What are the Key Takeaways Under the New Code of Practice on Workplace Bullying?

In December 2020, the Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work (the “Code”) came into effect. The Code was jointly developed by the Health & Safety Authority (the “HSA”) and the Workplace Relations Commission (the “WRC”).

The Code streamlines the previous codes of practice on bullying and provides guidance for employers and employees on good practice and procedures for addressing and resolving issues on workplace bullying.

While most organisations will have an anti-bullying policy in place, on foot of the new Code, employers must update their existing policies to incorporate the key changes the Code has introduced. We have set out below the main takeaways which employers should familiarise themselves with when updating their anti-bullying policy.

What are the key takeaways for employers under the Code?

Definition of bullying

There is no change to the legal definition of bullying. However, the Code does set out a comprehensive definition of bullying so that employers can easily identify what are considered bullying behaviours and what are not. The Code states that “disrespectful behaviour, whilst not ideal, is not of itself bullying”, highlighting the need to establish repeated incidents or a pattern of behaviour. Constructive or unwanted feedback on performance is not considered bullying. The Code acknowledges that bullying may occur via cyber or digital means and reminds employers of the legal distinction between bullying or harassment.

Prevention

The Code places an obligation on employers to manage and conduct activities in the workplace in such a way that prevents any improper conduct or behaviour that is likely to put the safety, health and welfare of employees at risk. In order to prevent workplace bullying, the Code identifies some examples of preventative action, including: (i) promoting and reinforcing a positive workplace culture; (ii) undertaking a risk assessment to identify and address bullying in the workplace; and (iii) developing of an effective anti-bullying policy and providing all staff with training on same.

Prior Consultation

The Code advises that employers should only implement an anti-bullying policy after consultation with employees, employee representatives and trade union representatives (as applicable). The contents and implementation of the policy should be considered during the consultation process. The organisation’s safety representative should also be involved in this process.

Communication and Training

The Code sets out that an organisation’s anti-bullying policy must be effectively communicated to all those that may be affected by it. As such, employers will need to ensure that after they have made any updates or amendments to an existing anti-bullying policy, or if they have introduced a new policy, all existing employees are made aware of these changes by way of email, newsletter, training session or training manual. Any new employees should be made aware of the policy as part of the formal induction process. The Code also stresses the importance of keeping existing employees updated regularly on the policy so that they are aware it is in place, have a basic understanding on how it works and know how to access it.

Role of a Contact Person

The Code establishes the role of a contact person, who will be the first point of contact for any employee engaging the anti-bullying policy. The contact person should provide a supportive role, listening and offering guidance on the various options in line with the organisation’s policy on a strictly confidential basis. It is recommended that personnel for this role should be carefully selected and trained and should not have a role or any involvement in the investigation of any complaints.

Secondary Informal Process

One of the key changes introduced by the Code is the addition of a secondary informal procedure for resolving bullying complaints. The secondary informal process arises where the complaint is not resolved under the initial first stage of the informal process or when the initial process is not considered appropriate due to the seriousness of the relevant complaint. In this regard, the Code recognises the merits of early intervention, particularly when restoring workplace relationships.

Formal Process

While the Code stresses that organisations should attempt to resolve bullying complaints informally, it helpfully sets out a detailed formal investigation process that must be followed when informal procedures do not provide a resolution or are not deemed appropriate. Under the Code, the formal process should involve a fact-finding investigation which is governed by terms of reference, outlining the scope, timeframe and confidentiality of the investigation.  

Referral to the WRC

If all internal procedures, informal and formal, have been exhausted and the bullying complaint remains unresolved, the Code provides that the matter may be referred to the WRC under Section 13 of the Industrial Relations Act, 1969 (as amended).

Consequences for non-compliance

While a failure to comply with the Code is not an offence in itself, the Code shall be admissible in evidence in any proceedings before a Civil Court, the Labour Court or the WRC. Accordingly, it is strongly advised that employers carefully adhere to the Code.

Referral to the HSA

Where an employer has not acted reasonably in an existing bullying matter, the HSA can issue verbal advice and/or written advice, an Improvement Direction or an Improvement Notice. Where there is evidence that employers have failed in their duty to protect an employee/s from the harmful fallout of bullying, the HSA can investigate matters and following this investigation, it may forward a file to the Director of Public Prosecution for their decision as to the prosecution of employers.

Record Retention

The Code emphasises the importance of ensuring appropriate records are retained by the organisation at all stages of the process. This also includes circumstances where it is determined that the alleged behaviour does not constitute bullying. Records of all complaints, including interventions, informal and formal investigations and subsequent decisions must be kept in line with the General Data Protection Regulation (EU) 2016/679 and the Data Protection Act 2018.

Conclusion

Creating widespread awareness and training on the organisation’s anti-bullying policy is crucial to preventing workplace bullying. As outlined above, employers will need to ensure their current anti-bullying policy is reviewed and updated to comply with the Code.

For further advice on complying with the Code or managing and investigating bullying complaint, please contact Bláthnaid Evans or Sheila Spokes of Leman Solicitors on +353 1 639 3000 or visit www.leman.ie.

Legal Island Training Resource

Workplace Bullying in Ireland eLearning Course

Legal Island has created a 45-minute eLearning course in partnership with Leman Solicitors, specifically for all employees in Ireland. The provision of this training for your staff will enable your organisation to act in compliance with the Code and help to raise awareness of bullying in the workplace and explain what to do if employees are concerned about bullying.

Get a FREE demo on behalf of your organisation