Bullying and Harassment
LISA QUINN O’FLAHERTY
Bullying and harassment at work are risks to be monitored and mitigated. Workplaces that deal inappropriately with bullying leave themselves open to the high turnover of staff, lost productivity, absenteeism, civil claims in respect of stress, bullying and harassment and even claims for constructive dismissal. They may also find themselves in breach of Health and Safety legislation for failing to prevent stress-related injuries. As well as the impact on the victim, bullying at work leads to an unhappy workplace, and poor reputation.
Bullying at work is defined by the Irish Courts as repeated, inappropriate behaviour which undermines the victim’s dignity at work. Bullying takes many forms and can include direct or indirect physical, verbal, psychological or social abuse. Bullying is more than mere wrongdoing; it is intentional behaviour that harms the victim’s dignity and wellbeing.
An isolated incident is not bullying but may fall under the category of harassment, which is defined as unwanted conduct flowing from the victim’s age, gender, ethnicity, sexuality, disability, religion, family or civil status, or membership of the traveller community. Sexual harassment is unwanted conduct of a sexual nature. Harassment can be physical, verbal or other; any conduct that leaves the victim feeling that their dignity has been undermined based on their personal characteristics.
It is important to recognise behaviours that are not defined as bullying. These include instruction, disciplinary procedures, performance-management, conflicts or disrespectful behaviour; while such encounters may be unpleasant, they are not generally deemed to undermine the dignity of the individual.
If you feel you are being bullied or have experienced harassment at work, some steps you can take are to:
tell someone, in particular
keep a note of incidents and dates
file a complaint under your organisation’s bullying policy
access supports through your workplace’s employee assistance programme or external counselling,
seek legal advice
make a report to the health and safety authority
It can be easy to identify bullying by co-workers or by a manager towards a staff member, but it is also important to be conscious of the risk of upward bullying and the possibility of bullies from outside the organisation such as suppliers or clients. All employees should undergo training such as the Bullying and Harassment in the Workplace course to ensure that everybody is aware of what is expected of their conduct, and how they might protect themselves in the event of being bullied or harassed. Workers should be equipped to recognise and act if they feel that a colleague is being bullied; early intervention will protect the victim as well as the employer.
Managers should be further trained in how to behave towards staff, as well as in how to respond to complaints. Senior people in every organisation should be focused on building a healthy culture in the organisation; so that all employees know what is expected of their own behaviour and know that they will be supported in the event that they experience unwanted conduct. Healthy culture permeates from the top. All leaders should be aware of the risks arising from bullying and harassment in the workplace. They should also ensure that they are approachable to others in the organisation and equipped to correctly deal with disclosures of bullying or harassment. To that end, senior leaders may benefit from Eazysafe’s Senior Management Legal Brief course.
Employers are required to take all reasonable steps to avoid bullying and harassment in the workplace. The Safety Statement for the organisation should include the risks relating to bullying and the mitigation measures to be put in place. The main thing employers can do is to put in place an appropriate system of procedures to prevent and resolve issues of bullying and to ensure that these procedures are followed.
The very first step for employers is to ensure that their organisation has an appropriate and up-to-date bullying policy. At the very least this must include a reporting structure and the actions that will follow a report. The policy should be incorporated in every employment contract. It should be reviewed regularly, and readily available to employees, by way of publication in an accessible place.
The 2020 Code (1) provides for two levels of the informal resolution followed by a formal investigation. The important thing for employers to remember is that once the policy begins that all parties are entitled to fair procedures. In a recent case (2), an employee was awarded 7,000 where the procedure which followed her complaint had ‘ all the hallmarks of procedure made up on the back of a postage stamp.’
Individuals at all levels should be designated as bullying contacts; people who will be the first point of contact and support for anyone who experiences problems. This person must have the appropriate temperament, as well as be trained to respond appropriately to sensitive disclosures. They will not be involved in investigating, but provide a support role to the victim.
When disclosure of bullying or harassment is made, the policy should be strictly adhered to. This is important to protect the rights of both the accused and the accuser. Confidentiality is important, as is taking proper steps to ensure that the alleged victim is protected during the investigation, without ostracising the accused person.
It is vital to remember that employers can face serious consequences for an inappropriate response to bullying. In 2020 (3), an employee who was subjected to homophobic abuse at work was awarded eighteen months remuneration by the WRC in circumstances where the employer failed to properly investigate the complaint and failed to protect the employee from further harassment.
The WRC and HSA code on bullying (4) came into effect in January 2021; this puts some new obligations on employers, most notably in respect of taking steps to prevent bullying from occurring and in respect of ensuring that an appropriate bullying policy is in place and is followed.
(1) WRC/HSA Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work under the Safety, Health and Welfare at Work Act 2005, 2020
(2) Customer Solutions Agent v Payment Services (2021) ADJ-00027930
(3) A Scheduler v An Installation Provider (2020) ADJ-00017335
(4) WRC/HSA Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work under the Safety, Health and Welfare at Work Act 2005, 2020