A new code of practice concerning the prevention and resolution of bullying at work has been made by way of a statutory instrument published on 5th January 2021. The Statutory Instrument is No. 674/2020 entitled-Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020.
The Statutory Instrument defines harassment and bullying at work, sets out the management of bullying at work and the preventative measures and actions that should be taken, the formal process which should be implemented, and describes the role of the Health and Safety Authority and Workplace Relations Commission (WRC).
This code of practice came into effect on 23rd December 2020 and replaces the previous code of practice issued by the Health and Safety Authority in March 2007. The purpose is to provide practical guidance to employers on identifying and preventing bullying in the workplace. It applies to all employments in Ireland.
In any proceedings for an offence under the Safety, Health and Welfare at Work Act 2005 any contravention of the code of practice is admissible in evidence.
Failure to follow the code of practice is not an offence of itself. However, failure to follow the code will be admissible in evidence at the WRC, Labour Court or Court. Clearly, this will make it more difficult for an employer to defend a claim or alleged breach of the law.
Harassment and bullying at work
The code points out that harassment and bullying are distinct legal concentps and a behaviour cannot be both, it is either one or the other. Harassment must arise under one of the 9 grounds of discrimination.
Bullying is defined as
“Workplace bullying is 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 be reasonably regarded as undermining the individual’s right to dignity at work2 . 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”.
Bullying does not include:
- Performance management
- Feedback, guidance, advice
- Differences of opinion
- Reasonable corrective action
- Workplace conflict and disagreements
Employers should develop property anti-bullying policies and procedures. Employees must play their part, too, in ensuring a good culture and atmosphere in the workplace through their own behaviour.
The code provides for an informal process, a secondary informal process, and a formal complaint. Any investigation should be carried out in accordance with the anti-bullying policy in the workplace and should be governed by terms of reference.
If internal procedures do not resolve a complaint of bullying a complaint may be referred to a WRC adjudicator under section 13 of the Industrial Relations Act, 1969. This will not involve a rehearing of the case, however. The possible recommendations from the adjudicator include that the complaint be reheard by reason of some flaw in the process carried out, or that the conclusions arrived at should stand.
The HSA (Health and Safety Authority)
The HSA has a statutory remit as to bullying under the Safety, Health and Welfare at Work Act 2005 and has a system for processing bullying complaints through its Workplace Contact Unit (WCU).
The WRC (Workplace Relations Commission)
The WRC provides an adjudication service under section 13 of the Industrial Relations Act 1969. It also provides a mediation service.
Appendix 1 of the Code of Practice sets out how to prepare an anti-bullying policy for the workplace.
The code of practice set out in statutory instrument 674/2020 provides a comprehensive framework for employers and employees as to how bullying should be prevented and managed in the workplace.
It also provides excellent guidance in the preparation of an anti-bullying policy for the workplace.
Read the full code of practice here: No. 674/2020 entitled-Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020