Introduction ⚓︎

Exactly three years after the then Minister of State announced a review of existing codes, the Workplace Relations Commission (WRC) and the Health and Safety Authority (HSA) have published a new ‘Code Of Practice For Employers And Employees On The Prevention and Resolution Of Bullying At Work’ (Statutory Instrument No. 674 of 2020), under the Industrial Relations Act 1990. The new Code has been described as a ‘welcome development’, as it serves to meet the original objective of having one Code, replacing the Commission’s 2002 Code and that of the HSA of 2007. The development of this new Code was also designed to meet ‘best practice’ and ‘evolving case law’ in the area and can be accessed at: http://www.irishstatutebook.ie/eli/2020/si/674/made/en/pdf.

The subject of bullying and harassment at work, as a focus of public attention and legal action in Ireland, has exploded since it first surfaced in the final quarter of the last millennium. The establishment of a Tribunal of Inquiry in 2017, arising from the Sergeant Maurice McCabe fiasco in An Garda Siochana, together with the Supreme Court’s judgement in the same year in respect of allegations at a national school in Kildare, brought the thorny topic into the limelight again. Whilst even the specialist Industrial Relations News publication was able to identify 20 discrete Labour Court recommendations on the matter (from mid-2018 to mid-2019) in its recent review.

The extent of bullying at work may be reflected in a Samaritans’ survey across Ireland and Britain, which found that 4 out of 5 workers perceived themselves to have been bullied during their careers, whilst the Central Statistics Office recently reported that almost 1 in 3 of the national workforce claim to have experienced bullying or harassment at work. Indeed, the list of organisations to have found themselves in disrepute from such practices reads like a ‘Who’s Who’ of eminent employers. For example, both Aer Lingus and the First National Building Society (now part of Ulster Bank) lost Chief Executives arising from incidents in this area, whilst luminaries like RTE, Dunnes Stores, Ryanair, An Post, Independent Newspapers, Atlantic Homecare, the Irish Blood Transfusion Service, Tesco, the Clarion Hotel, the Prison Service, Dublin City University and the health/hospital, education and local authority sectors have all found themselves enduring some notoriety arising from allegations in the area.

Related to this, the decision of the UK’s employment tribunal (in 2008) to award £19m. for bullying and harassment against F. & C. Asset Management sent shockwaves through employer ranks and far outstripped Irish headline cases on the subject. These include the Marino Institute (€500,000 settlement) and O’Callaghan Hotels (€315,000 award) cases. Whilst such sums may concentrate the mind, it is also notable that clinical psychologist Dr. Mark Harrold has estimated that the annual cost of workplace bullying in Ireland is €3 bn., with ~100 suicides per annum also attributed to this toxic treatment.

The New Code ⚓︎

Outlining its objectives, the new Code states that it:

• provides practical guidance on identifying, managing and preventing bullying at work, arising from employers' duties under section 8(2)(b) of the 2005 Safety, Health and Welfare at Work Act;
• is based on good industrial relations principles, governing effective engagement and processes in the workplace;
• highlights the procedure to be put in place by employers and the need to clearly state that bullying in the workplace is not acceptable and complaints of bullying will be dealt with sensitively;
• reinforces obligations for employers to progress complaints informally where possible, and otherwise, as appropriate, formally;
• emphasises the importance of records being kept of interventions and decisions in line with General Data Protection Regulation (EU) 2016/679 and the Data Protection Act 2018.

The key features and provisions of the new Code are that it:

1. Applies to all employments in Ireland irrespective of whether employees work at a fixed location, at home or are mobile.
   
   
2. Provides that alleged breaches or contraventions of the Code’s provisions are admissible in evidence and are to be taken into account by the adjudicating body.
   
   
3. Reiterates the longstanding definition of workplace ‘bullying’ and distinguishes ‘bullying’ from ‘harassment’ and criminal behaviour, noting that the Code does not extend to the latter pair, though ‘this does not prevent employers from having one policy/document encompassing procedures for processing both bullying and harassment cases’. Notably, the Code also provides detailed guidance on the preparation of an ‘Anti-Bullyng’ policy (at Appendix 1), namechecks cyber and digital type bullying and provides examples of bullying behaviour.
   
   
4. Describes what constitutes (and does not constitute) ‘bullying’ and confirms that ‘the intention is not important in the identification process’ (i.e. it’s the effect that counts, not the perpetrator(s) intention).
   
   
5. Recommends the use of a Safety Statement (under section 20 of the 2005 Act), based on an identification of relevant hazards, an assessment of the risks involved and the associated preventative measures.
   
   
6. States that employers should develop an appropriate (anti-bullying) policy on a consultative basis, ensuring that complaints are dealt with.
   
   
7. Recommends that - as a preventative measure - appropriate training should be provided for those managing complaints and for line management.
   
   
8. Outlines the merit of appointing a ‘Contact Person’, to act as the first step (or point of contact) for anyone enquiring about a possible bullying case.
   
   
9. Extols the merit of early intervention in (alleged) bullying scenarios and the value of mediation. Related to this early intervention recommendation, the Code also points out – whilst distinguishing between scenarios in smaller organisations - that ‘a prompt and informal problem-solving approach offers the best potential for addressing allegations of bullying effectively’.
   
   
10. Provides for a formal complaints route and outlines the key features of this process. These features include the investigation’s terms of reference, the manner of the investigation’s conduct, the provision for an appeal, the treatment of malicious complaints and the follow-up options. Notably however, the Code also states 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. Escalating a complaint to a formal process should only be done following a review of all aspects of the circumstances surrounding matters complained of’.

What Does Not Constitute Bullying? ⚓︎

A persistent problem with this subject arises from efforts at working out exactly what is (and is not) bullying. Whilst this matter has been considered in some detail by the Supreme Court (RECORD NUMBER 2016/24), the new Code effectively addresses this conundrum as follows:

‘It is important to distinguish bullying from other inappropriate behaviours or indeed appropriate workplace engagement. As set out in the definition above, a once-off incident of bullying behaviour may be an affront to dignity at work and may be unsettling, but does not of itself make for an adequate level of distress as to fall within the definition of bullying and other remedies should be sought for these scenarios. As a once-off, such behaviours cannot be presumed to be done in a targeted, purposeful and unremitting way.

Apart from once-off behaviours, other on-going behaviours which may upset or unsettle a person may not come within the bullying definition either. Behaviour considered bullying by one person may be considered routine interaction by another, so the ‘reasonableness’ of behaviours over time must be considered. Disrespectful behaviour, whilst not ideal, is not of itself bullying. Conflicts and disagreements do not, of themselves, make for a bullying pattern either. There are various workplace behavioural issues and relationship breakdowns which are troubling, upsetting and unsettling but are not of an adequate level of destructiveness to meet the criteria required for a bullying case.

Objective criticism and corrections that are intended to provide constructive feedback to an employee are not usually considered bullying, but rather are intended to assist the employee with their work.

Bullying does not include:

• Expressing differences of opinion strongly
• Offering constructive feedback, guidance, or advice about work-related behaviour which is not of itself welcome
• Ordinary performance management
• Reasonable corrective action taken by an employer or supervisor relating to the management and direction of employees (for example managing a worker’s performance, taking reasonable disciplinary actions, or assigning work)
• Workplace conflict where people disagree or disregard the others’ point of view

This list is not exhaustive’

Of course, for many working in a managerial capacity, the fear of facing a bullying charge arising from their attempts ‘to get the job done’ is real and genuine. In fact, the Independent Monitoring Group for the Defence Forces reported in 2009 that ‘the pendulum may have swung too far in one direction ... the result may be that the essential robust nature of military training is in danger of being lost’. However, on this all important (performance management type) issue, it is significant that in 1999 – in a case involving Stephen Dorman, M.D. at Glaxo Wellcome and his secretary - the Circuit Court determined that the relevant incidents ‘came well within the boundaries of acceptable criticism’. As IBEC’s Director General subsequently warned, the case confirms that ‘it is the manager’s duty to manage, so allegations of bullying cannot mask unsatisfactory work performance’. Both the High Court and the Supreme Court have effectively endorsed this important precedent (in Cronin v Kostal in 2006 and Ruffley v the Board of Management of St. Anne’s School in 2017 respectively).

Notables ⚓︎

This new Code provides a comprehensive framework for all parties on how bullying should be prevented and managed in the workplace. It also provides good guidance on the preparation of an anti-bullying policy. However, whilst it undoubtedly meets its stated objectives (as outlined above), the legal scenario associated with bullying (and harassment) can still be described as a mesmerising maze. With relevant statute law under industrial relations, equality, dismissal and health and safety type statutes - as elaborated upon by (the now reduced from three to) two discrete state-agency issued Codes of Practice - and a plethora of precedents from the Labour Court, Equality Tribunal, Employment Appeals Tribunal, WRC, the Personal Injuries Assessment Board and the Circuit, High and Supreme Courts, one could be forgiven for feeling confused.

Countering this, the new Code correctly extols the merit of early intervention in (alleged) bullying scenarios and the value of ‘a prompt and informal problem-solving approach’ as having ‘the best potential for addressing allegations of bullying effectively’. However, a notable recommendation therein is that if one is reluctant to raise the (alleged) bullying behaviour with the (alleged) perpetrator, they ‘should put their concerns in writing’. Clearly, this will narrow the scope for tactful interventions and will warrant diplomacy to ensure that issues intended to be dealt with informally don’t go formal. This risk is accentuated under the Code’s relatively innovative ‘Secondary Informal Process’. It provides that where the initial intervention fails or the complainant or employer deem it inappropriate - given the seriousness of the issues - a secondary informal system can be activated, in respect of which ‘a written note of what is complained of should be taken by the nominated person and a copy given to the complainant’. This risk is further accentuated by the Code’s subsequent direction that a: ‘brief written record, in line with relevant data protection legislation, should be kept of the matter and agreed outcomes and dates noted by the relevant person responsible for managing the complaint’. Furthermore, maintaining the all-important informal vs formal distinction will not be easy, given the Code’s direction that under the ‘Secondary Informal Process’, the person ‘managing the complaint, should establish the facts, the context and then the next course of action in dealing with the matter’ and that ‘records should be kept in accordance with relevant Data Protection Legislation … within an agreed Human Resources system’.

Going Forward ⚓︎

However, based upon the legal merit of an employer being able to show that they took such steps as are reasonably practicable in these scenarios (and recent case precedent), it is apparent that the best approach to minimising – if not avoiding – legal exposure in the areas of bullying and harassment is to ensure that:

1. They possess an up to date and readily available policy cum procedure – which provides for formal and informal resolution routes - in respect of dignity at work.
   
   
2. Staff are trained in respect of this policy cum procedure and are made fully aware of their personal responsibilities in respect of same.
   
   
3. In the event of allegations, the employer faithfully applies the aforementioned policy cum procedure. This policy/procedure should be drafted and applied in line with the new WRC/HSA Code and the Irish Human Rights and Equality Commission’s (formerly known as the Equality Authority) ‘Code of Practice on Sexual Harassment and Harassment at Work’ and case law precedent. Notably, this Code is also currently under review.

From both the employers’ and the employees’ perspectives, the bad news is that there really are no winners when it comes to bullying and harassment. Regardless of the form, outcome or one’s role in a case, the evidence indicates that everybody suffers when ‘push comes to shove’ and a formal complaint is made.

Furthermore, it may be stretching it to conclude that the new Code is an unequivocal ‘welcome development’. Given that many employers are now preoccupied with Covid-19’s impact, have long been perplexed by the array and complexity of employment legislation and are now looking at re-writing policies based upon this new 54-page Code (that replaces two Codes that ran to a total of ~40 pages), it would be understandable if there was some despair in the air. Related thereto, for most employers, this new Code entails adding a completely new layer to their ‘informal’ resolution process.

However, the good news is that it does provide considerable clarity on how to minimise legal liability in respect of such claims. Whilst failure to adhere to the Code’s requirements – which took effect on December 23rd last - is not actionable in itself, its provisions are admissible in criminal proceedings under health and safety legislation, as well as in proceedings before the WRC, the Labour Court and other courts. That is, going forward, compliance with the Code’s provisions will undoubtedly be a significant factor when it comes to defending complaints in respect of bullying at work.

Further Reading

How To: Bring Your Bullying and Harassment Policy into Line With The New Code of Practice