In this webinar, Caroline Reidy, Managing Director of The HR Suite and HR and Employment Law Expert provides guidance on dealing with allegations of bullying in the workplace.  This includes:

• Ensuring your policy is in line with the new Code of Practice for Employers  and Employees on the Prevention and Resolution of Bullying at Work.
• Providing training for all staff to raise awareness of what is and what is not bullying.
• Providing specific training for staff who will act as Contact Persons and Nominated Persons.
• Seeking clarity on the specific nature of any allegation raised.
• Keeping matters informal where appropriate.

Questions covered in this webinar include:

• Where someone submits an issue verbally, which is, I suppose, perhaps serious, and now the employer wants to do something about it. The question is if they're unwilling to put it in writing, does that mean you can't do anything?
• Can you insist that an employee goes through the informal stages, so the contact person and the nominated person? Or are they able to bypass that straight to the formal process?
• Is there any point, Caroline, really, that you could anonymise those witness statements because someone says, "I am happy to give evidence, but I'm concerned about threat to life from that person", or their connections or whatever? Could you anonymise witness statements?

The Recording

Transcript 

Rolanda: Good morning, everyone, and welcome to our November webinar with The HR Suite. I'm joined today by the lovely Caroline Reidy. Today, Caroline is going to be looking at giving some practical guidance on how to deal with allegations of bullying.

But if you're new to us, I just want to take a wee minute to talk through and give you a wee bit about Caroline's background. She doesn't look old enough, I have to say, for the volume of experience she's had.

Caroline: Thank you.

Rolanda: So for anyone who doesn't know, Caroline is a past member of the Low Pay Commission, and she's also an adjudicator in the Workplace Relations Commission. She has completed a Master's in Human Resources through the University of Limerick. She is CIPD-accredited as well as being a trained mediator.

She has worked across various areas of HR for over 20 years, including in the Kerry Group and in the retail and hospitality sector, where she was the Operations and HR Director of the Garvey Group prior to setting up The HR Suite in 2009.

Caroline contributes regularly to Legal-Island and she speaks wisely and writes articles and papers on thought leadership in relation to the future landscape of HR and the opportunities that that presents for employees and employers. And I suppose there's never been a more fruitful time for change as there is at the minute.

Caroline is talking today on how to deal with allegations of bullying. At this year's Annual Review of Employment Law on 24 and 25 November, she's going to be looking at the difference between bullying and proactive management, because sometimes it's very easy to say, "I'm being bullied", when in actual fact it's a just a manager being quite firm in their approach.

Just before I hand over to Carline then, I just wanted to talk very briefly about an eLearning programme that we have created at Legal-Island. We created this in relation to the issuing of the Code of Practice on the prevention of bullying. And we drop a wee link to that Code of Practice into the chat and send you a link to that in the follow-up email.

But this workplace bullying course then is compliant with the code, and it's available really for all staff and is to really try and raise awareness of what bullying is, and I suppose what bullying isn't, and then how it should be dealt with in the organisation.

If you want to find out a wee bit more about that course or have someone from our eLearning department contact you to discuss the cost of that for your organisation, then please just type "yes" into the question box now.

As you can see, there is a special offer for webinar attendees. You're invited to 50% off of the course for your workforce. It can be a very, very cost effective way of doing training with all your employees.

Now, if you have any questions for Caroline, please again drop them into the question box, which you should see on your screen. It's usually represented by a little question mark. And we'll deal with those once Caroline has gone through her key points that she wants to raise.

So really over to you, Caroline.

Caroline: Thanks, Rolanda. Thank you, everybody, for joining us this morning. We appreciate how busy everybody is, so thank you for giving us your time this morning. Great to see so many of you here.

So I suppose this is something that's hugely topical, and I think the number of attendees this morning is very much echoing that. And it's something, as Rolanda said, that I want to be continuing on in terms of discussion and focus at the Annual Review. At the Annual Review as well I'm going to be focussing on some case law and some preventative measures in greater detail.

But for today and this morning's webinar, the focus and topic is in terms of dealing with allegations of bullying in the workplace. And I suppose the starting point very much has to be on making sure we're compliant with the new Code of Practice that's in place.

Prevention of Bullying - Codes of Practice ⚓︎

So my first starting point really is to make sure that in your organisation, you've updated your policy to reflect the new code, because what we're finding is . . . Obviously, we specialise in doing investigations, outcomes, all the different stages within the process. And when somebody contacts us to do an investigation, we have to follow the company policy that's in place. And we're finding that a lot of companies haven't updated their policy. That's disadvantageous to the company and it's disadvantageous to the employee as well. So it's definitely something that I would strongly advise.

So remember that new policy, and again, we can help you with that if you need, but that new policy needs to reflect the new code. And the new code has introduced quite significant changes in terms of how we deal with allegations of bullying in the work environment.

The other important point to note is that this code only deals with bullying allegations. So if you have somebody and they're alleging, for example, harassment, there's a separate Code of Practice that that covers.

However, from a best practice point of view, if you want to cover both in the one policy, for example, under the umbrella of dignity and respect at work, that probably is a very sensible approach.

For many employees, they use the words, "I'm being bullied and harassed", in their allegation, and maybe don't necessarily understand what is bullying and what is harassment. So, again, I think that's something that is worthy of considering and keeping in mind when you're updating your policy.

It's also important to note that with this new Code of Practice in relation to bullying, it has been drafted not alone from an HR and an employment law perspective, but it's also a health and safety obligation.

And under the obligation of vicarious liability from a health and safety point of view, as you know, we have an obligation to do all we can to provide a safe place of work for our employees. And that safe place of work includes a place that's free of bullying and harassment. And by that vicarious liability, the starting point has to be that we have a policy in place.

Next, we're going to do awareness training. Next, we're going to appoint the different people that the Code of Practice recommends that we have in place. For example, contact persons, etc

And I would definitely say that if you haven't already in 2021, that it should be a priority in 2022 if you haven't already updated your policy, trained your contact people, and appointed the different people that you will need in the different roles. And obviously, then, the rollout to staff is key also.

So there's a training piece, I suppose, around all the different stakeholders from that perspective.

Next, for me, it's really important to be clear on what is the actual allegation, because once somebody puts forward an allegation, ultimately, our job normally is to try and resolve the issue as low down in the informal stages as is practicable and to help the person and signpost them in relation to the options that are available to them.

The policy now and the code implies that the employees have the option to go to what is known as a contact person. And those trained contact persons can help the employee navigate through the policy, help them understand what are the options available to them. For example, the informal route. For example, mediation. Or if they decide to go down the formal route, what is involved in that.

Define Bullying and Harassment ⚓︎

And that allegation is really important at the starting point because sometimes people come and they say, "I am being bullied and harassed", and it's very broad in terms of what the allegation is. Again, helping them understand what exactly is bullying, what exactly is harassment, if they use those words.

And if they don't use those words, I wouldn't put those labels on whatever is alleged. But I would explain to the employee, "These are the different policies", you have within your organisation. And whatever is the most current policy is the policy that you need to follow.

However, you need to be very conscious that it may not be compliant with the new Code of Practice if you haven't updated it. So I think that's a big NB coming away from this morning's session.

So in relation to the allegation, then, understanding is harassment being alleged, is bullying being alleged, or is it an actual grievance? And that needs to be teased out with the employee, either from a HR perspective or from a contact person perspective.

So being really clear on what is bullying and what is not bullying is something we're going to delve into in huge detail at the session at the Annual Review. But for today, it's understanding the nuances between it because, as I say, what I find is the employee uses generally very broad terms and maybe isn't clear in relation to bullying or harassment.

The Informal Stages ⚓︎

The other, I suppose, key obligation that we need to be focussed on is to be very clear on what now is going to be an allegation if they want to proceed with whatever that allegation is. What is the informal option that's available to them? Oftentimes, that's they go, they talk to the person themselves, they try and resolve it.

Generally, there's an option of a facilitated discussion where a person, possibly the contact person or another person, might try informally to sit in and help resolve the issue at an early stage.

Also, we have the option in relation to other stages within the process in terms of moving forward. So that might be mediation, for example, where both parties have to sign up to and agree to the process of mediation.

And sometimes you'll find that one person will agree to the mediation where the other person may not. And because this is a fully voluntary process in terms of mediation . . . Remember, the key principles are that it's voluntary, confidential, and impartial. If one person doesn't sign up, then mediation is not an option in terms of progressing.

But then, in terms of moving on to the informal stage, we also have the piece which is called now the secondary informal stage, which means a nominated person who is a trained person would establish the facts and try and help resolve the issue.

However, if that nominated person deems that bullying has been met in terms of the definition, they also need to keep a record and show what preventative action has been taken to reduce, eliminate, and prevent bullying happening again in the work environment.

And obviously, our whole focus on that is to ensure that the root cause is addressed so that it's eliminated and it's not going to occur again. And that's a really important obligation under the secondary informal stage.

Again, that nominated person at that secondary informal stage has quite a responsible job because of that, because the key responsibility they have is not to step into a formal investigation because it's still considered informal at that secondary informal stage. Yet they are identifying whether it meets the definition of bullying. And if it does, they need to keep that formal record in line with the health and safety obligation and, as I say, also make sure that they've taken those preventative measures to ensure it doesn't occur again.

Again, normally, you would facilitate check-ins with the parties after a set period of time to check in that all is going according to plan and that there are no repeat incidents after occurring. So that's really important.

Before we get to the formal stage, it's also really important to be clear on who decides which policy that the grievance will pursue. And if the person is at the informal stages and you have separate policies . . . So you might have a separate policy to do with harassment, a separate one to do with bullying, and a separate one to do with grievances. And if that is the case, you need to be clear on which policy is relevant because each policy may have a different path.

That's why often doing an umbrella policy under dignity and respect sometimes facilitates that to be a little bit easier on the complainant, subject of the complaint, and on the person who's navigating the difference. Very early on, it's very much an allegation, and everything is waiting to be investigated or to be teased out further, and we have to treat it as an allegation at that stage. That's important to note.

Obviously, not everything is automatically formal, even though an employee may send an email or may put something in writing to say, "I'm not happy in relation to the fact that X has happened or somebody said or did something". It's important that just because an employee has put it in writing, we still take them through the steps and possible options available so that they understand if they are going down the informal route, these are the avenues: informal, secondary, and formal mediation.

The Formal Stages ⚓︎

And if they are going down the formal route, they need to go through first a preliminary screening stage where a person will take their allegation and basically assess whether it meets the definition or not before it goes to the informal stage.

That's a new stage that was introduced with the new bullying Code of Practice. And it's a really important stage because ultimately now the employer has to go through a sense-check to see if it meets the definition, whereas previous to this, or indeed for those that haven't updated their policy, anybody who puts forward what they deem to be a formal complaint needs to be investigated.

Whereas after you implement the code, this preliminary screening stage facilitates us to assess, "Well, actually, no, that doesn't meet the definition of repeated inappropriate behaviour, for example. Therefore, you may raise it as a grievance", or maybe it's going to meet the definition of harassment, etc. But we, as an employer, have the opportunity to make that assessment before we start that investigation.

For all of you that have been involved in investigations, and it's something we do an awful lot of, it's a really big process and it's hugely time consuming and requires really good attention to detail.

Technically, most investigations are procedurally challenged in relation to fair process, in relation to independence, etc., rather than the substantive issue being called into question. So procedurally, it's really important that we get all those elements correct very early on.

So I would strongly encourage you to just think about your process, your policy. Is it in keeping with your code of practice and your best practice ethos? For example, if you have unions in place, you may have agreements that need to be incorporated into it, etc., but it is important.

And the other key thing your policy is going to outline is what is bullying and what is not bullying. So again, helping signpost the person and guide them and helping the parties that are involved in the investigation as well.

The Scope of the Investigation ⚓︎

So if we move on, then, and take it that we've gone through the initial contact person being involved, possibly the informal, possibly secondary informal, and have met the bar that's required in terms of preliminary formal, and we start the investigation, when we're dealing with that allegation what's really important is to be clear on what is the scope of the investigation. So, again, making sure the employee gives you the scope of what they want investigated.

What you find is after the investigation is concluded, or you might be a good way into the investigation, the parties may come back and say, "Well, no, I never mentioned this, and this happened", or, "This other thing I want addressed as well". And it's important that we're clear on what are the terms of reference for this investigation.

And obviously, if there is evidence that supports, for example, the allegation, that absolutely can be raised, etc. But it can't be an unrelated additional allegation, because all the parties are entitled to the rules of natural justice, which means that they are entitled to know what the allegations are being made against them.

So that clarity in relation to what is the allegation, and being really clear in relation to that is important. And that requires important clarity when you're communicating with the complainant to ask them to be clearly outlining to you what is the allegation that they want investigated.

And again, now we're at the stage of investigation. Obviously, normally, we will also get requests in relation to data access. So just being really clear in relation to that as well.

Other challenges that occur at the investigation stage are often a case of somebody may raise, "Well, I feel this is a malicious complaint". And if that was to occur, that would be something that you would be required to take into account in relation to mitigating circumstances and you'd have to consider that as part of it.

Oftentimes, then, you may get a counter grievance afterwards saying, "Well, look, the allegation wasn't upheld. Therefore, now I'm taking an allegation in relation to the fact that that was a malicious complaint".

And remember, a malicious complaint is one that untruth was intended from the outset. It's not a case of somebody who put forward a grievance or an allegation in good faith and it wasn't upheld. So there's a very different bar that's required in relation to an allegation of a malicious complaint or an allegation that isn't upheld. So just be aware and clear in relation to that.

Again, a lot of this comes down to the expertise of the person who is going to be involved in doing the role of contact person, the role of a secondary informal, which is the nominated person, or indeed the person who does the preliminary screening, or indeed the person who does the investigation, the outcome, and the appeal.

But as you hear me listing off all those people, you can see that for one allegation, you could end up having six or seven people within the organisation involved in one allegation. And again, remember the importance of a key principle of the rules of natural justice, which is that separation of process. So that's a crucial need that once an allegation comes across our desk, we're clear on who is going to be the person that deals with each stage.

Contact Persons ⚓︎

And the concept of the contact person is that we have a number of trained contact persons throughout the organisation and somebody can go to them without ever letting HR or the senior management team know. They can just literally go to the contact person and have that conversation. So you don't have to assign, for example, somebody to be that contact person. There's a list of people that have been trained, and anybody can go to those contact persons.

Obviously, we do a lot of training in relation to contact persons, nominated persons, investigators, etc. But what I find is when you're doing the training for your organisation, it really raises awareness. When people go on the training, it helps them really understand the culture of prevention that's required.

For example, if they see something that's inappropriate very early on or something that culturally they just don't think is right, it raises the bar in relation to the standard around cultural acceptability, I find.

So it's a very good awareness approach, as well as the fact that obviously it's part of your vicarious liability to ensure that we have trained these parties within the organisation.

So for the contact person, the person decides who they want to go to. We find the generally they go to people who are not directly within their department because, again, from a confidentiality or a comfortable perspective, they're going to talk to somebody who has no connection necessarily with either them or with the other person that might be involved in terms of the allegation. So, again, just keeping that in mind.

Confidentiality is another really important point that should be emphasised from the very outset. So if somebody raises an allegation, you're reminding them of their obligation to keep everything confidential, as you will. And that's a key role right throughout the process

If it was the case that the person was saying, "Well, I've made an allegation that Johnny is bullying me", and that was to become public knowledge within the business, obviously, that would have detrimental effect on the subject of the complaint and would absolutely do damage to their good name.

Again, particularly when an allegation has been made, we'd always highlight the importance of confidentiality for all the parties that are involved, including any witnesses so that if you needed to involve a witness, you'd indicate the importance of confidentiality to them, and the consequences of breaching confidentiality. As I say, it could have far-reaching implications, so it needs to be clear from that perspective.

Remote Investigation ⚓︎

Obviously, a lot of investigations now are being done remotely. The process has gone very smoothly in terms of managing investigations remotely. Once the parties have the appropriate broadband connection, to make people comfortable, we would generally do a trial if anybody wasn't used to using, for example, Teams, or Zoom, or Webex, or whatever technology we might be using depending on the company. But outside of that, it has worked very well.

Obviously, the representative is on the Zoom or the Webex call as well. And again, you can put people into separate rooms should they want to have a private discussion at any stage, also.

And again, it facilitates the principle that it is the complainant or the subject of the complaint that needs to answer the questions, and the representative or the support person is only there to act exactly that, as a support. So it does positively, I suppose, reinforce that process.

So, again, remote investigations, I think, are something that will be here to stay and definitely a very positive process.

So in terms, then, of the outcome and the importance of, again, the investigation is done, the report is produced and the next stage is that outcome. Again, separation of process will apply. The outcome manager decides on the appropriate sanction, if any, based on the investigation. And then the appeal manager deals with any appeal grounds. So, again, you're maintaining that separation of process.

For any witnesses involved, again, less is more in terms of giving them huge context. Again, it's important that you are very clear in relation to what it is their role is and what it is you need to ask them, rather than starting to give them a load of background information, which isn't necessary.

The Probable Outcome ⚓︎

The key thing to remember is in HR and in employment law, our bar is what is the probable outcome. So it's probability rather than beyond reasonable doubt, which is the criminal bar. And again, you need to be able to justify why you've come to your decision in relation to the probability.

You'll see in a lot of case law now where . . . For example, a recent enough one where there was a crèche worker allegedly having slapped a child and the investigator says, "Look, based on the evidence and the probability I have based on the evidence has been presented, this is the decision I've come to. And I believe that it occurred based on the probability".

And again, that's completely acceptable to do that based on the evidence presented. If you follow the evidence, I find that it is very much a case that the evidence will lead you to the decision. Important to remember.

Also important to note, elements of what is raised that is outside of the scope of investigation shouldn't be considered. It needs a separate investigation if it's outside of the scope. But obviously, as I say, if it's linked in terms of evidence, then there isn't an issue there.

Prevention ⚓︎

My final discussion points to you before I bring back Rolanda to do some Q&A, because I know we've quite a lot of questions that have come in that we want to address. Prevention is obviously much better than cure, as it is in any scenario. So awareness training for your staff is obviously hugely important once you've updated your Code of Practice and your policy accordingly.

And as I say, some decisions to be made based on your own internal policies. Do you do one overarching one, or do you update your own individual policies, if you've, for example, got separate policies? For some organisations, they want bullying, for example, to go through the informal, secondary informal, and formal preliminary. And for others, other organisations want the harassment to be part of that process. For some, they don't. So again, you need to make a decision.

Obviously, if the business is unionised, that's going to be another consideration that you need to consider. But it's definitely a priority because of your vicarious liability obligations.

And one of the discussions I was having with Rolanda before we started is the amount of investigations we've done in 2021 has been huge. There's been a huge amount of allegations. So it's something that is a priority.

I suppose the awareness training is one, making sure culturally that everybody is aware of what's acceptable and not acceptable in terms of your culture, your values, and making sure that we are our own culture police in terms of walking the talk and leading by example as leaders. That cascades throughout the organisation.

That "do all we can to prevent" is obviously core, but also training the people then, like the contact persons, the person who's going to do that secondary informal, i.e. nominated persons, the person who's going to do the preliminary formal screening, and the person who's going to do the investigation. They're all chunky roles that if you plan to do in-house, you would be well advised to decide who within your organisation are you going to train.

As I started outlining, you could have six or seven people within your organisation that have these different roles and a number of contact people to complement them as well.

So again, very sensible to proactively plan that, and we'd be delighted to talk to any of you if we can assist from a policy, a training, or just even an advisory perspective on how it might work best within your organisation.

So I'm going to leave it at that because, as I say, I know we've a lot of questions. So, Rolanda, if you'd like to maybe go through some of the questions, we might have a chat about those and go from there.

Rolanda: Thank you, Caroline. Yes, we have loads and loads of questions. So I'll make a wee start. The HR Suite contact details are just going to pop up on the screen in a wee second there, so anyone who wants to find out a wee bit more, you can go on the website. There are two telephone numbers and you can email The HR Suite as well. The website is very good and has plenty of information on it.

Now, where to start with the questions? So maybe can start, first of all, just with the initial allegations. So we had a question in during the week, which was really…

Where someone submits an issue verbally, which is, I suppose, perhaps serious, and now the employer wants to do something about it. The question is if they're unwilling to put it in writing, does that mean you can't do anything? ⚓︎

Caroline: There's something that we come up with time and time again, where somebody comes and says, "Listen, I just want to let you know about this, but I don't want you to do anything", which is nearly tying your hands behind your back and asking you to go make a cup of tea. It's a really challenging situation to be in.

The important piece from our perspective is we're on notice if the person has come and told us. Depending on the seriousness of that allegation, within our policy, we should have a reserved right that if there is an allegation that is serious enough, that we have to obviously do something about it.

However, we have to be very careful as well because the person that the allegation may be made about has the right to know the allegation made against them if we're deciding we're going to do something about it.

So oftentimes, without knowing the detail, it's hard to give very specific advice, Rolanda. But I'll give you an example maybe.

So somebody came and said, "Look, I feel that people are making kind of nasty comments and there's a lot of backbiting or a lot of nasty comments being made and I'm not comfortable in the situation and I think it's quite toxic". For example, if they haven't maybe named any individuals, they've given you a very generic scenario, in that scenario I would suggest that we would do training with that department or with that team as an awareness-raising, best-practice approach to ensure that we're doing something proactive and preventative.

And again, I would also write to that employee who has come to me and say, "Dear Caroline, I'd like to confirm you came to me. You said you don't want to do anything in relation to progressing your allegation". And I'd always use the word allegation, because everybody is innocent until proven guilty. "And in raising that allegation, you've said you don't want me to do anything about it right now. If that changes, please let me know".

So you're doing a double-preventative approach, and I think that would meet your vicarious liability, but it also puts the ball back in the employee's court so that they can't come later, which often happens, where they say, "Well, Rolanda, I did tell you back in March that I wasn't happy, and the environment was very toxic. And then I had to leave in May, and now I'm taking a constructive dismissal claim".

So again, from that perspective, you've done all you can, and that's why that paper trail is so important in terms of that preventative approach.

Rolanda: Yeah. I mean, psychologically, when someone is saying, "I want to tell you something, but I don't want you to do anything about it", it means that they don't want to be involved. They don't want any unpleasant conflict or anything like that. So you do need to protect yourself as an employer and you can't unknow what you know.

Caroline: Absolutely. The other side of it . . .

Rolanda:so that’s potentially an issue.

Caroline: Totally. And the other thing we have to be conscious of as well is sometimes that's also the source of malicious complaints, where somebody says, "Well, look, I want to let you know Johnny is saying or doing, etc., but I want nothing to do with it". So in other words, they don't want to go on record, yet they're making the allegation. Again, it's back to ensuring we treat it as an allegation and everybody is innocent until proven guilty.

Obviously, we always have to say health and safety trumps everything, so if they make a very serious allegation, we then need to make a judgement call on what is the appropriate thing to do. And obviously, if somebody is at risk, health and safety will trump everything, but we just have to make a judgement, I suppose. But again, proactively doing so.

Rolanda: Yeah. And I suppose the reverse of that question.

Can you insist that an employee goes through the informal stages, so the contact person and the nominated person? Or are they able to bypass that straight to the formal process? ⚓︎

Caroline: So the obligation is that if they want their allegation to be formally investigated, they must go through the formal screening stage, the preliminary screening stage. They don't have to go through the informal stage, but they have to go through the preliminary screening before they get to a formal investigation.

However, the obligation now of training contact persons, for example, means that if you've good contact persons, I find the person goes to them very early on in the process, whereas they might be slower to go to HR because it's seen as maybe more formal.

And if they go very early on to those contact persons and they're properly trained, they will always signpost them to, "Look, are you sure that they realise that they're causing you an upset by saying that or doing? Would it be worthy of saying something to give them the indication that you're not happy about that?" or, "Would you be able to have a chat about that?" or whatever the case may be.

So you have all those options in relation to how you might handle that. Is that okay? So that's important, Rolanda, in terms of preventative and trying to nip it in the bud. But ultimately, if they say, "No, I want the formal route", well, then we have to go down the formal route once they meet the obligation at that preliminary screening stage.

Rolanda :And as you were saying before, it depends on the severity and the nature of the allegation, I suppose, as well.

Quite a few questions about contact persons, but before we move on to that, you've mentioned something a couple of times that's triggered one of the questions. Confidentiality is obviously really important. Whenever you're investigating, you'll create witness statements.

Is there any point, Caroline, really, that you could anonymise those witness statements because someone says, "I am happy to give evidence, but I'm concerned about threat to life from that person", or their connections or whatever? Could you anonymise witness statements? ⚓︎

Caroline: I suppose the rules of natural justice are very clear in terms of fairness and transparency, etc. But each case turns on its own facts. For example, I've been involved in investigations where somebody like that was afraid of the victimisation they may encounter. Also, it might be somebody who's got a disability or a mental health condition, etc. So, again, you're going to have to make a judgement call in line with fair process.

If somebody raises a debate to say, "Well, look, Rolanda, I'm not happy that that's fair", or, "I'm not happy that that's giving me fairness because I don't know who's making that statement", or whatever the case may be, I think you have to take that into account as well.

Ultimately, as an investigator, your job is to ensure fairness, and based on probability, who is telling the truth? Or are you going to hold that terms of reference allegation or not? So to do that, the more evidence, the better. But sometimes you need to discount evidence too because somebody is saying, "Look, I'm willing to tell you all of this, but I don't want to be named". Again, there may be a malicious element to that as well. So I think you need to understand the why and then make a judgement call based on that.

Rolanda: Yeah, very important point that, because you obviously have to be aware of that malicious.

Just on that, you did sort of mention this briefly, but it does happen quite frequently. I'm sure you've come across it. You're in the middle of investigating or speaking to someone about their behaviour, that it's aggressive, for example, and they then say, "Well, I want to raise a complaint about Caroline because actually she's the one who's been bullying me"

So during that process, somebody starts another process. What happens to the original process? ⚓︎

Caroline: Yeah. So ultimately, you as the investigator in the middle of any process have to stick to your terms of reference. And that happens quite a lot, to be honest, where somebody, either the complainant or the subject of the complaint, would raise further grievances or allegations within the process.

And again, we keep coming back to, "Look, that's outside of the terms of reference of this investigation", because, again, it hasn't been put to the person previously and you can't progress without giving everybody fair process.

Again, it starts to become unwieldy for the investigator as well, because this could be now going on for weeks at this stage. And timeliness is a really important part of any investigation, that it is managed in a timely way.

So I would be very conscious of if it's outside the terms of reference, you can't address it. So unless it supports an allegation that has already been made or it provides further evidence, then it needs to be dealt with separately outside of your terms of reference.

Rolanda: Okay. Quite a few questions just about the contact person, and it'd just be worth clarifying who the contact person can be. It's fine in big organisations. There are lots of different levels of management, etc. But in a small organisation with 20 people.

Who can the contact person be? Can that be HR? If so, does that limit their role in the other parts of the process? ⚓︎

Caroline: Yeah, it's a very good question. For a lot of organisations, they use, for example, companies like us as their contact person or at some stage within the process because they don't have enough in-house people that are trained or competent to be able to do that role. The Code of Practice does mention you can get third parties to do that. So that's one option.

The other option is normally I would always suggest that the contact persons are people within the business. So they might be people who have the right personality traits. They're cool, calm, collected. They're practical. They've got the right approach in terms of people would go to them for that reason. You would train those people up to be the contact persons.

If you have the right people who are the contact persons, they have a very preventative approach and they have a nip-it-in-the-bud type of approach, as well as signposting people in terms of their options. And they can be very powerful where things get nipped in the bud very early on.

It is an obligation of the Code of Practice that you do have contact persons. And ideally, I would suggest it's not HR, because if it progresses, think about the different stages.

So you have the contact person. Then you have informal. You have secondary informal. That requires a nominated person, which is quite a tricky role, to be honest. That nominated person has to decide if it meets the definition of bullying. And if it does meet the definition of bullying, they need to then produce a preventative action and they need to do their report.

And then if it goes further than that, it's the preliminary screening. And it goes on to the investigating, which is the investigation, the outcome, and the appeal.

So HR is probably needed in the secondary informal as the nominated person, potentially as the formal preliminary screening, and definitely as potentially the investigator or the outcome or the appeal. So we need to kind of, at the outset, decide, "Who will we get to do what?" And for me, the contact persons ideally are people within the business as a result, and not necessarily HR.

Rolanda: Yes, and maybe not necessarily senior management either because you don't want to . . . They would be more involved in the later stages. Obviously, with objectivity, you want to keep different people at different stages.

You mentioned that you may have one dignity-at-work policy, which is good practice, then, dealing with whether it's bullying or harassment.

Somebody has asked a question just about if you use a dignity and respect in the workplace policy, can the grievance policy also be incorporated within this, or does it need to be a separate policy? ⚓︎

Caroline: We keep the grievance separate, Rolanda. I'd keep the grievance policy separate because in the policy . . . that will be the dignity and respect at work policy. If you decide to put bullying and harassment together, you're going through the stages of informal, secondary informal, formal preliminary, etc., which isn't necessary to go through in a grievance process. So you can keep the grievance process tighter I would argue, and then have your dignity and respect covering bullying, harassment, inappropriate behaviour, that whole area.

And again, each company will make that decision based on their own policies, their practices, their IR systems, etc. But keeping grievances separately would be my view, and then keep the other one together.

Rolanda: And I suppose that's important because there are issues that cause complaints in the workplace are not just bullying and harassment. And perhaps within your grievance policy, you need to have a clear statement that if your complaint is in relation to a dignity-at-work issue, then you should utilise that procedure. Just I suppose redirect employees in a way to their problem.

Caroline: Absolutely. And again, that's where the contact person comes in, in terms of signposting them to say, "Well, maybe that doesn't meet the definition necessarily of bullying and harassment. Maybe that's more a grievance".

Rolanda: Yes, a general complaint. Okay. Well, look, we are out of time. We could really speak all day on this because there are always lots of little nuances that arise in relation to those issues.

As I said before, if you want to find out a wee bit more about bullying, and particularly what's proactive management and what's bullying, Caroline will be speaking on that at this year's Annual Review on 24 and 25 November. There is still time to book your place on that, and we'll send you some information about how to do that.

Just before we finish up then, Caroline, in relation to dealing with allegations of bullying, what would you say are your top three takeaways for employers?

Caroline: I think my top three takeaways for employers in proactively dealing with bullying allegations are to, first of all, make sure you have a really good policy so everybody is really clear in relation to what is bullying, what is not bullying, and how to deal with an allegation in terms of the different options they have available, whether that's the informal route or the formal route and the avenues of what that involves. So have a really good policy.

I suppose my other top tip would be to do preventative training and awareness for your employees and also your managers, and to train contact persons, nominated persons, and investigators if you're deciding to do this in-house within your organisation.

And my third top tip is to remember any allegation is an allegation, and to be really conscious that everybody is innocent until proven guilty, and to make sure that we treat everybody with that dignity and respect if an allegation is made. Be very conscious of our employee assistance programme and giving people support, because it is a very challenging time if that was to be raised within the organisation.

Rolanda: Excellent, Caroline. Fantastic advice. Thank you so much once again for your time. Our next webinar with Caroline is . . . I'm just checking the date. It's 8 December. And we'll confirm the topic nearer to the time.

But thanks very much for your time, Caroline. Look forward to seeing you on the 24th and 25th. Bye, everyone.

Caroline: Thanks, Rolanda. Bye.