An incident of bullying can be as difficult matter for an employee to raise and can be just a difficult for an employer to investigate. Dealing with two conflicting stories, interviewing witnesses and to ascertain whether or not, on the balance of probabilities, the behaviors complained of occurred. Here are the perils of not dealing with bullying in the workplace.
An employer can have a lot to take in and deal with in bullying or harassment claim, however it is essential that a clear procedure is used and followed throughout the process.
Bullying in the Workplace: The Perils of Not Dealing with it
In the following case (UD1916/2011) the employee was awarded €20,000 as the employer used an informal approach when the employee had clearly made the employer aware that they did not think this approach would work. The employee was a Hungarian National and a member of the Gypsy race, and was employed by the employer as a General Operative since 2008. In 2010 the employee began to experience general abuse from two Polish colleagues.
The employee raised that one of the employees was issuing him orders and the Managing Director (MD) informed him to work to the Yard Supervisors Instructions. Later the employee found the situation to be worsening and was getting ongoing racist and physically hostile abuse. The employee raised the concern in January 2011 with his employer, and initially did not want to raise the issue as he was afraid, but it “exploded” out of him. The employer dealt with this informally with the two employees and asked them to limit their interactions with the employee and keep their distance, such as using a separate canteen to the employee, which left him as the only user of this canteen.
The employee was dissatisfied with the response to his complaint and put it in writing to the MD, and also raised the matter with the Gardai, which the employer was unhappy with, and it is alleged that the employer said to the employee that if he did not desist from pursing this complaint of racisim he could seek employment elsewhere. The employee was upset that he did not know what the two Polish employees had said when the MD asked them to desist from making racist remarks.
The employee went on sick leave in March 2011 and subsequently resigned and lodged a complaint with the EAT.
The Tribunal clearly sets out that for an informal approach to work both parties must be in agreement with this and in the absence of this agreement a more formal approach should be sought. In instances such as this where racism is in question, definitive action is demanded, and an investigation is necessary. The employers approach to limit the canteen use of the two Polish workers only sought to leave the claimant feeling isolated and undermining the claimants dignity. The Tribunal was also critical of the employers threat to the employee that they could find work elsewhere, and so felt it appropriate to award €20,000 in compensation arising from the employees claim for Constructive Dismissal.
Key Impact for Employers
A key element for employers to take from this is that a full and fair investigation should be carried out when dealing with instances of Bullying, and to determine whether or not, on the balance of probabilities, the behaviours complained of occurred.
When carrying out an investigation an employer should ensure that;
- there is an objective assessment of all facts pertaining to the complaint;
- the Investigator should be competent to carry out their role;
- they must be independent to any aspect of the case and in particular the complainant, witnesses and the respondent;
- if the Investigator is connected to the complainant, witnesses or the respondent then he/ she should not be considered as suitable to carry out the investigation;
- that the process is well documented;
- that neither the complainant nor the respondent are stigmatised or victimised in any way for the complaint; and
- confidentiality is maintained throughout.
Remember Bullying is different from a Grievance as it is repeated behaviour, and so a separate process should be utilised which is in line with the Health & Safety Authority Code of Practice.