I have received a complaint from an employee that they are feeling bullied by their immediate manager. Our Dignity at Work Policy provides for mediation as an optional first step in our informal process. How do I handle it?

Michelle Ryan writes:

When an employer is made aware of a complaint of bullying, they are under an obligation to address such a complaint. Failure to do so may lead to liability and potential claims against the employer. Complaints can be addressed through informal and formal mechanisms and mediation is often an excellent step to show that a company has taken all reasonable steps to repair a working relationship.

In the above example, the employer should progress this matter pursuant to the informal procedure as set out in their Dignity at Work policy and suggest to this individual that the matter be dealt with by way of mediation as outlined in their informal procedure.

Mediation by definition is a non-binding process where an independent individual works with the parties to a dispute with a view to reaching a settlement and is increasingly becoming an effective tool in the workplace for resolving disputes. This has clearly been recognised for some time and is enshrined in employment codes, such as the Code of Practice under the Safety, Health and Welfare at Work Act 2005, which specifically makes provision for the use of mediation as a first step in an informal process, either by a designated person or by an independent professional body.

Mediation is also recognised within the new employment regime, with the Workplace Relations Early Resolution Service, provided by Case Resolution Officers, in operation since May 2013 in relation to first instance complaints. Under the Workplace Relations Bill, it is envisaged that mediation will also be delivered by the Workplace Relations Commission.

In the instant example, the employer should meet with the individual and outline the difference between the informal and formal processes and identify mediation as an alternative option to resolving the situation. It should be explained that the overall objective of the mediation is to address the employee’s concerns and to reach a practical solution so that the parties can continue to work together going forward. It should be explained to the employee who the mediator might be, for example an internal designated mediator or an external third party outside the company. The employee will then be asked to make a decision in relation to which procedure they wish to progress their complaint under.

It is important to note that a mediation process is entirely voluntary. Informal procedures such as mediation can only take place with the consent of both parties to a complaint, and if a party is dissatisfied with the outcome of the informal process, or insists that a matter be dealt with formally, then an employer must observe their request in this regard. This would involve a formal investigation into the complaint to investigate and determine the facts of the complaint of bullying. The investigation must take place in accordance with the procedures set out in the company’s Dignity at Work Policy.

Should both parties agree to the matter proceeding by mediation, then it is important to note that the rules of natural justice and fair procedures apply during both an informal and formal process. In that regard, the parties to the mediation should be permitted to bring a representative with them to any meetings and be given a full opportunity to respond to all matters raised.

Once mediation is concluded, often, employees agree to abide by certain behaviour and sign up to what is known as a mediation agreement. For example, where allegations of bullying are the subject matter of a mediation, an individual would agree to not engage in certain kinds of inappropriate behaviour towards the complainant going forward. Breach of the mediation agreement can have serious consequences, including disciplinary action, for an employee.

In the above example, should mediation be successful the employer will have avoided a potentially lengthy and stressful investigation which can give rise to counter-allegations being made as well as the potential for findings being made against a number of employees. It is therefore fair to say that, mediation is both a proven process for preserving relationships between colleagues, who will have to continue to work together once the process is concluded and one of the most effective means of resolving workplace disputes.

The above example illustrates the benefit of updating existing Dignity at Work Policy’s to make provision for the use of mediation as either an optional or a necessary first step in all cases, where same is already not set out. This can save considerably on going to the time and expense of conducting a full formal investigation.