Are There Different Types Of Bullying?

There can be. In The United Kingdom, the National Bullying Advice Line identifies five different

types of bullying -

What Are The Legal Remedies Against Bullying?

There is no specific ‘Protection Of Employees Against A Bullying Act’ or something like it. The Task Force On Workplace Bullying opted for non-statutory remedies and three Codes Of Practice have been produced. These are outlined further on in this Chapter.  That said, existing legislation does provide some avenues of redress for victims of bullying. The various possibilities are listed here in terms of the chronology of the legislation.

Protective Legislation

Industrial Relations Acts, 1946-2001 allows that individual grievances that are not resolved at workplace level can be referred to the Rights Commissioner, Labour Relations Commission (LRC) or Labour Court. There is some evidence that such bodies are happier dealing with the absence of effective procedures in bullying cases rather than the substantive issue of bullying itself. Another problem is that most outcomes – Recommendations from the Rights Commissioner or Labour Court – are non-binding on the employer and not enforceable in law.  For those in non-unionised employments, this is a major drawback. For trade union organised employments this traditional industrial relations avenue may well be very effective in gaining the introduction or improvement of effective workplace procedures to deal with bullying.  The Labour Relations Commission (LRC) Code Of Practice Detailing Procedures For Addressing Bullying In The Workplace may well have import in influencing how industrial relations tribunals consider cases where there is either an absence of such procedures or they have been ignored.  This Code Of Practice is discussed in more detail below.

Unfair Dismissals Acts, 1977-2001 provide for claims for unfair dismissal to be referred to the Rights Commissioner or Employment Appeals Tribunal (EAT). If an employee is dismissed as a result of an allegation of bullying, they may claim unfair dismissal and seek re-instatement, re-engagement or financial compensation.

If an employee who is a victim of bullying feels that the situation is so intolerable that they effectively resign from their job, they may bring a claim for ‘constructive dismissal’. Such a claim, if successful, is ultimately enforceable through the Circuit Court. However, an employee must generally have one year’s continuous service to be covered by the Unfair Dismissals Acts and the burden of proof in constructive dismissal cases is on the employee.  Proving constructive dismissal can be difficult and any employee considering this course of action should, before they resign or leave their workplace –

These points are generally good advice for any employee considering constructive dismissal for any reason.

If this is not done before any resignation, the fact that the employee has not ‘followed procedures’ and/or given the employer any notice of their intent to resign or an opportunity to address the issue(s) at the core of the problem, may count against them in any hearing before a third party.

In addition, it is very difficult to re-construct a case retrospectively or gather evidence when the employee concerned is no longer in the job having resigned.  A final reservation about opting for the constructive dismissal route is that while the individual victim may be compensated in some way – and the most likely outcome is financial compensation rather than re-instatement or re-engagement – the bully may well be left in place and the Unfair Dismissals Acts do not provide for the Rights Commissioner or EAT to direct the employer to put effective anti-bullying measures and procedures in place, even if their absence was a crucial factor in the employee wining their case.  The LRC Code Of Practice on workplace bullying may well influence the Rights Commissioner and EAT in reaching decisions about whether dismissals or constructive dismissal case were fair or unfair.

Protection Of Employees (Part-Time Work) Act, 2001 brings all part-time workers within

ambit of protective legislation and there has often been a link between bullying and ‘tenure’ –the newest employees often being victim of bullying.

Equality Legislation

Employment Equality Act, 1998 covers sexual harassment and harassment, or bullying, but only if that harassment is based on one of the nine grounds cited in the Act.

The Act -

The Equality Authority Code Of Practice On Sexual Harassment And Harassment At Work may well influence the Equality Tribunal, Labour Court or court of law in arriving at their decision as to whether sexual harassment or harassment has taken place and what the appropriate remedies – including prescribing a course of action for the offending employer – might be.  The Equality Tribunal offers a Mediation service that may have particular benefit for bullying cases. Mediation allows for a relatively informal approach and any settlement is only that agreed between the parties and is confidential to the parties. If Mediation fails or the employer refuses to implement the settlement, matters can either be referred to an Equality Officer for investigation or appealed to a court of law for an order of implementation.

Health And Safety Legislation

The Task Force On The Prevention Of Workplace Bullying saw bullying as an issue of safety, health and welfare at work and gave primacy to the Health & Safety Authority (HSA) as the agency to deal with the problem.

Safety, Health & Welfare At Work Act, 1989 defines ‘personal injury’ as ‘any disease or any impairment of a person’s physical or mental condition’. This clearly places bullying into the category of workplace hazard. Employers therefore have both a common law and statutory duty of care to identify such hazards and introduce preventive measures to minimise their impact on employees.

The Act obliges all employers and self employed to identify hazards and assess risks and record action plans to remove or control hazards in a written Safety Statement. A general duty on all employers is that work must be ‘planned, organised, performed and maintained so as to be, so far as is reasonably practicable, safe and without risk to health’. The absence of workplace bullying programme may render the Safety Statement, and the employment practice it is based upon, inadequate in the eyes of an HSA Inspector and lead to the issuing of an Improvement Notice or Plan or, at worst, a prosecution.  The Act obliges all employees to take care of their own and others’ safety. A worker who bullies another may therefore be guilty of an offence within the meaning of the Act.  Such considerations mean that a victim of bullying may sue their employer for compensation because the employer did not fulfil their common law and statutory duties of care. The absence of effective anti-bullying measures and procedures might well suggest to a court of law that the employer’s degree of negligence was high. An employer’s vicarious liability may also mean that they may be held responsible for the bullying action of others on their premises – such as clients, contractors, visitors – or for such actions done to their own employees when asked to visit another employer’s workplace, client or business contact’s premises.  The HSA Guidelines On The Prevention Of Workplace Bullying is a Code Of Practice that will be admissible in any court proceedings and employers will be expected to comply with its minimum standards. This Code Of Practice is discussed below.

Dignity At Work Charter

The Dignity At Work Charter, drafted by representatives of employers, employees and other interested parties, should be adopted by all organisations and enterprises. Employees, directly or through their trade unions, should seek to have the Charter adopted by their own employment.

This is the actual wording of the Dignity At Work Charter as adopted by a fictional employer, Humdrum Engineering, and the trade unions organising the employees in the company.  ‘We at Humdrum Engineering commit ourselves to working together to maintain a workplace environment that encourages and supports the right to dignity at work. All who work here are expected to respect the right of each individual to dignity in their working life. All will be treated equally and respected for their individuality and diversity.

Bullying in any form is not accepted by us and will not be tolerated. Our policies and procedures will underpin the principles and objectives of this Charter.  All individuals, whether directly employed or contracted by us, have a duty and a responsibility to uphold this Dignity At Work Charter.

Supervisors, Managers and Trade Union Representatives where applicable in the workplace have a specific responsibility to promote its provisions.

Nothing in this Charter overrules a person’s legal and statutory rights’.

The Charter would then be signed by a senior representative of management

Would The Dignity At Work Charter Be Admissible In Any Case Against A Bully?

Yes. If an employer has signed up to the Charter, any third party or court examining the evidence of bullying would see signatory of the Charter as meaning that the employment would have effective anti-bullying strategies in place and informal and formal procedures for dealing with any cases that arise.

Codes Of Practice On Workplace Bullying

Three Codes Of Practice have been issued dealing with workplace bullying –

The Health & Safety Authority (HSA) Code Of Practice

The HSA Code defines bullying and –

In terms of an informal and/or formal procedure for dealing with workplace bullying, the HSA endorse the Labour Relations Commission’s Code Of Practice.

The Labour Relations Commission (LRC) Code Of Practice

The LRC Code Of Practice suggests –

This Code Of Practice is also adopted within the HSA Code for setting out the informal and formal procedures for handling allegations of bullying at work.  The LRC Code Of Practice is reproduced in full at the end of this Chapter.

Equality Authority Code

This is necessarily a more complex document and deals with sexual harassment and harassment on any of the nine discriminatory grounds cited in the Employment Equality Act, 1998. The Code –

How Best To Achieve An Anti-Bullying Policy?

Employees should seek to get their employer to sign up to the Dignity At Work Charter and adopt procedures at least as effective as those provided for in the three Codes Of Practice.

The four introductory paragraphs of the Code relate to technical and legal references. The Code proper starts with paragraph five’s definition of bullying. The Code from that point is reproduced here in its entirety.

5. Definition

For the purpose of this Code Of Practice, the definition of workplace bullying is as follows - ‘Workplace bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical pr 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 reasonably be 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.

6. General Provisions

The main purpose of this Code Of Practice is to set out, for the guidance of employers, employees and their representatives, effective procedures for addressing allegations of workplace bullying. The Code sets out both an informal and a formal approach.

7. Procedures

(i) Informal Procedure

While in no way diminishing the issue or the effects on individuals, an informal approach can often resolve matters. As a general rule therefore, an attempt should be made to address an allegation of bullying as informally as possible by means of an agreed informal procedure. The objective of this approach is to resolve the difficulty with the minimum of conflict and stress for the individuals concerned, (a) (a) Any employee who believes s/he is being bullied should explain clearly to the alleged perpetrator(s) that the behaviour in question is unacceptable. In circumstances where the complainant finds it difficult to approach the alleged perpetrator(s) directly, s/he should seek help and advice, on a strictly confidential basis, from a contact person. A contact person could, for example, be one of the following –

In this situation the contact person should listen patiently, be supportive and discuss the various options open to the employee concerned.

(b) Having consulted with the contact person, the complainant may request the assistance of the contact person in raising the issue(s) with the alleged perpetrator(s). In this situation the approach of the contact person should be by way of a confidential, nonconfrontational discussion with a view to resolving the issue in an informal low-key manner.

(c) A complainant may decide, for whatever reason, to bypass the informal procedure.  Choosing not to use the informal procedure should not reflect negatively on a complainant in the formal procedure.

(ii) Formal Procedure

If an informal approach is inappropriate or if after the informal stage, the bullying persists, the following formal procedures should be invoked –

(a) The complainant should make a formal complaint in writing to her/his immediate supervisor, or if preferred, any member of management. The complaint should be confined to precise details of actual incidents of bullying.

(b) The alleged perpetrator(s) should be notified in writing that an allegation of bullying has been made against them. They should be given a copy of the complainant’s statement and advised that they shall be afforded a fair opportunity to respond to the allegation(s). 

(c) The complaint should be subject to initial examination by a designated member of management, who can be considered impartial, with a view to determining an appropriate course of action. An appropriate course of action at this stage, for example, could be exploring the mediated solution or a view that the issue could be resolved informally. Should either of these approaches be deemed inappropriate or inconclusive, a formal investigation of the complaint should take place with a view to determining the facts and the credibility or otherwise of the allegation(s).

Investigation

(d) The investigation should be conducted by either a designated member or members of management or, if deemed appropriate, an agreed third party. The investigation should be conducted thoroughly, objectively, with sensitivity, utmost confidentiality, and with due respect for the rights of both the complainant and the alleged perpetrator(s).

(e) The investigation should be governed by terms of reference, preferably agreed between the parties in advance.

(f) The investigator(s) should meet the complainant and the alleged perpetrator(s) and any witnesses or relevant persons on an individual confidential basis with a view to establishing the facts surrounding the allegation(s). Both the complainant and alleged perpetrator(s) may be accompanied by a work colleague or employee/trade union representative if so desired.

(g) Every effort should be made to carry out and complete the investigation as quickly as possible and preferably within and agreed timeframe. On completion of the investigation, the investigator(s) should submit a written report to management containing the findings of the investigation.

(h) Both parties should be given the opportunity to comment on the findings before any action is decided upon by management.

(i) The complainant and the alleged perpetrator(s) should be informed in writing of the findings of the investigation.

Outcome

(j) Should management decide that the complaint is well founded, the alleged perpetrator(s) should be given a formal interview to determine and appropriate course of action. Such action could, for example, involve counselling or progressing the issue through the disciplinary and grievance procedures of the employment.* (k) If either party is unhappy with the outcome of the investigation, the issue may be processed through the normal industrial relations machinery.

9. Confidentiality

 All individuals involved in the procedure referred to above should maintain absolute confidentiality on the subject.

Training And Awareness

10. It is considered that all personnel who have a role in either the informal or formal procedures – e.g., designated members of management, worker representatives, union representatives, etc – should be made aware of appropriate policies and procedures which should, if possible, include appropriate training.