Bullying and Harassment in the Workplace

A recent survey carried out for the Industrial Relation Services in England, found that almost half of personnel managers have recently dealt with cases involving sexual or racial harassment or other forms of bullying.

Employers Obligations:

Under common law an employer must take reasonable care for the health and safety of its employees. An employer is also liable for the acts of its clients or customers of the business, in so far as such acts may effect the health and safety of its own employees. These obligations have been further defined in legislation.

The Safety Health and Welfare at Work Act 1989 ("the 1989 Act") imposes an obligation on every employer to provide systems of work that are, as far as is reasonably practicable, safe and without risk to health. This duty of care is implied into the Contract of Employment and breach of this duty may be treated as a breach of that contract, enabling the employee to claim constructive dismissal.

Under the provisions of the Employment Equality Act 1998, sexual harassment is defined as any act of physical intimacy, any request for sexual favours, or any other act or conduct if the act, request or conduct is unwelcome and could reasonably be regarded as offensive, humiliating or intimidating. These acts include spoken words, gestures or the production, display or circulation of pictures or other material.

Workplace Bullying:

"Workplace bullying" is defined in legislation as "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 reasonably be regarded as undermining the individuals right to dignity at work". Examples of such behaviour are, abuse of a position of power, acts of aggression and personal remarks or shouting at the individual concerned. An isolated incident, while it may be an affront to dignity, is not considered to be bullying.

Codes of Conduct:

The Equality Authority and the Health and Safety Authority have both published Codes of Practice on the prevention of workplace bullying. There is therefore a legal and moral obligation on all employers to have the appropriate Code of Practice in place and to make all of its employees aware of the existence of such a policy and the complaints procedure to be followed.

It is not sufficient however, to just have Codes of Practice. Management must ensure, that such codes are properly enforced. All complaints received by the employer, should be properly investigated by a member of management, or an agreed third party and the investigation should respect the rights of both the complainant and the alleged perpetrator.

Minimising employer's liability to work related bullying and harassment claims:

An employer should carry out a risk assessment on an ongoing basis, and this risk assessment should form part of the Safety Statement. The results of these assessments should also be documented. There must be a clear policy on bullying and harassment, and employees must be made aware of the sanctions to be taken against those found to be in breach of such policies.

It is specifically provided in the legislation that it shall be a defence for the employer to show that proper action was taken to eliminate the cause of the complaint, once it was brought to the employer's attention. The existence of a clear policy on these issues, combined with proper investigation and decisive action, will create a better work environment, which will be for the long-term benefit of both the employer and employee concerned.

Conclusion:

In light of recent high profile cases, employers should act swiftly and take appropriate action based on the following points:

• Establish Codes of Practice.
• Highlight the Codes of Practice to employees.
• Ensure the enforcement of the Codes of Practice.
• Establish a Grievance Procedure.
• Develop a Policy on Bullying and Harassment.
• Highlight sanctions for Breach of the Bullying & Harassment Policy to employees.
• Carry out proper investigations in line with its codes, policies and procedures.

For further information or general enquiries please contact:

Tom Simpson,
E-mail: tsimpson@kilroys.ie
Telephone: +353-1-4395600
Fax: +353-1-4395601/4395602

© Kilroys Solicitors October 2002