J W O'Donovan Solicitors - News & Publications - Bullying, Harassment and Sexual Harassment

The Employment Equality Act 1998 as amended by the Equality Act 2004 places an obligation on all employers in Ireland to prevent harassment in the workplace. The Act defines sexual harassment and it also describes other types of harassment, for example, harassment because of a person's race or religion. If an employee brings a claim against an employer under the Act, they cannot then be subjected to victimisation in the workplace.

What is bullying, harassment and sexual harassment ?

“Bullying” means any offensive, intimidating or abusive behaviour by one or more individuals, which makes the recipient, feel vulnerable humiliated or upset. Non-exhaustive examples include aggressive behaviour, deliberately isolating a person, insulting names or comments, humiliating “jokes”, spreading malicious rumours about the recipient, and abuse of power.

“Harassment” means any behaviour based on the recipients race, nationality, religion, age, disability, marital status, family status, membership of the traveller community, or sexual orientation which is unwelcome to them and could reasonably be seen as offensive, humiliating or intimidating to them. Such behaviour may also be illegal. Bullying which is based on any of these factors may also amount to harassment.

“Sexual harassment” means any harassment based on the recipients gender, which is unwelcome to them and could reasonably be seen as offensive humiliating or intimidating to them. Non-exhaustive examples include inappropriate touching, insulting comments, or “jokes”, requests for sexual favours, inappropriate gestures, and circulating or displaying pornographic or sexually offensive pictures or text. Again, such behaviour may also be illegal.

What is bullying in the workplace?

Employers’ Responsibilities

Employers have a statutory duty to prevent workplace bullying under the Health, Safety and Welfare at Work Act 2005. They have a specific responsibility under the Act to protect the health, safety and welfare of the employee. Equally employees are responsible for the protection of their own health, safety and welfare and are obliged to work with the employer to achieve this aim. So employers and unions in each workplace should agree a dignity at work policy to be circulated to all employees.

This policy should:

·	set out the definition of workplace bullying agreed by the Task Force on the prevention of workplace bullying

·	provide a list of examples of offending behaviours; contain a commitment to foster an environment free from bullying

·	set out formal and informal complaint procedures, clearly defining roles and processes – including a timescale for dealing with complaints and a commitment to ensure the procedure is free of reprisals

·	clarify the degree of confidentiality that will be upheld

·	outline the sanctions to be imposed on those found guilty of bullying; make a commitment to retraining, if necessary

·	set out an appeals procedure

·	and describe the supports available for the victim and the bully

Bullying is a problem and cost for employers and employees. A serious bullying complaint left unresolved could result in expensive legal proceedings against an employer. Leaving aside the legal consequences, if bullying behaviour is tolerated and allowed to continue, it can affect performance and general health and wellbeing of individuals which can have negative effects lasting a long time.

A new Code of Practice

On the 1st May 2007 the new HSA Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work (“the Code”) came into effect in accordance with Section 60 of the Safety, Health and Welfare at Work Act, 2005. The Code provides practical guidance for employers in identifying and preventing bullying at work arising from their duties under the Health and Safety legislation.

Michael Henry, Acting Chief Executive of the Health and Safety Authority said: “There should be as little tolerance for the bully in the Irish workplace as there should be for those who work, or cause others to work, unsafely. There should be no protection for those who seek to undermine the dignity of others. What this Code of Practice does is provide both employer and employee with the means and the machinery to identify and to stamp out bullying in the workplace in a way which benefits all sides,” he said.

The Code also sets out employees’ duties under the Health and Safety legislation not to “engage in improper conduct or behaviour that is likely to endanger his/her own safety, health and welfare at work or that of any other person”.. The Code makes one thing clear – all employers must now implement a Bullying Prevention Policy setting out the procedures for resolving bullying complaints at work. The Code sets out in detail how such a Policy should be drafted and makes it clear that, when drafting a Bullying Policy, it is important to distinguish bullying from other inappropriate behaviour.
For example, a once off incident of bullying behaviour may be an affront to dignity at work but is not considered to be bullying. Furthermore, the Code makes it clear that bullying at work does not include reasonable and essential discipline arising from the good management of the performance of an employee at work or actions taken which can be justified as regards the safety, health and welfare of the employees.
The Code helpfully distinguishes bullying from non-bullying performance management and instructs employers in some detail on how to devise a bullying policy, how to investigate bullying and how to resolve and discipline employees. It also encourages the use of external parties if necessary to mediate complaints of bullying, to hear appeals or to implement solutions.

The Code creates an enhanced action list for employers:

·	*Manage* - Employers must “manage and conduct” work activities in such a way as to prevent bullying occurring;

·	*Consult and listen* - The employer’s overall strategy to combat bullying should be devised in collaboration with employees, safety representatives and trade unions where applicable and the Code contemplates an active consultation phase. It refers to the “negotiation” of the bullying prevention policy and complaints procedure;

·	*Identify* -Listen to feed back from employees and assess experience of complaints to identify whether bullying is a hazard;

·	*Implement* -Include bullying as a hazard in the safety statement if appropriate and draw up an anti-bullying policy to address the risk;

·	*Keep it clear and simple* - The policy and means of resolving bullying at work needs to be understood by all employees which means translating it for non-English speakers if necessary;

·	*Don’t bury it* - Once implemented the bullying policy cannot lie unused in a drawer. Consistent with the approach of constantly reviewing safety critical documents, the policy needs to be reviewed where there are changes in the workplace, changes in the law and by reference to the employer’s experience;

·	*Inform and update* - employees need to be kept updated on changes to the policy;

·	*Make sure everyone knows what they are doing* -Ensure that there are clear roles and accountabilities for individual employees but also ensuring that in the employer’s business generally there are clear departmental goals;

·	*Educate* - Provide appropriate training and development at all levels but particularly for line management;

·	*Assist* - Appoint a contact person, whether internally or in the case of smaller business, externally to help a complainant navigate the bullying complaints procedure;

·	*Investigate* – The Code provides detailed guidance on how to informally and formally investigate and resolve complaints of bullying with enhanced guidance on who should investigate, who should decide whether a complaint is founded, how quickly the investigation happens, how interviews are conducted and suggestions for managing different outcomes;

·	*Call for help* – Employers need to use relevant experts to help them comply with their obligation and this could include using professional mediators and counsellors or the LRC where necessary to mediate a dispute or as part of the solution;

The Code which came into effect on 1 May, 2007 reinforces the message that employers need to arm themselves with the appropriate expertise to identify, prevent and eradicate the occurrence of bullying at work. Bullying is a cost for both employers and employees. The cost can be both financial and human. If not sorted out internally, a serious case could bring an employer before a tribunal, the Labour Court and/or the civil courts. If destructive behaviour is tolerated and continues, it affects performance and general health and wellbeing of individuals . A copy of the new Code is available on www.hsa.ie.