New code of practice to prevent workplace bullying
With the incidence of workplace bullying on the increase in Ireland, the Irish government launched a new code of practice on workplace bullying on 4 April 2007. The new code of practice, drawn up by the Health and Safety Authority, provides for the referral of bullying cases to external mediation in the event that internal procedures fail to resolve matters.
The revised Health and Safety Authority (HSA) ‘Code of practice for employers and employees on the prevention and resolution of bullying at work’ came into effect on 1 May 2007. It replaces the previous HSA code of practice on the prevention of workplace bullying published in 2002. The emphasis of the new code is on the resolution of complaints of bullying at workplace level. The revised code recommends a phased approach to resolving workplace bullying issues, as follows:
- by informal resolution at the workplace;
- through a formal complaints procedure at the workplace if the issue cannot be resolved informally;
- by invoking external procedures if efforts at the workplace fail to result in a resolution of the issue.
In view of this, Rights Commissioners are expected to be able to assess how internal procedures were applied and then, if they deem it necessary, to carry out an investigation at the workplace.
In 2001, a survey published by the Economic and Social Research Institute (ESRI) found that 7% of workers had been bullied at work in the previous six months. While bullying has been a topic on the industrial relations agenda in Ireland for many years now, it was only following this ESRI publication that the government rubber-stamped three codes of practice aimed at providing a mechanism for resolving problems at the workplace. The authorised codes of practice were the HSA code, the Equality Authority code on harassment and sexual harassment and the Labour Relations Commission (LRC) code on grievance and disciplinary procedures.
Increase in levels of bullying
However, since the 2001 survey results were revealed, there have been strong indications that workplace bullying has persisted and even increased in recent years. Two more recent ESRI surveys, which were published in March 2007, confirmed this tendency. The first survey, carried out among individuals at work, was designed to determine the incidence and characteristics of bullying in Irish workplaces in 2006–2007 and is a follow-up to the 2001 survey. This survey found that, overall, 7.9% of employees have experienced bullying in the past six months. The second survey, carried out among public and private sector employers, was designed to explore how organisations viewed the problem of bullying. Employers were asked about the range of policies and procedures in place in their organisation to deal with bullying complaints, as well as general organisational characteristics. A significant finding was that the health and education sectors were the two sectors of the economy where workers have a higher tendency of being bullied. Ironically, when compared with companies in the private sector, public sector organisations were found to have a higher tendency to report bullying as a problem and were more likely to have procedures in place to deal with such matters. Furthermore, the survey findings reveal that women are twice as likely to experience workplace bullying than men – 10.7% of women experienced bullying within the past six months compared with 5.8% of men. A substantially higher percentage of employees (8.9%) than self-employed (2.9%) reported having experienced bullying.
Expert group recommendations
In 2005, an expert advisory group on bullying – sponsored by the Department of Enterprise, Trade and Employment – concluded that existing measures to tackle the problem were not sufficient and recommended that the LRC Rights Commissioner Service should be the single state agency responsible for the management of specific allegations of workplace bullying. The group comprises senior managers, trade unionists, academics and staff from state institutions with responsibility in the field. It recommended that Rights Commissioners’ decisions could be appealed to the Employment Appeals Tribunal (EAT) or the Labour Court, and that EAT or Labour Court decisions should be enforceable through the courts. The LRC also recommended that bullying should be included as a risk in employers’ safety policies.
However, the recommendations on making decisions legally enforceable, and on the inclusion of bullying in safety policies, were opposed by the Irish Business and Employers Confederation (IBEC).
The new code is intended to give effect to the expert group’s recommendations. The decision to introduce the new measures by way of a voluntary code rather than legislation is believed to be based on the enhanced provisions of the Safety, Health and Welfare at Work Act 2005, which requires employers to manage health and safety and to prevent improper behaviour (section 8.2). It also enhances the status of a code of practice issued by the HSA (section 60). Employees are also bound by the act to refrain from engaging in improper behaviour at work. While failure to abide by the code of practice is not in itself a prosecutable offence, it can be used in evidence in prosecutions and civil cases.
Distinction between bullying and harassment
The revised code of practice does not change the definition of types of bullying conduct. It does, however, clearly distinguish between bullying and harassment – harassment is based on one of the nine grounds to prevent discrimination in the Employment Equality Act 1998. The revised code of practice also determines that reasonable disciplinary measures do not constitute bullying. Moreover, it does not change the broad shape of informal and formal in-house procedures. It is, however, likely to require employers to name a contact person in their bullying prevention policy document. In accordance with health and safety legislation, the contact person will be required to be competent in their role.
It is expected that the code will apply to workers as defined by section 23(1) of the Industrial Relations Act 1990. If this turns out to be the case, certain public sector employees, such as police officers (Gardaí), teachers and civil servants, who are not covered by the act, will not be able to avail of the provisions of the code to invoke a Rights Commissioner investigation of allegations of bullying.
Tony Dobbins, IRN Publishing