Global menu

Our global pages

Close

New Code of Practice on Bullying at Work

  • Ireland
  • Employment law

27-01-2021

 A new Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work came into effect on 23 December 2020.

The new code of practice (the “Code”) was prepared jointly by the Workplace Relations Commission (“WRC”) and the Health and Safety Authority ( “HSA”) and brings together, into one unified code, the previous codes of practice on bullying at work issued by the HSA and the Labour Relations Commission (the predecessor to the WRC) in 2007 and 2002 respectively.

The Code is very much an amalgamation of these two earlier codes of practice. However, it also includes some notable additions, as well as refinements, to the provisions of the earlier codes.

Scope and Status

The Code is intended to provide practical guidance for employers on identifying and preventing bullying at work.

While failure to comply with the Code does not constitute an offence, the Code is admissible in evidence in proceedings under the Safety, Health and Welfare at Work Act 2005 (the “2005 Act”) as well as in proceedings before the WRC, Labour Court or any court.

The Code deals with the issue of bullying only and does not extend to the legally distinct concept of harassment under the Employment Equality Acts 1988-2015. However, it is expressly noted that this does not preclude employers from having a single policy dealing with both bullying and harassment. Employers should bear in mind that there is a separate code of practice on harassment (Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012). Accordingly, where using a single policy for bullying and harassment, as is common practice, employers need to ensure that the policy reflects both codes of practice.

Definition of workplace bullying

The Code retains the established definition of workplace bullying used in both of the earlier codes of practice:

“…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”.

Importantly, the Code also acknowledges that bullying can take place through cyber or digital means.

As well as defining workplace bullying, the Code also provides useful guidance on workplace behaviour that does not constitute bullying, and notes that disrespectful behaviour, conflicts and disagreements do not, of themselves, amount to bullying.

Other examples include:

  • Expressing differences of opinion strongly
  • Offering constructive feedback, guidance, or advice about work-related behaviour
  • Ordinary performance management
  • Reasonable corrective action

Prevention

The Code places strong emphasis on prevention as the best means of avoiding bullying at work, by having an effective Anti-Bullying Policy in place and ensuring that it is:

  • Properly communicated to ensure widespread awareness
  • Implemented by those with the requite training
  • Regularly monitored to ensure it is kept update to date

Appendix 1 of the Code includes a guide on how to prepare an Anti-Bullying Policy.

The preventative measures set out in the Code for the most part are a reiteration of those found in the HSA’s 2007 code of practice. However, the Code places renewed emphasis on the importance of organisational culture in tackling bullying and maintaining a positive workplace environment through, inter alia, good leadership, inclusivity, intolerance of inappropriate behaviour, and training on acceptable behaviour for all staff.

Another feature of the HSA’s 2007 code of practice, which is included in the Code and developed further, is the concept of a Contact Person. The Code states that there may be “value” in appointing such a person to act as a first point of contact for anyone enquiring about a possible bullying complaint. However, it also notes that this may not be practical for smaller organisations. The Contact Person will act in a supportive role by listening and offering guidance on the complaints process on a confidential basis, but will have no further involvement in the process. 

Early Intervention

The Code promotes early intervention, and the use of informal processes, including mediation, as the best means of addressing bullying allegations.

Where the initial informal process is unsuccessful, or is deemed inappropriate, the Code provides that a Secondary Informal Process “can” be put in place. This is a new feature not previously seen in the earlier codes of practice. The secondary process will be more structured and protracted than the initial informal process, and involves the appointment of a nominated person to manage the complaint, establish the facts and context, and agree a process for resolution. Mediation may also be used at this stage. The Code provides that the nominated person should keep a nominal record of all stages of the process to demonstrate the employer’s response and attempt as resolution.

Formal Process

Before proceeding to the formal process the Code states that all informal resolution avenues should first be considered and, where appropriate, exhausted. It also provides that employers should keep a record of the decision making process to escalate a complaint to the formal process, as this may be required as evidence in defending the employer’s duty at a later stage.

As with the earlier codes of practice, investigation under the formal process should be governed by terms of reference setting out the scope of the investigation and an indicative timeframe. The Code specifies that the purpose of the investigation should be to establish the facts and determine whether, on the balance of probabilities, the behaviour complained of occurred. If the investigator concludes that the accused employee has a case to answer, they can recommend that the employer invoke the disciplinary procedure, but they should neither suggest nor impose sanction.

The Code confirms that “all parties to the process have a responsibility to participate without undue delay in any investigation.”

Appeal

Another welcome clarification provided by the Code is that any appeal of the outcome of the investigation should not be a rehearing, but rather a review of the conduct of the investigation, in terms of adherence to the process and to fair procedures.

Outcome

The Code notes the importance of communicating outcomes effectively, sensitively and fairly. While the complainant and the respondent are entitled to know whether the complaint is upheld, the Code clarifies that the details of any disciplinary action taken against any party are confidential and other parties are not entitled to this information.

In line with their duties under the 2005 Act, where hazards are identified as part of the investigation, employers must take appropriate action to remedy the situation and put protective and preventative measures in place.

Where the employer’s internal procedures fail to resolve a bullying complaint, the matter can be referred to the WRC under section 13 of the Industrial Relations Act, 1969. The WRC will not rehear the case but will review the process conducted and can recommend a reinvestigation where it is found to be flawed. Such recommendations are non-binding.

Recommendations for Employers

Employers should review their Anti-Bullying Policy to ensure it complies with the Code. This might also be a good opportunity for employers to review their preventative measures generally and to promote greater awareness of the policy among staff.  

For further information, please contact:

Joanne Hyde, Partner and Head of Employment - joannehyde@eversheds-sutherland.ie

Julie Galbraith, Partner in Employment - juliegalbraith@eversheds-sutherland.ie

Maria Gallagher, Senior Associate in Employment - mariagallagher@eversheds-sutherland.ie

Ciara McMahon, Associate in Employment - ciaramcmahon@eversheds-sutherland.ie

Emma Lavin, Associate in Employment - emmalavin@eversheds-sutherland.ie

Niamh Diskin, Solicitor in Employment - niamhdiskin@eversheds-sutherland.ie