Bullying and Harassment
Do I as an employer have any legal obligations in relation to the prevention of bullying, harassment and sexual harassment in the workplace?
Yes and what’s more, the courts take a particularly negative view and are very hard on employers who do not take reasonable, practical steps to prevent bullying, harassment and sexual harassment in the workplace. The current employment legislation stipulates that employers are vicariously liable in relation to bullying, harassment and sexual harassment. This means that as an employer, you are responsible for the actions not only of your employees but also of your suppliers, customers or business contacts, even if you are not aware that one (or more) of this group is bullying, harassing or sexually harassing one (or more) of your employees in their place of work. ‘Place of work’ also extends to other venues such as work-related conferences and functions and so on.
In the event of a claim being taken against you, you must show that you did everything reasonably practicable to prevent bullying, harassment or sexual harassment from occurring in the workplace, and, if it did occur, that you took immediate and decisive action to deal with it and prevent a recurrence.
What legislation governs bullying, harassment and sexual harassment in the workplace?
Bullying is covered by the Safety, Health and Welfare at Work Act (2005) which sets out the general duty on the employer to do everything it can, as far as reasonably practicable, to ensure the safety, health and welfare of its employees including the reasonable prevention of bullying and stress-related injuries in the workplace.
In addition, the Health and Safety Authority (HSA) introduced a Code of Practice on the Prevention and Resolution of Workplace Bullying (2007) which details the procedures to be followed by both employers and employees to address bullying in the workplace. The Code also provides guidance on the development of an anti-bullying/Dignity at Work policy. The Labour Relations Commission has also published a code of practice on the subject.
The Employment Equality Acts (1998 – 2011) render the harassment and sexual harassment of employees unlawful. As an employer, you are legally obliged to take reasonable, practical steps to prevent harassment and sexual harassment occurring in the workplace in addition to reversing the effects of it when it occurs and preventing a recurrence.
The Equality Authority also introduced a Code of Practice on the Prevention of Sexual Harassment and Harassment at Work which was given legal effect in S.I. No. 78/2002 — Employment Equality Act 1998 [Code of Practice] (Harassment) Order 2002. This code provides that employers should act in a preventative and remedial way in relation to harassment and sexual harassment at work.
Finally, all employers have a common law duty of care to take reasonable care of their employees’ safety from mental, psychological or psychiatric illnesses that emanate from workplace stress, bullying, harassment and sexual harassment.
Are there legal definitions of workplace bullying, harassment and sexual harassment?
There is no statutory definition of bullying but the Health and Safety Authority (HSA) in its Code of Practice for Employer and Employees on the Prevention and Resolution of Bullying at Work (2007) provides a definition of bullying which is widely used and accepted. Click here for the definition of bullying.
Harassment and sexual harassment
The Employment Equality Acts (1998 – 2011) render the harassment and sexual harassment of employees unlawful. For behaviour to be classed as harassment it must be based on one or more of the nine discriminatory grounds listed below:
- Civil status
- Family status, for example, as a parent of a child
- Sexual orientation
- Religious belief
- Membership of the Traveller community
Click here for a definition of harassment.
Sexual harassment is a form of discrimination on grounds of gender in relation to conditions of employment. Click here for a definition of sexual harassment.
What must I do to meet my legal obligations in relation to the prevention of bullying, harassment and sexual harassment in the workplace?
- Conduct a workplace risk assessment ensuring that adequate control measures are in place to minimise the risk of bullying, harassment and sexual harassment.
- Ensure you have a comprehensive Dignity at Work policy which clearly states your company’s commitment to preventing bullying, harassment and sexual harassment in the workplace and that such behaviours will not be tolerated.
- The policy should set out in detail a fair, transparent and impartial procedure to be followed should bullying, harassment and/or sexual harassment arise. The procedure must reflect the guidelines set out in the Health and Safety Authority (HSA) Code of Practice and the Equality Authority Code of Practice. The existence of such a procedure will facilitate the bringing to light of a bullying or harassment issue at an early stage before it escalates beyond resolution.
However, having a policy in itself is not sufficient, you must also:
- Ensure the effective communication of the policy to all employees including volunteers and contractors and to customers and any other business contacts
- Provide training to employees on the policy and procedures with specific emphasis on supervisors and managers who have a responsibility to implement the policy and process complaints
- Monitor all incidents of bullying, harassment and sexual harassment and evaluate the effectiveness of the policy and procedures in preventing such behaviour
Although not set down as a requirement by any statutory body or code and often overlooked, leading by example is a simple and cost-effective way to create an environment which prioritises Dignity at Work. Demonstrate the behaviours and the communication style you want your employees to emulate by treating all employees and those with whom you come into contact during the course of your work with dignity and respect at all times.
The WorkplaceBullying team of experts can help you with every aspect of meeting your legal obligations including risk assessment, policy and procedure development, training and more. Don’t risk it – Contact us now.
Who can be a bully?
Anyone with whom the employer contractually obliges the employee to come into contact (and possibly persons with whom the employee could reasonably be expected to come into contact) in the employee’s workplace or otherwise in the course of his or her employment may be the subject of a valid complaint of workplace bullying. Below are just some ways in which bullying could potentially occur:
- Manager/supervisor bullies employee
- Employee bullies supervisor/manager
- One employee bullies another (or group to group)
- Customer or business contact bullies employee
- Employee/supervisor/manager bullies customer/business contact
I have a policy in place but I am not sure if it complies with the legislation – what should I do?
WorkplaceBullying can carry out a comprehensive review of your policy and provide you with a policy and procedures that are suited to your industry and circumstances. Click here for the services we provide to employers or Contact us today.
I do not have a policy in place – what should I do?
WorkplaceBullying can conduct a risk assessment for you and assist you in writing a fully compliant policy which reflects the nature of your industry or sector and the structure of your organisation. For more
Can appropriate performance management be construed as bullying?
The current economic climate has led to a much greater focus on performance management. As a result, some managers and supervisors may feel that in attempting to address poor or under-performance they run the risk of a bullying allegation. Our work with clients also show that performance management is often confused as bullying. However, there are significant differences between good management and bullying. Research by Kitt and Corbett (2007) identified the differences between management and bullying in the following terms:
- Good management is rarely confused with bullying
- Bad management is sometimes confused with bullying
- Bullying is never about managing; it is all about destroying
WorkplaceBullying is expert in identifying the difference between ‘performance management’ and ‘bullying’. The level of misunderstanding in this area is high and the consequences are significant. Don’t make a costly error; Contact us for an expert opinion.
How do I determine if the complaint is a Dignity at Work issue or a grievance?
If the complaint relates to any of the below, then it is not a Dignity at Work issue. Such complaints are considered to be workplace grievances and should be dealt with under your company grievance policy.
- Conditions of employment
- Working procedures
- Working conditions
How do I assess a complaint that does not specifically claim bullying, harassment or sexual harassment?
- Presents as repeated inappropriate behaviour in the conduct or nature of work which could reasonably be regarded as undermining the individual’s right to dignity at work (bullying)
- Presents as unwelcome behaviour that is based solely on gender and that could be reasonably regarded as being offensive, humiliating or intimidating to the employee- even a single incident (sexual harassment)
- Presents as unwelcome behaviour that is based on any of the other eight discrimination grounds (excluding gender) that could be reasonably regarded as being offensive, humiliating or intimidating to the employee – even a single incident (harassment)
WorkplaceBullying is expert in identifying behaviour which constitutes bullying, harassment or sexual harassment. Contact us and one of our team of experts will clarify it for you.
If I receive a complaint of workplace bullying, harassment or sexual harassment how should I deal with it?
A complaint of bullying, harassment and sexual harassment is both serious and complex as is the intervention required for resolution. Getting it wrong will have serious consequences for you, the complainant and the respondent.
If you have any concerns whatsoever about how to handle a complaint or if you do not have the internal resources to do so, err on the side of caution and contact the WorkplaceBullying team, who can provide you with immediate advice and assistance. Click here for more information on our services.
Below are some general guidelines:
- Always follow your Dignity at Work policy and the procedure contained therein
- Ensure your procedure conforms with the general principles of natural justice and fair procedures which include:
- Complaints/grievances are fairly examined and processed
- Details of any allegations or complaints are put to the employee concerned
- The employee concerned is given the opportunity to respond fully to any such allegations or complaints
- That the employees concerned are given the opportunity to avail of the right to be represented during the procedure
- Right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances
- Provide both the complainant and the respondent with a copy of your Dignity at Work policy and go through it with them ensuring they have a solid understanding of the policy and the procedures.
- Assure the complainant that he or she will not be victimised for bringing a genuine, valid complaint (your policy should have a statement on this including how vexatious complaints will be dealt with by your organisation)
- Be clear to both parties about the need for confidentiality relating to the complaint
- Affirm that the complaint will be dealt with as speedily as possible (this will depend on the nature and gravity of the complaint)
- Throughout the process offer support to both the complainant and the respondent – this can be provided by their respective managers/supervisors, an Employee Assistance Program, a counsellor or health personnel. Regardless of how the matter is concluded, either informally, through mediation or following a formal investigation, always continue to monitor the relationship and ensure regular contact with both parties
- In the event of the allegation being upheld you need to provide whatever training is necessary for the respondent and continue to monitor him or her to ensure that the behaviour complained of is eliminated. The complainant may also need some further counselling or extra support from his or her manager or other appropriate person
Does mediation really help to resolve workplace bullying, harassment and sexual harassment complaints?
Yes, there is absolutely no doubt that mediation can help resolve complaints of this nature. A measure of its usefulness in resolving workplace conflict is the fact that it has been given legislative status (Mediation Bill 2012). To be effective, mediation must always be carried out by a trained professional who is experienced in workplace bullying, harassment and sexual harassment.
At WorkplaceBullying we believe strongly in the power of mediation. All our mediators have practitioner status accredited by the Mediator’s Institute of Ireland resulting in a 98% success rate our workplace mediation assignments. Click here for more on mediation and our mediation services or Contact us today.
What is a formal investigation?
This is where an investigator(s) is appointed to investigate a complaint. The investigator can be internal or external but, either way, should be trained in conducting workplace investigations and should not be connected in any way with the complaint.
The investigation of the complaint is conducted in accordance with agreed terms of reference with the objective of ascertaining the facts. The facts are tested against the policy under which the complaint is being investigated and the relevant legislation and codes of practice (if applicable). The outcome is presented in a written report, which states whether the complaint is upheld or not. The investigator must follow the procedures set down in your Dignity at Work policy, which must in turn comply with the relevant legislation and codes of practice and the principles of natural justice and fair procedures. As an employer, you should prioritise procedural fairness and the competency of the investigator(s).
WorkplaceBullying uses some of the best investigators in the country and is a stickler for procedural justice. If you are facing a formal investigation, make sure you have the best investigator possible – Contact us or click here for more on our workplace investigation services.
Do I need to provide training to managers and supervisors on how to conduct formal workplace bullying, harassment and sexual harassment investigations?
The short answer is that you cannot afford not to – conducting investigations without proper training is unsafe practice besides being unfair to all parties. This is most certainly an area in which inappropriate intervention will cost you money; the consequences of workplace bullying and harassment cases can be significant and can range from a simple breach of an employee’s statutory rights to significant personal injury awards for the affected employee.
Furthermore, an investigation can often come under scrutiny by an external third party so it is important that it be conducted correctly.
Complaints of this nature are serious, extremely sensitive and often complex. Avoid risk by contacting WorkplaceBullying for expert advice and practical assistance for each and every step of the fight against bullying, harassment and sexual harassment. Contact us or click here for more on our services to employers.