Workplace bullying, harassment and sexual harassment can have severe consequences for individuals, including mental health issues such as anxiety, depression, and stress. It can also lead to decreased job satisfaction, absenteeism, and decreased productivity.
The costs associated with workplace bullying, harassment and sexual harassment include decreased morale, increased turnover rates, and potential legal liabilities. Many unsuspecting employers find themselves entangled in litigation because they are held vicariously liable for the behaviour of their employees.
According to the Irish Congress of Trade Unions (ICTU), around one in eight workers in Ireland experience bullying at work, and approximately one in five workers experience harassment.
A survey conducted by the Irish Human Rights and Equality Commission (IHREC) found that 1 in 7 people experienced workplace harassment based on grounds such as gender, age, race, disability, or sexual orientation.
The actual number of incidents is likely much higher due to underreporting.
In our experience, one key factor contributing to underreporting is employees’ lack of confidence in the effectiveness of reporting systems within the organisation. If they’ve witnessed past complaints being mishandled or yielding no meaningful action, or if there’s a perception that the organisation doesn’t take workplace bullying seriously, individuals may hesitate to come forward.
Sadly, victims of these behaviours often experience feelings of shame or embarrassment, which can deter them from reporting incidents. There might be a concern about how others, including colleagues and supervisors, will perceive them if they admit to being targets, and a question mark over whether or not they will be believed.
On top of this, in a poll on LinkedIn, we found that almost 40% of respondents do not provide training on bullying, harassment and sexual harassment in the workplace to their employees. Which means that, despite the legislation, codes of practice and policies hopefully being in place, many are missing a trick in effectively embedding dignity at work in organisations.
In this comprehensive guide, we will delve into managing these issues through dignity at work investigations, and also share insights on prevention of these issues along with the key things you need to know as an employer.
P.S. We’ve also got a very useful webinar coming up on this exact topic, on Wednesday 27th of March at 11:15. Register here and get it in the diary!
For now though, read on!
What is sexual harassment? What is the definition?
Let’s start with the definitions.
Sexual harassment is defined in section 14A(7) of the Employment Equality Act as “any form of unwanted verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of violating a person’s dignity and creating an intimidating, degrading, humiliating or offensive. environment for the person.”
“The conduct at issue may not be specifically directed at a particular employee but has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.”
The definition outlines that many forms of behaviour can constitute sexual harassment, including a single incident. Examples cited include but aren’t limited to:
- Physical conduct of a sexual nature – this may include unwanted physical contact such as unnecessary touching, patting or pinching or brushing against another employee’s body, assault and coercive sexual intercourse.
- Verbal conduct of a sexual nature – this includes unwelcome sexual advances, propositions or pressure for sexual contact, continued suggestions for social contact outside the workplace after it has been made clear that such suggestions are unwelcome, unwanted or offensive, suggestive remarks, innuendo or lewd comments, graffiti, written materials, emails, text messages or social media posts.
- Non-verbal conduct of a sexual nature – this may include the display of pornographic or sexually suggestive pictures or objects. It may include stalking, indecent exposure, leering, whistling or making sexually suggestive gestures.
- Gender based conduct – this includes conduct that degrades or is abusive of an employee for reasons related to his or her sex such as derogatory or degrading abuse or insults which are gender based. This might include conduct that insults or degrades an employee because she is pregnant or because s/he is transgender.
What should an employer do when a claim of sexual harassment is raised?
First and foremost, when an employer, line manager or HR department receives a sexual harassment complaint from an employee, they should take the claim seriously, with sensitivity, and ensure they are equipped with the knowledge to handle a claim effectively. Be conscious of the mental state of the affected parties, and aim to have a clear, supportive, and resolution-focused process in mind throughout.
With regard to the investigatory process, the Code of Practice on Sexual Harassment and Harassment at Work advises that it is ‘preferable that at least two people should investigate a complaint’ and that ‘the investigation team should have received appropriate training’. The Code is also very specific about the manner in which an investigation should be conducted, advising:
- That the complaint should be in writing and that the alleged perpetrator be given full details, including relevant written statements, documentation and evidence gathered during the investigation, including witness statements, interview notes and records of meetings held with the complainant and witnesses. They should also be given time to consider the documentation and an opportunity to respond;
- That the investigator, having considered all relevant information, produces a written report to both parties outlining its findings and the reasons for its final decision;
- That should the investigation conclude the accused employee has a case to answer, then the report will recommend whether the disciplinary procedure should be invoked;
- That if the person accused of sexual harassment is not an employee, they may not wish to participate in the formal procedure, and it won’t be possible to secure their participation. However, they must be kept informed of all developments in the investigation and given an opportunity to respond to them.
What is bullying?
According to the Code of Practice (2021), ‘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 be reasonably 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.’ (Irishstatutebook.ie, 2021).
Beyond the Code of Practice though, Irish Case Law has established a high threshold for what constitutes bullying in the workplace. In the case of Ruffley v The Board of Saint Anne’s School [IESC 33] the Supreme Court held that for a claim to be considered as bullying, the following criteria must apply. First, the repeated nature of incidents must be a pattern of behaviour and not merely relate to a number of incidents. Second, inappropriate behaviour must be deemed to be inappropriate on a human level and not merely wrong. Finally, the undermining of a person’s dignity must be so egregious that it exceeds all bounds tolerated by decent society.
The Code of Practice applies to all working locations, be it fixed-location, home or mobile. It also makes specific reference to cyber bullying.
Dealing with a complaint of bullying
Should a complaint be received, the organisation has an obligation to follow procedure as outlined and communicated to staff through an anti-bullying policy. Both an informal and formal procedure should be defined by the employer and captured within the policy. If the company has not defined these processes, they will be unable to deal adequately with the complaint.
As the name suggests, the goal of the informal process is to resolve the situation as informally as possible. If this succeeds, it minimises the conflict and stress involved. As suggested in the Code of Practice, organisations should appoint a support contact who can act as an unbiased advisor to employees who wish to discuss their options before making a formal complaint. This can be an invaluable tool in helping employees feel comfortable about seeking a resolution and can also help them to identify whether to choose an informal or formal process.
The informal process normally involves the employee dealing directly with the alleged perpetrator with the aim of resolving the situation promptly and in a low-key fashion. However, someone who is being bullied may find it difficult to approach the perpetrator.
The complaint should be made to their immediate manager or supervisor or to someone else in a management role, if, for example, that supervisor is the alleged perpetrator. At this stage, the company should not draw any conclusions. Both parties deserve to be treated fairly. Correspondingly, the company should ensure that the alleged perpetrator is given a copy of the complainant’s statement – and assured that they will be given the right of reply. At this point, it is an allegation and not fact, so the alleged perpetrator needs to be approached with sensitivity and tact and supported throughout the process in the same way the complainant is.
The Code of Practice has also introduced a secondary formal process, which now could be considered to form part of a three-step process; initial informal process (which we mention above), the secondary informal process, and the eventual formal process which involves an investigation. As part of the secondary informal process, the complaint should be subject to an initial examination by a designated member of management, who can be considered impartial, with a view to determining an appropriate course of action. The inappropriate nature of the alleged behaviour must meet a certain minimum threshold if it is to constitute bullying and the nominated member of management needs to establish if there are concrete examples of bullying behaviour before proceeding to investigation If the behaviour complained of does not align with these definitions, the complaint will not proceed under the Dignity at Work Policy. Instead, it should be addressed through a different HR process, such as the Grievance Procedure. It’s essential to note that this stage of the process must also be documented clearly. Mediation could be an option, as could informal meetings facilitated by management. It is important to remember to keep a strong paper trail, even if the process is informal, as it may help to show that there was an attempt to resolve matters.
What is harassment? What can be interpreted as harassment in the workplace?
Harassment in the workplace is defined as any unwanted conduct related to one or more of the following:
- Age
- Disability
- Race
- Sexual Orientation
- Religion or Belief
- Gender Identity
- Civil Status
- Family Status
- Membership of the Traveller community
Harassment can manifest in various forms, including spoken or written words, visual images, gestures, or physical contact. It becomes harassment when it violates an individual’s dignity, creates an intimidating, hostile, degrading, humiliating, or offensive environment for them, or otherwise interferes with their work performance.
In the Irish context, harassment in the workplace can include, but is not limited to:
- Verbal abuse or offensive remarks related to any of the protected characteristics mentioned above e.g. hate speech, racial slurs etc.
- Displaying offensive material such as posters, cartoons, or images.
- Isolating or excluding someone from normal workplace activities.
- Physical assault or threats.
- Cyberbullying or online harassment related to work.
How should an employer deal with a claim of harassment?
When a claim of harassment is raised in the workplace, employers have a duty to take it seriously and address it promptly. Posing some clear similarities to the obligations and best practice when dealing with bullying or sexual harassment, here are some steps an employer should take when it comes to harassment:
- Establish Clear Policies: Ensure that the company has clear policies and procedures in place that define harassment, outline reporting mechanisms, and specify the consequences for engaging in harassment.
- Training: Provide regular training sessions for employees and managers on harassment awareness, prevention, and reporting procedures.
- Investigation: Conduct a thorough and impartial investigation into any complaints of harassment – which we’ll get into more detail in shortly!
- Action: Take appropriate action based on the outcome of the investigation. This may include disciplinary measures for the perpetrator, providing support to the victim, and implementing measures to prevent future occurrences of harassment.
- Follow-Up: Monitor the situation closely to ensure that the harassment stops and that the victim feels supported in the workplace. Follow up with the parties involved to address any ongoing issues or concerns.
What are some of the key things to look out for when conducting a workplace investigation?
A good starting point when considering conducting a workplace investigation is to outline clearly each of the steps in a traditional investigation. Perhaps you do not have a lot of experience, or it has been a long time since you completed one. Either way, it would be in your best interest to re-familiarise yourself with the process.
One of the very first items on your list should be to review the existing policy in place at your organisation. You are obliged to follow the procedure outlined, as it has already been established and agreed upon. If this policy mentions face to face meetings specifically, you may need to insert an addendum or an amendment to your existing policy in order to take account for conducting meetings remotely.
You should also provide all parties with the terms of reference that clearly outlines exactly what is being investigated, who is conducting the investigation and the scope of the investigation, and you will need to outline that the meeting and any information provided during the investigation is also expected to be confidential.
Setting a time and date for the interview is next, and all parties should be notified in writing. If this is a remote meeting, you may need to offer your employee more flexibility than usual. It therefore makes sense to ascertain their preferred time of day and week in advance of the meeting being set. Prior communication with them regarding their personal situation will help to make finalising a date much more efficient.
Usually, parties are invited to meet at a dedicated private space, in the workplace or perhaps in an external venue. If you are running a remote investigation, ensure that you have set up a dedicated meeting that is password protected for security. Use an established and well-known provider that complies with privacy regulations. If conducting multiple interviews, you should ensure that you are using unique links for each one, rather than setting up one meeting and just relying on people to only log on at the time requested. Alternatively, most providers will offer a ‘waiting room’, or a ‘knock to enter’ policy, so make sure you adjust this setting to minimise the risk of having any interviewees turning up announced. This link should be sent to attendees via email when arranging the interview, or steps on how to access the meeting should be clearly explained in the notification letter. Remember that if your attendee wishes to include a representative, that representative will also need to be provided the details.
Best practice in HR matters – if viable for your business – is to separate out the process, meaning that the person who conducts the investigation should be different to the person who conducts a disciplinary hearing and should be different to the person who hears any appeal that might arise from a disciplinary hearing. That means that you will need at least three trained people at a minimum to deal with these kinds of allegations. You should also ensure that your colleagues in the HR department and in management are up to speed with the tools needed to conduct the investigation – and that you provide access to training where necessary.
How can Insight HR help?
Insight HR has a range of options to support you in this regard, either in-person or online, such as our Dignity At Work Investigations training course, packed with our templates, guides, and in-depth training on dignity at work investigations.
We also partner with Telus Health, providing access to a best-in-class EAP offering, giving your organisation additional supports to those who need it most.
So whether it’s full scale management of your workplace investigation with our dedicated workplace investigations team, providing in-person or online training, or providing on-demand advice via our HR support line, the team here at Insight HR will give you quality, consistent, and tailored service, equipping your organisation with the skills and confidence it needs to succeed in this area.
Our promise to clients, is that they will receive a customised, consistent, and customer-focused service from the team here at Insight HR.
If you’d like to hear more about how we can support you with this, and any other HR challenges you might have, get in touch with us via email at info@insighthr.ie or chat to us directly on 0567701060!