Employers often find themselves dealing with an extremely upset employee who is claiming that they have a grievance, are being harassed and/or are being bullied. We have posted previously on these topics and over the years both the employer and the employee have come to use the term ‘grievance’ as a catch-all term for all such complaints. This in turn has led to employers handling all complaints via an internal ‘grievance procedure’.
However, this is not necessarily correct. Employers need to be aware that there are different rules for handling each of these complaints and in an Irish employment law system which places a heavy emphasis on procedural correctness it is very important that employers are aware of the differences before they investigate an employee complaint.
Below we will look at these differences and try to give employers a better understanding of how best to deal with these issues.
So what’s the difference?
In short, bullying is ‘repeated’ inappropriate behaviour, physical, verbal or otherwise. A grievance is generally a complaint about rights/entitlements although a ‘one-off’ incident of ‘bullying’ can come under this definition as it is not repeated. Harassment is essentially bullying that involves an element of ‘discrimination’ (i.e. a bullying between a man and woman, an Irish person and a non-national etc.) As such, harassment is potentially a discriminatory act and for that reason it doesn't need to be ‘repeated’ and a one-off incident is sufficient to consider the matter as ‘harassment’.
Why is the difference important?
Importantly, each of these complaints is governed by its own separate legislative Code of Practice detailing how such complaints should be investigated. Given the heavy emphasis that tribunals place on procedural correctness it really is the case that knowing the difference can save your business as a failure to follow a compliant procedure could result in a successful employee claim. As can be seen above, bullying and harassment are generally more serious than a standard grievance complaint. If an incident of bullying or harassment goes unchecked then it has a far greater likelihood of the employee being successful should they claim constructive dismissal. In addition, the compensation that the employee may win could be greater, up to a maximum of 2 years’ pay. Employers would want to be particularly mindful of harassment as this is potentially an issue of discrimination and therefore the employee may claim under the Employment Equality Acts. If so, then they can win as much as 4 years’ pay for harassment and victimisation.
Grievance
Grievances are dealt with under S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000. This Code sets out the broad principles as to how a grievance complaint should be resolved and provides guidelines on the process. The Code states that “Good practice entails a number of stages in … grievance handling. These include raising the issue with the immediate manager in the first instance. If not resolved, matters are then progressed through a number of steps involving more senior management, HR/IR staff, employee representation, as appropriate, and referral to a third party, either internal or external, in accordance with any locally agreed arrangements.” As such, the Code suggests that the matter be resolved informally at first instance and if this is not suitable then the matter should go through a formal hearing process potentially involving multiple layers of management, with more senior management becoming involved as the matter progresses. In effect, this Code allows employers a greater degree of scope and flexibility in investigating and resolving such a complaint.
Bullying
Bullying is covered under S.I. No. 17/2002 — Industrial Relations Act 1990 (Code of Practice Detailing Procedures For Addressing Bullying in The Workplace) (Declaration) Order 2002. This Code also advocates that the complaint be handled informally at first and, failing that to progress the matter through formal procedures. However, rather than providing general guidance, this Code sets out specific procedural requirements for both the informal and formal stages. The formal procedure differs from the Grievance procedure in that it specifically requires the following:
- 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 governed by terms of reference, preferably agreed in advance.
- The investigator(s) should meet with the complainant and alleged perpetrator(s) and any witnesses on an individual confidential basis to establish the facts.
- Every effort should be made to complete the investigation within an agreed timeframe.
- On completion of the investigation, the investigator(s) should submit a written report to management containing the findings of the investigation.
- Both parties should be given the opportunity to comment on the findings before any action is decided upon by management.
- Both parties should be informed in writing of the findings of the investigation.
As can be seen above, the bullying procedure requires far more detail and should an employer fail to set out terms of reference, or fail to issue a written report to both parties for comment etc then the employer has not complied with the Code and has therefore followed an ‘unfair’ procedure. A lot of these requirements are not set out in the Grievance procedure by utilising the internal grievance procedure an employer may find themselves in difficulty should an employee take a claim.
See landmark case on workplace bullying.
Harassment
Harassment is covered under Employment Equality Act 1998 (Code Of Practice) (Harassment) Order 2012, see additional post on this. Unlike bullying harassment does not have to repeated behaviour and therefore a once off incident can be deemed as harassment. This Code places an increased element on the need to have a specific complaints procedure in your organisation to handle such complaints and that this procedure must clearly set out that “an employee will not be victimised or subject to sanction, for example, for making a complaint in good faith, supporting a complainant, giving evidence in proceedings, or by giving notice of an intention to do any of the foregoing.” In general, the harassment procedure is largely the same as the bullying procedure but it does contain the below few additional elements:
- This Code suggests that at least two people should investigate a complaint
- Such an investigation team should have gender balance and ideally should seek to ensure diversity across the other eight grounds.
- All of those on the investigation team should have received appropriate training.
- Both parties should receive support (e.g. counselling) and regular review following the investigation as the process is likely to result in tension and disharmony
In short, the harassment procedure places a much heavier emphasis on the provision of training and policies which elevates this procedure beyond that of the bullying procedure and which far outstrips the procedural guidance provided by the grievance code of practice. Employers should be aware of the differences in such claims and understand how best to address these.
