Employer Resources Newsletter - April 2021

Posted on 13 Jan 2021 Last updated on 21 Apr 2021

Dignity at Work - Anti-Bullying

Introduction

In January, the new “Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020 was published. The Code of Practice, jointly prepared by the HSA and WRC, provides practical guidance on the management of workplace bullying complaints and on the prevention of workplace bullying.

It also provides guidance on identifying, managing and preventing a culture of bullying at work and highlights the procedure to be put in place by employers. The Code reinforces obligations for employers to progress complaints informally where possible, and otherwise, as appropriate, formally.

Are Organisations legally bound to apply the Code?

Failure to follow a Code is not an offence in itself. However, if Organisations are shown to act contrary to the Code of Practice, it can be used in evidence against the Organisation to identify reasonable gaps in their practice.

Section 42 (4) provides that in any proceedings before a Court, the Labour Court or the Workplace Relations Commission, a code of practice shall be admissible in evidence and any provision of the Code which appears to the court, body or officer concerned to be relevant to any question arising in the proceedings shall be taken into account in determining that question.

Key Changes

There are two significant changes in the new Code of Practice, firstly the introduction of a Secondary Informal Process and then the recommendation to create a defined role of Contact Person.

The Secondary Informal Process

Prior to the publication of the new Code, Dignity at Work Policies would typically have defined an informal process and a formal process for resolution of allegations of workplace bullying. While informal resolution was encouraged, the Complainant always had the option to bypass this stage.

The new Code of Practice places a much stronger obligation on both parties and the Organisation to ensure the informal resolution options have been fully exhausted before progressing a complaint to a formal stage.

The old informal process has now been separated into two phases as follows:

  • Initial Informal Process
  • Secondary Informal Process

Initial Informal Process

The Initial Informal Process involves the Complainant raising their concerns directly with the Employer to resolve issues in a low key, confidential manner. They still have the option to skip this step and progress their complaint to the next stage of the Secondary Informal Process, if required.

Secondary Informal Process

The Secondary Informal Process is a more protracted version of the informal process. It involves an impartial internal member of management (where possible) leading an attempt at resolution through this process. This assigned person is not an investigator, will not be required to interview witnesses   or issue an outcome report determining whether bullying took place or otherwise. However, they will have to engage in a certain amount of discussion with the two parties to gather the facts of the complaint, the response and the context. They will issue a nominal record to clarify these matters and any agreed resolutions made.

It is important that the person chosen to manage this resolution process has the necessary skills, knowledge and ability to navigate this vital and sensitive opportunity to resolve the complaint at this stage. Their role will be a problem-solving role to bring two conflicting parties together to find common ground and/or agreement on the path forward to close the complaint in the mutual interest of all stakeholders.

Another option to explore as part of these discussions may be the option to engage the services of an official mediator. If the parties agree a set of actions to close out the complaint, they will be recorded in the nominal record. Thereafter, an assessment can be undertaken on what supports or initiatives can be introduced to restore normal healthy working relationships. Where no such agreement can be found, the person appointed to lead the Secondary Informal Process will conclude the process by laying out the facts and the context in the nominal record. The Complainant can then decide if they want to progress their complaint to the Formal Process.

The Contact Person

The Code of Practice recommends Organisations consider appointing a Contact Person who would act as the first point of contact for all team members who have concerns about bullying in the workplace. This person would be positioned to listen and advise team members on a strictly confidential basis on the relevant Organisational policies and procedures. They would also support team members to understand how bullying is defined i.e. what incidents/ behaviour may or may not fall within the definition. Such a role can often help to resolve matters earlier and more effectively.

The Contact Person can bring additional value by acting in a supportive capacity to listen in a non-judgmental way and support individuals to decide how they can progress resolution of their concerns. This may be to encourage them to use the Initial Informal Process and guide them on how to do this in practice and/or to decide if this is the most appropriate process. They can also encourage use of other supports such as an Employee Assistance Programme (where applicable).

The Contact Person will have no role in any Secondary Informal or Formal Process and should not be involved in any other way in investigating or ascertaining the facts or validity of a complaint.

If an Organisation decides to implement this element of the recommendations from the Code of Practice, the selected person must be appropriately selected to ensure they have the correct knowledge, skills and abilities and are subsequently trained to fulfill the role to maximum effect.

Recommended Actions

  • Organisations are advised to update their Dignity at Work policies to reflect the new Code of Practice. This is likely to require a separation of current policies into two separate policies i.e., Dignity at Work -Anti Bullying and Dignity at Work – Harassment and Sexual Harassment as there are two different Codes of Practice guiding how each complaint should be managed.
  • Build competence through specific training across key members of the management team to conduct Secondary Informal Processes internally. This may negate the additional cost and disruption that is often the unintended consequence of formal investigations.
  • Where practicable, appoint an official Contact Person for the Organisation and ensure that person is provided with adequate training to fulfil the role.

Adjudicator finds Employer’s Bullying investigation process unsatisfactory and recommends commencing a new investigation into the allegations made by the Worker under the Code of Practice in relation to Bullying.

It was found that the investigation was not transparent enough in relation to the witness interviews and did not comply with the standards set in the Code

Background:

The Claimant commenced employment with the Employer on 25th of August 2014. At all times her role was that of “cleaning operative”, for which she received a weekly payment of €350. On 25th January 2020, the claimant referred the present trade dispute to the WRC, with the Employer’s representative positively engaging in the process on 10th February.  A hearing was convened and finalised on 15th December 2020. Some minor technical issues were experienced during the hearing; however, the matter proceeded and was finalised to the satisfaction of all parties.

It was the position of the Claimant that she made complaints of bullying and harassment that were not investigated or incompletely investigated. The position of the Respondent was that all her grievances were investigated via means of a fair and balanced process and that the mater had concluded.

No issues as to the Adjudicator’s jurisdiction to hear the dispute were raised at any stage of the proceedings.

Summary of the Worker’s Case:

At the outset of the hearing, the Claimant set out a number of difficulties she experienced with the supervisor. These difficulties resulted in her referring the matter to her direct line manager on 25th August 2016. Despite requesting a formal investigation into these complaints, no response was received.

In November 2018, the Claimant began to experience further difficulties with her supervisor, which caused her a significant amount of stress, resulting in her being absent from work for a number of months. On the 18th July 2019, she sent a complaint to her line manager regarding the manner in which her supervisor was completing the rosters for the forthcoming week. Shortly after making this complaint, she was approached by her supervisor who shouted at her for making the complaint and threatened to inform management that her work was unsatisfactory if she did not retract same. Following this incident, she raised a formal grievance regarding the conduct of her supervisor. The Claimant attended her GP and was certified as unfit for work thereafter.

In August 2019, the Claimant along with a number of her colleagues, submitted a collective complaint relating to her supervisor’s behaviour. On the 30th August, the Employer rejected each of the grievances issued as part of the group complaint. This was appealed, with the Employer confirming the previous decision to reject the allegation raised on the 2nd October 2019.

Following a period of illness absence, she was certified as fit to work on the 15th November 2019. On the same day, she attended a grievance meeting accompanied by her trade union representative. At this meeting she made two separate allegations regarding alleged mistreatment at the hands of her supervisor. She also alleged that she had not been paid for public holidays for the previous five years. Again, the Employer dismissed each of her grievances. This outcome was again appealed, with the Employer upholding the dismissal of her grievances on appeal.  

By submission, the Claimant alleged that she is subjected to ongoing verbal abuse and was consistently bullied by her Supervisor. She submitted that the Employer did nothing to prevent this bullying and did not properly investigate her allegations when raised. In particular, the Claimant was aggrieved that relevant witnesses were not interviewed as part of the process. As a consequence of the same, she submitted that the bullying allegations were not properly investigated by the Employer. 

Summary of Employer’s Case:

By response, the Employer submitted that the Claimant’s grievances were fully investigated, with her being afforded fair procedures throughout the process.

She commenced employment with the Employer on the 25th August 2014. On the 18th July 2019, she raised a grievance under the Employer’s grievance procedure. Herein, she complained that her supervisor was acting unreasonably in compiling the weekly roster. On that date the Claimant commenced a period of certified sick leave. In November 2019 she was certified as fit to return to work, and a grievance meeting was scheduled for the 15th of November. At this meeting the Worker raised two issues regarding the conduct of her supervisor and a further allegation that she was not paid public holidays for the previous five years. Following investigation and consideration of the same, the Worker’s grievances were not upheld. 

Approximately the same time her grievances were being heard, the Claimant and five other colleagues raised a collective grievance regarding the ongoing behaviour of her supervisor. Again, this grievance was not upheld, in part due to a lack of independent evidence corroborating the allegations. This outcome was duly appealed by the employees, among the grounds of appeal was an allegation that witnesses to the alleged behaviour were not interviewed and the supervisor herself was not interviewed. Following a hearing in relation to the same, the earlier decision was upheld. In so finding, the Employer stated that all relevant witnesses, including the Supervisor, were interviewed as part of the process. The Employer stated that other witnesses identified were not employees of the Employer and consequently they could not be called to give evidence in the matter.

In summary, the Employer submitted that the Claimant’s grievances had been fully and thoroughly investigated. This investigation was conducted in accordance with the Employer’s own procedures and any applicable code of practice. Having regard to the same, the Employer submitted that the dispute be resolved in their favour.

In answer to a question, the representative for the Employer confirmed that they had separate policies for inter-personal and non-interpersonal grievances.

Findings and Conclusions:

At the hearing of this matter, it became apparent that the Claimant’s issues had two separate components. Firstly, she was concerned regarding the conditions of her employment, i.e. the payment of public holidays. Secondly, she made significant inter-personal allegations regarding her supervisor.

While the Adjudicator had not had sight of the Employer’s bullying and harassment procedure, it would be normal course that the same would provide for the interview of both parties and all relevant witnesses. While the Employer had stated that all relevant witnesses were interviewed as part of the process, it was evident that the Worker never had sight of the same, and indeed the transcripts of the interviews were not produced at the hearing. During such a process, the Claimant should have the ability to comment on any findings arising from these transcripts prior to the final report being issued. Simply insisting that the Worker take the Employer’s word that all relevant witnesses were interviewed without providing any details of who these witnesses were and what they said falls short of the Employer’s duties in this regard.

In so finding the Adjudicator was guided by the terms of Statutory Instrument 674/2020, entitled the “Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work”. Section 4.2.2 of the same expressly states that,

“Statements from all parties, including witnesses should be recorded in writing as the use of written statements tends to make matters clearer from the outset and maintains clarity throughout the investigation. Copies of the record of their statements should be given to those who make statements to the investigator. Copies should also be provided to the complainant and the person complained of and should result in findings of fact only.”

Having regard to the foregoing, the Adjudicator found in favour of the Claimant and recommend that the Employer commence an investigation into the allegations made by the Worker under the terms of Statutory Instrument 674/2020, with the findings of the earlier investigations set aside (as regards this Worker only). In particular, the Adjudicator recommended that all relevant witness statements be issued to the Worker in accordance with Section 4.2.2 above. For the avoidance of doubt the Adjudicator made no recommendation and had no view as regards the outcome of said investigation.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that the Adjudicator makes a recommendation in relation to the dispute.

The Adjudicator recommended in favour of the Claimant.  He recommended that the Employer commence an investigation into the allegations made by the Worker under the terms of Statutory Instrument 674/2020, with the findings of the earlier investigations set aside (as regards this Worker only).

Adare Human Resource Management Commentary:

This case clearly highlights the importance of following the Code of Practice when investigating bullying and harassment claims. While the Employer in this case did in fact carry out an investigation, it was not transparent enough and did not allow the Claimant to comment on the findings from the witness interviews in order to comply with the Code. Employers are therefore encouraged to review their existing Dignity at Work policies and ensue that they are in line with and up to date with the new Code on Bullying.

Gender Pay Proposals receive approval

Minister for Children, Equality, Disability, Integration and Youth, Roderic O’Gorman got Cabinet backing to amend the Gender Pay Gap Information Bill on 31st March and is to introduce a more strengthened Bill at Report Stage.

Once implemented the Gender Pay Gap Information Bill will require companies with employees over a certain number to publish the salary gap or difference between male and female employees including any bonuses.

In 2017, it was calculated that the gender pay gap in Ireland was 14.4%, just over the European average of 14.1%. Interestingly, Bank of Ireland published its gender pay gap in March 2021, which it reported it at 23.8%.

Proposed amendments: The proposed amendments to strengthen the Bill by providing a more comprehensive definition of a public body to ensure that the provisions of the Bill will apply individually to all public bodies.

The amendments will address enforcement issues in the legislation, including by providing expanded power to IHREC to make an application to the High Court for an enforcement order where warranted. And, requiring a review of the functioning of the legislation before the fourth anniversary of its commencement.

Changes under Family Leave and Miscellaneous Provisions Act 2021 come into force

New provisions under the Family Leave and Miscellaneous Provisions Act 2021 have been passed by An Dáil following the signatory into law by the President on 27th March, 2021. As a result of these changes, working parents are now entitled to additional time off under Parent’s Leave and adoptive couples can choose which parent can avail of Adoptive Leave.

Parent’s Leave

Paid parent’s Leave was initially introduced through the enactment of the Parent's Leave and Benefit Act 2019 and provided that 'relevant parents' of a child, born or adopted on or after 1st November 2019, were entitled to two weeks' paid leave.

The parent had to take their Parent’s Leave entitlement within 52 weeks of the child's birth or, placement with their adoptive family. The benefit is paid, subject to eligibility, at a rate of €245 per week by the Department of Social Protection. Employers are not obliged to pay parents availing of Parent’s Leave; however, they can top-up the Parent’s Benefit if they wish.

As of 1st April 2021, and following the enactment of the Family Leave and Miscellaneous Provisions Act 2021, parents are entitled to five weeks leave under Parent’s Leave, an additional three weeks on the previous entitlement. The Act goes further and extends the period in which the leave can be taken to the first two years after the birth or adoptive placement of a child. The aim of the extension is to allow parents spend more time with their children during the first two years of the child’s life.

Who is entitled to Parent’s Leave? A parent of a child born on or after 1st November 2019, a spouse, civil partner or cohabitant of the child’s parent, a parent of a donor-conceived child as provided for under section 5 of the Children and Family Relationships Act 2015, an adopting parent or parents of a child or the spouse, civil partner or cohabitant of the adopting parent of the child.

If the parent has already taken their two-week entitlement, then they can take a further three weeks in 2021 (subject to the two-year limit).

Adoptive leave

Under the Adoptive Leave Acts 1995 and 2005, an adopting mother or sole male adoptive parent who is in employment is entitled to 24 weeks of adoptive leave from work beginning on the day of the child’s placement, for which they can apply for an adoptive benefit payment from the Department of Social Protection. As part of this entitlement, an additional 16 weeks leave is available but is not covered for state benefit. While  employers are not obliged to pay employees who are on Adoptive Leave more favourable arrangements can be put in place.

The enactment of the Family Leave and Miscellaneous Provisions Act 2021 amends the Adoptive Leave Acts to enable adoptive couples to choose which parent may avail of adoptive leave thus removing the assumption that the adopting mother is the primary caregiver. The Act also makes Paternity Leave and Benefits available to the parent who is not availing of adoptive leave. 

What does this mean for employers? There are now several options available to parents for leave, including the above, there is also maternity leave, paternity leave and parental leave. Given the varying requirements and obligations on the part of employers, there are challenges that need to be managed effectively and ensure the needs of the business are met.

Employees are fully covered by employment legislation while availing of these leave options and therefore subject to the same protections and cannot be penalised in any way.

Employers should now review their contracts of employment and the appropriate policies and procedures to ensure that the enhanced changes are applied and communicated to all employees at the earliest opportunity.

Tánaiste signs new Code of Practice on the Right to Disconnect

Employees now have the right to disconnect under the new Code of Practice signed by An Tánaiste, Leo Varadkar. While failing to follow the new Code of Practice is not an offence; failure to do so is admissible in any proceedings before the Workplace Relations Commission and the Labour Court.

What is the Right to Disconnect?

According to the Code, the Right to Disconnect has three main elements:

  1. The right of employees to not routinely work outside normal working hours,
  2. The right to not be penalised for refusing to do work or attend to matters relating to work outside of normal working hours,
  3. Respect another’s right to disconnect; do not make or send work calls or emails outside of normal working hours.

In short, it is the right of employees to switch off from work when outside their agreed working hours to help provide a better work/ life balance. This is particularly relevant in a world where remote working has become the norm with the full Government support through its National Strategy for Remote Working.

The Code of Practice provides advice for employers and employees on best practice to support the Right to Disconnect. The Code contains guidance for employers to meet their obligations under current employment legislation.

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