by Nóra Cashe, Litigation Manager at Peninsula Ireland
The terms “grievance, bullying and harassment” are sometimes used interchangeably by employees when raising a concern with their employer.
However, from a legal point of view, each term relates to a distinct HR issue and the response of both the employer and the employee will be dictated by the employment laws and regulations that apply to the particular issue that has been raised.
Given the significant focus placed on procedural fairness by the Workplace Relations Commission (WRC), it’s absolutely vital that employers understand how to identify each complaint and the correct process to follow if employees raise a workplace concern.
Grievance, bullying or harassment?
While these issues may be found close to one another in the Employee Handbook, it’s vital that employers know the difference between each type of complaint.
In short, a grievance is generally an employee complaint about their rights and entitlements.
A bullying complaint will be made if an employee is the victim of ‘repeated’ inappropriate behaviour, physical, verbal or otherwise.
A harassment complaint relates to unwanted conduct that is connected to any of the nine grounds under the Employment Equality Acts. A one-off incident is sufficient for unwanted conduct to be deemed ‘harassment’.
Why is the distinction important?
The distinction is important primarily due to the different procedural requirements that employers are obliged to follow for each one.
Each complaint has its own separate and unique Code of Practice, with each code setting out different requirements for the three types of complaint.
Grievances
Grievances are dealt with under S.I. No. 146/2000. The Code of Practice on Grievance and Disciplinary Procedures (Grievance Code) requires employers to apply the general principles of natural justice and fair procedures to the resolution of a grievance.
The Grievance Code states that attempts to resolve the matter informally should first be made and if this is not suitable then the matter should go through a formal hearing process.
In practice, the Grievance Code allows employers a greater degree of scope and flexibility in investigating and resolving grievances than what is required in a bullying or harassment investigation.
Bullying
In 2021, the Health and Safety Authority (HSA) together with the WRC developed a new Code of Practice on dealing with bullying complaints.
The Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work (Bullying Code) updates two existing Codes of Practice that both agencies had developed separately.
The Bullying Code contains useful guidance for both employers and employees around the difference between behaviour that falls under the harassment heading and behaviour that falls under the bullying heading.
Your anti-bullying and harassment policy should include a section on the classification of employee complaints.
Some complaints may relate to a general conflict scenario that demands a different resolution process from an allegation of bullying or harassment.
It’s vital that all employee complaints are correctly classified to ensure they are managed and resolved appropriately.
Informal resolution processes
The Bullying Code also includes further guidelines and advice on the informal resolution of complaints of bullying within the work area.
The Bullying Code reinforces that employers should progress complaints informally where possible.
A voluntary mediation process may allow the individuals concerned to resolve their issues and improve their working relationship.
The Bullying Code recommends that employers have a primary and secondary informal resolution process for dealing with bullying complaints.
Some complaints or employees may not be satisfied with an informal approach. In this scenario, a secondary informal resolution process should offer a more structured procedure that ensures that the victim knows the issue is being managed carefully.
Harassment
The Irish Human Rights and Equality Commission published an updated Code of Practice on Sexual Harassment and Harassment at Work (Harassment Code) in 2022.
The Harassment Code contains guidance that employers should consider as part of updating to their policy and procedures in the areas of equality and dignity and respect.
In particular an updated policy should state:
- the organisation’s commitment to ensuring that the workplace is free from sexual harassment and harassment;
- that all employees have the right to be treated with dignity and respect;
- that complaints by employees will be treated with fairness and sensitivity and in as confidential a manner as possible; and
- that sexual harassment and harassment by employers, employees and non-employees such as clients, customers, students, and business contacts will not be tolerated and could lead to disciplinary action (in the case of employees) and other sanctions, for example the suspension of contracts or services, or exclusion from premises (in the case of non-employees).
Complaints procedure
The Harassment Code places particular emphasis on ensuring that all employers have an effective complaints’ procedure for dealing with allegations of harassment. It sets out core elements of the complaints’ procedure which should include a timely investigation with express time limits.
There are detailed steps showing how organisations can carry out informal and formal complaints procedures together with how investigations can be concluded in accordance with the principles of fairness and natural justice.
Expert HR training for employee grievances
The provision of regular training is a good way to demonstrate that your workplace policies are being put into practice.
If your business takes the time and expense to train managers, supervisors and all staff on strategies to prevent harassment and all kinds of workplace misconduct, you will be in a strong position to defend any employee claims by having clear proof that you implement your HR policies.
About the author
Nóra Cashe qualified as a Barrister in 2008 practising in the area of Criminal law for some years, before joining the Peninsula team in 2014. During her time at the Bar, Nóra also volunteered with the Free Legal Aid Centres and was a member of the Irish Criminal Bar Association.
Nóra is the Litigation and Compliance Manager at Peninsula, leading a team of experienced Litigation Consultants in both ROI and NI. Nóra also represents Peninsula clients at Adjudication hearings, Conciliation and Mediation meetings before both the Workplace Relations Commission and the Labour Court.
Nóra has extensive experience in the area of Employment Law and HR Policies and procedures, authoring many articles for Peninsula and providing training to other departments within the Group.
