Aimée Mullins Management Research Report

Examining the Employers Policy Requirements as regards
Bullying, Harassment and Sexual Harassment in the

workplace to include how complaints in this area are
investigated.
Student Name: Aimée Mullins
Student Number: 10106145001
Programme: Higher Diploma in Personnel Management
Due Date: 28th May 2008

Examining the Employers Policy Requirements as regards Bullying, Harassment and Sexual
Harassment in the workplace to include how complaints in this area are investigated.
This dissertation is submitted in partial fulfilment of the requirements for the

Higher Diploma in Personnel Management, University College Cork and the CIPD
Professional Standards
2
Examining the Employers Policy

Requirements as regards Bullying,
Harassment and Sexual Harassment in the
workplace to include how complaints in this
area are investigated.
3
Declaration
I hereby certify that this material, which I now submit for

assessment on the program of study leading to the award of
Higher Diploma in Personnel Management is entirely my own
work and has not been taken from the work of others save to
extent that such work has been cited and acknowledged within
the text of my work
Signed: ___________________________
Ms. Aimée Mullins
Date: 28th of May 2008
4
Acknowledgements
I wish to acknowledge the support and assistance of the many

people who made the completion of this Management
Research Report possible:
I would like to thank my wonderful loving family and supportive

friends. To my parents who always encourage the best for us.
To my sister Émilie who always supported me, gave me the
confidence to push myself and helped me no end with her
student insight and pep talks.
To my friends who held many a midweek special to help me

get through the good times and the bad.
Dr. Shane Kilcommins, thank you so much for your wisdom and
encouragement and for always giving me time and support
when most needed.
To the staff of Adult Education here in UCC many thanks for

your assistance over the last two years.
Finally I would like to thank my colleagues in the University

who have always been compassionate about my studies.
5
“Ireland’s entry into the European Community has had a

dramatic effect on the law relating to employer / employee
relationships”
The Hon. Mr Justice Hugh Geoghegan
6
CHAPTER ONE – INTRODUCTION
1.1. Introduction
1.2. Research Question
1.3. Aim
1.4. Objectives
1.5. Legislation
CHAPTER TWO – LITERATURE REVIEW
2.1. Introduction
2.2. Overview of Employment Law Structures and Case Law
2.3 Definitions for Bullying, Harassment and Sexual Harassment Identified
CHAPTER THREE – RESEARCH METHODOLGY
3.1. Introduction to Methodology

3.2. Limitations
3.3. Secondary Research
3.4. Previous Findings
CHAPTER FOUR – BULLYING
4.1 Bullying
4.2 Occupational Stress
CHAPTER FIVE – HARASSMENT
5.1 Harassment
5.1.1 Definition
5.1.2 Harassment and the Nine Grounds
5.1.3 Defences
CHAPTER SIX - SEXUAL HARASSMENT
6.1 Sexual Harassment

6.1.1 Definition
6.1.2 Sexual Harassment in the 1998 AND 2004 Acts
6.1.3 Defences
CHAPTER SEVEN – DISCUSSION
7.1 Discussion
7
CHAPTER EIGHT – PRINCIPLES OF NATURAL JUSTICE
8.1 Principles of Natural Justice
CHAPTER NINE – POLICIES AND PROCEDURES

9.1 Policies and Procedures for Businesses
9.2 APPENDICES
BIBLIOGRAPHY
8
CHAPTER ONE – INTRODUCTION
9
1.1 INTRODUCTION
One of the fastest growing area’s in Employment law at

present are proceedings against Employers for stress-related
illnesses as a result of workplace pressures, bullying,
harassment and sexual harassment. There have been dramatic
changes in the working environment in recent years and often
stress is an unavoidable constituent. However, with longer
working hours, new technologies being introduce to the
workplace, competition for jobs and an increasing competitive
management philosophy work-related stress injuries have been
labelled the “dark underbelly of our tiger economy.”1
Risk factors in the workplace are undoubtedly rising, changing
and evolving. They have developed from physical attacks and
threats to more subtle and intricate matters surrounding stress
and bullying. Workplace environments are also altering to
become increased pressure zones often with a greater
emphasis being put on people to perform, reach targets and
obtain often unrealistic results.
Claims for occupational stress are frequently arising in the
courts involving workplace bullying, harassment, sexual
harassment and discrimination. This is a cost for both the
employers and employees. The cost is not only financial but
also has a human cost to both. Employers are now required “to
be proactive and concerned for the welfare of their staff even
in the absence of specific incidents.”2
For clarity the definitions most commonly accepted for
bullying, harassment and sexual harassment will be set out
1
http://www.irishhealth.com
2
McMahon and Binchy, at 522
10
and an examination of the employer’s policy requirements for

dealing with such issues in the workplace discussed.
1.2 RESEARCH QUESTION
It is envisaged that the Management Research Report will

examine the material that currently exists on bullying,
harassment and sexual harassment and explain how all these
are currently handled as separate issues, policies and
procedures in the workplace. I would like to see the integration
of all issues in a policies and procedures format and will
investigate same. The report will also look at fairness of
procedures as research is this area is extremely limited.
1.3 AIM
The aim of the Management Research Report is to show the

process of introducing policies for bullying, harassment and
sexual harassment in the workplace and applying procedures
to same in the workplace to facilitate good practice. It will also
examine how complaints in this area are and should be
investigated to ensure that policies reflect and mirror what is
stated in legislation.
1.4 OBJECTIVES
The objectives of this management research report are as

follows:
a) Overview of Current Legislation for Bullying, Harassment
and Sexual Harassment
11
b) Review current policies and procedures for bullying,

harassment and sexual harassment.
c) Examination of current Case Law
d) Consider the Sexual Harassment S.23 Equality Act 1998
Amended
e) Analysis of “Bullying in the Workplace – 2001 Report”
1.5 LEGISLATION, POLICIES AND PROCEDURES
Summary of the Employment Equality Act:
 The Employment Equality Act 1998 came into force on

the 18th October 1999, and was amended on the 25th
October 2004 by the Equality Act 2004.
 The Employment Equality Acts 1998 and 2004, deal with
discrimination within employment.
 The Acts deal with discrimination related to any of the
following nine grounds:
o gender
o marital status
o family status
o age
o race
o religion
o disability
o sexual orientation
o membership of the Traveller community
Most employment issues are dealt with by the Acts, including:

dismissal, equal pay, harassment and sexual harassment,
working conditions, promotion, access to employment etc.
However, all disputes must relate to one or more of the nine
grounds listed in the previous point (for example gender).3
3
As quoted from the Equality Authority Website
http://www.equality.ie/index.asp?locID=17&docID=-1
12
CHAPTER TWO – LITERATURE REVIEW
13
2.1 LITERATURE REVIEW INTRODUCTION
Before conducting an analysis of Employers Policy

Requirements as regards bullying, harassment and sexual
harassment it was necessary to review the extensive volume
of case law, Constitutional Law, Articles, EU Directives and
Regulations, Academic Texts and Government Publications and
published literature in the area of Employment Law. For the
purposes of this report, the terms bullying, harassment and
sexual harassment will be defined. The literature review was
conducted in three areas:
 Overview of Employment Law Structures and

Case Law
 Definitions for bullying, harassment and sexual
harassment identified
 Policies and Procedures for bullying, harassment
and sexual harassment
2.2 OVERVIEW OF EMPLOYMENT LAW

STRUCTURES AND CASE LAW
The Labour Court was established in 1946 to provide a free

comprehensive service for the resolution of disputes about
industrial relations, equality, organisation of working time,
national minimum wages, part-time work and fixed- term work
matters. It is not a court of law. It operates as an industrial
relations tribunal. It is a hearing of last resort. Despite the fact
that Labour Court recommendations in general are not legally
14
binding in industrial relations matters, it is normal for the

parties to accept such recommendations.
The Employment Appeals Tribunal (EAT) was originally

established under the Redundancy Payments Act 1977 as the
Redundancy Appeals Tribunal. Under the Unfair Dismissals Act
1997 it was re-named the Employment Appeals Tribunal, and
since then its terms of reference have been extended to cover
a number of areas. It hears claims by employees under various
statutes: Redundancy Payments Minimum Notices and Terms
of Employment, and Unfair Dismissals. In cases brought under
the Unfair Dismissals Act the EAT may either hear a claim
directly, or on appeal from the Rights Commissioner, and
under the Payment of Wages Act the Tribunal hears appeals
from decisions of a Rights Commissioner. Although the EAT is
able to apply flexible and informal procedures, they have over
the years tended to become more legalistic and court-like; this
is reflected also in the large proportion of cases in which the
parties are represented by solicitors and barristers.
The core value of the EAT is providing a process for employers
and employees which is fair, speedy, inexpensive and as
informal as possible.
The office of the Rights Commissioner was created in 1969.

Where a trade dispute exists, other than one connected with
rates of pay, hours of work, or annual holidays, a party to the
dispute may refer it to the rights commissioner. Proceedings
involving a rights commissioner are generally more informal
than those in the Labour court. The findings of a rights
commissioner are not legally binding, but an appeal is allowed
15
to the Labour court or the employment appeals Tribunal. The

decision of the Labour Court would bring finality to the
proceedings.
The Equality Authority is an independent body set up under the

Employment Equality Act 19984 (hereinafter referred to as the
1998 Act). It was established on the 18th of October 1999. The
Equality Authority replaced the Employment Equality Agency,
and has a greatly expanded role and function. The
Employment Equality Act, 1998 and the Equal Status Act, 2000
outlaw discrimination in employment, vocational training,
advertising, collective agreements, the provision of goods and
services and other opportunities to which the public generally
have access on nine distinct grounds. The Equality Authority is
committed to realising positive change in the situation of those
experiencing inequality by: promoting and defending the rights
established in the equality legislation and providing leadership
in
 Building a commitment to addressing equality

issues in practice
 Creating a wider awareness of equality issues
 Celebrating the diversity in Irish society
 Mainstreaming equality considerations across all
sectors
4
Employment Equality Act 1998 (as amended by the Equal Status Act, 2000 and Equality Act 2004)
(Hereafter “The 1998 Act”)
16
Under the Employment Equality Act 1998, harassment is

treated as a form of discrimination. Recent amendments to the
1998 Act have now attempted to increase the scope of the
legislation. Obligations of employers to their employees
enshrined in the health and safety legislation have always
been of a protective and preventive nature and now the newly
enacted Health & Safety Act 2005 not only reiterates this
approach but now also increases the obligations of employers
to ensure not only the physical safety of employees but now
includes provisions to protect the mental well-being of
employees. It is the intention of this report to examine these
additional obligations on employers and the policies and
procedures required by employers to protect against the
potential impact of claims for bullying and harassment.
2.3 DEFINITIONS FOR BULLYING, HARASSMENT AND

SEXUAL HARASSMENT IDENTIFIED
It remains the case that issues of bullying, harassment and

sexual harassment at work are alive and well in the modern
Irish workplace. It has been noted that more aggressive,
predatory conduct exists in the workplaces today.
For clarity the definitions most commonly used and

accepted for bullying, harassment and sexual harassment
will be set out.
Bullying
17
“Bullying is a real issue which is not adequately addressed through

current practices.”5
Bullying has no direct basis in legislation and therefore has

no statutory definition. The Task Force on the Prevention of
Workplace Bullying6 recommended the following definition:
“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” 7
The Report of the Expert Advisory Group on Workplace

Bullying8 noted that the definition of bullying is an “evolving
one”. This definition was recently endorsed by Justice Lavan
in the High Court in Quigley v Complex Tooling & Moulding.
Harassment
Harassment is also unlawful under the Employment Equality

Act 1998. Under this 1998 Act, harassment is treated as a
form of discrimination. Harassment is any act or conduct
including spoken words, gestures or the production, display
5
The Report of the Expert Advisory Group on Workplace Bullying
6
Established in late 1999 by the Minister for Labour, Trade and Consumer Affairs in order to identify
the scale of the problem of workplace bullying and to produce practical solutions
7
DIGNITY AT WORK The Challenge of Workplace Bullying – Report of the Task Force on the
Prevention of Workplace Bullying Health & Safety Authority 2001
8
The Report of the Expert Advisory Group on Workplace Bullying
18
or circulation of written words, pictures or other material, if

the conduct is unwelcome to the employee and could
reasonably be regarded as offensive, humiliating or
intimidating.9
Harassment that is based on the following nine substantive

grounds: gender, marital status, family status, sexual
orientation, religion, age, disability, race/colour/ethnic or
national origins and membership of the Traveller community
ground - is a form of discrimination in relation to conditions of
employment.
According to the Equality Act 2004:

1. Harassment is any form of unwanted conduct related to
any of the discriminatory grounds
2. Sexual harassment is any form of unwanted verbal, non-

verbal or physical conduct of a sexual nature
3. Harassment occurs where the conduct in either case has

the purpose or effect of violating a person’s dignity and
creating an intimidating, hostile, degrading, humiliating
or offensive environment for the person
4. Unwanted conduct may consist of acts, requests, spoken

words, gestures or the production, display or circulation
of written words, pictures or other material
This definition of harassment is the same as that of sexual

harassment, but without the sexual element. In other words,
9
Section 32 (5) of the 1998 Act
19
an employee may be bullied on the gender, family status or

marital status grounds but not to the extent that the unlawful
conduct also takes on a sexual element.
Nonetheless, the harassment has to be based on or motivated

by the relevant characteristic of the employee targeted.
An employee may be harassed in the workplace or is subjected

outside the workplace to work-related harassment.10 Therefore
a wide range of behaviour may constitute harassment.
It may include:11
 Verbal harassment: Jokes, comments, ridicule or songs
 Physical harassment: Shoving or any form of assault
 Written harassment: Faxes, emails, text messages,
bulletins or notices
 Intimidatory harassment: Gestures, posturing or
intimidating poses
 Isolation or exclusion from social activities
 Pressure to behave in a manner that the employee thinks
is inappropriate
Sexual Harassment
Sexual harassment remains a unique problem, however for a

number of reasons it is remarkably damaging for both victims
and their employers, in that it can destroy the careers of both
parties involved, lead to medical and psychological problems
and have a devastating effect on staff and productivity.
10
11
Code of Practice on Sexual Harassment & Harassment at Work, EA (Dublin 2002), pp.8 + 9
20
Sexual harassment under the Employment Equality Act 1998

sexual harassment occurs where:
- there is any act of physical intimacy by B
towards A, or any request by B for sexual
favours from A, or any other act or conduct of
B (including, without limitation spoken words,
gestures, or the production, display or
circulation of written words, pictures or other
material);
 and
- the act, request or conduct is unwelcome by A
and could reasonably be regarded as sexually,
or otherwise on the gender ground, offensive,
humiliating or intimidating to A.12
- “A” and “B” represent two persons of the
opposite sex so that were “A” is a woman; “B”
is a man and visa versa. 13
Same-sex harassment is not covered by this definition. In other

words, the harasser must be of the opposite sex to the victim.
An employee may be sexually harassed either in the workplace

or is subjected outside the workplace to work-related
harassment.14
Examples of sexual harassment include physical conduct of a

sexual nature which may include unwelcome physical contact
such as unnecessary touching; patting; pinching; brushing
12
13
14
21
against another employee’s body; assault or coercive sexual

intercourse.
Types of verbal conduct of a sexual nature includes behaviour

such as unwelcome sexual advances; propositions; pressure
for sexual activity; continued suggestions for social activity
outside of the workplace after it has been made clear that such
suggestions are unwelcome; unwanted or offensive flirtation
and suggestive remarks; lewd innuendo and comments.
Non-verbal conduct of a sexual nature may include the display
of pornographic or sexually suggestive pictures; objects;
written materials; emails; faxes or mobile telephone text
messages.
Sex based conduct is conduct that denigrates, ridicules or is

intimidatory or physically abusive of an employee because of
his or her gender. This may comprise of derogatory or
degrading abuse or insults that are gender-related. 15
Men and women differ as to their perception of what

constitutes sexual harassment. It is an issue that trends on the
very explosive ground of sexual policies and the dynamics of
the workplace and lets face it women are relative newcomers
to the market-place. It was fashioned by and for men.16
Both a claim for sexual harassment and harassment (without a

sexual element) under the 1998 Act share the same common
elements for the purposes of proof and attributing liability.
15
The above examples are provided in the Code of Practice on Sexual Harassment & Harassment at
Work, Equality Authority Dublin 2002
16
Caroline Fennell, “Sexual Harassment – A Need for Change?” The Irish Times 13 February 1989
22
The Labour Court has stated that

Freedom from sexual harassment is a condition of work
which an employee of either sex is entitled to expect,
and that denial of such freedom contravenes the 1997
Act (Garage Proprietor v A Worker, EED 2/1985). 17
The Employee Equality Agency (EEA- now replaced by the

Employment Equality Authority) defined sexual harassment as
behaviour which includes:
Unreciprocated and unwelcome comments; looks; jokes;
suggestions or physical contact which might threaten a
person’s job security or create a stressful or intimidating
working environment.18
Equality officers and the Labour Court have considered sexual

harassment to be direct discrimination. Most cases to date
have concerned sexual harassment between men and women
– the mater of harassment between members of the same sex
is unclear. Such harassment was claimed between woman (as
a second allegation against the company) in one case but the
Labour Court made its decision on the basis of harassment by
a male visitor who was not an employee of the company (A
Company v A Worker, EEO 3/1991).
In another case the alleged harassment had been by the

managing director’s husband who was an independent
contractor who frequently visited the premises (A Company v A
Worker, DEE 2/1998).
17
Working within the Law: a practical guide for employers and employees – Frances Meenan. Dublin:
Oak Tree, 1994
18
EEA – A Model Sexual Harassment Policy – Sample Policy Outline, 1991
23
The types of behaviour which have been held to constitute

sexual harassment vary widely. It can range from direct,
persistent, unwanted physical contact and sexual advances, to
unsolicited comments, suggestions, jokes and looks of a sexual
nature. It need not be physical or verbal. It can even be
symbolic in form to have the effect of intention and
psychological effects (see A Limited Company v One Female
Employee, 1989 – Confidential Recommendation).
However, the key point is that the activity must be unwanted,

unwelcome and unsolicited. Agreement between employees
obviously would not constitute harassment. In summary, it
must undermine the person’s job security and provide an
intimidating working environment.
The first Irish case involving sexual harassment concerned a

15 year old girl working as a shop assistant / petrol pump
attendant. She worked there for about seven months and
maintained that she had been sexually harassed by her
employer. She resigned and claimed constructive dismissal.
The Labour Court awarded her £1,000 (above, EEO 2/1985).
A more recent case concerned the alleged harassment of the

secretary to a general manager where she alleged that she
had been continually harassed by both the company secretary
and the general manager. She maintained that the harassment
had been so bad that it adversely affected her health and that
she was left with no option but to resign and claim constructive
dismissal. The alleged harassment in this case involved
24
instances of physical touching and assault, the use of crude

language with sexual connotation, the display of an offensive
calendar and a Christmas card with a double meaning. The
employee had complained to a previous general manager, but
matters got worse on the appointment of the new one. The
employee was awarded £4,000 as she had incurred little loss
having obtained alternative employment. (A Company v A
Worker, EEO 3/1991).
The Labour Court has taken a wide view of sexual harassment

and it is not necessarily caused directly by the employer or an
employee within the company. In fact it can happen where a
person enters the premises at the invitation of the employer
and harasses an employee (A Company v A Worker, DEE
3/1991).
An employee who considers that she is being harassed at work

should invoke the grievance procedure and report the matter
to her manager, if at all possible. In smaller employments, this
may not be possible, particularly if the person who is harassing
her is her manager. Nonetheless, the matter should be
reported in order to try to avoid resigning. In one case the
Labour Court determined that the claimant had produced no
evidence that she had complained to her employer that she
was being harassed (DEE 2/1988).
The Employment Equality Agency has published a Model Policy

in order for employers to recognise that sexual harassment will
not be tolerated in the workplace. The Model provides a
positive statement that sexual harassment will not be
25
tolerated, definitions of sexual harassment, an outline of the

responsibility of management and staff and procedures should
an employee consider that they have a grievance in this
regard.
The best way to minimise bullying, harassment and sexual

harassment in the workplace is prevention. Having an effectual
set of policies in place and a commitment to implementing
same is fundamental for avoidance of such behaviour in the
place of work. “The purpose of an effective policy is not simply
to prevent unlawful behaviour but to encourage best practice
and a safe and harmonious workplace where such behaviour is
unlikely to occur. This policy is likely to be more effective when
it is linked to a broader policy of promoting equality of
opportunity. Employers should adopt, implement and monitor a
comprehensive, effective and accessible policy on sexual
harassment and harassment”19 Policies and procedures will be
discussed further into this Management Research Report.
19
Code of Practice on Sexual Harassment & Harassment at Work, EA (Dublin 2002)
26
CHAPTER THREE – METHODOLOGY
27
3.1 INTRODUCTION TO METHODOLOGY
Arguably, the research question as to whether or not policies

and procedures for dealing with bullying, harassment and
sexual harassment reflect the Law as it stands in Ireland needs
to be addressed. In my view the whole area relating to
Employment Acts, industrial relations and those bodies
handling same is a prime candidate for regulatory reform. In
order to streamline the processes relating to the treatment of
complaints there should be a reduction in the number of Acts
through consolidation, simplifying language wherever possible
and providing user-friendly guides, information, policies and
procedures.
The literature review highlights the volume of research
conducted on the subject of bullying, harassment and sexual
harassment by authorities and developments from case law. In
order to fully comprehend the areas of bullying, harassment
and sexual harassment the writer will examine definitions of all
three subject matters, how they stand up in law and more
importantly implementing all three into procedures to prevent
occurrences and to deal with occurrences. Case law will be
analyzed along with recent reports on the subject.
3.2 LIMITATIONS
The primary restriction encountered on studying the subject

matter, would be the lack of consensus concerning the concept
and definition of bullying and harassment amongst differing
people’s opinions. This has not occurred alone in my research
but in other researchers down through the years and has often
led to substantial methodological debate.
28
3.3 SECONDARY RESEARCH

The secondary research undertaken for this management
report involved a comprehensive review of textbooks, case
law, academic and professional journals, websites and lecture
notes. Background information on bullying, harassment and
sexual harassment in the workplace was gathered from print
and web based sources. The most recent 2007 Economic Social
Research Institute (ESRI) Survey Reports on Bullying in
Workplace (March 2007) was used extensively throughout the
process of research.
3.4 PREVIOUS FINDINGS
In Ireland O’Connell and Williams (2001) on the Taskforce of

Bullying provided respondents with the following definition of
workplace bullying:
By bullying I mean 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 is not considered to be
bullying.
In the 2001 survey it was established that 7% of the workforce

have experienced bullying at work. Hoel et al. (2001), also
using a similar methodology, found the prevalence rate in the
UK to be 10.6%. Likewise, Einarsen and Skogstad (1996) found
an overall prevalence rate of 8.6% in Norway. Table 1.1
presents these findings which were printed in the “Bullying in
the Workplace: Survey Reports 2007”. Overall, Zapf et al.
(2003) claim that prevalence rates of bullying in Europe fall
between 1% and 4%, although this masks substantial variation.
29
Table 1.1 – from Bullying in the Workplace: Survey Reports,

2007.
Early studies on the topic of workplace bullying or ‘mobbing’ (a
new term referring to a group behavioural phenomenon in
workplaces) were carried out by Scandinavian researchers
during the 1980’s following on from previous research carried
out on bullying at schools amongst children.
30
31
CHAPTER FOUR – BULLYING
32
4.1 BULLYING
Until recently the topic of bullying and harassment has

received very little media attention. While many would think of
bullying as confined to the school playground (O’Connell,
1996) the last number of years has seen increased research
into the issues of workplace bullying. Due to many fears held
by employers the subject of bullying and harassment has
always been kept quiet so as to avoid scandal or adverse
publicity which would damage the business image.
However, bullying at work is widespread and seems to be

spreading like an epidemic. In the past people could
reasonably expect to go through their working lives without
meeting a serious bullying incident, now anyone can be at risk
of being severely bullied, perhaps several times in their career.
This is an issue which has emerged in the public in recent
years. More and more is being written on the issue but there is
still a lot to do in the actual workplace.
The term “workplace bullying” migrated from Scandinavian

countries in the early 1990’s, as the interpretation of
persistent, offensive, abusive, intimidating, malicious or
insulting behaviour, abuse of power or unfair penal sanctions
which makes the recipient feel upset, threatened, humiliated
or vulnerable, undermines their self confidence and which may
cause them to suffer stress. Many factors cause it:
manipulation, aggression, exploitations, coercive management
styles and practices, personality clashes, machismo in the
33
organisational culture, gender politics and stereo toying, power

play and patterns laid down in childhood.
Other forms of bullying in the workplace can comprise of

setting objectives with impossible deadlines, removing areas of
responsibility and giving people menial or trivial tasks to do
instead; taking credit for other peoples ideas; ignoring or
excluding an individual by talking only to a third party to
isolate another; withholding information; spreading malicious
rumours; constantly undervaluing effort; persistent criticism.
Workplace bullying has become established as a significant

and important workplace harassment problem. It is important
to establish bullying as behaviour which is unacceptable from
general disagreements which occur in work. As such occasional
differences of opinion, conflicts and problems in working
relations should be treated as part of the normal working
environment, provided that mutual attitude and actions
connected with the problems do not harm or deliberately
offend any person. Essentially bullying occurs when personal
conflicts are not reciprocal; lack of respect for an individual’s
integrity leads to unethical actions; and an individual’s health,
physical or mental and or general well-being are adversely
affected as a result.
Adams who wrote the first UK analysis of workplace bullying

felt that a boundary could be drawn between “workplace
bullying” and “workplace bossiness”. Eradicating harassment
from the workplace does not mean preventing people from
enjoying harmless social banter. It is to prevent offensive
behaviour which may hurt colleagues. Personnel officer’s
34
beliefs from Adams analysis have indicated that physical

contact, isolation and non-co-operation, intimidation,
victimisation as a result of a personal complaint, setting
impossible deadlines/objectives and withholding information
could all be actions which equate to bullying behaviour. By
contrast; gossip, slander, posters and graffiti, offensive
language and obscene gestures, undervaluing effort, removing
areas of responsibility and replacing with menial tasks are all
deemed to be harassment and not bullying.
Recognition of the cost to industry of stress related illness is

one way in which workplace bullying is currently being
incorporated into the equal opportunities discourse as part of
the “business case” for equal opportunities. The business case
argues that managers and employees should support equality
as a key to achieving business goals. We may not have a
specific law against bullying, but it falls into the “duty of care”
category where an employer is responsible for their
employees’ mental as well as physical wellbeing. One cost of
ignoring bullying may therefore be in the courts and tribunals.
Human Resource Management professionals are particularly
vulnerable, being caught with a variety of roles to perform:
they have to protect the employee from being bullied, they
have to protect everyone from false accusations and they also
need to assist the organisation in keeping inside employment
law and avoiding courts and tribunals.
The cost of ignoring this topic will fall to employers. The

evidence already shows a high level of exit from organisations.
It is also likely that those who exit quickly as a result of this
treatment are the better staff who can find alternative
35
employment. Those employers who gain a reputation for

“tough management” may find that not everyone is attracted
to working for them, and recruitment may become an issue.
For those in sectors where people are a source of competitive
advantage, workplace bullying may cost a great deal.
Employers are being asked to give more recognition to the

problem of bullying, to develop procedures for dealing with it
(e.g. reporting and dealing with incidents), providing training,
investigating levels of morale and absenteeism from sickness,
accepting that bullying reduces efficiency and loses money.
However dealing with the bullying at work is also a corporate
challenge. In the first instance, being alert to bullying is often
the advice given to companies. Organisations need to take
steps against bullying because it affects the effectiveness and
morale of the employees working.
Managers should check on morale and motivation, inquire

about people’s state of health and make sure a clear and
widely-know code of practice is in place. In that way people in
the organisation know that something can be done and what to
do if bullying takes place. The role of the manager is to follow
through allegations as objectively as possible. One should
consider contributory causes e.g. changes in section work
practices, different managerial structures and volumes of work,
changed deadlines and workflow. It is evident that bullies can
be essentially good but bossy managers under to much stress.
Training is often recommended as one of the ways to deal with

bullying, and it can go a long way to resolving issues. It might
take the direct form of training about aggression and violence
36
in the workplace, conflict resolution and assertiveness courses,

instruction and information about harassment policies in the
firm. It should be implicit in any effective appraisal scheme. It
is often integrated into training about team-building,
interpersonal skills and quality assurance.
While events in the law will focus many corporate minds on

this topic, there is a clear need for more academic attention to
be paid on workplace bullying. Considerable headway may be
made reasonably quickly as so many topics can relate to the
phenomenon, such as conflict, sexual and racial harassment
and attribution theory. Certainly it is a challenging area to
investigate.
While the term workplace bullying is often discussed

interchangeably with workplace harassment it is important to
distinguish between the two which will be done in this and
subsequent chapters. Bullying is essentially an abuse of power,
although not necessarily with the superior as aggressor.
If an environment of bullying or harassment is maintained and

there is nothing done to alleviate the problem, the long-term
effects on the individual can be severe. The cost of legal
proceedings in necessary cases and the resulting loss of image
and threat to public image of a legal case can be extremely
high and adversely affect the business as a whole. Generally,
bullying cases rarely make it to the courts. It would appear to
have been kept out of the legal process to date but this in turn
makes the duty of the Employer to have sufficient policies on
bullying in the workplace even more imperative.
37
In order to examine some of the issues in an Irish context, an

exploratory study was undertaken, utilising quantitative
research involving the analysis of cases in which bullying was
involved.
4.2 OCCUPATIONAL STRESS
Occupational stress can be brought upon by factors associated

with bullying. The legal obligations of an employer derive from
Safety Health and Welfare at Work Act 2005, Common Law
Duty of Care and Case law.
A definition for occupational stress as outlined by Professor
Tom Cox states:
“When an individual perceives an imbalance between the

demands placed on them on the one hand, and their ability to
cope on the other. It often occurs in situation characterised by
low levels of control and support.”
“A state which is accompanied by physical, psychological

or social complaints or dysfunctions and which results from
individuals feeling unable to bridge a gap with the
requirements or expectations placed on them”.
Important case:
One of the more significant personal injuries claim for

psychological injury as a result of oppressive working
conditions was Quigley v Complex Tooling and Moulding.
The plaintiff claimed he was subjected to a campaign of
harassment, bullying, humiliation and victimisation as a result
of which he suffered severe mental distress.
38
The plaintiff commenced employment with a predecessor

company of the defendant in 1977 and was the fourth most
senior employee in the company at the time of the takeover by
the defendant in 1998. A new plant manager was appointed,
and it was the treatment of the plaintiff by this new manager
to which the plaintiff’s complaints related. The plaintiff
complained that the plant manager and managing director
subjected him to a campaign of harassment, bullying,
humiliation and victimisation. This ranged from being ref3erred
to as “granddad”, doubts being cast by the plant manger
about his work ability and general intimidating behaviour by
the plant manger. Despite making frequent complaints to the
defendant, the defendant failed to take any reasonable steps
to prevent or stop the conduct. As a result he suffered
significant mental distress and anxiety, his personality
changed, he was no longer able to partake in extra curricular
activities he had previously enjoyed and in January 2001 he
was diagnosed as clinically depressed.
The plaintiff was dismissed from his employment in August

1999. He succeeded in an action for unfair dismissal before the
Employment Appeals Tribunal (EAT). The Tribunal heard
evidence from the plaintiff on the alleged harassment and
bullying but no determination was made in respect of these
claims.
In relation to an employer’s liability for personal injury caused

by bullying and harassment, Lavan J. held that the defendant
was in breach of its common law duty to provide a safe place
of work by exposing the plaintiff to bullying in the workplace.
39
This duty is also an implied term in the contract of employment

and is supported by Health and Safety legislation.
Commenting on the recent increase in personal injury claims

relating to the psychological injury of employees, Lavan J.
noted:
It has been a fairly recent movement towards the

thinking that an employer must take care not only of the
physical health of their employees, for example providing
safe equipment, but also must take reasonable care to
protect them against mental injury, such as is complained
of by the plaintiff in this case.
It follows on from this that employers now have an

obligation to prevent their employees from such that would
cause mental injury, i.e. stress, harassment and bullying in
the workplace.
Lavan J. accepted the definition of bullying in the Code of

Practice on prodedures for addressing bullying in the
workplace made under the Industrial Relations Act 1990.20
20
The Industrial Relation Act 1990 (Code of Practice detailing Procedures for Addressing Bulling in
the Workplace). This is the same definition as recommended by the Taskforce on the Prevention of
Workplace Bullying.
40
CHAPTER FIVE – HARASSMENT
41
5.1 HARASSMENT
Harassment is classified as a behaviour, which is persistent

and results in the person who is subjected to the behaviour,
feeling upset, threatened, humiliated or vulnerable.
Harassment can seriously affect an employee’s health and well
being. Harassment of any kind should not be tolerated in the
workplace or at functions held under the aegis of the company.
This applies also to any other locations where employees are
present on company business or on training courses. An
individual can be harassed on nine grounds, namely, of their
age, race, religious belief, national/ethnic origin, sexual
orientation, disability or membership of the travelling
community.
5.1.1 DEFINITION
The 1998 Act also seeks to outlaw harassment which occurs by
reason of or as a result of the relevant characteristics which
form the basis of the 1998 Act:
‘…any act or conduct….including spoken words, gestures
or the production, display or circulation of written words,
pictures or other material, constitutes harassment…if the
action or other conduct is unwelcome…and could reasonably
be regarded in relation to the relevant characteristic of the
employee [whether it be the employee’s marital status, family
status, sexual orientation, religious belief (or none), age,
disability, race, colour, nationality or ethnic or national origin
or membership of the Traveller community] as offensive,
humiliating or intimidating.’
Harassment as defined may be carried out by a fellow

employee, the employer, client, customer or other business
42
associate and the circumstances of the harassment are such

that the employer ought reasonably to have taken steps to
prevent it.
5.1.2 HARASSMENT AND THE NINE GROUNDS
Under the 1998 Act, harassment is a specific form of

discrimination in relation to conditions of employment based
on one or more of the nine grounds.
DISCRIMINATORY GROUNDS21:
Gender - man, woman, (this also includes transgender).
Marital Status - single, married, separated, divorced or

widowed.
Family Status - responsibility as a parent or as a person in

loco parentis in relation to a person under 18, or as a parent or
the resident primary carer of a person over 18 with a disability
which is of such a nature as to give rise to the need for care or
support on a continuing, regular or frequent basis.
Sexual Orientation - heterosexual, bisexual or homosexual.
Disability - this is very broadly defined in the Act and will

include the vast majority of disabilities.
21
Code of Practice on Sexual Harassment and Harassment at Work, Equality Authority, Dublin 2002,
at p.6 and 7
43
"Disability" means -
(a) the total or partial absence of a person’s bodily or
mental functions, including the absence of a part of a
person’s body,
(b) the presence in the body of organisms causing, or

likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a

part of a person’s body,
(d) a condition or malfunction which results in a person

learning differently from a person without the condition or
malfunction, or
(e) a condition, disease or illness which affects a person’s

thought processes, perception of reality, emotions or
judgment or which results in disturbed behaviour.
Age - between the ages of 18 and 65 (or from 15 in relation to

vocational training).
Race - race, colour, nationality or ethnic or national origins.
Religious Belief - includes different religious background or

outlook, (including absence of religious belief).
Membership of the Traveller Community - "Traveller

community" means the community of people who are
44
commonly called Travellers and who are identified (both by

themselves and others) as people with a shared history,
culture and traditions including, historically, a nomadic way of
life on the island of Ireland.
5.1.3 DEFENCES
Although bullying and harassment have not, as yet, generated

as many claims as those arising out of stressful work practices,
solicitors are unanimous in their view that these are potentially
a more serious matter for employers. This is because bullying
and harassment are acknowledged as being unacceptable
regardless of an individual's occupation and level in the
organisational hierarchy and consequently a number of
employers have drawn up policies and procedures to deal with
the matter. It may therefore be harder for employers to argue
that they were not aware of the risk of harm, and easier for
employees to prove breach of duty by pointing to specific
elements of the policy which were not complied with.
The literature suggests that individual action by the victim has

little effect on the harasser and may make things worse
(Standford and Gardiner, 1993). The most successful response
to harassment appears to be achieved when the victim and the
employer take strong official action. In addition victims are
more willing to come forward in organisations that adopt
specific procedures for resolving harassment complaints. It is
important, therefore, that companies develop appropriate
policies to encourage reporting of harassment incidents.
45
46
CHAPTER SIX – SEXUAL HARASSMENT
47
6.1 SEXUAL HARASSMENT
Although it is difficult to define the exact boundaries of sexual

harassment there are some elements which are shared
amongst varying definitions. In essence sexual harassment is
unwanted behaviour of a sexual nature. Previous authors have
recognised the difficulty of defining sexual harassment and
have attempted to identify those behaviours considered to
constitute sexual harassment. The most commonly reported
forms of sexual harassment are gender related derogatory
remarks, suggestive looks and sexual comments (Stanford and
Gardiner, 1993).
It is worth noting that the Safety, Health and Welfare at Work

Act 2005 imposes an obligation on employees “not to engage
in improper conduct or other behaviour that is likely to
endanger his or her own safety, health and welfare at work or
that of any other person”22
6.1.1 DEFINITION
Finding an adequate definition of sexual harassment has

proven to be a historical difficulty when one speaks of sexual
harassment. An offence must be defined appropriately in order
to make it preventable.
The European Commission drew up a code of practice on

sexual harassment which defined sexual harassment as
follows:
22
Section 13(e) Safety, Health and Welfare at Work Act 2005.
48
‘Sexual harassment means unwanted conduct of a sexual

nature, or other conduct based on sex affecting the
dignity of women and men at work. This can include
unwelcome physical, verbal or non-verbal conduct.
‘A range of behaviour may be considered to constitute
sexual harassment. The essential characteristic of sexual
harassment is that it is unwanted by the recipient, that it
is for each individual to determine what behaviour is
acceptable to them and what they regard as offensive.’
6.1.2 SEXUAL HARASSMENT IN THE 1998 AND 2004

ACTS
Sexual harassment was defined at length in section 23 of the

1998 Act which prohibited harassment by colleagues in the
workplace, the employer or a client, customer or other
business associate in contact with the employer. Sexual
harassment was defined in part in section 23 (3) of the 1998
Act as being:
(a) any act of physical intimacy;

(b) any express request for sexual favours
(c) any other act or conduct including spoken words,
gestures or the production, display or circulation of
written words, pictures or other material.
If the act, request or conduct is unwelcome and may perhaps

convincingly be regarded as sexually, or otherwise on the
gender ground, offensive, humiliating or intimidating it will
constitute sexual harassment.
The 2004 Act replaced this part of the definition with a new
section 14A which defined harassment and sexual harassment
as:
‘Any form of unwanted conduct related to any of the

discriminatory grounds, and….references to sexual
harassment are to any form of unwanted verbal, non-verbal or
49
physical conduct of a sexual nature, being conduct which in

either case 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 Act further states that ‘such unwanted conduct may

consist of acts, requests, spoken words, gestures or the
production, display or circulation of written words, pictures or
material’.
The amendments made to the 2004 Act do not alter the

provisions of the definition that include non-employees. Under
both the 1998 and 2004 Acts harassment may occur in the
workplace, otherwise in the course of employment or outside
the workplace and the course of employment where the
employee may reasonable anticipate being treated differently
in the workplace or in the course of employment as a result of
accepting or rejecting the harassment.
It has been stated that in particular, sexual harassment is a

form of gender discrimination. Since March 2002, there is a
Code of Practice on Sexual Harassment and Harassment at
Work23 in existence.
Since the 1998 Act, a defined concept of ‘harassment’ has

been created with distinct entitlements and a specific regime
for employees to challenge harassing behaviour as a wrong in
itself, based on the nine grounds under the Act even if the
employee is not injured or dismissed. As a result harassment
may now be considered a simply a specific form of bullying on
one or more of the nine grounds specified by the 1998 Act.
23
Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002 (S.I No. 78 of 2002)
50
Significantly unlike bullying, a single incident may constitute

harassment or sexual harassment. Due to the definition of
sexual harassment, as seen under section 14A(7)(a) – ‘any
form of unwanted verbal, non-verbal or physical conduct of a
sexual nature’ each individual is obliged to come to a decision
as to what behaviour is unwanted by them and from whom,
regardless of the attitude of others to the matter.
The Code of Practice on Sexual Harassment and Harassment at

Work provides a non-exhaustive catalogue of examples as to
what unwanted conduct constitutes harassment covered by
the 1998 Act. The Act covers a wide range of behaviour which,
when related to one or more of the nine grounds, may
constitute harassment. Unwanted conduct may include verbal
harassment, physical harassment, written harassment,
isolation or exclusion from social activities and pressure to
behave in a manner that the employee deems to be
inappropriate.24
Any occurrence of sexual harassment must have taken place

either at a place where the employee is employed (‘the
workplace’) or otherwise in the course of his or her
employment.25 The scope of this provision extends beyond the
workplace to work-related events or events that are attended
by employees in the course of their employment. Therefore,
conferences and training seminars that occur outside of the
workplace are covered. It may also extend to work-related
social events.
24
Code of Practice on Sexual Harassment and Harassment at Work, Equality Authority, Dublin 2002,
at p. 8 and 9.
25
Section 14A(1)(a) Employment Equality Act 1998
51
6.1.3 DEFENCES
In the case of the conduct complained of, it must have “the

purpose of effect of violating a person’s dignity and creating an
intimidating, hostile, degrading, humiliating or offensive
environment for the person”.26
The Employment Equality Act requires employers to act in a

preventative and remedial way. The 1998 and 2004 Acts
provide a defence for employers if they can prove that they
took such steps as were reasonably practical to prevent the
harassment and ‘if and so far as any such treatment has
occurred, to reverse the effects of it’.
Under section 15 an employer is vicariously liable for anything

done by those mentioned in section 14A(1)(a), including
employees and customers or “any other person with whom the
employer might reasonably expect the victim to come into
contact in the workplace or in the course of his or her
employment.”27 An employer may avoid liability if s/he can
prove that s/he took “reasonable practicable” steps to prevent:
1. The harasser from harassing or sexually harassing the
victim or any class of person which includes the victim; and
2. The victim from being treated differently in the
workplace or in the course of the victim’s employment, and
insofar as any such treatment has occurred, to reverse its
effects.28
26
Eardly, Bullying and Stress in the Workplace, (First Law, 2002) p. 121
27
Section 15(1) Employment Equality Act 1998
28
Section 14A(2) Employment Equality Act 1998
52
No guidance is given as to what constitutes “reasonably

practicable” steps. The practice of the Labour Court and
Equality Officers has been to scrutinise the policies and
procedures adopted by the employer in dealing with
harassment allegations. In order to rely on this defence
mechanism, employers would need to show that they have
comprehensive, accessible, effective policies that focus on
prevention and best practice and remedial action and an
accessible effective complaints procedure.
The steps taken to put the policies and procedures into

practice will also be taken into account, as employers will not
be able to rely on an excellent policy if it has not been
effectively implemented. The core elements of a policy and
complaints procedure will be dealt with further into this report.
However it should be noted that an employer should set out
the key points to be included in a harassment policy. The
policy should also contain details of the main elements of a
complaints procedure, dealing with an investigation process
and the informal and formal complaints procedure which too
shall be by laid out for inclusion in this report. Reasoning for
this type of policy is clear from the case law where some
employers have chosen to ignore codes of practice in the past,
to do so may leave employers in a very vulnerable position
when attempting to defend claims.
The importance for employers of implementing and observing

appropriate workforce policies had been highlighted in the
case law. In The Health Board v. B.C. and the Labour Court, 29
29
[1994] E.L.R.27
53
the High Court quoted part of the determination of the Labour

Court as follows:
The adoption of a Code of Practice, the adoption of

a policy statement on the prevention of sexual
harassment, the existence of guidelines as to how
all staff should behave, and the establishment of
clear grievance procedures, all constitute the kind
of ‘reasonable steps’ which employers should adopt
and which will be accepted by the Court as
evidences of the employer’s bona fides in this type
of dispute.
For an employer to have an anti-harassment policy in place is

one of the key factors in putting forward the “reasonable
practicable” steps defence. The policy, like any such policy,
should be drafted, communicated to all parties concerned
whom it relates and, crucially, it must be used.
Important Case:
In A Company v. A Worker30 the claimant complained of having

been sexually harassed by her supervisor on her way home
from work. The Labour Court explained how an employer could
be responsible for conduct that took place outside work:
[The employer] cannot be responsible for actions which

occur outside the workplace, over which [he] has no control,
and in a situation where he could not provide protection.
30
[EEO 9/93] referred to in Bolger, M., and Kimber, C., Sex Discrimination Law (Dublin: Round Hall
Sweet & Maxwell, 2000) at 277
54
However, the Court accepts that there are occasions

when the consequences of such acts could affect workers in
the course of their employment, in that they could cause a
deterioration in the working environment. The employer
might then acquire a certain responsibility to the workers
affected.
The Court held that the employer had dealt adequately with
the situation and therefore had not discriminated against the
complainant.
55
CHAPTER SEVEN – DISCUSSION
56
7.1 DISCUSSION
Over the last decade, the acknowledgement that workplace

bullying is a major barrier to organisational growth and
effectiveness has prompted a rise in the commitment to
eradicate it. There is a growing awareness that bullying in the
workplace represents a major problem, with serious
implications for the well-being of workers and for the
performance of organisations.
Allowing bullying and harassment to go unchecked exposes

the organisation to many risks and can result in significant
amounts of time and money spent investigating and resolving
complaints, additional recruitment costs for replacing targets
of bulling and or witnesses who are likely to resign, rather than
stay and challenge negative behaviour, expenditure on
tribunals and financial settlements, low morale, under
performance, insecurity, ill health and unstable workplace
relationships; all of which impact on performance.
Therefore there is the business case that real benefits can be

gained through adopting and implementing best practice
policies and procedures that create a more effective working
environment. The likely gains comprise; improvement in
working relationships and increased levels of trust, reduced
employee turnover and higher retention rates, higher quality
productivity, ethical and social responsible management
practices, improved customer loyalty and enhanced well-being
of employees and healthier working climates.
57
If organisations want the best out of workers they need to

show they are valued and their views count. An engaged
workforce that understands what is required of them and know
the accepted standards of behaviour, are more likely to be
motivated and succeed in delivery the organisation’s goals.
Policies give guidance and set out rules and regulations on how
an organisation should operate. They reflect the organisation’s
purpose, values and overall aims.
It has been found by researchers that policies are considered

to be more effective when they have been developed with
employees. Involving workers in developing an anti-bullying
and harassment policy improves their understanding and
acceptance of the need for cultural change. It also creates
ownership of the policy and helps them to examine their own
behaviour. The challenge for HR is to find ways to allow greater
input from employees into policies in order for them to
succeed.
The research findings show organisations most effective at

dealing with bullying and harassment, and promoting dignity at
work, take a zero tolerance approach. This means employers
accept bullying as the organisation’s responsibility and not just
an issue to be left to individuals to resolve. Underpinning this
acceptance is recognition of the damaging effects bullying and
harassment has on productivity and performance.
Zero tolerance organisations are characterised by having

policies, procedures and strategies in place to challenge
58
undesirable attitudes and behaviour, and encourage greater

dignity for all employees.
A commitment to dignity at work and tackling bullying and

harassment means nothing if it is not communicated.
All employees need to know about changes in policy, practices,

procedure and legal requirements, as well as expected
standards of behaviour. HR can ensure this happens through
the induction process and effective internal communications.
This may include working with management and
communications specialists to identify appropriate messages
and promote them through newsletters, direct mail, the
organisation’s website, team briefings, notice boards and any
other means available.
The challenge for HR is to ensure a constant flow of

information which tells everyone what they need to know and
what they want to know in a timely fashion.
Prohibiting harassment on a variety of prescribed grounds

provides bullying victims with some protection; however since
harassment and bullying are difference constructs, anti-
harassment legislation may not protect workers in all bullying
situations. Even when anti-bullying practices are adopted,
organisations may be reluctant to enforce them, especially if
the bully is an otherwise effective and productive employee.
Further, since bullies “who get the job done” are often
rewarded by promotion they frequently occupy positions of
power.
59
The first step is to identify strategies and behaviours designed

to dominate, humiliate or undermine others. It is only by
identifying types or categories of reprehensible behaviour that
progress can be made in limiting interpersonal harassment.
The second step is to establish standards of interpersonal
behaviour against which an individual’s conduct may be
considered. Thirdly, it requires a personal commitment from all
concerned to maintain these standards. As personnel
managers we must therefore identify behaviour that is
unacceptable and the basis for it being unacceptable. From
these we must ascertain what reasonable expectations one
person may have of another regarding their interpersonal
behaviour. Finally, we can use these expectations to construct
personal standards of behaviour or commitment to our
colleagues in the form of policies and a “dignity at work” code
of behaviour.
Bullying occurs too frequently and costs are too high to be

ignored or tolerated. Legislation prohibiting bullying would go a
long way in making the workplace safer and more accessible to
workers. However merely instating policies is not enough,
employers must find ways of reaching those victims who
maybe ashamed or think it best to stay silent.
Clearly, organisations need to be more active in identifying and

coping with bullying (see Einarsen et al., 2002); greater
awareness of workplace bullying and more accessible
information might enable more effective recognition of its
occurrence. Human resource professionals need to develop
60
policies and practices focused at organisational rather than

merely individual or interpersonal levels; for example in
considering the impact of increased work pressures and of
individualised appraisal systems; this may be facilitated
through assessing the often hidden organisational costs of
bullying practices, including increased staff turnover and
reduced commitment. Employers also need to understand the
complexity of bullying and the varied responses of individuals
(Rayner et al., 2001). Organisational and community
psychologists may have a role in providing training and
information about forms, impacts and costs of bullying of
employers, trade unions and health professionals. Applied
psychologists can provide support for targets of bullying,
enabling them and employers to recognise bullying as an
organisational phenomenon (Leymann & Gustaffson, 1996),
and enhancing coping resources at organisational and
individual levels.
For the industry practitioner one must highlight the need for
comprehensive polices prohibiting such behaviour in the
workplace. Coupled with the necessary training to highlight the
presence of such policies to ensure that all employees are
aware of its existence. Although it may not be possible to
prevent bullying and harassment , there can be no excuses for
failing to identify when there is a risk and giving advice on
coping when it does occur (Aiken, 1997).
HR specialist are well placed to enable change, working closely

with leaders and managers, employees, training providers and
61
trade unions to ensure best practice. They can play a key role
in tackling bullying, spreading the word about zero tolerance
and ensuring an environment in which everyone is respected
and enjoys dignity at work.
62
CHAPTER EIGHT – PRINCIPLES OF
NATURAL JUSTICE
63
8.1 PRINCIPLES OF NATURAL JUSTICE
All citizens have a Constitutional entitlement to ‘fair procedure’

in their dealings with courts, tribunals and other bodies. Within
industrial relations this is often expressed as a right to ‘natural
justice’. The principle of ‘natural justice’ is recognised at law
and is a constitutional right. The effect of this protection is the
guarantee the basic fairness of procedures.
In simple terms, the principle means that the employer must

apply fair procedures and act reasonably at all times,
particularly with regard to a disciplinary investigation
concerning the employee. This means that if a case has
potential disciplinary consequences, including and up to
dismissal, the employer must do the following:
 Present fully the allegations to the employee whether

written or oral
 Afford the employee the right to representation
 Allow the employee to state his/her case, by way of reply
{Audi Alterem Partem}
 Hear the case being made by the employee
 Only form judgement after all the facts disclosed have
been considered
The principle of natural justice may be extended to include:

 Giving the employee sufficient time to prepare for any
hearing or meeting
64
 Allowing the employee to call witnesses on their behalf

and the right to be shown any relevant documentation or
written accusations that management may have in their
possession.
If Management fail to understand the importance of natural

justice principles when handling disciplinary procedures can
bring about problems when an accused challenges the process.
Therefore the employee is entitled to the following:
a) To be presented with the entirety of the case in writing
where possible in a timely fashion.
b) To be afforded adequate time to consider the allegations.
c) To be given the opportunity to respond to same.
d) To have such representations heard in an impartial
manner by the management.
Trade unions have long negotiated workplace grievance and

disciplinary procedures that reflect the values of natural
justice. The Code Of Practice, in many ways, merely codifies
this practice. The Code considered here is the Industrial
Relations Act, 1990 (Code Of Practice On Grievance &
Disciplinary Procedures) (Declaration) Order, 2000, SI 146. The
main purpose of this Code of Practice is to provide guidance to
employers, employees and their representatives on the
general principles that apply in the operation of grievance and
disciplinary procedures and contains general guidelines on the
application of grievance and disciplinary procedures and the
promotion of best practice in giving effect to such
procedures.31
31
http://www.siptu.ie/YourRights/TUFGuideToLabourLaw/TerminationofEmployment/CodeOfPractice
-GrievanceDisciplinaryProcedure/
65
66
CHAPTER NINE – POLICIES AND

PROCEDURES
67
9.1 POLICIES AND PROCEDURES
The tragic events resulting from workplace bullying and the

increased legal pressure on organisations to prohibit
harassment have resulted in many organisations adopting anti-
bullying policies to protect their workers. Anti-harassment
legislation present in many countries today highlights the legal
necessity for employers to provide their workers with a safe
working environment.
Top Ten perceived most effective anti-bullying practices

according to victims (J. Leck and B. Galperin, 2006):
1) New employees should be notified that bullying is not

tolerated.
2) HR should have the needed tools to address bullying.
3) The organisation should make it clear that bullying is not
tolerated.
4) Exit interviews should be conducted in order to find out why
people have quit their jobs.
5) HR should give more importance to addressing bullying.
6) Bully bosses should receive supervisory training to build
their conflict management skills.
7) Give more freedom to HR for dealing with bullies.
8) Bosses should be rewarded for treating their employees
fairly.
9) Bully bosses should be told that their behaviour is
unacceptable.
10) Performance evaluations should be conducted in order to
detect bullying.
As bullying can happen in any workplace, every employer

should take preventive steps to reduce the likelihood of
bullying occurring. Do not assume that the workplace is free of
bullying simply because there are no obvious signs of the
behaviour.
Bullying may not always be reported because people:
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 May not recognise bullying behaviour

 May not know the reporting procedure
 Fear retribution or ‘payback’ from the bully, or isolation
from colleagues
 Believe no-one will respond to their complaint
 Fear being labelled a complainer or weak
 Believe complaining will damage their career prospects
 Accept bullying as a normal part of the workplace culture.
The following series of practical steps represent a simple risk

management approach designed to protect workplaces from
the risk of bullying.
M
C O
O N
N CREATE AWARENESS I
T
S DEVELOP A POLICY O
U INFORM, INSTRUCT & TRAIN R
L
T IDENTIFY RISK FACTORS E
A CONTROL THE RISKS V
A
T ENCOURAGE REPORTING L
I U
O A
N T
E
Bullying - Develop a ‘no bullying’ policy
Every workplace should develop a ‘no bullying’ policy. A

written policy makes it clear that bullying behaviour in the
69
workplace is unacceptable and gives everyone confidence that

complaints about bullying will be taken seriously.
The policy can be brief or detailed, depending on the size and

needs of the workplace. It should be written in plain language
and provided in languages other than English, where
appropriate, especially in our changing Irish working
environment.
It can be developed as a stand-alone policy or included in an

existing policy such as a ‘Right to Dignity at Work’ policy, code
of conduct or grievance and dispute resolution policy.
Once the policy and attendant procedures have been accepted

the organisation should then establish a variety of means for
publicity and awareness raising by running a promotional
campaign. It is important to inform new staff through
information leaflets in induction packs.
The Policy should be well publicised to all members of staff by

means of a leaflet mailed to each employee and posters
designed to be placed on notice boards etc. Within these
publications will be a request for volunteers to come forward to
be interviewed / selected and trained as Harassment Advisers.
Details of the policy document should also be placed in staff

induction packs and programmes.
When finalised, the ‘no bullying’ policy should be prominently

displayed, promoted appropriately and included in induction
materials, performance reviews and codes of conduct.
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Ensure that grievance procedures are effective and that there

is a consistent application of all organisational
policies/procedures. Regularly monitor, review and amend
these policies in order to keep pace with change.
Whatever the circumstances, the support of the following is

essential: senior managers, line managers, personnel
managers and officers, occupational health officers, union
representatives, employee counsellors, contact officers or
harassment advisers.
Appendix A: Bullying at Work Policy
Firstly, Codes of Practice should be referenced and followed

when drafting a Dignity at Work Policy.
Suggested contents for such a policy are as follows:

- Definitions and examples of Bullying Behaviour, for
example: ‘Workplace bullying is unreasonable behaviour,
usually repeated over time, directed towards a person or group
of personas at the workplace, which creates a risk to health &
safety’
- Commitment of Employer
- Allocation of Responsibility
- Names of Contact Persons
- Informal Procedure
- Formal Procedure
- Mediation
- Confidentiality
- Scope of Policy
- Communication and Review of Policy
- Monitoring and Recording Incidents of Bullying
- Training and Supervision
- Reviews
Informal Process:
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A problem-solving approach is promoted to ensure that the

behaviour complained of, if established in fact, is eliminated
and that working relationships are restored. An informal
process should:
• Aim to assess the allegation and address it;
• Use agreed procedures;
• Be consistent, systematic, transparent and unbiased;
• Ideally have an intervention addressing the issue in
place within three weeks or an agreed, indicative time
frame;*
• Promote the restoration of harmony over the medium
to long term.
On receipt of a complaint of alleged bullying, or a complaint

that a bullying atmosphere or bullying type behaviours are
occurring, an employer should try to have the matter resolved
informally with the consent of the parties involved. For general
non-specific issues, a proactive, non-judgemental intervention
approach such as information sessions, clarifying what is
acceptable interaction for a workplace and monitoring should
be used.
Informal resolution of a specific bullying allegation could

include for example, clarification of what bullying is,
agreement to alter verbal style, agreement by the person
complained of, if they accept that their behaviour was
inappropriate, that the conduct will not be repeated, or an
explanation to the complainant about what occurred from the
point of view of the person complained of which dispels the
complaint.
The first step in any informal resolution of a complaint should

be to get the facts of the complaint, the specific issues
complained of, when they occurred and to judge whether or
not they fall within the definition of bullying, and thereafter to
establish whether or not they are representative of the events
complained of.
Generally, the employer or the person heading up the

organisation is advised not to try personally to informally
resolve the complaint but should instead refer the dispute for
resolution to another senior manager, or such other person as
may be agreed. This is to prevent any bias or perceived bias
on the part of the employer, should the issue be referred to
him/her at a later stage in the process.
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In small and micro organisations, where internal structures are

limited, if the complaint is made by or against a senior person
within the organisation, it may be necessary to use the
expertise of an independent professional body to access
mediation or conciliation. Such bodies may include the
Mediation Services of the Labour Relations Commission. Even
in larger organisations, external assistance may be required in
order to initiate an effective early resolution. In other cases in
small and micro organisations, where there is no conflict of
interest, the employer or organisation leader may try to
resolve the matter informally in some circumstances provided
objectivity is not compromised.
*While it is crucially important for both the complainant and

the person complained against that an effective process be put
in place promptly upon a complaint being made, it is also very
important that enough time be given to the process and to any
mediation or monitoring that this involves. Therefore a time
frame and speedy intervention is emphasised while not
diminishing the fact that the intervention may carry on into the
medium term in order to ensure it remedies the issues fully.
Formal Process:
If the issue is not or cannot be resolved through an informal

process the bullying persists, a formal process should be
invoked. This process includes a formal investigation. The
purpose of the investigation is to determine the facts and
credibility or otherwise of a complaint of bullying. Where an
investigation is to be carried out there should be a procedure
followed.
The Formal Complaint:

The complainant should make a formal complaint in writing,
dating and signing same. All details should be precise of
alleged incidents, including dates and names of witnesses
where possible.
Information to the person complained against:

The person complained against should be notified in writing of
the allegations of bullying. His/her presumption of innocence
should be assured. All time frames of the investigation process
should be outlined. A meeting should be held in which the
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accused is given a full written copy of the complaint and any

relevant documents including the Bullying Prevention Policy.
Investigation:
The objective of the investigation is to ascertain whether or
not, on the balance of probabilities, the behaviours complained
of occurred.
Statements should be recorded from all involved parties. A

designated member of staff or if necessary an external third
party should conduct the investigation. In either case the
person involved should be appropriately trained and
experience in these situations and seen as credible by all sides
involved in the complaint.
Meetings should be held between the investigator and the

complainant and the person complained of and any relevant
witnesses. There should be clear and regular communication to
all parties on the progress of the investigation. The
investigator will then submit a report to the employer with
conclusions. A copy of the report will be sent to all parties
before any action is taken by the employer.
In light of this report the employer must decide what action if

any is to be taken. Again any decision made should be put in
writing and forwarded to all concerned parties.
Complaint upheld:
If a complaint is upheld the matter is now a disciplinary issue

and the employer should follow the appropriate disciplinary
procedures.
Complaint not upheld:
It is most important that all management should monitor the

situation post complaint to ensure that there is no victimisation
of a complainant following an investigation.
Appeals Procedure:
Any appeals by either party should be heard by an external

person preferably more senior than the original investigator.
Notes:
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Both parties should be given support and the situation should

be reviewed after a resolution is found so as to obtain closure.
Team working sessions would be advised to restore healthier
working communication in the future.
Appendix B: Harassment & the Complaints Procedure
Employees can use both the informal and formal procedure to

deal with the issue of harassment in the workplace depending
on the gravity or seriousness of the offence.
Informal Procedure:
For less serious cases it is sometimes preferable that

complaints are dealt with informally. This can result in the
issue being resolved in a quick, effective manner with minimal
embarrassment. Using this procedure the employee should ask
the person responsible to stop the offensive behaviour. If this
does not work the formal procedure should be used.
Formal Procedure:
To make a formal complaint the employee should contact their

line manger if possible in the first instance or the person of
their choice in the HR Department. The employee making the
complaint will be required to confirm the allegation in writing.
In the interest of fairness, the accused will be made aware of
the nature of the complaint, his or her right to representation
and will be given every opportunity to respond to the
allegations made.
The company will do its utmost to maintain confidentiality once

an investigation has begun it may be necessary to interview
other employees. Any statements taken will be shown only to
the person making the complaint and the accused, for their
comments. Once the investigation is completed both parties
will be informed of the decision.
All complaint received will be treated seriously, confidentially

and dealt with as soon as is practicable. Strict confidentiality
and proper discretion will be maintained in any necessary
75
consultations, to safeguard both parties from innuendo and

harmful gossip.
Action Post Investigation:
Where a complaint is upheld, a disciplinary meeting will take

place and appropriate action will be taken in line with the
company disciplinary procedure up to, and including if
necessary, dismissal.
Where dismissal is not the remedy, regular checks will be

made by Management to ensure that the harassment has
stopped and that no victimisation has ensued. Retaliation of
any kind against an employee for complaining or taking part in
an investigation concerning harassment or bullying at work is a
serious disciplinary offence.
In cases where it is discovered that false accusation against an

employee have been made, appropriate action will be taken
following a disciplinary meeting.
Appendix C: Sample Dignity at Work Policy
INTRODUCTION
1 Harassment and bullying create an unpleasant and

ineffective working and learning environment. They can
destroy the self-esteem and health of staff members and
students. It is in everyone's interests to prevent and combat
this behaviour. In addition to being a violation of Company
policy, many forms of harassment and bullying in the
workplace are unlawful.
2 This policy statement applies to all areas of Company

operations and programmes. It applies to the conduct of all
staff members, with respect to conduct that arises out of
their employment, as well as to the conduct of all vendors,
contractors, sub-contractors and others associated with the
business. The procedure set out in this document is a staff
procedure, for use as set out in paragraph 16.
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3 Particular responsibility is incumbent upon heads of

departments, centres and units, managers and supervisors
to ensure that they and staff members reporting to them
are aware of their responsibilities under this policy and,
further, that every effort is made to eliminate any harassment or bullying of which
they are aware amongst their staff.
4 Ultimate responsibility for the implementation of this policy

rests with the Management of the business. Day to day
implementation with regard to staff is the responsibility of
the Director of Human Resources.
5 The Company supports the resolution of complaints, as far

as is possible and appropriate, through informal processes.
It is expected that informal procedures will normally be
pursued before resort to the formal complaints procedure.
6 Any formal complaint of harassment or bullying will be

promptly and seriously processed. It is recognised that
harassment and bullying are very difficult issues to deal
with for all concerned. The Company undertakes to pursue
formal complaints as sensitively as possible, with due
regard to the rights of both Complainant and Respondent.
7 The Company is committed to identifying and eliminating

organisational deficiencies which may contribute to the
occurrence of harassment or bullying, and undertakes to
review and make improvements in the event that any
investigation under this procedure identifies organisational
factors as contributing to a case of harassment or bullying.
8 It is considered a breach of policy and a disciplinary offence

for any staff member or student to attempt to victimise or
otherwise retaliate against an individual because that
individual, whether as a witness, party or in any other role,
participates in good faith in this procedure.
9 Since complaints of harassment and bullying will be taken

very seriously, any attempt to misuse this policy and
procedure through the filing of malicious complaints may
result in disciplinary action pursuant to the Company’s
disciplinary procedures.
10 This policy will be widely publicised and its content made

known to all staff members, students and others associated
77
with the business. Additionally, all new staff members and

students will be supplied with a copy of this policy
statement and new employees will be appropriately briefed
during their induction.
DEFINITIONS
11 The Equality Act, 2004, defines Harassment as any form of

unwanted conduct related to any of the discriminatory
grounds, if the conduct 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 discriminatory grounds, for the purposes of
legislation are gender, marital status, family status, sexual
orientation, religion, age, disability, race and membership of
the Traveller community.
Common harassing behaviour includes, but is not limited to:

 Unwelcome physical contact
 Inappropriate looks, comments or suggestions
 Interfering with or damage to property
 Threats or extortion
 Comments, gestures, jokes or displaying or circulating
offensive material
 Hostile attitudes, practices or structures which discriminate
against an individual or group of persons
12 Sexual harassment is similarly defined as any form of

unwanted verbal, non verbal or physical conduct of a sexual
nature, if the conduct has the purpose or effect of violating
a person's dignity and creating an intimidating, hostile,
degrading, humiliating or offensive environment for the
person.
 Common sexual harassing behaviour includes, but is not
limited to:
 Verbal or physical advances
 Requesting sexual favours
 Asking about someone's sexual preferences, fantasies or
activities
 Repeatedly asking for a date after someone has expressed
lack of interest
 Unwelcome patting, hugging or touching someone's body,
hair or clothing
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 Making comments, jokes, sexual innuendo, displaying or

circulating offensive material or computer pornography
 Making suggestive or sexual gestures, movements or facial
expressions
 Making disparaging remarks to someone about their gender
or body
13 Bullying, whilst not defined in legislation, can have serious

effects on the health and welfare of recipients and is
therefore regarded as a workplace risk and legislated for
under the Safety, Health and Welfare at Work Act. The
Health and Safety Authority 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 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. Many conflicts and
interpersonal difficulties should be dealt with through
appropriate industrial relations and complaint channels.
1 Common bullying behaviour includes, but is not limited to
2 Unreasonably blocking someone's progress or advancement
3 Persistent picking on someone
4 Manipulation of someones reputation
5 Manipulating the nature of someone?s work or the ability of
someone to do their work (e.g. overloading, withholding
information, setting meaningless tasks)
6 Social exclusion or isolation
7 Constant criticism, preventing someone from speaking,
shouting, public reprimands, rages over trivialities or insults
8 Unwanted physical contact, physical abuse or threats of
abuse to an individual or an individual's property
9 Undermining an individual's work or self-esteem
14 This policy will be interpreted with consideration of the fact

that behaviour which is acceptable to one individual may be
offensive to another.
PROCEDURE
15 Application
16 This procedure will be utilised wherever an allegation of

breaching the Duty of Respect and Right to Dignity Policy is
79
made against a staff member. Where a staff member makes

allegations against any non-staff persons interacting with
the Company, the Company will take appropriate action.
17 This procedure is intended to perform a deterrent and

corrective function, in order to prevent members of the
Company from being subjected to behaviour which they find
harassing or bullying in nature. Any disciplinary action taken
as a result of an investigation under this procedure will have
the same intent.
Informal Procedure
18 Under informal procedure, the primary concern is not with

determining whether an actual violation of the Duty of
Respect and Right to Dignity policy has occurred, but rather
with attempting to restore a working relationship between
the parties.
19 Complainants are encouraged to use any or all of the

following routes in attempting to have their concerns
resolved and should raise their concerns at the earliest
opportunity:
* The Complainant should inform the Respondent that their
behaviour is unacceptable to them, and give her/him the
opportunity to alter their behaviour.
* Complainants should contact a member of the Harassment

Contacts Programme. This service aims to provide a voluntary
informal resource for any staff member who wishes to discuss
any incidence of alleged harassment or bullying in the
Company. Contacts are available for confidential support,
information and referrals for recipients or potential recipients
of harassment or bullying.
* If appropriate to do so, the Complainant should approach

their Head of Department or immediate supervisor to negotiate
a solution, for referral to a more suitable source of assistance if
necessary, and for monitoring of the situation.
* The Complainant may bring matters to the attention of the

Independent Staff Ombudsman.
Formal Procedure
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20 In general, Complainants will be expected to have

attempted to resolve their concerns using informal means
before resorting to formal procedures wherever possible.
21 Formal complaints should be lodged with the Director of

Human Resources within 90 days of the most recent
incident of harassment or bullying occurring. In exceptional
circumstances, this time limit may be waived. The complaint
should be clearly formulated in writing. The Complainant
should give precise details of actual incidents of harassment
or bullying, including witness names and times and dates of
alleged incidents insofar as possible.
22 The Respondent will be notified in writing that an allegation

of harassment or bullying has been made against them.
They will be given a copy of the complaint and will be
requested to respond to the allegations in writing within 5
working days. This notification will be provided within five
working days of the complaint being submitted, save in
exceptional circumstances when it will be issued as soon as
possible thereafter.
23 Where appropriate, arrangements will be made to carry out

an investigation as soon as possible. In certain
circumstances, and having consulted the parties, an
independent facilitator may be engaged to assist in
resolving the matter.
24 In the event that investigation is deemed appropriate, a

member of the Department of Human Resources will explain
the investigation procedure to both parties separately and
will update them on further steps at the appropriate
juncture. Parties may be accompanied or represented at all
meetings regarding the procedure. Representation is the
involvement of a colleague of an employee's choice or trade
union official, but not any other person or body unconnected
with the business, in the matter of representing the
interests of an employee.
25 A detailed investigation will be carried out by two

appropriate and trained investigators appointed by the
Management. Investigators, ordinarily, will be appointed
from an internal panel, but in certain circumstances external
investigators may be appointed. In the event that it is
deemed necessary to appoint external investigators, the
81
parties will be informed. All parties, including witnesses, will

be afforded the opportunity to meet with the investigators
and have their views on the complaint fully considered.
26 The terms of reference of the investigation will be identified,

and the parties will be informed of the terms of reference, in
advance of the investigation.
27 Investigations will be conducted promptly, sensitively and

fairly. Whilst the Company undertakes to make every effort
to preserve confidentiality when undertaking formal
investigations of harassment or bullying allegations, the
nature of investigation is such that total confidentiality
cannot be guaranteed in the process of pursuing a formal
complaint. Information relating to a formal complaint will be
dispensed purely on a 'need to know' basis, consistent with
facilitating the full investigation of the complaint.
28 In certain circumstances, where there may be a risk to the

safety, health or welfare of any individual/individuals, the
President may take interim measures to remove parties
from the situation.
29 Where the allegation is so serious as to constitute Gross

Misconduct under the Company’s Disciplinary Procedure,
the provisions of such procedure will apply.
30 Parties will be interviewed separately. Parties may be

accompanied or represented at all investigative interviews.
Failure to co-operate with the investigative process will be
considered a disciplinary offence.
31 The investigators will prepare a report on the investigation

to be presented to the Management. The investigation will
generally be completed within 40 working days of the
appointment of the investigators. In certain circumstances it
may be necessary to extend the length of the investigation,
but such circumstances will be exceptional in nature. A copy
of the report, including the finding and recommendations,
will be sent to both parties within 5 working days of the
report being submitted to the Management.
32 All aspects of the investigation, including the report and
findings, must be treated as confidential by all parties
concerned.
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33 In reaching a decision on whether the policy has been

violated, a standard of proof corresponding to the civil
burden of proof on a balance of probabilities will be used
(i.e. the standard used in civil court, whether it is
established that it is more probable that the allegations are
correct than incorrect, or visa versa). Decisions which could
result in disciplinary action require clear and convincing
evidence of misconduct.
34 Those involved in interpreting, administering, and applying

this policy will use a 'reasonable person' standard; that is to
say, whether a person in the same position as the
Complainant and of the same Relevant Characteristics as
the Complainant would reasonably judge harassment or
bullying to have occurred as a result of a given behaviour or
pattern of behaviour.
35 Should the finding be that either harassment or bullying did

occur, or that the complaint was malicious, the President
may invoke the University's Disciplinary Procedure.
36 In some circumstances, the use of disciplinary procedures

may be inappropriate. The outcome of such cases may be a
recommendation to engage in training, counselling and/or a
period of monitoring and appraisal. Should the period of
appraisal not be satisfactory, the Disciplinary Procedure
may then be invoked.
37 It should be noted that where a complaint is not upheld by

the formal investigation, this does not necessarily indicate
that the complaint is malicious. While a malicious complaint
will generally be treated as misconduct under the
Disciplinary Procedure, the application of this provision
should not be such as to deter employees from bringing
forward legitimate complaints.
38 Should any person holding an office specified as playing a

part in these procedures be themselves subject to these
procedures, the President will nominate an appropriate
person to assume the relevant authority in their place.
Should the President be the subject of a complaint, these
procedures will be appropriately adapted by the Governing
Body to enable the application of due process.
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Appendix D: The Managers Guide to Preparing for and

Handling a Disciplinary Hearing
The following is a very useful, short but comprehensive

guide, to help all managers stay within the law when holding
disciplinary hearings.
Recommended Procedure for Disciplinary Hearings
The following guidelines apply to all disciplinary hearings under

all the stages of the formal disciplinary procedure, namely, the:
• oral warning stage (stage 1)
• written warning stage (stage 2)
• final written warning stage (stage 3)
• dismissal stage (stage 4)
Notification Requirements
The employee should be notified that s/he is required to attend

a disciplinary hearing under the formal disciplinary procedure.
The employee should be advised of:
• the reason for the hearing
• the right to representation
The employee should be given sufficient notice of the hearing

to enable him/her to arrange for representation and prepare a
response. Best practice indicates that employees should be
provided with a minimum of 24 hours notice.
The following information should be confirmed (preferably in

writing):
• The time and place of the hearing
• The status of the meeting (i.e. that it is a formal disciplinary

hearing under the disciplinary procedure)
• The precise nature of the complaint / the issue being dealt

with
84
• Copies of any documentation that will be relied upon at the

hearing (e.g. attendance/timekeeping record) must be
provided to the employee in advance of the hearing
• The right of the employee to be accompanied by a union

representative or work colleague
• The employee will be allowed an opportunity to respond to

the allegations and to present any mitigating circumstances in
their defence
• That a full investigation will be held where this is warranted
The employee should also be furnished with a copy of the

organisation’s disciplinary policy and procedure (they would of
course already receive a copy on commencement of
employment and possibly received further updates since then).
Role of the Employee Representative
The employee representative has an important role to play in

supporting the employee and is entitled to assist the employee
in presenting his/her case and make representations on his or
her behalf.
The employee may confer privately with his/her representative

if requested during the disciplinary hearing.
Preparation for the Hearing
Before the hearing, a certain amount of preparation is

necessary. Employer representatives should meet in advance
to establish who will undertake what roles during the meeting
e.g. introductions, opening remarks, presentation of the case,
note taking, questioning, etc.
The employer representatives also need to establish exactly

what alleged offences have been committed and to familiarize
themselves with the details and with the organisation’s policies
and procedures, the disciplinary policy and procedure, and the
appeals process.
The room layout and location should be conducive to a

confidential hearing of this nature. Interruptions should be
avoided and mobile phones switched off. The room should be
laid out in a formal manner with employer and employee
85
representatives on opposite sides of a large table, with plenty

of room for both parties to take notes and maintain privacy
during the meeting.
Conducting a Disciplinary Hearing
The purpose of the disciplinary hearing is to allow the

employee to respond to the complaints before deciding
whether disciplinary action is warranted.
The managers conducting the hearing must not pre-judge the

outcome of the hearing and are required to assess each case
on its merits prior to reaching a decision regarding disciplinary
action.
The disciplinary hearing should follow a structured format as

follows:
The Hearing
• Introduce those present
• Confirm that this is a hearing under the formal disciplinary

procedure.
• Where an employee has waived their right to representation,

offer the right to representation one last time. Where the offer
is rejected, take note of this.
• Outline the nature of the complaint and refer to any

supporting evidence, documentation, etc
• Allow the employee to respond to the complaint and give an

explanation for his/her unsatisfactory work standards, conduct
or attendance.
• Invite representations on the employee’s behalf.
• Direct any questioning of the employee towards establishing

his/her view as regards the alleged offence. Elicit any
mitigating circumstances that the employee may be able to
present in their defence. It is important to focus on the factual
information and to remain professional, calm and composed
throughout.
86
• Where the employee becomes emotional (angry, aggressive,

upset, teary, etc), it may be prudent to take a short
adjournment and return to the hearing a few minutes later.
• Close the hearing by summarising the key points emerging

from the hearing and allow the employee and his/her
representative to have a final say.
• Adjourn the meeting to allow for careful consideration of the

facts and any explanations put forward by the employee or
his/her representative.
• Inform the employee as to when the parties will reconvene

with a decision.
The Adjournment & Consideration of the Facts
• After the hearing has been adjourned, the managers must

carefully consider the facts, mitigating circumstances and any
explanations put forward by the employee or his/her
representative.
• Following careful consideration of the facts, explanations and

any mitigating circumstances, the managers make a decision
about what disciplinary action is required, if any.
The Reconvening & Announcement of the Decision
• The hearing is reconvened and the employee is advised of

the decision which may include the following:
No further action on the grounds that the employee has given

a satisfactory explanation of events or there were strong
mitigating circumstances;
Non-disciplinary action, e.g. arrange for the employee to

receive coaching/training and set targets for improvement.
A formal warning (stage 1, 2 or 3). Please note that, stage 1 –

oral warning, is a formal written warning as are stages 2 and 3
Dismissal (stage 4);
• Should the decision be a formal warning, the warning (oral or
87
written stages) should be conveyed to the employee to include

the following information:
the stage of the disciplinary procedure which has been

invoked
details of the unsatisfactory attendance, conduct or work

standards
details of the improvements required and timescale for

improvement including a performance improvement plan if
appropriate and when it will be reviewed
measures to assist the employee (e.g. training or coaching)
duration of the warning
what further action will be taken if the employee does not

make the necessary improvements or if there are further
instances of unsatisfactory attendance/work/conduct during
this period
the organisation’s appeals procedure which the employee may

invoke
The Written Follow-Up
• The outcome of the hearing should be confirmed to the

employee in writing. This applies to all stages, stages 1-4,
including stage 1 – oral warning, which does in fact require you
to follow-up in writing
• The written warning will give details of the complaint, the

improvements required and the timescale for improvement.
The employee will also be advised that failure to improve may
result in a further disciplinary hearing and in the issuing of
further warnings or a dismissal under the next stage of the
disciplinary procedure. The warning will be removed after a
period of time (which is stated in the disciplinary procedure),
subject to satisfactory improvement during this period.
The warning (oral or written stages) should therefore convey

the following information:
88
the stage of the disciplinary procedure which has been

invoked
details of the unsatisfactory attendance, conduct or work

standards
details of the improvements required and timescale for

improvement including a performance improvement plan if
appropriate
measures to assist the employee (e.g. training or coaching)
duration of the warning
what further action will be taken if the employee does not

make the necessary improvements or if there are further
instances of unsatisfactory attendance/work/conduct during
this period
the organisation’s appeals procedure which the employee may

invoke
• A record of the hearing and the outcome – both oral and

written warnings - should be retained on the employee’s
personnel file.
89
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Aimée Mullins Management Research Report

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Examining the Employers Policy Requirements as regards

Bullying, Harassment and Sexual Harassment in the

Student Name: Aimée Mullins

Student Number: 10106145001

Programme: Higher Diploma in Personnel Management

Due Date: 28th May 2008

This dissertation is submitted in partial fulfilment of the requirements for the

Examining the Employers Policy

I hereby certify that this material, which I now submit for

Ms. Aimée Mullins

Date: 28th of May 2008

I wish to acknowledge the support and assistance of the many

I would like to thank my wonderful loving family and supportive

To my friends who held many a midweek special to help me

To the staff of Adult Education here in UCC many thanks for

Finally I would like to thank my colleagues in the University

“Ireland’s entry into the European Community has had a

The Hon. Mr Justice Hugh Geoghegan

CHAPTER ONE – INTRODUCTION

CHAPTER TWO – LITERATURE REVIEW

CHAPTER THREE – RESEARCH METHODOLGY

3.1. Introduction to Methodology

CHAPTER FOUR – BULLYING

CHAPTER FIVE – HARASSMENT

CHAPTER SIX - SEXUAL HARASSMENT

6.1 Sexual Harassment

CHAPTER SEVEN – DISCUSSION

CHAPTER EIGHT – PRINCIPLES OF NATURAL JUSTICE

8.1 Principles of Natural Justice

CHAPTER NINE – POLICIES AND PROCEDURES

CHAPTER ONE – INTRODUCTION

One of the fastest growing area’s in Employment law at

and an examination of the employer’s policy requirements for

1.2 RESEARCH QUESTION

It is envisaged that the Management Research Report will

The aim of the Management Research Report is to show the

The objectives of this management research report are as

b) Review current policies and procedures for bullying,

1.5 LEGISLATION, POLICIES AND PROCEDURES

Summary of the Employment Equality Act:

 The Employment Equality Act 1998 came into force on

Most employment issues are dealt with by the Acts, including:

CHAPTER TWO – LITERATURE REVIEW

2.1 LITERATURE REVIEW INTRODUCTION

Before conducting an analysis of Employers Policy

 Overview of Employment Law Structures and

2.2 OVERVIEW OF EMPLOYMENT LAW

The Labour Court was established in 1946 to provide a free

binding in industrial relations matters, it is normal for the

The Employment Appeals Tribunal (EAT) was originally

The office of the Rights Commissioner was created in 1969.

to the Labour court or the employment appeals Tribunal. The

The Equality Authority is an independent body set up under the

 Building a commitment to addressing equality

Under the Employment Equality Act 1998, harassment is

2.3 DEFINITIONS FOR BULLYING, HARASSMENT AND

It remains the case that issues of bullying, harassment and

For clarity the definitions most commonly used and

“Bullying is a real issue which is not adequately addressed through

Bullying has no direct basis in legislation and therefore has

“Workplace Bullying is repeated inappropriate

An isolated incident of the behaviour described in

The Report of the Expert Advisory Group on Workplace