EMPLOYMENT CASE LAW / HUMAN RESOURCE MANAGEMENT – Bullying, Harassment and Sexual Harassment: Key Considerations
Allegations of bullying, harassment and sexual harassment at work are issues that face almost every Organisation at one time or another. This can present some of the most difficult and challenging employee relations issues for an Organisation to deal with, and can present exposure to serious liability, cost and reputational damage where they are not dealt with correctly.
Investigation into such allegations are typically lengthy in nature and time consuming, and even where addressed appropriately can result in a number of damaging consequences, both at an individual and organisational level.
From an Employers perspective, it is critical to fully understand their obligations as it relates to the legislation, relevant codes of practice, and the key differences between bullying, harassment and sexual harassment conduct / behaviour.
At a minimum Employer obligations includes the requirement to:
An Employer should refer to the following Codes of Practice on bullying, harassment and sexual harassment in order to become fully acquainted with the steps they may take to reduce their exposure to liability for acts of bullying and harassment in their workplace:
The Codes of Practice on workplace bullying and the Code related to harassment and sexual harassment outline that every Employer should have in place informal and formal procedures for an Employee to follow in the event of a complaint arising. If deemed to be appropriate, the Employer may decide to offer mediation. Mediation is a voluntary process whereby the parties to a complaint attempt to reach an agreement on their future working relationship with the assistance of a trained mediator.
The formal procedure involves a written complaint being submitted to the Employer, which may then be investigated. Employers must note that it is at the discretion of the Employee who feels that he/she is a victim of bullying or harassment to decide which approach they feel is appropriate in the given circumstances. There is no obligation on the person to commence with the informal procedure.
In all instances in which an allegation arises, and in line with the principles of fairness and natural justice, there should be no inference of guilt against the alleged perpetrator who should be afforded a fair opportunity to respond to the allegation(s) raised.
Prior to commencing an investigation, the complaint may be subject to an initial examination by a designated impartial member of Management or other appropriate person, with a view to determining an appropriate course of action e.g. exploring a possible mediated solution. Should no alternative approaches be appropriate, a formal investigation of the complaint may be undertaken with a view to determining the facts of the case.
In summary, it is critical for every Employer to be aware that they are obliged to provide a work environment free from harassment and bullying. Where an Employer fails to do this, they can be held liable for the effects of harassment or bullying on their Employees. In order to reduce the risk of exposure to liability, the Employer must be able to demonstrate that reasonable steps have been taken to eliminate bullying or harassment occurring, and where a complaint arises, that appropriate steps are taken, in line with the internal policy and procedures to address any complaint raised and prevent any further recurrence.
Investigation into such allegations are typically lengthy in nature and time consuming, and even where addressed appropriately can result in a number of damaging consequences, both at an individual and organisational level.
From an Employers perspective, it is critical to fully understand their obligations as it relates to the legislation, relevant codes of practice, and the key differences between bullying, harassment and sexual harassment conduct / behaviour.
At a minimum Employer obligations includes the requirement to:
- take reasonable steps to prevent bullying, harassment or sexual harassment occurring in the workplace.
- protect Employees from the alleged behaviours of their colleagues, members of management as well as other business contacts, e.g. suppliers or customers.
An Employer should refer to the following Codes of Practice on bullying, harassment and sexual harassment in order to become fully acquainted with the steps they may take to reduce their exposure to liability for acts of bullying and harassment in their workplace:
- The Safety, Health and Welfare At Work Act, 2005
- The Employment Equality Acts, 1998-2012
- The Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work 2007
- The Code of Practice on Sexual Harassment and Harassment at Work 2012
- The Code of Practice Detailing Procedures for Addressing Workplace Bullying 2002.
The Codes of Practice on workplace bullying and the Code related to harassment and sexual harassment outline that every Employer should have in place informal and formal procedures for an Employee to follow in the event of a complaint arising. If deemed to be appropriate, the Employer may decide to offer mediation. Mediation is a voluntary process whereby the parties to a complaint attempt to reach an agreement on their future working relationship with the assistance of a trained mediator.
The formal procedure involves a written complaint being submitted to the Employer, which may then be investigated. Employers must note that it is at the discretion of the Employee who feels that he/she is a victim of bullying or harassment to decide which approach they feel is appropriate in the given circumstances. There is no obligation on the person to commence with the informal procedure.
In all instances in which an allegation arises, and in line with the principles of fairness and natural justice, there should be no inference of guilt against the alleged perpetrator who should be afforded a fair opportunity to respond to the allegation(s) raised.
Prior to commencing an investigation, the complaint may be subject to an initial examination by a designated impartial member of Management or other appropriate person, with a view to determining an appropriate course of action e.g. exploring a possible mediated solution. Should no alternative approaches be appropriate, a formal investigation of the complaint may be undertaken with a view to determining the facts of the case.
In summary, it is critical for every Employer to be aware that they are obliged to provide a work environment free from harassment and bullying. Where an Employer fails to do this, they can be held liable for the effects of harassment or bullying on their Employees. In order to reduce the risk of exposure to liability, the Employer must be able to demonstrate that reasonable steps have been taken to eliminate bullying or harassment occurring, and where a complaint arises, that appropriate steps are taken, in line with the internal policy and procedures to address any complaint raised and prevent any further recurrence.
