Dealing with Behavioural Complaints – The Bullying Standard
There is increasing emphasis being placed on “how” organisations go about dealing with issues between people at work, especially with regard to the appropriateness and correct application of procedures. In many “Employment Rights” cases, in third parties, the focus can, too often, be more on process and procedures than the substantive issue itself and can materially affect any finding.
Whilst this article is mainly focused on the issues arising in “bullying” cases, there are many different headings under which an issue, relating to a person’s behaviour in the workplace, can arise, including;
1. Failure to meet the desirable standards set by the organisation to best ensure a productive and motivational work environment, especially in the context of the impact of leaders on team members. These are often aspirational and there are usually no negative consequences of not reaching them.
2. Similar to above but may involve a failure to meet minimum acceptable standards set by the organisation. This applies where an organisation is strong on culture and creating the right environment and an individual’s behaviour is not contributing to this. Failure to meet these may result in performance improvement plans and use of discipline procedures.
3. Grievance procedures confer a right on an individual to raise an issue. The organisation, at the appropriate level, must give a response that can, if the individual is not happy, go to the next stage. However, this does not prevent other policies and procedures being applied resulting from the initial grievance.
4. Health and safety standards including safe place of work issues and the duty of care to each member of staff, including ensuring freedom from physiological stress.
5. Harassment and sexual harassment.
The first two are clearly set by the organisation whereas the last three have common definitions in law and are legally enforceable. Codes of Practice exist for all three. Grievances, in most policies, only identify the levels at which a grievance may be raised, there are usually no procedures, investigations and additional rights involved. So technically, any issue may be processed as a grievance.
It is critical that in all issues there is clarity about the issue itself (complaint) and the appropriate procedures to be applied. A simple example might be reference to an issue involving – bullying and harassment, whereas, by legal definition a single complaint cannot be both bullying and harassment. These are legally distinct concepts and so a behaviour can be deemed either bullying or harassment but not both. Harassment can only relate to issues covered under the Employment Equality Acts 1998-2015. Harassment/sexual harassment for the purposes of the Employment Equality Acts is any unwanted conduct related to any of the discriminatory grounds under the Employment Equality Acts. Sexual harassment is any form of unwanted verbal, non-verbal or physical conduct of a sexual nature. The Irish Human Rights and Equality Commission (IHREC) has published a Code of Practice on Sexual Harassment and Harassment at Work.
A Code of Practice on workplace bullying has been prepared by the HSA entitled Code of Practice for Employers and on the Prevention and Resolution of Workplace Bullying. This Code of Practice sets out comprehensive guidance on measures that be put in place to identify and deal with incidents of bullying. The WRC has also published Code of Practice on Addressing Bullying in the Workplace, this is an important guide on how complaints of bullying should be investigated and addressed.
Harassment is closely allied to bullying, and is unlawful, but should not be confused with bullying in the workplace. While a complaint of harassment on any of the nine discriminatory grounds may be made under the Employment Equality Acts to the Workplace Relations Commission, there is no statutory basis for making a complaint of bullying. A complainant may refer a complaint of bullying under the Industrial Relations Acts to the WRC and on appeal to the Labour Court. In such cases an Adjudication Officer of the WRC or the Labour Court on appeal will issue a recommendation as to how the dispute between the complainant and the employer should be resolved.
To develop this further, if the claimant references “bullying” in their complaint does the issue have to be addressed within the bullying policy or can the company decide otherwise? Can the complainant use the term bullying and seek to have the issue addressed by means other than the bullying policy?
In general terms it is for the complainant to decide which policy under which they are making the complaint. This should be an informed decision based on a clear understanding of the definitions, procedures and possible outcomes. Individuals may use a common understanding of bullying rather than the legal definition, this can make a significant difference. The “contact” person (in-house resource available to staff) can play an important role in clarifying matters.
Allegations of bullying at work should be distinguished from reasonable and necessary disciplinary action arising from performance management of employees at work or from health and safety measures necessarily taken by employers.
An organisation must take whatever time and effort is required to ensure clarity on the issue/complaint and the procedure to be used. Get this wrong and it can be difficult to recover later.
In addition, the behaviour of an individual may fall well short of the company aspirational and minimum standards but not be sufficiently bad to fall within the definitions of bullying. A finding that someone engaged in workplace bullying should normally be very rare as the bar is set very high on what constitutes bullying, as is elaborated on later in this article.
Two further questions arise here.
If a complaint is “unfounded” as per bullying definitions can the organisation follow up using another procedure? The answer to this is yes, but there needs to be clear separation with a new policy/procedure commencing. The behaviour may not constitute bullying but still may be fall short of standards required by the organisation.
Can an issue be investigated under the bullying policy and procedure if there is no official complaint? The answer to this question is usually no, as most bullying policies require a complaint to be made. This does not however prevent the organisation from doing anything. In fact, now that they know there is a possibility of bullying behaviours existing, under Health and Safety legislation and their duty of care to all employees, they must follow up and take all reasonable appropriate action. This may initially involve a management investigation which could lead to a disciplinary process.
Whatever procedure is in play the detail of what happens and how the procedure is applied should be clear to all parties involved. The policy itself might be clear and specific with plenty of detail on the process and the rights of the parties or tailored terms of reference might apply.
An added benefit of specifics around how investigations will be conducted may help to reduce challenges. Afterall, at least one party may attempt to delay and frustrate the process.
How High is the Bullying Bar
“Workplace bullying is 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 work2. 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”.
In line with the above operational definition, workplace bullying should meet the criteria of an on-going series of an accumulation of seriously negative targeted behaviours against a person or persons to undermine their esteem and standing in a harmful, sustained way. Bullying behaviour is offensive, on-going, targeted and outside any reasonable ‘norm’. A pattern and trend must be involved so that a reasonable person would regard such behaviour as clearly wrong, undermining and humiliating. It involves repeated incidents or a pattern of behaviour that is usually intended to intimidate, offend, degrade or humiliate a particular person or group of people – but the intention is not important in the identification process.
Exclusion with negative consequences
Being treated less favourably than colleagues in similar roles
Belittling a person’s opinion
Disseminating malicious rumours, gossip or innuendo
Socially excluding or isolating a person within the work sphere
Intrusion – pestering, spying or stalking
Excessive monitoring of work
Withholding information necessary for proper performance of a person’s job
Repeatedly manipulating a person’s job content and targets
Blaming a person for things beyond their control
Use of aggressive and obscene language
Other menacing behaviour
As a once-off, such behaviours cannot be presumed to be done in a targeted, purposeful and unremitting way. There are various workplace behavioural issues and relationship breakdowns which are troubling, upsetting and unsettling but are not of an adequate level of destructiveness to meet the criteria required for a bullying case.
From the above it should be clear just how high the bar is for bullying and why findings of bullying should be rare. Afterall, this is not the behaviour that any of us have probably experienced in the workplace. It should also be noted that employees also have responsibilities including, ‘not to engage in improper conduct or behaviour that is likely to endanger his or her own safety, health and welfare at work or that of any other person’.
In many organisations there is a tendency to go formal quickly. We would strongly advise, whenever possible, to deal with issues and clashes between people informally. We believe this offers the best opportunity of resolving the issues on a permanent basis and returning to professional productive relationships.
Informal processes can deal with the issues more quickly with a solution focus, looking to the future, with the outcome involving the agreement of all parties.
Formal processes can take a lot more time, resources and cost, and issues can fester. Too often where there is a formal investigation and each party will reinterpret history to make their best case, often causing more irritation to the other side. The outcome can be a judgement implying one side wins and the other loses making it extremely difficult to return to normal relationships.
What is so wrong with and why are some people afraid to sit down and discuss issues over a cup of coffee? Seek to listen and find solutions. It is generally best to seek out agreement that is in every ones interest to eliminate the behaviours that are causing an issue and return to productive friendly professional relations so the focus should be on what do we need to do to achieve this?
Now that you have a greater understanding of bullying you may need to consider – aggressive behaviour, stress, harassment, sexual harassment and other forms of inappropriate behaviours.
Brendan McCarthy | Senior Partner
‘Strategic Employment Relations’
T: +353 (0) 1 2166302
M: +353 (0) 87 2433038
Disclaimer: The information in this article is for practical guidance only and does not constitute legal or specific case advice. The answers to specific situations will vary depending on the circumstances of each case. This is not a substitute for specific professional advice relevant to individual circumstances facing your business.