Bullying in the Workplace: What constitutes as bullying?
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.
Examples of bullying behaviour includes but is not limited to the following:
- Exclusion with negative consequences
- Verbal abuse/insults
- Being treated less favourably than colleagues in similar roles
- Belittling a person’s opinion
- Disseminating malicious rumours, gossip or innuendo
- Socially excluding or isolating a person within the work sphere
- Intrusion - pestering, spying or stalking
- Intimidation/aggressive interactions
- Excessive monitoring of work
- Withholding information necessary for proper performance of a person's job
- Repeatedly manipulating a person's job content and targets
- Blaming a person for things beyond their control
- Use of aggressive and obscene language
What is not considered workplace bullying?
An isolated incident of the behaviour described in the above definition may offend dignity at work, but, as a once off incident, is not considered to be bullying. Workplace bullying should meet the criteria of an on-going series of accumulation of seriously, negative, targeted behaviours against a person or persons to damage their esteem and standing in a harmful, continuous way.
Under the Code, the following examples set out behaviours that do not constitute as bullying:
- Expressing differences of opinion strongly
- Offering unwelcome constructive feedback, guidance, or advice about work-related behaviour
- Ordinary performance management
- Acceptable corrective action taken by an employer/ supervisor which relates to the management and direction of an employee (for example, an employer managing a worker’s performance, taking reasonable disciplinary action against the employee, or assigning the employee work)
- Complaints relating to instructions issued by a manager, assignment of duties, terms and conditions of employment or other matters, which are appropriate for referral under other normal grievance procedures, do not constitute bullying.
How does bullying manifest in the workplace?
Workplace bullying ought to meet the criteria of a reoccurring cycle and accumulation of negative directed behaviours against a person or persons to damage their esteem and standing in a harmful, sustained way. A pattern and trend are involved so that a reasonable person would regard such behaviour as clearly wrong, undermining and humiliating. Bullying activities involve actions and behavioural patterns, directly or indirectly, spoken and/or written and could include the use of cyber or digital means for the goal of bullying.
The Bright Contracts Handbook has now been updated to reflect the bullying code of practice for employers and employees on the prevention and resolution of bullying in the workplace. To access the update, log out of your Bright Contracts company file and log back in, you will then see a yellow bar across the top of the page asking you if you would like to upgrade the content.
If you are not a Bright Contracts customer but are looking to adopt or change your HR Software please don’t hesitate to get in touch. Book a free 15-minute online demo to see how Bright Contracts can change your world of HR.
The Parent's Leave & Benefit Act 2019: Extension of Leave
The Parent’s Leave and Benefit Act 2019 came into effect on the 1st of November 2019 and provides for 2 weeks Parent’s Leave with protection of employment for a relevant parent in respect of a child born or adopted on or after the 1st of November 2019. The purpose of the Act is to enable the relevant parent to provide, or assist in the provision of, care to the child.
In acknowledgement of the difficulties experienced by parents during the COVID-19 pandemic, the Cabinet has announced that parents of children born or adopted from the 1st of November 2019 can avail of an additional three weeks of Parent's leave from April 2021 and will be paid at the rate of €245 a week. The benefit is now for five week’s paid leave for each parent up to their child's 2nd birthday which can be taken as either five consecutive weeks or in smaller separate block of a minimum of 1 week duration each.
Currently the Parent’s Leave and Benefit Act 2019 sets out the entitlements and criteria applicable to Parent’s Leave available to the relevant parent. Eligibility for Parent’s Leave depends on the employee meeting specific criteria including the following,
- The employee’s status as a relevant parent,
- The employee taking the leave within 52 weeks of the birth of the child or in the case of adoption, from the placement date, and,
- The employee providing certain notice requirements.
Entitlement to leave is for a relevant parent which is:
- A parent of the child
- A spouse, civil partner or cohabitant of the parent of the child
- A parent of a donor-conceived child as provided for under section 5 of the Children and Family Relationships Act 2015
- The adopting parent or parents of a child
- The spouse or civil partner of the adopting parent of the child (if the parents have not adopted the child together).
Parent’s Benefit can be applied for at any time to be taken within the first 2 years the child’s life and does not need to be taken directly after maternity leave, paid or unpaid. This leave can be taken within 24 months, up to a child's second birthday or within two years following adoption. This measure will be available from April 2021 as it requires primary legislation to commence the extension of the parent’s leave and the development of the IT system to process the benefit.
Paid parent leave can be taken in addition to existing Maternity Leave, Adoptive Leave, Paternity Leave and Parental Leave rights, as applicable to each "relevant" parent.
To exercise the right to Parent’s Leave, the employee must give their employer at least 6 week’s written notice of their intention to take the leave. To apply for Parent's Leave visit here.
View entitlements under Maternity Benefit and Paternity Benefit.
If you are looking to adopt or change your HR Software please don’t hesitate to get in touch. Book a free 15-minute online demo to see how Bright Contracts can change your world of HR.
Out of Hours Communication: The Right to Disconnect
In line with government health guidance and roadmap for the re-opening of business activities, Employers and Employees alike moved quickly to flexible working arrangements for over the past year. While some Companies have remained in a remote working space, others are introducing a hybrid form of remote and office working.
Since the outbreak of the COVID-19 pandemic, working from home has increased by almost 30% which is expected to remain high or even rise. Research by Eurofound, an agency of the European Union, indicates that people who work from home on a regular basis are more than twice as likely to exceed the maximum of 48 working hours per week, compared to those working in the office. Almost 30% of those working from home reported they work in their free time every day or a number of times a week, compared to less than 5% of office workers.
With the prospect of remote working becoming more normalised, Employers must ensure safety, health and well-being are a priority as a company’s legal duty of care still applies when Employees are working from home. Employers need to be mindful of the employee’s right to disconnect as remote working has the potential to distort the boundaries between work and home spatially.
In August 2019, the Government announced their intention to introduce legislation which would ensure Employees have the right to disconnect and no longer feel the obligation to check work-related emails outside office hours. A Code of Practice on the ‘Right to Disconnect’ has been proposed before the Dáil which if passed will amend some statutory provisions of the Organisation of Working Time Act 1997, the Terms of Employment (Information) Act 1994 and application of the Safety, Health and Welfare at Work Act, 2005.
Organisation of Working Time (Amendment) (Right to Disconnect) Bill 2020
Section 15 of the Organisation of Working Time Act, 1997 is amended through the provision of:
- the right to disconnect from work related e-mails, texts or calls outside of working hours.
- implementation of a right to disconnect policy establishing hours to disconnect
- the production of a report on the right to disconnect detailing ways to:
- minimise out of hours contact.
- establish a standby allowance.
- deliver an overtime payment.
- ensure all working time does not exceed 48 hours.
This amendment to the Act will make it an offence for an employee to be reprimanded, punished, or subjected to disciplinary action if they ignore a work-related communication sent outside of normal working hours, unless already agreed under the terms and conditions of a relevant right to disconnect policy.
The responsibility for Health and Safety at work rests with the employer regardless of whether an employee works remotely therefore it is good practice to ensure employees know how to protect themselves from potential injury and ill health during this time and that they understand their health and safety obligations whilst working remotely.
On April 1st 2021, Tánaiste and Minister for Enterprise and Employment Leo Varadkar signed the new code of practice on the right to disconnect meaning the code comes into effect immediately and will be admissible in evidence in proceedings before a court.
The Code states that the Right to Disconnect Policy should be referenced in an employee’s contract of employment in the same way as any other company policy would. The Code also states that, where appropriate, a company’s Policy should recognise that certain businesses and roles do not always operate on a standard hours basis but in a manner responsive to customer needs where flexibility is required to meet business needs, and as agreed in the employee’s terms of employment. Employers with operations in multiple time zones may consider putting agile working arrangements on a more formalised footing with a view to ensuring balance between the need for clarity in relation to employees’ ‘normal working hours’, and the employer’s operational needs.
It will be important for employers to ensure that the policy is ‘equality proofed’ in order to avoid unintended negative consequences and to ensure that it does not result in employees being directly or indirectly discriminated against on any of the protected grounds under the Employment Equality Acts 1998 - 2015.
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Parent’s Leave & Benefit Bill…. Some paid leave is now on the way for all new parents!
The Government is working on a range of changes to help parents spend more quality time with their children. Last week, they published the new Parent's Leave and Benefit Bill 2019. This Bill is expected to be enacted on or before 1st November 2019.
So what is this….?
The new Parent’s Leave & Benefit Bill introduces the concept of paid parent's leave for employees for the first time in Ireland. Originally called the ‘Parental Leave & Benefit Bill’, this has had a name change to the Parent’s Leave & Benefit bill to clearly differentiate parent's leave from parental leave (which is a separate entitlement!).
What’s included in the new Bill?
- Parents will be able to take two weeks paid parents leave for any child born / adopted on or after 1st November 2019. The leave must be used before the child’s first birthday. In the case of multiple births, a parent will only be able to claim parents leave once.
- It is available to both parents and it can be taken as a continuous period of two weeks or in two separate one week blocks.
- An employee needs to give their employer six weeks' notice of when they want to take the leave, stating the expected start date and the duration.
- Employers are allowed postpone the parent's leave in situations where taking the leave would have a substantial adverse effect on the operation of the employer's business. Employers however cannot postpone the leave for more than 12 weeks.
- Parents receive a statutory payment of €245 per week (they need the necessary PRSI contributions to qualify!).
The Bill does not require employers to pay employees while on parent's leave. It will be up to each employer to decide if they want to top-up an employee's parent's benefit and, if so, by how much. The advice would be to be consistent with approaches taken on the other family leave types.
Company policies should be reviewed and updated to reflect the changes being introduced. This will help you prepare for any increase in staff requests. Make sure you keep your paperwork & record keeping in order.
So…. keep a listen for future announcements on this new leave and we will update our Bright Contracts package with this policy once it has all been finalised.
Employment (Miscellaneous Provisions) Act 2018
The Minister for Employment Affairs and Social Protection, Regina Doherty has confirmed the new Employment Bill, which has been in the pipeline now for a number of years, will come into force on the 4th March. The Bill is being introduced to ‘improve the security of working hours for employees on insecure contracts and those working variable hours’, common in (but not exclusive to) service industries such as hospitality, tourism and retail. These industries often rely on flexibility in the employment contract and therefore the introduction of this new Bill will require them to take note.
The new Act makes certain breaches a criminal offence; where the employer does not comply with the new obligations in the Bill to provide the required information within one month, can lead to criminal prosecution. Fines on conviction could be up to €5,000 or imprisonment of up to twelve months or both. Directors, managers, secretaries or other officers of a company can be individually liable, i.e. be prosecuted individually for offences.
- In summary, the new Act will:
- Prohibit the use of Zero Hour contracts, save for exceptional circumstances
- Obligate employers to notify new employees of five core terms of employment in writing within five days of commencing employment
- Create a new entitlement to ‘Banded Hours’ contracts
- Provide for minimum payments to employees who are required to be available to work but are not actually called to work
The Act also introduces an anti-penalisation provision whereby an employer may not penalize an employee for exercising their rights under the 1994 Terms of Employment Act. An employee who is penalized can be awarded compensation of such amounts as the WRC considers just but will not exceed four weeks remuneration.
The new Act will bring significant changes for Irish employers and employees and according to Minister Regina Doherty; the Act is a “once-in-a-generation reform of our labour market.”
Please visit Brightcontracts.ie for more information on the new Employment Bill which has been in the pipeline now for a number of years and is to be enacted on 4th March 2019.
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Privacy Policies - a GDPR requirement
One of the main principles of GDPR is that Data shall be processed lawfully, fairly and in a transparent manner, these three elements overlap and all three must be satisfied in order to demonstrate compliance.
Employers, as both Data Controllers and Processors, must be able to show how they comply with the new data protection principles and be clear and open with their employees about the processing of data and their rights. The GDPR stipulates that anywhere personal data is being collected, either directly or indirectly, Privacy Notices should be in place, these policies are critical to complying with the transparency obligations in the GDPR. So the introduction of an Employee Privacy Policy will cover the required elements and ensure demonstratable compliance in this regard.
The Privacy Policy should be written in a clear and easily-understandable format and must include;
• What data is processed – name, address, PPS no., bank details, etc.
• How it was obtained – employee detail request form, CV, ROS, etc.
• The ‘legal basis’ for processing the data – contractual necessity, legal obligation, etc.
• Who has access to it and any third parties– HR dept., payroll clerk, pension company
• How it is stored and security – HR system, Thesaurus software, encryptions, etc.
• How long it is kept for –set in company policies or statutory requirements
• The rights of the employee – right to access, rectification, erasure, etc.
• If data is transferred outside the EEA
• Contact details of Data Controller
We have recently upgraded our Bright Contracts software to include a new Employee Privacy Policy feature, so now employers can facilitate the main GDPR principle of lawful, fair and transparent processing of the employee data. We have also updated the Data Protection Policy within the Handbook and the Data Protection Clause within the contracts.
To download a free trial of Bright Contracts, click here.
To request a free online Demo of Bright Contracts, click here.
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Why am I getting all these emails about privacy?
Lately you may have noticed your inbox bulging each morning with lots of emails with similar subject lines to these;
“Your privacy = our priority” “GDPR Data Protection – Your Data is Safe with us”
“Big Changes are coming” “Opt-In to continue receiving our great updates”
“GDPR update – please don’t leave us!” “We’re keeping your details safe”
New, tougher European regulations around privacy and the use of personal data have now come into force and could see companies hit with huge fines if found to be in breach of the new laws.
In order for personal data to be processed lawfully, the processor must be able to rely on the reasoning being at least one of 6 categories, the main one being Consent. So if you were previously signed up with a company to receive newsletters or emails about special offers, they can no longer continue to send you these without your explicit consent.
Previous Data Protection Legislation allowed for an option to ‘Opt-Out’ as being sufficient means to mark having your consent, however with the new GDPR this is no longer the case. Consent must be ‘freely given’ unambiguous’ and for a ‘specific purpose’. Consent must be easily read and clearly distinguishable from other text and evidence must be collected as to how consent was obtained.
Consent can no longer be assumed and the likes of pre-ticked boxes that would have needed to be unticked if you didn’t want to register are now banned. Also the facility to Unsubscribe must be clear and an easy procedure to follow.
So all the emails you have been receiving, like those listed above, are those companies that you may previously have signed up with, scrambling to cover themselves for GDPR and not wanting to lose you as a possible customer or sale.
For more information on GDPR and how it may affect your organization, please see our dedicated online support documentation here.
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How GDPR will affect your employee processing
The General Data Protection Regulation (GDPR) will come into force on 25th May 2018 changing the way we process data forever. The aim of the GDPR is to put greater protection on the way personal data is being processed for all EU citizens. Personal data can be anything from a name, an email address, PPS number, bank details etc so as you can imagine employers process a huge amount of personal data on a daily basis. So how will the GDPR affect employers in terms of processing employee data?
Consent
Data in the employment context, will include information obtained from an employee during the recruitment process (regardless of whether or not they eventually got the job), it will also include the information you hold on current employees and previous employees. All this information may be saved in hard copy personnel files, held on HR systems or it could be information contained in emails or information obtained through employee monitoring.
Under GDPR your employee’s will have increased rights around their data.
These rights will include:
- The Right to Access. It’s not a new concept that employees will be able to request access to the data you hold on them. However, there is a new recommendation that where possible employers should provide their employees with access to a secure self-service login where they can view data stored on them. This backs-up the whole concept of transparency and ease of access to data, which underpins the new Regulations.
- The Right to Rectification. Individuals are entitled to have personal data rectified if it is inaccurate or incomplete. This is an existing right and the onus is on the employer to ensure that your employee records are kept up-to-date. To help ensure you maintain up-to-date records, employers should make it easier for employees to update their data.
- The Right to be informed. Employers must be very transparent with employees about what data you hold, why and how long it is held for. Up until now it has been the common practice for many employers to include a standard clause in the employment contract regarding the processing of HR Data, under GDPR that will no longer be sufficient. Employers need to be reviewing their Employee Data Protection Policies and possibly writing new Employee Privacy Policies that go into detail on the processing of employee data.
Employee self service
Under the GDPR legislation, where possible employers should be able to provide self-service remote access to a secure system which would allow employees view and manage their personal data online 24/7. Furthermore, the cloud functionality will improve your payroll processing with simple email distribution, safe document upload, easy leave management and improved communication with your employees. By introducing a self-service option, you will be taking steps to be GDPR ready.
For information on how long to keep on employee files please see our blog: How long should you retain employee records under GDPR?
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What harm can two jam tarts make?
The Employment Appeals Tribunal decided an employee was fairly dismissed when jam tarts were found missing from a packet. The man in question, Moran, worked in the warehouse for Keeling’s Logistics Solutions, who operated as a distribution company for the supply of goods to just one customer.
An investigation was carried out when the security manager saw Moran and a colleague “acting suspiciously” beside an open cage, containing boxes of jam tarts. He claimed to see the cage being moved and that he saw the men eating something and putting their hands inside the cage. The investigation found that Moran had tampered with a packet of jam tarts and two individual tarts were missing. CCTV footage was reviewed and the men claimed that they were sharing a Mars bar and denied eating the jam tarts.
Finding
The employer had a strict policy that no stock would be consumed on the warehouse floor and installed vending machines on the shop floor to prevent staff tampering with and eating their stock. The employer carried out a disciplinary procedure and dismissed Moran, who then appealed the decision but lost. The EAT found that Moran’s evidence was not credible and on the balance of probability that he did tamper with the stock.
“The Tribunal also found that there were no procedural defects which would render the dismissal unfair. The investigation, disciplinary meetings and appeal were thorough, fair and objective.”
Learning Points
The importance of having firm policies and applying procedures when dismissing an employee are prominent in this case. 80% of unfair dismissal cases are lost by employers not because they didn’t have a good reason for dismissing the employee but because they have failed to follow fair procedures. As an employer, you do not want to be subject for a hefty unfair dismissal claim that could have been easily avoided.
Bright Contracts - Employment Contracts and Handbooks
Using CCTV in the Workplace – What you need to know
Whilst commonly used across many Irish workplaces, the use of CCTV raises issues regarding data privacy for both the employer and employee. This is particularly true considering the increasing capabilities of CCTV including face recognition and voice recording capabilities.
The Data Protection Commissioner recently issued new guidelines in relation to CCTV which apply to its use in the workplace.
Key features of these guidelines include:
- CCTV use must be justified
- Example: if monitoring for security reasons, CCTV should address specific concerns that arose prior to the installation of the system.
- Images captured must be reasonable
- Example: if using CCTV externally every effort should be taken not to capture passers-by or neighbouring property.
- Detailed assessments should be conducted
- Where CCTV in place in the workplace employers should be able to show that:
- A risk assessment was conducted to justify the need for CCTV,
- A privacy impact assessment was conducted,
- A policy should be in place for staff which includes details on why CCTV is in place, where it is, how it is captured, who has access to the data, and how long it is retained for,
- There is evidence of previous incidents giving rise to security and/or health and safety concerns,
- Clear signage is in place indicating where recording is in operation.
If you use CCTV in your workplace and would like further information, a full guide for Data Controllers is available on the Data Commissioner’s website.
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