New Code – Go Informal ⚓︎

The new Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work Order 2020encourages an ‘informal problem-solving approach’ as the most appropriate means of ‘addressing allegations of bullying effectively’. Where people are going to continue working together, this informal ‘collaborative and non-adversarial approach’ is adjudged to be ‘particularly important’.

The Code highlights the key elements of the informal approach as:

• Employees being confident that they will be listened to, taken seriously and that their concerns will be assessed fairly, quickly and effectively.
• Managers having the confidence and capacity to engage with such concerns and to respond and consult appropriately.
• Confidentiality being respected by all.
• Focusing on future workplace relationships, via a problem-solving approach.

The big plus of the informal approach is that it ‘may effectively address the unwanted behaviour without recourse to any other action’. For example, if the alleged bully is genuinely unaware that their behaviour is inappropriate, the informal ‘light touch’ route to resolution circumvents a formal (frequently fraught) investigation process, enabling the restoration of healthy working relationships. This emphasis in the new Code is in accord with the (replaced) Labour/Workplace Relations Commission’s (LRC/WRC) 2002 Code, that also promoted the informal approach ‘to resolve the difficulty with the minimum of conflict and stress for the individuals involved’. Likewise, it tallies with the (replaced) Health and Safety Authority’s 2007 Code, that advocated the ‘informal process’ via a ‘problem-solving approach’, to restore working relationships. Turning to ‘harassment’, it is notable that the new Code’s emphasis on the ‘informal’ is in accord with the (still operative) Equality Authority’s (now the Irish Human Rights and Equality Commission’s (IHRC)) 2012 Code on workplace ‘harassment’. It states that an organisation’s procedures should enable the ‘resolution of any problems through informal means’ - see S.I. No. 208/2012 - Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012. (irishstatutebook.ie).

Informal Route – The Steps ⚓︎

The new Code recommends that an informal route should enable:

1. The affected employee to raise the matter(s) with the perceived bully, ‘quickly and calmly, focusing on the facts regarding acts done and their consequences’, albeit only if they ‘feel comfortable’ in doing so. If they don’t, they should put their concerns in writing (to the bully), listing the offensive acts and their effects.
   
   
2. If the (perceived) bully is an immediate manager, one can discuss matters informally with the manager’s manager, or a person at the next level of management. However, because ‘many individuals find it difficult to communicate directly with the alleged offender’, the Irish Congress of Trade Unions’ (ICTU) guidance is that they ‘may request their Union Representative to speak to the alleged offender on their behalf’ (see: https://www.ictu.ie/publications/fulllist/ictu-guidelines-on-prevention-of-bullying-and-hara/).
   
   
3. Access to the support and guidance of the organisation’s Contact Person. (Note: The new Code stipulates that Contact Persons ‘will have no role in the investigation of any complaints’. This is in accord with the aforementioned HSA’s 2007 Code but constitutes a significant change from the LRC/WRC’S 2002 Code, that enabled the contact person to engage in ‘a confidential, non-confrontational discussion’ with the alleged bully. This revised role for the ‘Support Contact Person’ is detailed in an earlier article here.

‘Light Touch’ Logic ⚓︎

Beyond the circumvention of a full formal investigation, the logic of this ‘light touch’ informal approach is that it enables an explanation of the behaviour and/or an agreement to modify or end it. It may also reveal that the behaviour is reasonable and that the reaction of the offended party is at odds with the generally accepted understanding of this behaviour (e.g. in the management of performance). That is, the ‘informal approach’ is ‘light touch’ and will often easily resolve matters to the satisfaction of all parties.

However, a real constraint on this ‘light touch’ approach for ‘the relevant person responsible for managing the complaint’ is the obligation to keep a ‘brief written record, in line with relevant data protection legislation ….. of the matter and agreed outcomes and dates’. This provision is designed ‘to provide evidence of the complaint having been met with an organisational response and attempt at resolution’. That is, if parties are aware that under the informal approach records must be made and retained, this will likely affect both the complainant’s preparedness to proceed and the accused’s satisfaction with an informal approach to ‘clearing my good name’. Hence, we may never know whether this record keeping provision – which first appeared in the HSA’s 2007 Code - is more honoured in the breach than the observance.

If the First Informal Approach is Unsuccessful ⚓︎

The most novel feature of the new Code is that it acknowledges that an initial informal approach – as outlined at 1-3 above - may be ineffective, so it introduces the option of a ‘secondary informal process’ whereupon:

• The employer may nominate an appropriately trained and experienced person of suitable rank to deal with the complaint (i.e. the ‘Nominated Person’). (Note: This accords with the aforementioned IHRC 2012 Code on workplace ‘harassment’, which states that the complaints ‘procedure should provide for a competent named person to be available to assist in the resolution of any problems through informal means’).
• The Nominated Person should get a written note of what is complained of and a copy thereof should be given to the complainant.
• The Nominated Person should establish the facts, the context and the next course of action for dealing with the matter. (Note: This largely replicates the (now replaced) HSA’s 2007 Code of Practice on the subject, which recommended getting ‘the facts of the complaint, the specific issues complained of, when they occurred and to judge whether or not they fall within the definition of bullying, and thereafter to establish whether or not they are representative of the events complained of’ and ‘the designated person who is handling the complaint, should then establish the facts, the context and then the next course of action in dealing with the matter under the informal procedure’).
• Steps to stop the bullying behaviour and for monitoring the situation should be implemented and it may also be necessary to implement short-term alternate working arrangements during this phase. Progressing matters to finality, the new Code recommends that ‘a proposal should be made, considered, and an action and time frame established, signed and dated, preferably by both parties’.
• As noted above, the Nominated Person should keep a ‘nominal record’ of all stages (i.e. the complaint, the first meeting, action(s) agreed and signed records of the final meeting). Significantly, these records - that must not include details of the discussions – are deemed important as evidence of the complaint having been dealt with appropriately. Hence, the new Code directs that they should be kept in accord with relevant data protection legislation provisions (within an agreed Human Resources system).

The ’Nominated Person’s’ Role ⚓︎

The key player in this ‘secondary informal process’ - as provided for in the new Code - is the ‘Nominated Person’, who ‘for each complaint that arises .. should be assigned to deal with that particular case’. This ‘Nominated Person’ is responsible for ‘managing the complaint’ and ‘may be a supervisor/manager or someone in authority within the organisation’. Elaborating thereon, the Code states that ‘this is a very important role and pivotal in altering bullying cultures and handling complaints effectively at the informal stage’.

Specifically, the role of the ‘Nominated Person’ is to:

• Assess whether the behaviour complained of is bullying. If not, an alternative approach should be taken to address the issue(s) and a rationale recorded.
• Listen to the complaint and if it is verbal, take a written note of what is complained of and give a copy to the complainant.
• As noted above, keep a nominal record of all stages (incl. the complaint, the first meeting, action agreed and signed records of the final meeting). These records should not include details of the discussions.
• Ensure that if the complaint concerns alleged bullying and includes concrete examples of this behaviour, the person complained about should be given the complaint and their response established. If there are no concrete examples, then there is no complaint to be answered, as the alleged bully has no recourse to repudiating non-specific accusations.
• Establish the facts, the context and then the next course of action in dealing with the matter under the informal procedure.
• Agree the method(s) to progress the issue(s) to resolution, so that both parties can work in harmony.
• Keep line managers informed about the process (Note however, that - as the new Code states -‘confidentiality is crucial’).
• Implement steps to stop the bullying behaviour (if identified) and to monitor the situation along specified lines with the parties.
• Consider alternative work arrangements, should parties opt for some remedial process or for mediation (with an appropriate mediator). A proposal thereon should be made, considered, and an action and time frame established, signed and dated, preferably by both parties.

Complaint Resolution and the Nominated Person

As noted above, the ‘Nominated Person’s’ role is largely a replication of the ‘Designated Person’s’ role, as first introduced in the HSA’s 2007 Code of Practice. For example, the Irish Civil Service’s 2015 ‘Dignity at Work’ policy brings the role to life, explaining that it entails responsibility for overseeing complaints, whilst playing ‘a pivotal role in ensuring that complaints are dealt with in a timely and efficient manner’. The Civil Service policy also accords the role responsibility for:

• Ensuring that all parties have copies of the policy and any other relevant information.
• Ascertaining the details relevant to the complaint, the context, and advising on the potential resolution methods which may be explored.
• Providing information on mediation to all parties involved.
• Where complaints are verbal, making a written note of what is complained of, and giving a copy to the complainant.
• Making a record of the steps taken in the process toward resolution (e.g. meetings, actions agreed, the final report to the Human Resources Manager).

On this latter point, it is notable that the Civil Service policy also explains that ‘the purpose of these records, which do not include details of the discussions, are to provide evidence of the complaint being met with an organisational response and an attempt at resolution’.

With reference to ‘resolution’, it is also notable that the Association of Community and Comprehensive Schools’ 2018 ‘Dignity at Work’ policy is ahead of the curve in explicitly advising that: ‘the school’s Designated Person .. will encourage the complainant and the respondent to engage in meaningful dialogue in an effort to resolve the matter or gain a level of agreement ... the Designated Person … could facilitate resolution by getting the Parties together or, alternatively, just speak to the alleged offender’. 

This task is in line with the new Code, which explains that having appointed a ‘Nominated Person’ to deal with the complaint, they are responsible for enabling ‘a method’ to be ‘agreed to progress the issue to resolution’ and for obtaining ‘closure after a resolution is found through informal procedures’. That is, steps to stop the bullying behaviour - where it has been partly or fully identified - and to monitor the situation along specified lines, should be implemented with both parties.The Code’s aspiration is that, via the intervention of the ‘Nominated Person’: ‘in many situations, with the co-operation of all parties, the matter can rest here’.

From ‘Informal’ to ‘Formal’ ⚓︎

That is, the new Code envisages that this ‘secondary informal process’ should close off the (informal) process and matters ‘can rest here’ (subject to arrangements in respect of employee support(s) or reviews or where the complaint is deemed vexatious).

In summary, the Code advises that ‘all informal resolution avenues should be contemplated and where appropriate, exhausted before a formal process is invoked’. But in contrast with many past practices, it warns that ‘proceeding to a formal process should not be viewed as automatic and it is important that it is recognised that it is the reasonable evidence-based decision of management’. That is, a formal investigation should be undertaken after ‘a review of all aspects of the circumstances surrounding matters complained of’. In this regard the aforementioned ‘Nominated Person’ may well play a role in enabling this ‘reasonable decision-making process’, which could eventually prove important to an employer’s defence that complaints were appropriately dealt with by the organisation. Hence, the Code reminds parties that: ‘a record of that should be kept by the appropriate person acting for the employer’.

Conclusion ⚓︎

In conclusion, under the new Code’s informal process, the ‘Nominated Person’ is accorded a crucial role in the resolution of bullying complaints. This is reflected in the recent comment from a WRC insider, that: ‘it would be open to the Nominated Person to take whatever steps are necessary to manage the process’.However, in managing the process and performing the role they would do well to remember that in their capacity as the ‘Nominated Person’ they are not empowered to act as an adjudicator, mediator, counsellor, investigator or support contact person. However, they are charged with some responsibilities that go with all of these roles, whilst being presented with an important but challenging ‘window of opportunity’ for the resolution of issues, via a series of 1: 1 and/or tripartite meetings. This is where careful planning and preparation, together with the diplomatic deployment of all-important interpersonal skills, will save the organisation much more than money.