The New Bullying Code of Practice - What Does it Mean for HR Professionals?

Posted in : Webinar Recordings on 8 April 2021
Caroline McEnery
The HR Suite
Issues covered: New Bullying Code of Practice

In this webinar recording, Legal Island's Rolanda Markey is joined by Caroline McEnery, Managing Director of The HR Suite and HR and employment law expert to discuss what the new unified bullying code of practice means for HR professionals. 

Topics include:

  • Updating your policy
  • Considering your line managers role
  • Designating Contact People
  • Communication & roll out to staff
  • Q&A

The Recording


Rolanda Good morning, everyone, and welcome to our webinar with me, Rolanda Markey from Legal Island, and Caroline McEnery, managing director of The HR Suite, and I just want to introduce you to Caroline if you're new to our webinars. If not, then you'd be very familiar with Caroline. She's a regular speaker of these webinars and the Legal Island and the review of employment law. And Caroline runs The HR Suite which is a consultancy business based in Dublin and Dingle, isn't that correct? Beautiful Dingle.

Caroline: Kerry, yeah.

Rolanda Gorgeous place. So Caroline is a past member of the Low Pay Commission and she's also and adjudicator in the Workplace Relations Commission, just show you her photograph there, and she's completed a master's in human resources through the University of Limerick. She's CIPD accredited as well as being a trained mediator. And she's worked across various areas of HR for over 20 years in both the Kerry Group and then the retail and hospitality sector before she was Operations and HR director of the Garvey Group by setting up The HR Suite in 2009. My goodness, 2009, Caroline. That is a lot. Sure doesn't seem that long.

Caroline: Time flies having fun.

Rolanda Caroline speaks widely on a whole range of HR subjects and she writes articles and papers on thought leadership in relation to the future landscape of HR and the challenges and opportunities that presents for employers and employees. And as you can imagine she's been fairly busy over the last year.

In this month's webinar Caroline is going to focus on the new unified code of bullying. Sorry, let me get this full title right. So the code of practice for the prevention of bullying in the workplace. It's not the greatest title. And what this really means for HR professionals who at the end is they're going to have to deal with all the queries around, you know, the different rules that are set up and different parts of the process. So please send in your questions for Caroline. We'll go through those after Caroline has gone through the key points that she wants to raise.

And just before I do that I just want to ask a couple of quick questions. We are developing a bullying . . . a sort of an awareness raising full-day event on the bullying code with some of our regular speakers, Gerry McMahon, and we're also going to be looking eLearning. So just want to get your feelings on those. Like, I've had a message in already from somebody saying they've got no sound, and I apologise if that's happening for anyone. A copy of this recording will be sent right after the webinar, but also just make sure everyone is on the correct sound settings and we’ll discuss that in the chat again soon.

Okay. So the first question . . . sorry, I'm not sure if they're able, can see that. Okay. So are you interested in attending an online event on the new code of practice on addressing bullying in the workplace? And I suppose this event would be aimed really at our HR people who are sort of on the frontline dealing with the queries. Okay we're getting quite an interest and significant response coming in on that one. So 96% . . . just close that too as well. So we're getting about 96% of people saying yes, they would be interested in that, and we're looking at that for around the 9th or 10th of June, but we'll confirm the details with you shortly on that.

Next question then we're looking at sort of eLearning for all staff really. So would that be something you're interested in? So are you interesting in using eLearning to train your employees on the new bullying code? eLearning has been a really important tool and beneficial tool for employers this year because obviously in-person training hasn't been able to happen. Caroline, you know, about that. You had to adapt your own training as well to sit . . . people who are working remotely so eLearning itself has been really valuable. And so we're getting quite a good response to that as well, about 76% saying they would be interested in eLearning, which I suppose give you an indication, Caroline, of the amount that people are doing online training these days. Would that be your finding as well?

Caroline: Absolutely, and I think for someone as important as this as well as you'll see as we go through, yeah, really important to have that as part of the plan.

Rolanda Okay, thanks very much. Okay. So I'm just going to hand you over to Caroline. And I should tell you a wee bit about The HR Suite and then take you through the agenda of items that she wants to go through and then we'll come back for some Q&A. So send in your questions using the question function. Thanks very much, Caroline. Over to you.

Caroline: Thanks, Rolanda. Good morning, everybody. Delighted to have such a big number of you on this morning's webinar. I suppose this code is a really important HR update. Even though we know there's been lots of new codes and legislation in the last couple of weeks, this one definitely trumps all as they say. I suppose as you know I work in The HR Suite. We have offices in Dublin and in Kerry as Rolanda said, and a big part of what we do is advise employers in relation to best practice and try and make the job easy on companies.

So you have a busy HR department and rather than going to the . . . researching the code and drafting the policy yourself we'll do that for you. We'll help you with investigations. We'll help you with training contact people, training managers and training people in these new rules that have been identified in this bullying code. So as always I suppose we're delighted to help organisations. We're very cost-efficient in doing so and we'd love to hear from you if you feel that we could assist in any way.

Updating Your Bullying Policy in Light of the Code

So to take you through the code, I suppose the first starting point . . . thanks, Rolanda. That's the email address there, and I suppose the first starting point for today is to briefly outline the key elements of the code for you, and the first element to be aware of I suppose is it requires you to update your policy, and because the code is so different to what was there before my best advice is that you would be potentially better off in actually drafting a new policy. Now we offer that option and it's at a cost of a 150 Euro, which is obviously very cost-competitive.

So in updating your policy you're obliged to make staff aware of the policy and make staff aware of the changes so that they can signpost themselves in relation to key elements of this new policy. So the new policy has a couple of key features that I'm going to take you through, and again for me, training the HR team, training the line managers, and training the staff is a requirement not just an optional extra. I would see it as a requirement that we need to really plan and do, and I think that's going to be something that as you go through the code you'll realise, "Okay. Well, look. This is something we need to prioritise in our training plans for the year ahead."

Contact Person Role

So the first new element of this policy is it focuses on a new role called the contact person. And many organisations back when I started my career in Kerry Group many moons ago, we had contact people who were also known as designated persons in the organisation where employees could go and talk to them and get advice, just signpost them.

In this new code the contact person needs to be a trained person and that's important to note, and again, you wouldn't expect somebody who's a non-HR person to take on this role unless they were trained, and even if they're a HR person the important thing to note is that we don't overstep the boundaries in relation to what the contact person's role is. And this contact person needs to be trained and their role is to support, guide, listen, and offer guidance in relations to the options. So to me this contact person is there to support and is there to signpost.

And the key element of the contact person's role is they can't be involved in any other way in any other part of the process thereafter, and that can be quite difficult if it's somebody in the HR department. So that's why generally you might consider training designated contact people, and again, you'd list them in your policy so staff know who they are and who they can go to internally. So that's the first key element of our new code.

Use of Mediation in Resolving Bullying Complaints

The next key element is mediation is encouraged, and I'm a mediator and I'm a big fan of mediation, particularly when it's to do with interpersonal conflict which often can be the case in relation to this policy. So again, the mediator needs to be a trained, impartial, competent third party. So again, it's again highlighting the fact that a mediator is a competent, trained, third party and again an independent person. So again, starting as an organisation now to identify who you may call on to assist with mediation. I would recommend as a good step, and for me mediation has two functions. One is as a first line of defence where you would use mediation to ensure that people have a future without the problems of the past. It's really positive, are trying to be untangling and nobody's to blame. We're focused on the future. It's really good for interpersonal conflict where people have to work with each other thereafter. And second of all, mediation has a really good function after an investigation may occur when the parties need to work together and you need them to build in ground rules, guidelines, structures in relation to how they would work together positively going forward. So mediation is an important consideration in this new code.

Informal Resolution of Bullying Complaints

Then we've got the informal process, and there's two stages in the informal process. The first stage is an initial informal process where it outlines three options for the employee. The first option is the employee goes and they talk to the person themselves and try to nip the issue in the bud themselves. Second option is they write a person themselves and again and try and nip it in the bud, or the third option is that the employee talks to their line manager, and if their line manager is the issue, they'd talk to their line manager's line manager.

So again, that's a really important role that we have our line managers trained to be able to deal with issues. If somebody comes and says, "Okay. I want you to assist me at the initial informal process versus being unaware as to exactly what their role is in that regard." And what we don't want is somebody to start getting into an investigation or overstep the mark and again be aware of what are the options for the employee and where are they being required to specifically assist without overflowing into the next stage.

Again, this is suggesting that both employees and employers in terms of the managers are trained and also you can use a third-party external resource or you can use one of the professional bodies that are there also to assist at this stage if you feel that's helpful. And again, I suppose you'll see throughout the code it emphasises the importance of training people so that they know what to do and how to handle whatever stage they're involved at.

The second stage of the informal process is the secondary informal process, and this introduces a new role which a nominated person, and again it can be a manager but the person needs to be trained. They can't be the contact person, so you need to have designated contact people. You need to have designated nominated people, and then you need to train your line managers for the roles they may play in the middle.

And the nominated person, their job is to basically decide based on what the allegation is and what is being complained of as to whether or not it constitutes bullying, and if concrete examples are given of behaviour that constitute bullying, then it can go forward into the formal process or at that secondary informal stage they can resolve it and help resolve it by investigating it and agreeing the best method to progress the issue. So they have a really crucial role, and again, that nominated person needs to be clear in terms of, you know, if they feel it's bullying, they may put in more corrective action if those behaviours have been identified.

Well, that's all still stays at that secondary informal stage, and it's important we're clear that even though they do an investigation and they agree to progress the issue they assist in terms of you managing it still at the informal stage. So again, quite a difficult role for that nominated person because it's easy for that to overspill into the formal process if the person isn't fully trained, and again, I highlighted . . . we trained all the different people in relation to the different roles, and again, it's probably best practice to assign specific people to specific roles rather than having them cross over.

Formal Process for Dealing With Bullying Complaints

And then we've got the formal process, and the formal process now has no automatic right to automatically progress to the formal stage. So instead a trained person basically makes a decision to say, "Is this behaviour constituting bullying in terms of the behaviours that are being complained of?" And if it does, the person can progress then to the formal stage where a formal complaint is received either in writing that is signed and dated, or if the person can't do it in writing, it's recorded and it's signed and dated in that way.

Then we kick into the investigation stage, and as you know we do investigation training in relation to that and you need a trained investigation manager or you get an outside third party, because this stage I suppose involves the terms of reference, which, again those of you that will have attended the investigation sessions that I do you'll see how I outline the importance of the terms of reference, and I suppose the result of that investigation is to assess if the behaviour did or didn't occur based on the balance of probability, and if that investigation is upheld then it's recommended . . . you can make a recommendation that the disciplinary procedures involved thereafter.

Obviously, the appeal process is available to both parties. Again, the appeal manager needs to be a trained person and they say it's not a rehearing of the original issues which is important both the opportunity or the person to highlight their appeal grounds. And I suppose it's also really important to note that effective communication of the outcome to all the parties is a crucial step of this code because ultimately making sure that the parties know what the outcome is, making sure that if there's any follow-up action that has been agreed that that's been put in place, and often as I say I see mediation required at that stage again to facilitate the process to I suppose be addressed to that stage in terms of the working relationship.

Harassment or Bullying?

So a few other key points in relation to the code and the details within it. I suppose this is a draft document jointly done by the Health and Safety Authority and by the Workplace Relations Commission. This is specifically focused at the area of bullying and they signpost people to IHREC for harassment details, and the harassment code that's in place, the S.I. 208 of 2012, still applies in relation to harassment.

It also I suppose puts the benchmark of a reasonable person in there which is very helpful I think in assisting parties when they're addressing it, and it also outlines what is bullying and what is not bullying, and, you know, focuses a lot in relation to the role of employers, the role of employees, and the importance of promoting a positive culture, and for me the positive culture key elements to it are ensuring your policies are not just a document that we draft whether we do awareness training in relation to the policies and the culture and reenforce that culture within the organisation, and training is the best way of doing that, and the more interactive the training the better.

And I suppose for me I think the more engagement we have with people around the discussion in relation of what is bullying, what is harassment, what is sexual harassment, and what, you know, constitutes acceptable conduct in relation to for example our performance management so that it doesn't constitute bullying is equally important. So I think it's really important we think about how are we making sure that culture is fostering what we need in relation to that positive culture.

I suppose the other element then in terms of the training. So we know that we need to train line managers because a lot of the time the person is going to go to their line manager, or in this new code the line manager has specific rules potentially where the person can go for example to their line manager's line manager if the line manager is the issue, and again, being clear as to what is required.

I suppose early intervention is something that I strongly recommend when I'm doing employee training and manager training and encouraging people to nip issues in the bud, and again that's all about awareness, so rather than somebody keeping copious notes of instance going back over a very long period of time and then they wait for the straw to break the camel's back. This code is very much designed as is my ethos to say, "Look. If there's an issue, try and nip it in the bud really early by using the informal route." Because the informal route is designed that the person know that their behaviour is causing an upset to the person who is the recipient.

Record Keeping

I suppose the other key elements of this code ensure that we're keeping records along the way, and that's an important focus for the training of people in these new roles, because there's a specific obligation on for example the informal stage in terms of keeping our record of the matter. It is a brief record of the matter and the agreed outcomes by the person responsible for managing the complaint, and again that's important to note because, again, from a GDPR point of view, as we know information can be requested under a data access request. So making sure that we're clear in relation to what information needs to be, you know, retained and what information, you know, you can't retain, because again that data trail is something that comes up constantly in relation to complaints.

I suppose the other elements of just to remind you of is the closure of the informal stage is equally important, so especially if you have somebody who feels that they've gone through the informal process. If there's elements of follow-up that have been agreed being very clear in relation to who is going to do those follow-ups, how were they going to happen, and what kind of timeline is going to be, you know, attributed to them. Again, for clarity overall.

And the other I suppose key element to this is it encourages, you know, exhausting and using the informal process before the person has an automatic right to go to the formal . . . exhausting the informal process before they go to in for . . . if I can't say it right apologies . . . exhausting the informal process before they go to the formal process, and again, I think that's a very positive thing. Once that person who was given that job keeps very good records, because that will be required to be relied on afterwards if it's the case the decision was made either to facilitate the progression or not, and again that's a very crucial new rule that has been introduced, and what that person doesn't want to do is end up becoming the investigator because that's not their role at that stage of the process.

Dealing with Malicious Complaints

The other element of the policy which is positive is it covers malicious complaints, so those that are made without foundation and malicious intent are obviously as we would've always handled, and we focus on the road of disciplinary if that was to be the case, again, to deter people, you know, going down the road, because obviously we're very conscious that these type of allegations associated with bullying or indeed harassment are very serious.

So a few key points then. So updating your policy is a requirement of this code and remember there's two elements to this. One is the Workplace Relations Commission where employees can go and make a complaint under that policy, but also there is the health and safety avenue available to people also, and it's crucial that you've shown that you've tried to remove any risk in the organisation under the Health and Safety and Welfare at Work Act associated with bullying and that you've taken preventive action to do that.

And one key element of that preventive action is to ensure you have a policy but not alone have your policy for example in your handbook but you've also increased awareness around it. So therefore for me, updating your policy, training your staff, and training your managers in relation to the policy is a really important end step that I would advise, you know, as part of your rollout strategy associated with this. Again, as I mentioned we're doing company policies for a 150 Euros so if that's a help to anybody please contact us. We'd be delighted to assist.

Training Line Managers to Deal with Bullying Complaints

The next key consideration is training your line managers because their role now has become a lot more important. For many of our managers we're going to be assigning them roles of nominated person or of that of that of contact person are indeed their role in relation to somebody coming to them with a complaint at the informal stage may occur. And in general, we know that managers are the first line of defence anyway. So it's crucial that we train the contact people that have been assigned. We're doing a public training course for contact people. So if you've one or two to in your organisation, you need to send in a public course. We have courses coming up in May, and if you need to train a group in-house, then we can facilitate the same.

So the line managers' role is really important because they need to ensure what their role is and what their role is not and ensure that they don't blur the boundaries because the code clearly says that the nominated person can't be a contact person and vice versa. So we can't have the line manager stepping into too many roles especially when it's a complaint associated with their department.

The other consideration here is designating contact people, and for me, it's equally important in terms of the contact person because they're going to be the first line of defence. So it's important that in my mind you try to potentially give people the option of putting themselves forward as a contact person and then selecting additional people as you may need to and training them as a group so that they have received the training and they know what they're supposed to do.

The other element is sometimes the contact person may feel that they're not the best person because they have a personal relationship either with the person who has come to them or in relation to the person that's in complaint of. So sometimes to ensure objective bias isn't going to become an issue, they may need to pass it somebody else, or again having a number of contact people is very positive from that perspective.

I suppose the role of that nominated person is equally important, and the role of the person who's deciding does the behaviour meet the definition of bullying so that they can go to that formal stage, and again ensuring that they've exhausted the informal route as much as they can is an important role. Again, it requires training because what we don't want is for that employee to feel that we were deterring them from making a complaint and wouldn't allow them to use that formal route rather than understanding that it's because what they're complaining of doesn't meet the definition, because we know that a lot of challenges occur for HR practitioners in relation to the use of terms that people maybe aren't fully clear on.

So what I always say is inappropriate behaviour is anything that you deem to be inappropriate, but then we need to look at what does the legislation say in relation to bullying, which we know is repeated inappropriate behaviour, and ultimately we look then to see what bullying is not to help us decide if that's bullying and it meets the definition or if indeed it's inappropriate behaviour and it should be dealt with in line with grievance procedure.

Communicating Your Policy

The other key element I suppose is as staff, you know, rollout and get communicated in relation to the policy ultimately oftentimes people then start to, you know, come to people and say, "Well, actually now that I've heard what bullying is or the behaviour of exclusion that I've been experiencing the last number of months and I feel my managers excluding me more now because I'm working remotely I feel that that actually meets the definition and here are some examples." So be aware that as we do the rollout of the policy and the rollout of the communication it is likely that you're going to have more I suppose potential issues being raised to the surface that would potentially exist already.

But in a culture that we're trying to foster which is free from dignity and free from any issue of breach of dignity, then that's what we need is to ensure people feel comfortable in that regard, but it's important that we designated the appropriate roles and we've trained the people in the appropriate roles prior to I suppose advertising the roles, because if people aren't trained, they could sometimes do more damage than good.

So I suppose just to touch on the communication then and the rollout to staff. I suppose for me as you communicate and do your rollout, it's really important to start with what's in place already, because all of you will have, because it's a legal obligation in line with your safety statement, a policy in relation to bullying and harassment already. So again, letting people know that this was always here and the code now has updated it. Letting staff know in relation to the correct people to go to with any of their potential queries, complaints, and even just if they want to explore an incident that has occurred and what they feel is the best and most appropriate route.

And I suppose as HR professionals, you know, assigning a contact person who is likely not to be the HR person to have that initial conversation is a very big leap of faith I would say. So ensuring that those people are really well trained and that we give them really good guidance and go through lots of scenario planning with them because, you know, they could end up putting more fuel on the fire rather than trying to nip it in the bud. And also we want there to be a case that the culture police and the organisation, you know, set the standard of what is acceptable and not acceptable, and as part of that communication and rollout for staff it's really important that we do address that communication piece.

And for me, you know, when staff leave the training, I'm doing a lot of it at the moment for organisations, and I've seen a lot of staff actually at the end of training say, "Look. I want to thank the company for facilitating this training. I found it really helpful." And remember my final point about communication and rollout is. Now that a lot of staff are working remotely . . . I appreciate that's not universal to all roles, but now they're working remotely they're experiencing new kinds of isolation, new kinds of bullying, new kinds of subtle behaviour that's causing serious stress and anxiety that we need to just nip in the bud, and that awareness trying does huge good for I suppose making sure there's clarity in relation to acceptable behaviour in the organisation whether you're working from home or you're working from the office or indeed you're working in factories or retail, etc. You know, it's very much encouraging what's okay and what's not okay. So I think that's important.

And before I suppose conclude just to highlight a lot of these cases potentially will end up, you know, in very positive outcomes. It'll be nipped in the bud early and they will be addressed early, and the best outcome is when they're addressed early, and the other key elements of mediation that I strongly encourage I suppose is, you know, is a very positive outcome. And I suppose the other key element is that health and safety have an obligation that you record the steps you've taken after a bullying complaint occurred and was investigated. So again what preventive action have you taken to remove that hazard and, you know, it's important to show for example you've gone down the road of disciplinary, etc.

Also remember that I mentioned communication of the outcome is a really important part that have been involved both the disciplinary if it does occur and the outcome of the disciplinary is confidential and that's reiterated in the code. So we don't share the details of that. We just share the details in relation to the fact that the allegations have been upheld or not substantiated or not, etc., and the disciplinary process was invoked, and that's important.

So as I summarise the role of the government bodies, the Health and Safety Authority and the Workplace Relations Commission, are jointly after drafting this code. It's great to see they joined up thinking and the positivity associated with all the steps involved, and IHREC as I say are still responsible for the harassment and sexual harassment in line with the nine equality grounds, but really good opportunity to retrain people, update your policy, and then spend some time thinking about the rules, who you'll assign and then doing the follow-on training.

So that's a summary, whistle-stop tour for everybody. Rolanda, thank you very much for popping our contact details on the screen. If anybody is interested, drop us an email to add to our newsletter list, or indeed if you have an interest in any of the things I was talking about today and feel we can help, I'd be delighted to hear from you, and over to you, Rolanda, for any questions.

Single Policy or Joint Dignity at Work Policy?

Rolanda Thanks, Caroline. We have been inundated with questions, and I think if we could maybe start with clarifying a wee bit around the policy. The code itself talks about, you know, says while this code refers to workplace bullying only and doesn't include harassment cases, this does not prevent employers from having one policy document encompassing procedures for both bullying and harassment cases. So what are your feelings on that, Caroline? Do you think that . . .

Caroline: I think that in updating the policy, I would update the bullying side of the policy because most companies have what we call the Dignity and Respect at Work policy. So to spotlight this I would update the Dignity and Respect at Work policy and update the bullying side of the house because there's very specific requirements in relation to how we handle a bullying complaint now that doesn't meet the same criteria as the harassment. So it's important to just be clear that if somebody makes an allegation of harassment obviously be it one incident equals harassment and it needs to be investigated accordingly if the allegation, you know, is made. So they don't have to go to the same steps that I outlined here of a contact person, you know, a nominated person, you know, etc. So I think it's important for staff to understand that there is a different roadmap that needs to be followed if allegations of bullying are made.

And I suppose the reason for that, Rolanda, is that bullying is a lot more nuanced. Like, normally now bullying isn't somebody shouting at somebody or, you know, it's not the, you know, the obvious bullying for want of a better way of phrasing it. It's the subtleties. Like, a lot of bullying now is exclusion. It's, you know . . . like, a lot of the complaints I deal with now it's a lot more the subtleties than a lot more than the explicit elements, you know. So I think as a result of that I wouldn't be encouraging that you're going to follow the same process for harassment because it's so onersome on the company, and also I don't think it fits the same principle because for harassment if somebody makes for example a defamatory comment in relation to somebody's religion, then that requires to be investigated. It's not, "Well, can you address it informally?" It's a different focus, and that statutory instrument to do with harassment is very different to this code to do with bullying, so I wouldn't just put the heading on top and put in the definition of harassment and treat them all the same in terms of process. I think it's important that, you know, we have one policy. You don't want to, you know, overcomplicate things. But again, just a sensibility associated with it. Is that okay?

Rolanda Yeah, that's fine, and of course assuming nobody comes and says I'm being both bullied and harassed.

Caroline: Oh, Rolanda. And oftentimes in very extreme serious situations that can occur, but that thing goes back to induction and the original policy when the person is recruited, you know, highlighting the importance of when somebody, you know, the very first day they're in the organisation that needs to be communicated. Obviously, we're talking today about the launch of the new policy and the rollout. That's where the worry on the organisation is. That burden of proof, you know, and that vicarious liability that comes from health and safety legislation to show that we did all we could to prevent and, you know, that's why I can't emphasise that induction piece and why that policy should be in that handbook so early.

Refusing to follow Informal Resolution

Rolanda Okay. And just to clarify then. Good question for them to say

Can an individual insist that they want to progress to the formal stage immediately, so in effect leapfrogging the informal stages?

Caroline: So what the code says is there's new automatic right to progress to this stage, and ultimately that trained person needs to sit down with the employee and at least really take them through, "Okay. Have you exhausted the informal route? Is mediation an option?" You know, there needs to be that I suppose process gone through, and then that person also needs to be happy that the behaviours meet the allegations of what bullying is defined as, because what often happens is somebody comes and says, "I'm being bullied. My manager shouted at me." Let's just use that as an example, "shouted at me and look, I want this investigated. This is bullying." So that job of that person is to say, "Okay. Have more incidents than one occurred?" You know, they need to take them through the definition of does that meet the definition of bullying?

And that's quite an important role and it's a role that whoever you gave that job to if they're not a HR person, and even if they are a HR person, a problem when you have lots of knowledge from an HR point of view is you could overstep the mark and start getting into the stage or, you know, whereas this clearly says this person is . . . that's their job and we need to keep a record of that so that it can be relied on at a later stage if necessary. So I think that role has become really important, hasn't it, you know, as a result of that because, you know, as I say for a HR person, you know, oftentimes as you ask and probe those questions, the person can feel, "Well, Rolanda, do you not want me to go ahead? And are you deterring me?" When that's not the case at all and that's why they can be employee aware the role is as important.

Recruiting Contact and Nominated Persons for Informal Resolution

Rolanda Now, we do have quite a few questions around the roles of the various people, and I'm sending out a follow-up email a few articles by Caroline and other writers just about the code just to help provide that more written and understanding. But two separate questions, Caroline. So first of all, you know,

Small organisations - there's not lots of people in, and I know the code aims to have a separate contact person and separate nominated person and obviously they're HR-separate. What would your advice be for small organisations in the first instance?

Caroline: Yeah. So in the code it specifically says that the most senior person of the organisation if they're the CEO or somebody senior they should be reserved for appeal because they may be needed at a later date. So it basically suggests in the code that you may need to get third party or the professional bodies like the WRC to assist. Many organisations won't use the WRC potentially at the early stages, but it's encouraging you to use third party of like realistically consultants like us. I think we're going to be very busy as a result of this code because there's so many roles now that in a small organisation you won't have those roles potentially available because the contact person can't be the nominated person, can't be the person who is, you know, the line manager who's involved, can't be the investigator, and as we know the investigator needs an investigation manager, an outcome manager, an appeal manager. So already you've five or six people there already involved not to mind the line manager, you know, in terms of where they're sit in all of that.

So it's definitely . . . there's definitely a lot of roles. It's definitely one that, you know, requires some thought but my starting point would be to see who in the organisation do you feel would be suitable, and if you feel you don't have suitable people, then you should talk to your HR consultants and see how they might be able to best advise what's the most appropriate role that they can play, because in most consultancies you'll have a number of people so you won't be using your account manager maybe for all the roles but they might have another person you can have as that person within the organisation. I think many organisations will have no choice but to do that.

Rolanda Yeah. And I think the thing about a lot of organisations is that, you know, you may well have people working there who maybe do a bit of volunteering outside of work with the likes of the Samaritans other organisations like that who may well have the skills that you need that you don't realise. So at first doing a bit of an audit to see . . . if it's taken a bit of interest to see if anyone is interested in that.

Now, Caroline, just sort of specifically I have a question here, which I thought was worth raising as well. So,

We currently at utilise a direct engagement model whereby our HR business partners offer confidential HR advice and support and guidance to employees who might want to raise a bullying complaint. So they already kind of got structure there. The HR business partner also supports the employee drafting their complaints on attending investigation meetings. Is it essential that we now enter just a separate function, i.e. a designated contact person?

It sounds to me a bit like their HR business partners are fulfilling that contact person role?

Caroline: I suppose you need to be careful because in reality that HR business partner will potentially be involved in some way thereafter as well, because think about the long road that's ahead thereafter. So let's say the person makes that formal complaint like in the example you've given. So now somebody needs to be the person who decides whether it meets the criteria or not. That can't be the contact person. So it can't be the HR business partner who has decided that but somebody else needs to decide then somebody needs to investigate, somebody needs to do the outcome, somebody needs to do the appeal.

And even if that's line manager is some way along the way, they need to have been trained, and a lot of the time the line manager will want to go back to HR to say, "Listen. Their representative isn't available. Am I okay to go ahead?" You know, they'll have ad hoc queries. So I would say that really think it through, you know, because . . . and anybody can fulfil these roles, but you need to make sure that you've kind of designated the right people to those because when it gets to this new role in relation to deciding whether the person can progress to the formal stage or not that needs to be somebody who's got good in-depth knowledge and who can produce that, you know, that summary report to show how they've made that decision. So that might be . . . you know, that's a role you need to consider. So if the HR business partner is already designated, it needs to be somebody else. So the answer is it can be anybody but I think you need to think about all the new roles because if the . . . the code has clearly said they can't be one and the same and that's going to present a challenge I think for many.

Rolanda Okay. Just to finish up because I know, Caroline, you're shipping off for another meeting. Somebody just said, like, I'm just not clear.

Bullying Policy

Can we clarify just the position around having either two separate policies or one policy to deal with harassment and bullying?

Caroline: So what I would say is you can choose either two separate ones or one policy. The key difference and the key point to note for you as a practitioner is that this policy associated with bullying requires you to have the full process I've outlined in summary with you today. So if you decide, you know, you need to be clear in the policy to say, you know, and obviously the overall dignity and respect at work policy will say, you know, dignity and respect is encouraged, etc., but I would say you might be then signposting them in two different directions. One direction to say this is the bullying process. This is the harassment policy in terms of this process. So you can have one overarching dignity and respect at work policy and then you can have two signposts going from out of it if that makes sense.

But as you've seen based on my summary today that's quite an exhaustive process that you need to go through which requires a lot of resources and a lot of skilled competent people because you can't just say, "Okay. Well, Rolanda will be a nominated person." And you give the person the title without giving them the training. So I think you can . . . you absolutely can have one policy but I just think about the implications in relation to what that means for you, and as always, you know, happy to help in any way I can if anybody is . . . has a policy that they want to tease out to see what's best in relation to . . . you know, what they should do specifically for their organisation.

Rolanda And it's a difficult one because in a way the bullying code kind of goes beyond because it offers more so you can argue that's their practice to do that, but in any event that's maybe for another session in itself. We could talk around that all day, but, Caroline, thank you once again for your time and our next webinar with Caroline is on the 13th of May and we're going to be looking at yet another code of practice on the right to disconnect. It's been a very busy couple of weeks. But that is another code in itself but, you know . . . it's going to be a bit of a growyer really, isn't it? Because there's lots of issues arising in relation to that, but thank you all for your time.

I will send on your questions to Caroline. We didn't get through them all today but thank you for sending them in and we'll forward them on. And in the follow-up email, we will send you links to a few articles all of which link to the new code. So there are plenty of ways to get access to that, and we'll also have Caroline's contact details and the email as well if you want to contact her to discuss any of the services she's offering today. So thanks so much again, Caroline, and we'll talk again soon.

Caroline: Thank you. Bye, everybody.

Rolanda Thanks, bye.

Caroline: Thanks, everybody. Take care.


This article is correct at 08/04/2021

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Caroline McEnery
The HR Suite

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