04 October 2005
This speech was made by Senator Mary Henry at a conference at the Burlington Hotel.
(1) Although I had practiced medicine for years it was only after my election to Seanad Éireann on the Dublin University Panel that I received complaints about bullying in the workplace. These were in general from people working in the health service and in academia. To my amazement I discovered years later that these were two of the most common areas in which bullying occurs.
(2) Usually the people were very able - not the stereotype of a victim - confident and competent before the bullying began and I could see the effect not only on them but on the service they were supposed to provide.
(3) When I tried to see how specific instances could be dealt with, I was very disappointed to see that not only were they powerless and helpless, so was I. There was little help I could give them. There were internal procedures within hospitals or academic institutions but no specific legislation.
(4) In 2001 a Task Force was set up to make recommendations on dealing with bullying in the workplace. This was followed by the setting up of an Expert Advisory Group in 2004- who issued a report in 2005. I took particular note of the section on legislation issues in the 2005 report.
- There is no specific State Agency at present where cases can be heard by an independent person in a quasi-judicial role while the parties are still employed. Similarly there is not a State Agency that can be accessed by all employees where the findings are binding and enforceable on all parties;
- The Health and Safety Authority has the leading role in coordinating the State response as recommended in the 2001 Report. However, the Health and Safety Authority has no legal framework to adjudicate on cases of bullying and does not provide the individual with specific redress. The individual does have redress for claims of stress and injury to health through common law but this can be traumatic and costly;
- Bullying is not comprehensively addressed, if at all, in employers' Safety Statements;
- The Dignity at Work Charter has no statutory effect;
- The Codes of Practice are not legally enforceable although failure to comply with the Codes may be admissible in evidence in a civil court case, before the Labour Court or the Employment Appeals Tribunal;
- Existing legislation does not specifically cover bullying;
- Some categories of employers and employees do not have access to the Labour Court or the Employment Appeals Tribunal;
- Neither the Labour Relations Commission, Employment Appeals Tribunal nor the Labour Court have specific statutory role in relation to mediation, investigation or adjudication on bullying, other than in the case of the Labour Relations Commission where referrals or complaints are made under the 1990 Act. (Report of the Expert Advisory Group on Workplace Bullying, Stationary Office, (Dublin, 2005) page 13)
(5) Legislation exists in many other countries and American States. The Swedish legislation is the most comprehensive and I would hope we could look carefully at this.
The Swedish Model
The important feature of this model is its focus on the underlying causes of destructive behaviour in the form of victimization. Using risk management theory this system focus is a critical success factor - missing in many interventions to date - if the risk is to be effectively managed. To quote:
"The background to victimization can, for example, be shortcomings in the organization of work, the internal information system or the direction of work, excessive or insufficient workload or level of demands, shortcomings of the employer's personnel policy or in the employer's attitude or response to the employees.
Unsolved, persistent organizational problems cause powerful and negative mental strain in working groups. The group's stress tolerance diminishes and this can cause a 'scapegoat mentality' and trigger acts of rejection against individual employees.
The fact that causes of the problems are to be looked for in conditions at the workplace is especially apparent when several persons have been ostracized over a longer period, one by one, through various kinds of victimization.
Sometimes, of course, there may also be causes of victimization or attempts at ostracization which are to be found in the individual person's choice of action or behaviour. Sometimes, though, one can find that, even in these cases, the root cause is unsatisfactory work situations in which individual employees, in their anxiety or hopelessness, find cause for more and more overtly displaying their displeasure and acting in a way which can harm or provoke those around them."
The model also provides comprehensive guidelines on prevention.
At present the legislation in Ireland is fragmented - all the following Acts must be used: the Industrial Relations Act, 1990; the Safety and Health at Work Act, 1989 (this implements Directive 89/391 EEC); and the Employment Equality Act 1998 (Sections 23 and 32).
(6) The Equality Act 1998 was amended in 2004 so that the reasonableness test which existed in the 1998 legislation was removed. However, the status of the victim is still the central plank. Ideally the status of the victim should not matter - in the trade this is called "status blind".
(7) The Recommendation of the Expert Advisory Group for legislators are not ground breaking but apparently IBEC has objected to them ("Legal Obligation for Anti-Bullying 'not needed'", Irish Independent, 17 September 2005). They are as follows:
- Legislative force to be given to the requirement that bullying be a mandatory inclusion in all employers' Safety Statements and that appropriate policies and procedures be implemented in every workplace;
- All employees irrespective of employer or employment status would fall within the remit of these recommendations;
- All persons in the workforce, whether permanent employees or those operating under contracts of service, must be made subject to the policies and procedures of the employing organization in respect of bullying; and
- The decisions of the Employment Appeals Tribunal or the Labour Court in cases of bullying would be binding and enforceable through the courts.
An objective test is replaced by a subjective one in Section 8 of the Equality Act 2004 which inserts a new section, Section14A into the Employment Equality Act 1998. Subsection (7)(a) of the amended Act provides:
"(i) references to harassment are to any form of unwanted conduct related to any of the discriminiatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person's dignity and relating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material."
(8) I read in a newspaper recently that Patricia Casey, Professor of Psychiatry in UCD, felt too many people in Ireland were on psychotropic drugs unnecessarily - it would be better if they were helped to deal with their life situations rather than giving them anti-depressants or anxiolytic drugs. But can they always deal with their life situations if bullying is involved? Individuals spend an inordinate amount of time trying to circumvent bullying but they can't do it on their own - they need the back up of legislation.
(9) I want to get to a state where people don't have to take cases to the courts because workplace behaviour is so good that bullying does not exist. The public is not very sympathetic and prefers to ignore the issue - the same happened with child sexual abuse and domestic violence. Bullying in the workplace is another form of abuse and it is time to make sure it stops and bring forward the required legislation.
