action or achieve continuous improvement in their bullying prevention policy and procedure.

4.6 Training and Supervision

Employees should be provided with such information, training, development and supervision as is necessary to ensure the prevention of employer bullying. This should include:

• making employees aware of the Bullying Prevention Policy;

• information on the appropriate behaviour to comply with the terms of the policy;

• training, if needed, in order to comply with the policy;

• assistance, if necessary, to overcome a bullying incident, as well as adequate and informed supervision of the work environment.

The policy should include commitments to staff training and supervision as identified in the risk assessment on issues related to bullying at work, including the provision of training for managers, supervisors and for all staff, at induction or through appropriate awareness raising initiatives. Such training should identify the factors which contribute to a working environment free of bullying and familiarise participants with their responsibilities under the policy and any problems they are likely to encounter.

Such training is especially important for those members of staff responsible for supervision and for implementing the policy and responding to complaints.

Best practice would ensure that records are kept by the employer of all such training.

4.7 Reviews

The policy should include a commitment to review on a regular basis in line with experience in the employment, changes in the law, relevant case law or other developments.

A responsible person should be named in the policy to ensure that monitoring, training and reviews take place.


5. OTHER PREVENTIVE MEASURES

5.1. Role Clarity

As a matter of good practice, employers should define each employee’s role and accountability as clearly as possible. This may include a written description of main duties and responsibilities and a clear line of supervision. This should be reviewed in a collaborative manner on an on-going basis and any changes in job content should be communicated clearly to the individual and those working alongside him/her.

5.2. Acknowledging responsibility – managers, supervisors and employees

Managers, and supervisors, have a responsibility to manage in such a way as to protect the safety, health and welfare of employees. This means accepting responsibility for preventing bullying at work and for resolving alleged cases of bullying at work.

Every employee is responsible for safeguarding his/her own safety and welfare, and that of his/her colleagues who may be affected by his/her actions, or omissions, while at work. Therefore each employee has a duty not to place the safety, health and welfare of colleagues at risk by engaging in bullying or, where in a position of authority, to take the appropriate steps to stop bullying if or when it occurs.

5.3. Access to ‘contact person’ and to competent advisory services

As part of the Bullying Prevention Policy employers should name a ‘contact person’ who can listen and advise about complaints of bullying at work and explain the procedures in place to resolve it. These individuals should receive appropriate training.

The Contact Person role is a voluntary role of facilitation to act as the first point of contact for someone who believes that he or she is being treated in a bullying manner. The Contact Person is nominated, through agreement with the employer. He/she has a listening brief and is a reference point for the complainant, and he/she could, for instance, provide the complainant with a copy of the policy, outline the routes available and explain the roles of personnel involved. The Contact Person does not get involved in any other way in the complaints procedure and is not an advocate for either party.

In smaller organisations, this role may be provided by an outside agency, such as a representative body or an advisory body.

Employers have a duty under safety and health laws to obtain the services of a competent person where necessary to help comply with such laws. There may be situations as regards bullying at work where an employer could benefit from expert assistance. This could be provided within the undertaking or sourced from outside. It could involve seeking help from an employer or other representative body which provides such advice or from relevant public bodies such as the Health and Safety Authority or the Labour Relations Commission. It could involve seeking the services of persons particularly qualified in mediation or counselling or training in this area.


6. RESOLVING BULLYING AT WORK

The following procedures, both informal and formal, should be outlined within the Bullying Prevention Policy and followed and implemented should a complaint be made.

6.1. Informal process

A problem-solving approach is promoted to ensure that the behaviour complained of, if established in fact, is eliminated and that working relationships are restored. An informal process should:

• Aim to assess the allegation and address it;

• Use agreed procedures;

• Be consistent, systematic, transparent and unbiased;

• Ideally have an intervention addressing the issue in place within three weeks or an agreed, indicative time frame;*

• Promote the restoration of harmony over the medium to long term.

On receipt of a complaint of alleged bullying, or a complaint that a bullying atmosphere or bullying type behaviours are occurring, an employer should try to have the matter resolved informally with the consent of the parties involved. For general non-specific issues, a proactive, non-judgemental intervention approach such as information sessions, clarifying what is acceptable interaction for a workplace and monitoring should be used.

Informal resolution of a specific bullying allegation could include for example, clarification of what bullying is, agreement to alter verbal style, agreement by the person complained of, if they accept that their behaviour was inappropriate, that the conduct will not be repeated, or an explanation to the complainant about what occurred from the point of view of the person complained of which dispels the complaint.

The first step in any informal resolution of a complaint should be to get the facts of the complaint, the specific issues complained of, when they occurred and to judge whether or not they fall within the definition of bullying, and thereafter to establish whether or not they are representative of the events complained of.

Generally, the employer or the person heading up the organisation is advised not to try personally to informally resolve the complaint but should instead refer the dispute for resolution to another senior manager, or such other person as may be agreed. This is to prevent any bias or perceived bias on the part of the employer, should the issue be referred to him/her at a later stage in the process.

In small and micro organisations, where internal structures are limited, if the complaint is made by or against a senior person within the organisation, it may be necessary to use the expertise of an independent professional body to access mediation or conciliation. Such bodies may include the Mediation Services of the Labour Relations Commission. Even in larger organisations, external assistance may be required in order to initiate an effective early resolution. In other cases in small and micro organisations, where there is no conflict of interest, the employer or organisation leader may try to resolve the matter informally in some circumstances provided objectivity is not compromised.

*While it is crucially important for both the complainant and the person complained against that an effective process be put in place promptly upon a complaint being made, it is also very important that enough time be given to the process and to any mediation or monitoring that this involves. Therefore a time frame and speedy intervention is emphasised while not diminishing the fact that the intervention may carry on into the medium term in order to ensure it remedies the issues fully.

KEY STEPS IN THE INFORMAL PROCESS ARE AS FOLLOWS:

6.1.a. A complainant alleges bullying

• Any employee who believes he or she is being bullied should, where possible, indicate directly to the person complained of that the behaviour in question is unacceptable. In circumstances where the complainant finds it difficult to approach the person complained of directly, he or she should seek help and advice, from a ‘contact person’ nominated by the employer under the Bullying Prevention Policy, or another colleague or trade union / staff representative.

• A ‘contact person’ is a person given authority by the employer to act as an initial facilitator where bullying is being alleged. See section 5.3 above which defines the role.

• The employer should designate a separate person who has had appropriate training and experience and who is familiar with the procedures involved to deal with the complaint on behalf of the organisation. This person should not be the ‘contact person’ and may be a supervisor/manager or someone in authority within the organisation. For each complaint that arises, a designated person should be assigned to deal with that specific case. This is a very important role and pivotal in altering bullying cultures and handling complaints effectively at informal stage. Effective guidance and training should be in place for those who are engaged at this level with the process.

• The complaint may be verbal or written. If verbal, a written note of what is complained of should be taken by the designated person and a copy given to the complainant.

• The designated person who is handling the complaint, should then establish the facts, the context and then the next course of action in dealing with the matter under the informal procedure.

• If the complaint concerns bullying as defined and includes concrete examples of inappropriate behaviour, the person complained against should be presented with the complaint and his/her response established.

• Thereafter a method should be agreed to progress the issue to resolution so that both parties can

return to a harmonious working environment without bullying being a factor.

• If the behaviour complained of does not concern bullying as defined, an alternative approach should be put in place and a rationale recorded. If there are no concrete examples given, it must be deemed that there is no complaint to be answered by the person complained of as they have no recourse to repudiating an accusation that doesn’t give any specifics.

• Line managers should be kept informed, as appropriate, about the process in train.

6.1.b. Intervention

The first step in the informal approach is to ascertain the facts of the accusation, and present them to the person complained of, where they are assessed to be validly made.

In following the informal process, steps to stop the bullying behaviour, where it has been identified, and monitor the situation along specified lines should be agreed with both parties. This may involve a direct or indirect approach and possible resolution through a programme to change behaviour. It may involve mediation* by an agreed mediator who is practised in dealing with bullying at work.

* Mediation is a voluntary and confidential process for resolving disputes wherein the parties agree to attempt to resolve the issues of the dispute without recourse to the judgement of others with the aid of a professional mediator.

Enough time needs to be allowed for the mediation or on-going monitoring process to be successful and behaviour change to be realistically achieved over the longer term. It may be necessary to consider if other working arrangements are required or feasible during this short-term phase. A proposal should be made, considered, and an action and time frame should be agreed, signed and dated, preferably by both parties.

• The designated person should keep a record of all stages; the complaint, the first meeting, action agreed and signed records of the final meeting. The purpose of the records, which do not include detail of discussions, is to provide evidence of the complaint having been met with an organisational response and attempt at resolution. Records should be kept in accordance with the Data Protection Act, specifically section 2 (1) governing Retention, within an agreed HR filing system and be available only to those directly involved and within the confines of the obligations and duties of the Data Protection Act, 2003.

• Information disclosed in the course of mediation must remain within the mediation process and must not be given by the mediator to anyone or to an investigator if there is a subsequent investigation at formal stage.

• Confidentiality is crucial for this stage to be effective and breaches of confidentiality, where exposed, should be met with sanctions highlighted in advance.

6.1.c. Closure

• To obtain closure after a resolution is found through informal procedures both parties should be given support or periodical reviews, insofar as is reasonable, which, if necessary, could include counselling or other appropriate interventions or support services;

• Where a complaint has been assessed as vexatious, the matter should be progressed through the disciplinary procedures;

• In many situations, with the co-operation of all parties, the matter can rest here.

6.2. Formal process

If the issue is not or cannot be resolved through an informal process, or, if after that informal process the bullying persists, a formal process should be invoked. The process includes a formal complaint, and a formal investigation. The purpose of an investigation is to determine the facts and the credibility or otherwise of a complaint of bullying. Where an investigation is to be carried out, the procedures below should be followed.

KEY STEPS IN THE FORMAL INVESTIGATION PROCESS ARE AS FOLLOWS:

6.2.a. Formal complaint

The complainant should make a formal complaint, ideally in written form and signed and dated.

The complaint should be confined to precise details of alleged incidents of bullying, including their dates, and names of witnesses, where possible.

*Where this is not possible, a written record should be taken of the complaint by the designated person and signed by the complainant.

The complainant should be advised of the aims and objectives of the formal process, the procedures and time frame involved, and the possible outcomes. He/she should be assured of support as required throughout the process. He/she should again be given a copy of the Bullying Prevention Policy.

6.2.b. Information to the person complained against

The person complained against should be notified in writing that an allegation of bullying has been made against him/her. He or she should be assured of the organisation’s presumption of his or her innocence of any wrongdoing at this juncture. He/she should be advised of the aims and objectives of the formal process and procedures and time frame involved and the possible outcomes. He/she should be assured of support as required throughout the process.

A meeting should be organised at which he/she is given a copy of the complaint in full and any relevant documents including the Bullying Prevention Policy.

6.2.c. Investigation

The investigation should be governed by terms of reference which should include the following:

• The investigation will be conducted in accordance with the employment’s Bullying Prevention Policy which should reflect this Code of Practice.

• The likely time scale for its completion – an indicative time-frame should be outlined and agreed and its rationale explained.

• The scope of the investigation, indicating that the investigator will consider whether the complaint falls within the definition of bullying at work and whether the complaint has been upheld.

Statements from all parties should be recorded in writing as the use of written statements tends to make matters

clearer from the outset and maintains clarity throughout the investigation. Copies of the record of their statements should be given to and agreed with those who make statements to the investigator. All parties should continue to work normally, if possible during the investigation. The objective of an investigation is to ascertain whether or not, on the balance of probabilities, the behaviours complained of occurred. Evidence and witness statements are relied on for this purpose.

The investigation should be conducted by either a designated member(s) of management (as outlined earlier in this Code) or, if necessary, (for example in the case of any possible conflict of interest) an agreed, external third party. In either case, the person nominated should have appropriate training and experience and be familiar with the procedures involved. The investigation should be conducted thoroughly, objectively, with sensitivity, utmost confidentiality, and with due respect for the rights of both the complainant and the person

complained of.

The investigator should meet with the complainant and the person complained of and any witnesses or relevant persons on an individual confidential basis with a view to establishing the facts. A work colleague or employee/trade union representative may accompany the complainant and the person complained of, if so desired.

The investigation should be completed as quickly as possible, preferably within an agreed timeframe. The investigator should submit the report to the employer which should include his or her conclusions. The complainant and the person complained of should be given a copy of the report as soon as possible by the employer and given an opportunity to comment, within a set deadline, before the employer decides on any action to take.

The employer should decide in the light of the investigator’s report and the comments made, if any, what action is to be taken arising from the report. The employer should then in writing inform the complainant and the person complained against of the next steps. At the end of the process the documentation should be kept by the employer in line with the Retention guidance within the Data Protection Act, 2003 (already referred to in this Code) and made available only in compliance with that Act.

6.2.d. Action where the complaint is upheld

Where a complaint has been upheld, bullying has been identified as a behaviour which is a hazard in that organisation/department. Bullying behaviour is recognised as having potentially damaging effects to the health of the person bullied and damaging consequences for the organisation. Eliminating the hazardous behaviour and controlling the risks of it re-occurring is a requirement of the employer as part of his/her duty of care under Health and Safety legislation. Action should be taken to eliminate the risk of the bullying behaviour continuing or being repeated at a later date. A record of the interventions used for this purpose should be kept.

If a complaint is upheld the matter is now a disciplinary issue and the employer should follow the appropriate disciplinary procedures. An employer who does not have such procedures in place could refer to the Labour Relations Commission’s Codes of Practice – Grievance and Disciplinary Procedures and Voluntary

Dispute Resolution.

An employer should decide what further action as regards the complaint is necessary, including specific remedies to eliminate exposure to the hazard in future and to reduce the effects of the prior exposure for the complainant. The employer should keep the situation under review. It may be appropriate in some cases to provide for counseling for the complainant and also for the person complained against, or to decide on other steps such as better training or supervision, re-assignment or re-organisation of work.

6.2.e. Action where complaint is not upheld

It is important that employers, managers and supervisors monitor the situation to ensure that there is no victimisation or appearance of victimisation of a complainant following an investigation. It is crucial that situations are treated sympathetically where complaints are made in good faith but not upheld, and it should be noted that there are instances where this will be the case.

Where a complaint is not upheld, the employer has a duty to the person complained against. It should be made clear to both parties that the complaint is not upheld, and no wrong doing has been found. Support and affirmation should be offered to the person against whom the complaint was made, and all efforts should be made to ensure that anyone with a prior knowledge of the complaint is made aware of the finding that it is not upheld.

Where, on the other hand, a complaint has been found to have been maliciously made, the employer’s disciplinary procedure should apply.

6.3. Appeals

Within the formal system, an appeals process for both parties should be in place. The reason for the appeal should be outlined in writing to management if such an option is being taken. The appeal should be heard by another party, of at least the same level of seniority as – but preferably more senior than – the original investigator, and focus only on the aspect of the case cited by the appellant as being the subject of the appeal.

The grounds of the appeal and any outcome and methodology employed should be appended to the investigation file.

Very small and micro organisations will need to consider at the outset of the formal process how they would manage a request for appeal and this may require outside independent support.

6.4. Closure and Next Steps

Both parties should be given appropriate support and periodical reviews, insofar as is reasonable, after a resolution is found so as to obtain closure. It must be accepted that investigations can result in very divisive relationships for individuals, teams and departments and some type of reconciliation or rehabilitative meetings, or team working session would be advised to restore healthier working communication for the future. In many situations, with the cooperation of all parties, the matter can rest here.


7. IF INTERNAL PROCEDURES DO NOT RESOLVE A

BULLYING COMPLAINT

If full utilisation of the range of available internal procedures has not resolved a bullying complaint, the services of a Rights Commissioner may be accessed directly by individuals involved.

Rights Commissioners can assess how procedures were applied in bullying cases and thereafter intervene in a range of ways, including, where appropriate, carrying out a new investigation. Application for a Rights Commissioner hearing must be made directly by the appellant, citing the Industrial Relations Acts 1969 – 2001.


8. ROLE OF THE HEALTH AND SAFETY AUTHORITY

The role of the Health and Safety Authority in respect of bullying at work is to monitor if employers and employees are meeting their obligations and duty of care under the 2005 Act.

Where complaints of bullying at work are made to the Authority it can direct that the procedures in this Code be observed.

The Authority’s role is to promote and to ensure compliance with this Code. The Authority can provide advice and support where necessary and use its powers of enforcement if bullying is a serious hazard which is not controlled and the safety, health and welfare of employees is at risk.