Considerations in developing a Dignity and Respect at Work Policy

The Industrial Relations Act 1990 (Code of Practice detailing procedures for addressing bullying in the workplace) (Declaration) Order 2002 (S.I. No. 17/2002) as seen in the Ruffley v The Board of Management of Saint Anne’s School 2017 case set the benchmark for workplace bullying cases going forward, defining 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 reasonably be 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”

On the other hand, harassment is defined as “any act of conduct which is unwelcome and offensive, humiliating or intimidating on a discriminatory ground including spoken words, gestures, or the production, display or circulation of written material or pictures”.

The first step in drafting a Dignity and Respect at Work policy is to ensure that both bullying and harassment are clearly defined.  The policy should provide for prompt, fair, confidential and effective redress for targets of Bullying/harassment.

It is also important to outline the scope of the policy and to address who it applies to and in what scenarios. The policy applies to employees both in the workplace and at work associated events, such as meetings and Company outings, whether on the premises or off site. The policy should also apply to harassment not only by fellow employees but also by a customer or other business contacts to which an employee might reasonably expect to come into contact within the course of their employment.

There is both an informal and formal procedure to deal with the issue of bullying/harassment at work. Any investigation should be completed as quickly as possible.  Any employee who makes a complaint of bullying or harassment should have the option of which procedure they wish to follow. It is often preferable for all concerned that complaints of bullying or harassment are dealt with informally whenever possible, as an informal approach can often resolve matters.  As a general rule therefore, an attempt should be made to address an allegation of bullying/harassment as informally as possible by means of an agreed informal procedure.

Though described as informal, it is still important to note that there should be a predetermined, written procedure for dealing informally with a complaint of bullying of harassment. This could involve instructing an employee who believes he or she is being bullied/harassed to explain clearly to the alleged perpetrator(s) that the behaviour in question is unacceptable. If the complainant finds it difficult to approach the alleged perpetrator(s) directly, there should be an option to seek help and advice, on a strictly confidential basis, from their Manager or someone in the organisation. The above contact person should listen patiently, be supportive and discuss the various options open to the employee concerned.

A complainant may decide, and must always have the option, to by-pass the informal procedure. If an informal approach is inappropriate or if, after the informal stage, the bullying/harassment persists, the formal procedures should be invoked.  Again, these need to be predetermined written procedures that employees are made aware of through a Company Handbook or Company Policies and Procedures document.

There can be slight variations to the formal procedure from company to company, but all procedures need to ensure that the following principles are adhered to:

• The complainant should make a formal complaint, in writing.
• The alleged perpetrator(s) should be notified in writing that an allegation of bullying has been made against them.  They should be given a copy of the complainant’s statement and advised that they shall be afforded a fair opportunity to respond to the allegation(s), within specified time limits.
• Both parties must have the right to be accompanied by a representative at all meetings. 
• The complaint should be subject to an initial examination by a designated manager or senior person in the organisation, who can be considered impartial, with a view to determining an appropriate course of action.
• No assumptions should be made by the Company about the guilt or otherwise of the alleged harasser, or about the motivation or intent of the complainant.
• An appropriate course of action at this stage, could be exploring a mediated solution or a view that the issue can be resolved informally.  Should either of these approaches be deemed inappropriate or inconclusive, a formal investigation of the complaint should take place with a view to determining the facts and the credibility or otherwise of the allegation(s).

This procedure must be open and transparent and must be in line with the rules of natural justice.

We recently came across a case in which a general operative was awarded €26,000 following an unfair dismissal claim due to bullying in the workplace. The WRC heard that a Service Manager sprayed perfume on the complainant and told him "let’s see how you explain that when you get home". The operative detailed a number of other incidents including an alleged incident in which that the Services Manager turned on a fire extinguisher on him while he was working under a car and then posted a video of the incident on Facebook.

After making a formal bullying complaint against the Service Manager, the Complainant was asked to attend a meeting with the Managing Director where the Service Manager was in attendance. During this meeting the complainant was presented with a list of grievances against him which he maintained were false.  The complainant then left the meeting due to what he claimed was the absence of any fair procedures. Not long after the meeting the complainant received an email from the Manging Director saying that he was dismissed with immediate effect.

This case highlights the importance of going through the fair procedures and making sure the employee is heard whether that be through formal or informal procedures.