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Programme: Diploma in Employee Assistance and Social Support

Module: EAS106: Bullying and Harassment

Word count Guidelines : 1,500 (+/- 20%). Actual Word count 1,708

Title: Essay assessing module learning outcomes.


Student name: Claire Hurley
Student Number: 12102166


Course Administrator: Pauline Dillon June 2014

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INTRODUCTION

This essay aims to display the fundamental elements of Bullying and Harassment
legislation affecting employees in all Irish workplaces and to discuss the legally
constituted bodies responsible for its implementation with reference to case law.
It also intends to examine and discuss how this knowledge of the legislation can be
used by the Employee Assistance Programme (EAP) practitioners in delivering a
more competent, informed and supportive service to the client, again using case law
and research to support these programmes.

BULLYING AND HARASMENT LEGISLATION

Harassment is defined in Section 14A (7) of the Employment Equality Act 1998 as
any unwanted conduct related to one of nine protected categories specified in the
legislation; civil status, family status, sexual orientation, religion, age, disability, race
or membership of the Traveller community.. The act continues that sexual
harassment is any form of unwanted verbal, non verbal or physical conduct of a
sexual nature (Employment Equality Act 1998, 2012).
Such unwanted conduct may consist of acts, requests, spoken words, gestures or
the production, display or circulation of written words, pictures or other material.
Harassment results in violating a persons dignity and creating an intimidating,
hostile, degrading, humiliating or offensive environment for that person (The Irish
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Presidency of the European Union; FGS Consulting; McGolgan, Aileen, 2004). In
Ireland there is a legal obligation on the employer to prevent harassment in the
workplace under the Employment Equality Acts 1998-2011 and European equality
law. The employer may be found liable if the circumstances of the harassment are
such that the employer ought reasonably to have taken steps to prevent it (The Irish
Presidency of the European Union; FGS Consulting; McGolgan, Aileen, 2004). Also
in Ireland perpetrators of the harassment can be found personally liable through the
courts. Harassment can be from any person with whom one comes into contact
within the workplace (staff or service users), at work related occasions such as
training or social events and through the use of email and social media. Employers
are expected to follow the code of practice in a way which is appropriate to the size
and structure of their organisation, but should be fully consistent with the codes
general intention (Employment Equality Act 1998, 2012).

Bullying is legally distinct from harassment as bullying behaviour is not predicated
on membership of any distinct group. (Health and Safety Authority, 2007).The
Health and Safety Authoritys (HSA) defines bullying as: "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 individuals
right to dignity at work." (Health and Safety Authority, 2007). The repeated nature of
the inappropriate behaviour is also essential to this definition; as a once off incident
may be an affront to dignity at work but is not considered bullying.

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As with all disputes within the workplace handling the issue at an informal level by
addressing the matter with the other party, either face to face or through a trusted
third party, is deemed advisable. If this method isnt deemed advisable or fails to
remedy the situation, it may then be necessary to ascertain and pursue the issue
more formally through the employer's policy on bullying and harassment. This allows
the employer to try to rectify the situation at a local level.

Where this internal process is unsuccessful, legislation pertaining to Bullying and
Harassment at work falls under the remit of two separate legislative bodies. This
division of responsibility is as a result of the Employment Equality Acts 1998-2011
which combat discrimination under the nine protected categories.
Thus, in the case of harassment, if it is felt that the issue has not been dealt with
appropriately in accordance with employee equality legislation through this internal
process, it can be brought to the Equality Tribunal; The Equality Tribunal is an
independent quasi-judicial body and has the jurisdiction to investigate and decide
complaints of discriminatory harassment and bullying in the workplace. Here the
Equality commissioner can investigate and/or mediate disputes in relation to the
implementation of the employment equality legislation. Both parties can appeal this
decision further through the Labour Court and the courts.
Such complaints must be made within six months of the latest incident of
harassment. This can be extended to twelve months by the Director of the Equality
Tribunal if the delay is deemed to be reasonable due to extenuating circumstances
(Liam Breen-v- Dublin Airport Authority, 2009).
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The decisions of the Equality Tribunal are legally binding. However the majority of
cases are resolved successfully through mediation. A disputed decision of the
Equality Tribunal can be appealed to the Labour Court within forty-two days.
However, if settlements are not fulfilled, they can be enforced through the Circuit
Court. Additionally, decisions of the Equality Tribunal and of the Labour Court can be
referred to the High court on a point of law. The Circuit Court can also hear Gender
discrimination cases directly.


Bullying, as a cause of occupational stress, falls under the Health and Safety Acts
1989 -2010 and comes under the remit of The HSA. A composite ruling of three UK
cases which found bullying caused psychological injury (Sutherland -v- Hatton,
2002), resulted in the laying down of Sixteen practical propositions to guide
occupational stress claims. Irish courts have since given these sixteen propositions
strong credence in Irish cases (McGrath-v-Trintech Technologies Ltd., 2004), (Kelly -
v- Bon Secours Health System Limited, 2012).
The HSA monitors Health and Safety at work and can serve a direction for an
improvement plan to be given within one month, outlining a remedial plan dealing
with the specified risk (in this instance bullying causing occupational stress). Failure
to comply can result in Improvement notices (looking for compliance within a
specified time frame) or Prohibition notices (which prohibit the activity causing risk
with immediate effect). An order, prohibiting or restricting the use of the workplace
itself, can be applied for to the High court by the HSA.
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On-the-spot fines can also be made of up to one thousand euro and prosecutions
can also be pursued through the District or Circuit courts which can result in larger
fines and/or even imprisonment. Also, if it is shown that an offence committed by
their undertaking was attributable to neglect, connivance, consent or authorisation on
their part directors and senior management can be held personally responsible and
can be prosecuted (Health and Safety Authority, 2005).

WORKING WITHIN THE LEGISLATION

Knowledge of up to date Legislation allows the EAP practitioner, within their
professional remit, to competently assess possible legal situations, and advise the
client as to the best recourse where complaints of bullying or harassment are made.
Furthermore EAP practitioners need to be aware of the legal system as their legal
responsibilities may require them to become involved in legal proceedings as an
expert witness, a petitioner to the courts or as a party to a civil action on behalf of the
client or in relation to such client based activities (Houlahan, 2011).
An employer is obliged to have a policy and procedures in place to deal with and
prevent bullying and harassment at work. When reviewing or drafting a clients policy
on bullying and harassment in the workplace, the EAP practitioner should make
certain that firstly the policy should set out what is deemed unacceptable behaviour
at work. Secondly one should ensure that the policy clearly identifies the procedure
when a formal complaint is made. This procedure should explain how the complaint
will be investigated and identify who will carry out the investigation, ensuring that
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issues of confidentiality and the rights of both parties are addressed. All employees
should be made aware of this policy and its procedures must be proactively
implemented and staff training provided, thus ensuring that the Client has taken all
reasonable steps to prevent Bullying and Harassment in the workplace. The client
should also be advised (including directors and senior managers in a company) that
they also have personal responsibilities in relation to safety and health at work; and
can be prosecuted if it is found that an offence committed by their undertaking was
attributable to neglect, connivance, consent or authorisation on their part (Health
and Safety Authority, 2005).

When discussing the drafting and implementation of these policy documents and
procedures, emphasis should be placed on the employers quick, competent and
empathetic handling of any such complaint, as in the vast majority of complaints this
type of response can repair working relations and resolve the issue; avoiding lengthy
trials and possibly substantial legal costs through direct or vicarious liability.
It is also advisable as an EAP practitioner to ensure the client is also made aware of
the legislation pertaining to Victimisation under the Safety, Health and Welfare at
Work Act 2005 preventing an employer from penalising an employee in any way for
making a complaint. In contrast the client should be encouraged to see early
complaints of bullying and/or harassment as an opportunity to strengthen the
cohesion of the workforce, thus improving productivity.
The EAP practitioner can also assist the client in providing training and increasing
awareness of Dignity at work initiatives; highlighting the implication of the
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organisations bullying and harassment policy on both the employees rights and their
responsibilities to uphold its principles within the workplace and associated activities.

CONCLUSION
Fundamentally, employer and employee responsibilities are enforced through the
Health and Safety Acts 1989 -2010 and the Employment Equality Acts 1998-2011.
However bullying or harassment at work also has personal costs for the employee,
as it can be detrimental to their mental health, efficiency and personal dignity. Thus,
the EAP practitioner is an invaluable resource to employers in assisting, advising
and supporting them in combating bullying and harassment within the workforce.
Misconduct which causes psychological damage or distress to an employee through
bullying and or harassment in the work place, is a huge productivity and human
resource issue for employers; and without due care and diligence can become a
significant and costly productivity or legal issue.
With respect to all areas of bullying and harassment legislation, EAP practitioners
can assist the client in taking reasonable steps to prevent bullying and harassment,
appropriate to the size and structure of their organisation protecting them against
costly legal cases.





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Reference List

Employment Equality Act 1998, (CODE OF PRACTICE) (HARASSMENT) ORDER 2012; S.I. No. 208
(STATUTORY INSTRUMENTS. 2012).
Health and Safety Authority. (2005). A short Guide to the Safety, Health and Welfare at work act
2005. Dublin: health and Safety Authority .
Health and Safety Authority. (2007). Code of Practice for Employers and Employees on the Prevention
and Resolution of Bullying at Work. Dublin: Health and Safety Authority.
Houlahan, J. (2011). Employee Assistance - The Legal and Policy Framework of Employee Assistance
Practice. Galway: National University of Ireland, Galway.
Kelly -v- Bon Secours Health System Limited, IEHC 21 (High Court January 26, 2012).
Liam Breen-v- Dublin Airport Authority (High Court 2009).
McGrath-v-Trintech Technologies Ltd., IEHC 342 (High Court October 29, 2004).
Sutherland -v- Hatton, EWCA Civ 76 (England and Wales Court of Appeal (Civil Division) February 5,
2002).
The Irish Presidency of the European Union; FGS Consulting; McGolgan, Aileen. (2004). Report on
Sexual Harassment in the Workplace in EU Member States. Dublin: Department of Justice equality
and law reform.