My work seems to be concentrated on countering bullying and I am having to do a bit of travelling around talking to employers and employees. I have looked at the material you have provided and am of the following view: Firstly, I think it is a positive move for any employer to develop a policy to address bullying in the workplace; now, of-course, because we can get excited about an employer taking such a step, we can forget to ensure that employees have an input into any such policy. Of-course, the employer can take a view that employees should just be thankful that he or she is implementing a policy.
Now, I have to be honest and say that there are some employers I know of that just getting them to acknowledge the issue and say, "Here is a policy", is a huge shift for them, and employees would be better off accepting it as is and then attempting to improve the policy once implemented; however, these
employers are in the minority, and generally we need to ensure that any implementation of a bullying policy is only following a full consultative process and one that provides a high degree of confidence for employees that it will operate fairly and not simply be a toothless tiger.
I have looked at your material and to be quite honest cannot see any of your concerns as being of a negative nature. I believe you should pursue the changes you have mentioned and attempt to achieve the best position possible.
I have had the opportunity to again consider your email and now if it is of any use would like to perhaps put some more detailed comments. Although I am unable to comment on what actually occurred in your organisation, I certainly support the principle that full consultation on the development of workplace bullying policies, procedures etc. is necessary for them to have any chance at all of working.
Such consultation is a requirement of our health and safety legislation here in South Australia. This legislation has been found to be by far the most effective legislation available for dealing with this problem. This legislation (the Occupational Health, Safety and Welfare Act 1986), requires all organisations not only to have in place policies, practices, procedures etc. to deal with health and safety problems which by definition includes workplace bullying, but also to consult fully in their development. Those who must be consulted include either employees or their representatives (the act provides for the election of occ health and safety reps) and also, if the employees so request the relevant union. What is more the term consultation is defined clearly in the legislation to specify that those involved in the consultation have a proper and meaningful involvement in the decision making.
From what I understand your health and safety legislation in Eire is very similiar to ours. The process of dealing with workplace bullying must be as transparent as possible. The clever bully can hide behind various confidentiality rules and procedures for many years. Sometimes they will use the threat of common law defamation suits to silence the accusers. The bully fears the exposure more than anything else. Just as awareness that there are other victims is sufficient to encourage others to complain.
Therfore all relevant information should be made freely available to
everyone involved in the case (including the alleged bully). A balance
needs to be achieved between, on the one hand , the issue being made the
subject of general gossip and wild accusations being hurled around and,
on the other hand, the
whole complaints and investigative process being so bogged down with confidentiality requirements that no one can find out anything and consequently people no longer bother to complain.
I see the greatest problem with the definitions as being the linking of the definition of harassment with the new discriminatory grounds (gender, race etc). What happens if the victim is of the same race, gender, marital status etc. as the alleged bully (which is in my experience is usually the case) or if the bullying does not involve any of the nine discriminatory grounds? What I am saying is that you cannot argue that discrimination has occurred just because the bully has a different racial background from the bullied. There would have to be something else such as (say) abusing the victim using racial slurs or evidence that the bully only bullies people from the same racial background for discrimination to be adequately demonstrated. If there is no obvious link between the bullying behaviour and the discriminatory grounds, does this mean that the harassment has not taken place?
I am not in favour of, "acutely distressing", in definitions such as
this because they are too specific and subjective. I can envisage
an investigation into an allegation of bullying bogging down completely
in arguments over what is "acutely distressing" and whether or not a 'reasonable
person' could be acutely distressed by a particular event. Terms
such as offensive, humiliating, and intimidating are reasonably effective
The term "and will not be tolerated" does not form part of the definition of harassment and need not be included under definitions. However, it must form part of the organisation's policy statement on harassment etc.
Although an isolated incident does not meet the normal definition of bullying and can indeed be a "one off", perhaps the immediate reaction of an over-worked and stressed out supervisor, what is important is what immediately follows the event in question. It may be that the person responsible for the event may apologise to the offended person in a form that the victim finds acceptable. In such cases the matter can then normally be forgotten, unless the behaviour is repeated, which would suggest that it is the perpetrator that needs the help. For example, a number of events involving the abuse of one person by another followed by an apology or other expression of regret, may be a result of the perpetrator being bullied by someone else and he or she finding it difficult to handle.
Where a person is responsible for a number of isolated incidents but
where a number of individual victims are involved, we would normally find
that the victims and potential victims support each other (e.g.
"take no notice he/she is having a bad day"), with the result that little
harm is inflicted on the victim concerned. Nonetheless, the person
responsible for these events must still be counselled, not because he or
she is a bully, but because employees, whether or not they are managers,
should not be behaving in this way. If that person is a manager and
these isolated events continue then retraining or even demotion should
I strongly agree that all such events be recorded and closely monitored. After all, all bullying begins with a single event and bullies frequently try to disguise their behaviour by preventing the identification of any pattern in what they are doing. Also, even if bullying as such is not occurring, the monitoring of isolated incidents may reveal the existence of an organisational climate which could be conducive to the occurrence of bullying in the future.
Performance and conduct reviews may or may not constitute bullying,
it surely depends on how they are carried out, if the review is carried
out in an abusive or insulting manner then surely it is bullying.
If some employees are singled out for performance or conduct reviews so
that they are subject to many more of them, compared with their colleagues,
then this also could constitute bullying, unless, of course, there is transparent
reason for so many reviews, such as substandard performance or behaviour.
Repeated, unjustified criticism of a person's performance or behaviour
is a very common form of bullying.
I agree that the inclusion of qualifying statements such as that beginning, "justifiable criticism", is not necessary, as justifiable or reasonable criticism, provided that it is carried out in an appropriate manner, is, by definition, not bullying. If an employee who is being bullied is forced to justify and defend his or her own performance or behaviour because it has been argued that, somehow, his or her performance or behaviour has justified the bullying, then he or she is likely to reconsider his or her complaint.
The inclusion of such a notion in the official policy on bullying establishes the idea in people's minds that some bullying may be justified and this is totally wrong.
I fully agree with you on the term legitimate. All complaints must be assumed to be legitimate until proven otherwise. This means that all complaints must be investigated in a supportive, expeditious and sensitive manner. If the complaint is shown by the investigation not to be legitimate then the appropriate action can be taken against the complainant. I would define legitimate complaint as one in which the complainant was acting in good faith ie genuinely believing that he or she had been the victim of harassment or bullying. A complaint is not legitimate if it is made for vexatious or malicious reasons. I would delete legitimate for the above reasons and also because it encourages a reluctance on the part of the employees to make a complaint if there is a possibilty that they may be mistaken. As you say, sensitivity is crucial to all stages of the anti-bullying process, as there are frequently a broad range of human emotions involved.
I would question the use of designated contact persons or impartial
mediators; there is certainly a role for impartial mediators, but not at
this stage. The role of the contact person should be one of providing
advice, assistance and support to the person claiming to be the victim
of bullying etc. This includes approaching the alleged bully seeking
a cessation to the behaviour that is the subject of the complaint.
The contact person should, if required, be an advocate for the victim,
by, for example, ensuring that he or she gets a fair hearing, is not subjected
to further victimisation and so on. In short the contact person,
to be effective, must be seen to be on the victim's side and, consquently,
cannot be regarded as impartial.
Impartiality must be demonstrated by those responsible for investigating the complaint. Where a need for an impartial mediator is identified, that person must be agreed to by all parties involved which may require bringing someone in from outside your organisation.
Clearly the designated contact persons require detailed training in their role and should be selected through a joint union/management process rather than simply being management appointees.
While recognising that one cannot reasonably expect much goodwill from
the hardened bully, natural justice would require that we take care not
to brand everyone who commits bullying, without proper evidence.
It may well be that the person who is the subject of the complaint is not
aware of the consequences or implications of his/her behaviour. For
example, many managers believe that bullying is the only effective way
to manage, consequently by bullying, they think that they are only doing
their job. Initially, at least, such people require re-education
and re-training rather than punishment.
Early intervention in an informed manner may be effective in stopping bullying before it has a chance to get properly started. By responding immediately to a report of bullying, a properly trained contact person can make it very clear to a potential bully that bullying will not be tolerated, without making any harsh accusations which may be difficult to justify.
Certainly, they must be told, by someone, that such behaviour is offensive
etc., because, in the absence of such information, future charges may be
difficult to sustain. Bullies frequently complain in their defence
that they were only joking, which means that before any firm action can
be taken against a bully he or she has to be told that his/her behaviour
is not considered to be funny. In the same way, many complaints of
sexual harassment cannot be formally acted upon until the harasser is told
firmly that his/her behaviour is unwelcome.
It is essential that any action against an alleged bully must commence with an informal approach that does not involve direct accusations and that provides that person with an opportunity to change his/her behaviour. If people go off half-cocked on such matters resulting in any complaints against the bully being disallowed by the investigative process for any reason, the outcome could well be the strenghthening of the bullies' position and a reduced likelihood of any further complaints.
It may not be necessary to involve the managers if the matter can be
satisfactorily resolved through an informal approach by the contact person
or another person whom the alleged bully is likely to take seriously.
Such an approach need not involve a direct instruction, such as, "stop
rather a more general discussion about the offending behaviour and its consequences.
A bullying policy, no matter how carefully worked out, cannot envisage every possible event or reaction. We must ensure that those responsible for its implementation are properly trained and selected to deal with every foreseeable eventuality and are sufficiently flexible to deal with those events and responses that can't be foreseen. If the alleged bully threatens to sue anyone making a complaint then such a threat leaves both the complainant and the organisation with no choice but to move straight into the formal procedure. Also, the organisation is now under an obligation to provide the complainant with competent legal advice. I do not know what Irish law states on such matters, but in South Australia there is a concept called "qualified privilege" which provides the complainant with some protection under these circumstances.
Certainly the details provided to the alleged bully should be specified,
I would have thought that the person who is subject of a complaint would
have the right to know who has made the complaint and also the nature of
the complaint but personal medical information concerning the complainant
must be kept confidential. I cannot see how the impact of the bullying
on say the worker's family has any relevance to the issue of whether or
not the bullying has taken place.
I would also agree that the victim has the right to determine who is to deal with his/her complaint. This principle is given great emphasis in South Australia legislation. What, for example, if the victim lacks confidence in the organisation's internal procedures? After all the line manager could be a friend of the alleged bully.
I would have thought that the question of whether disciplinary action
is taken against the bully or not would depend at least as much on
the severity of the offence as on whether anyone else has previously complained
about his/her behaviour.
I would also agree that full cooperation should be defined if you want the term included in the policy, but my preference would be for the entire paragraph to be deleted. Penalties should be based on severity not upon the subsequent co-operation of the perpetrator. Bullies are often not stupid and are quite capable of feigning co-operation if they think it will help avoid punishment.
I am afraid that I am unable to comment usefully on the remainder of
the policy or your comments due to my lack of knowledge of your laws, institutions
and so on. I hope all of my comments are of some use.