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The Art of Bullying
The draft "Code of Practice on Workplace Bullying" lacks teeth
The Health and Safety Authority (http://www.hsa.ie) published new draft guidelines on the prevention and resolution of workplace bullying. Interested parties are invited to submit comments and observations to the Public Consultation Phase on the draft by the 16th of January 2007 before the guidelines become a Code of Practice with legal force.
The new Code does not compel the assessment of bullying within Safety Statements, the production of monitoring information about workplace bullying episodes, transparent procedures or objective investigation of bullying complaints. No State authority is nominated with responsibility to enforce effective measures to reduce workplace bullying behaviour.
As such it is a cosmetic measure that can be misused as a charter to bully.
The Problem of Workplace Bullying
"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 reasonably be regarded as undermining the individual’s right to dignity at work. 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."
According to the 2001 "Report of the Task Force on the Prevention of Workplace Bullying" (http://www.entemp.ie/publications/employment/2005/bully...e.pdf), Overall 7 per cent of persons in the workplace in Ireland record that they are bullied in any six-month interval, with women bullied 1.8 times more than men (9.5 per cent against 5.3 per cent). In absolute numbers of persons, approximately 115,000 persons are experiencing bullying in the Irish workplace, either currently or in the last six months, 52,000 men and 63,000 women. Bullying is a particular problem in the Public Administration / Defence (12.6 per cent), Education (12.1 per cent) and Health/Social Work (10.5 per cent).
The new Code of Practice
The draft Code of Practice provides guidance on identifying bullying, preparing a workplace bullying policy, informal resolutions, mediation and formal processes of investigation and disciplinary proceedings. (Press Release - New code to help deal with bullies at work: http://www.hsa.ie/publisher/index.jsp?aID=1714&nID=194&...ID=96)
The draft Code of Practice does not require bullying to be included in the employer's Safety Statement; require that people investigating bullying are competent, qualified or have no history of bullying; that investigations are carried out to an objective standard or open to inspection; that employers are compelled to mediate or employ independent investigators; appoint any State authority responsible for overseeing the enforcement of workplace bullying legislation; or that investigations are conducted fairly (nor even of the complaint alleged). Employers may therefore rewrite a complaint, have alleged bullies dismiss it without investigation and discipline the complainant, without outside intervention from any observer or State authority. It is in effect a voluntary guideline and (at worst) an additional trauma to victims of bullying in companies who wish to use it vindictively.
The draft "Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work" is available here: http://consultation.hsa.ie/general-applications/cop/Dra...6.pdf and the Public Consultation form here: http://consultation.hsa.ie/general-applications/default.asp
The new Code of Practice will replace the existing "Code of Practice Detailing
Procedures for Addressing Bullying in the Workplace" (http://www.entemp.ie/publications/employment/2002/workp...g.pdf) which has legal force through Statutory Instrument No. 17 of 2002 (http://www.irishstatutebook.ie/ZZSI17Y2002.html) under the Safety, Health and Welfare at Work Act (http://www.oireachtas.ie/documents/bills28/acts/2005/a1...5.pdf).
The Expert Report on Workplace Bullying
According to the "Report of the Expert Advisory Group on Workplace Bullying" (Press release - http://www.entemp.ie/press/2005/20050817.htm and Report - http://www.entemp.ie/employment/osh/bullying.htm): Workplace bullying in Ireland is an increasing problem; bullying is not a "normal" industrial relations issue; existing measures to tackle the problem are insufficient; responsibility for tackling the problem is diffuse; efforts to tackle bullying have had poor results; the impact of bullying on the individual is so severe that strong action on the part of employers and the State is called for.
Despite this, the recommendations of the Expert Group were significantly diluted in the draft code of practice:
The Health and Safety Authority is charged with ensuring that all employers should, not must, assess the risk of bullying and must have in place written policies and procedures to mitigate that risk, but has no role in ensuring that policies are adhered to. As before, diffuse responsibility rests with the HSA, the Rights Commissioner Service, Labour Relations Commission and the Labour Court when internal resolution fails. In the all-too-frequent last resort bullying complaints proceed to the High Court to the detriment of both employer and employee.
Most critically, the recommendation that third parties could make legally enforceable findings has been rejected outright in deference to protest from the Irish Business and Employers Confederation (http://www.ibec.ie), which also objected to making it a requirement that an anti bullying policy be part of an employer's Safety Statement.
The new Code of Practice fails to clarify resolution for victims; to ensure a higher proportion of early resolutions; to reduce recourse to adversarial processes and associated trauma for victims; or to compel the production of clear and actionable data on trends and patterns in workplace bullying.
Action you could take
To make a submission to the Health and Safety Authority on the draft Regulations got to the Public Consultation: http://consultation.hsa.ie/general-applications/default.asp
The closing date for submissions is 5.00 p.m. Tuesday 16 January 2007