Introduction

The Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020 (the New Code) was jointly published by the Health and Safety Authority (HSA) and the Workplace Relations Commission (WRC) and came into effect on 20 December 2020.

The New Code replaces two previous codes of practice on bullying:  the Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work issued by the HSA and the Code of Practice Detailing Procedures for Addressing Bullying in the Workplace issued by the Labour Relations Commission (now the WRC).

The New Code deals solely with the issue of bullying and does not extend to the legally distinct concepts of harassment and sexual harassment leading to common query arising as to whether it is advisable and/or appropriate for employers, as has been common practice, to continue to have a single policy to deal with both bullying and harassment. In this article we will explore this issue in further detail.

Key Definitions

Definition of Bullying

The New Code retains the same definition of bullying which was found in the previous codes of practice:

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 work. 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.

Definitions of Harassment and Sexual Harassment

Harassment is defined in section 14A(7) of the Employment Equality Acts 1998 to 2015 as “any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.

Sexual Harassment is defined in section 14A(7) of the Employment Equality Acts 1998 to 2015 as “any form of unwanted verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.

Code of Practice on Harassment

There is a separate code of practice on harassment and sexual harassment, the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 (the 2012 Code), which was published by the Irish Human Rights and Equality Commission.

The 2012 Code seeks to promote the development and implementation of policies and procedures which establish working environments free of harassment and sexual harassment.  Failure to follow the 2012 Code is not an offence in itself, but it is admissible in evidence and may be taken into account by the WRC, Labour Court or the civil courts in any claim or prosecution concerning harassment.

Is a single policy to deal with bullying and harassment recommended?

The New Code expressly states that it does not prevent employers from having one policy encompassing procedures for processing both bullying and harassment cases.  In so doing employers need to ensure that the policy reflects the key requirements from both the New Code and the 2012 Code as they do not fully align.  There are differences with regard to specified roles and recommended procedures and steps.

There are also some nuances in the 2012 Code which employers should bear in mind.  For example, it is stipulated in the 2012 Code that the procedure should make it clear that utilising the complaints procedure will not impact upon the employee’s right to initiate a claim under the Employment Equality Acts 1998 to 2015 and it is also stipulated that it is preferable for formal investigations into alleged harassment or sexual harassment to be carried out by two individuals (with a gender balance being achieved in investigations dealing with sexual harassment).

The New Code has introduced some new concepts and has re-iterated the importance of other matters when dealing with complaints of bullying such as:

1. The New Code introduces the concept of an “initial informal process” and a “secondary informal process”.  The concept of a “secondary informal process” is entirely new and thus what is envisaged by the New Code is a three-stage process of resolution - i.e. a two-stage informal process followed by a formal process.  The 2012 Code encourages the utilisation, where possible, of an informal process and thus there would appear to be no reason as to why the three-stage process envisaged by the New Code cannot be adopted in relation to allegations of harassment and it may well be of assistance to employers seeking to achieve a resolution at a relatively early stage.
   
   
2. The New Code refers to the appointment of a “contact person” described as an appropriately trained individual to listen to and offer guidance to employees on a confidential basis.  It is further stipulated that the contact person should not play a role in addressing or investigating allegations.  An appointed contact person is also likely to be of assistance in the context allegations of harassment or sexual harassment.

The general principles which underpin both the New Code and the 2012 Code are broadly analogous and thus drafting a policy which meets the requirements set out in both codes of practice is possible and recommended.

As the New Code includes some concepts and recommended steps that are not included in the 2012 Code, employers that use a single policy to deal with both bullying and harassment complaints will have the benefit of the measures in the New Code for dealing with complaints of harassment and sexual harassment, which are likely to be of practical assistance.  It appears likely that any future code of practice on harassment and sexual harassment will also include these concepts and recommended steps.

Conclusion

While the New Code does not deal with complaints of harassment or sexual harassment, the changes introduced will not preclude employers from continuing to deal with bullying and harassment matters under the umbrella of one policy and it makes practical sense to do so.  The alternative is to have two separate policies and procedures, which is likely to complicate investigations, particularly in instances where there are related allegations of bullying and harassment.

When drafting a single policy or revising an existing policy, care should be taken to ensure that the policy reflects both the provisions of the New Code and the 2012 Code.  In broad terms, this will include the following:

1. The statutory definitions of bullying, harassment and sexual harassment will all need to be incorporated into policy.
   
   
2. A common complaints procedure can be included for dealing with allegations of bullying, harassment or sexual harassment.  The only divergence in this regard may be with regard to formal investigations into alleged harassment or sexual harassment, i.e. whether provision is made for such matters to be investigated by two individuals pursuant to the 2012 Code. The size of the organisation and the number of individuals available to conduct investigations will have a bearing in this regard.
   
   
3. Common provisions with regard to representation and appeals can be adopted.