The tinsel is on the tree and the naff Christmas jumpers have been ordered. Over the coming weeks, employees will descend in their droves upon bars, restaurants and hotels across the country (and further afield in some scenarios) as the festive season kicks-in.
 
For the vast majority of employers, the Christmas parties is a chance to let your hair down, get to know your team at a more informal level and show thanks to everyone for their contribution they’ve made over the past year. However, it’s critical you ensure things don’t get out of hand.
We might not like to think about it, but the Christmas party is fraught with dangers that could severely impact employee relations and even lead to legal issues for your organisation. As such, it’s important a balance is struck between the seasonal merriment and clarifying that inappropriate behaviour, such as sexual harassment, will not be tolerated.
Guilty by Association
Many employers are not aware that their duty of care to staff extends beyond normal working hours to work-organised Christmas parties. The legal position on it, and other similar events outside the office, is that they are sufficiently related to work to warrant liability. This means that you, as an employer, are responsible for the wellbeing of staff over the course of the party.
Moreover, the law may also hold you responsible for the actions of your staff. As an employer you may be vicariously liable for any employee wrongdoings. Put simply, with the Christmas party deemed as a work event, should a member of your team act in appropriately – be it sexual harassment, verbal or physical abuse, and so forth – you could be found guilty by association.
 
In the #metoo era, where people are rightly more willing to share and denounce their experiences of sexual misconduct, employers too, have a responsibility to take measures to minimise the risk of such unacceptable behaviour.
Here are some measures you can take to limit your exposure and encourage a fun, respectful Christmas party:

• Put your policies in black and white

Do you have a Christmas party policy? If you don’t, you’re in the majority. Most employers feel their existing work/ alcohol and substance abuse policies are sufficient. The reality is that they just create ambiguity. A dedicated policy ensures there is no confusion among employers as to what is deemed inappropriate behaviour and the repercussions of disregarded in company’s position on such matters.

• Communicate clearly and concisely

There’s no point having a policy if no one knows about it. Email communications relating to the Christmas party, should contain more than the basics i.e. venue, time, etc. In addition to attaching your Christmas party policy, state clearly that this is a work-related event, outline the running order for the evening and highlight when the party will officially end

• Provide Transport

Remember you have a duty of care to staff. If the party is held away from the office, then you have a responsibility to ensure your employees get to and from it safely. The best way to do this is to arrange transport on their behalf. This again should be communicated prior to the party so everyone is aware of the where, when, who and how of what’s been organised.

• Disown the afterparty

Christmas party after-parties, where groups of employees may decide to keep the festivities going into the early hours, are not uncommon. As am employer you must make clear that anything employees arrange beyond the official Christmas party is not endorsed by the company, that it is outside the course of their employment and they are responsible for their own actions.

• Beware the free-flowing booze:

Very often, Christmas party behavioural issues can be directly linked to the amount of booze that’s been consumed. Alcohol reduces peoples’ inhibitions, leaving them more likely to act in ways they never would when sober.
To avoid such incidents don’t encourage mass consumption of alcohol. That generally means no free bar or some form of limit on the number of drinks per person. This will decrease the chances of accidents, fights and unsolicited sexual advances as a result of drinking. If needed, be prepared to tell individuals to stop drinking if they start to appear too drunk or rowdy.
Despite even the best laid plans, things can be said and done that need to be addressed. If you find yourself in this unfortunate situation, do not discipline any employees at the party itself as this could cause further issues on the evening. Send the person at fault home if necessary and deal with the incident when you are back at the office.
 
Most importantly, remember this is a time to show your appreciation to your employees and get to know them beyond their day-to-day office roles.

When something goes wrong in business a common reaction is to try to shift the blame. More often than you may think, regardless of the position they hold, employees seek to find ways to avoid accepting responsibility for their mistakes. This leads to many companies having to deal with what is known as ‘the blame game’ on a regular basis. Of course blaming others - or indeed management processes - for mistakes is counter-productive and greatly decreases a business’ efficiency and effectiveness. Furthermore, it leads to companies wasting time finding out who, or what, caused a problem, rather than seeking to both solve and learn from it.

So, how can businesses avoid the blame game and encourage staff not to shift responsibility on to someone else when things go awry? Actually, one of the most effective ways of achieving this is through generating a strong, transparent and supportive company culture. Here are 4 ways in which HR can help create a company culture that turns the blame game on its head and boosts teamwork, productivity and efficiency.
 
1. Promote ‘Just Culture’ In the Workplace

Many industries, from aviation to healthcare to manufacturing, understand the importance of ‘just culture’ in the workplace. ‘Just culture’ – which makes up part of overall company culture - can be described as companies creating an environment wherein mistakes are seen as part and parcel of everyday business. Instead of being lambasted for their errors, employees are encouraged and supported to come forward if they do something wrong.

Businesses and HR departments that promote just culture facilitate honesty amongst employees and ultimately improve a company overall. It is only through employees owning up and having the confidence to face up to their mistakes that companies can learn and build upon errors that are made. A company that ignores ‘just culture’ risks having employees sweep mistakes under the rug, or incorrectly blame others for their wrongdoings, which can have hugely detrimental implications for a business.
 
As business owners and managers will know, more often than not mistakes are made because of bad management or incorrect processes. Harnessing a company culture that promotes admitting to mistakes allows businesses to learn and build upon them, ultimately improving company processes. Simply put, employees are much less likely to make the same mistake twice if their initial error has been openly discussed and they have been supported in rectifying it.
 
2. Ensure Psychological Safety
 
‘Just culture’ helps to foster an environment where employees are more honest and open, and therefore feel more psychologically safe. This is crucially important in business. Firstly, and most obviously, psychological safety of employees is essential in industries like healthcare and aviation where the psychological wellbeing of employees is vital to keep those that use the services safe.
 
However, it’s not just about keeping customers safe, ensuring employees feel psychologically safe is of paramount importance when it comes to the mental wellbeing of staff members. We all know the age-old mantra, a happy worker is a productive worker – and unsurprisingly a big part of that happiness comes from mental wellbeing. Businesses and HR professionals should empower employees to admit to mistakes by promoting the idea that, in owning up to a mistake, they are helping rather than hindering the company. This makes for a more open, happy workforce and more efficient and effective management processes. A win-win for all.

3. Encourage Looking Out For Each Other
 
Employees who feel isolated are more likely to try to cover up mistakes and, if they get away with it, they could fall into a vicious cycle of hiding wrongdoings. Making sure that employees look out for each other is an important way to improve teamwork and prevent covering up mistakes. Rather than making employees feel like they are grassing on one another, employers should encourage staff to assist those that seem under pressure and make sure workers know they can ask for assistance when necessary. Promoting the idea that employees are ‘all in it together’ is a great way to stamp out a cover-up culture and detect issues among staff early on. After all, early detection of an issue is the best way to prevent it from spreading and becoming a much bigger problem for the business as a whole.

4. Educate HR in Dealing with Reported Problems
 
Let’s be clear, mistakes in business are commonplace. There will always be issues that arise and making sure that the HR department is prepared to deal with problems which are reported is crucial to the smooth running of a business. Knowing how to support staff in need, how to correctly report, react and file an incident when it occurs, and how to treat those who have made a mistake in the correct and appropriate manner are all areas in which HR professionals should be well versed. As a department, HR is often the first port of call when it comes to reporting workplace problems – therefore it would be foolish not to ensure that all HR staff are well drilled in dealing with these situations as and when they arise.

Generating a company culture that treats mistakes as blips that are actually necessary for the advancement of the business not only empowers workers to admit to mistakes, it improves productivity and benefits a company in the long run.
 
For more helpful HR tips and advice, CLICK HERE to sign up to our newsletter.


​

The recent reports of workplace harassment, especially in the tech industry, are nothing short of appalling.  Some of the biggest tech companies in the world, from Uber to Squarespace, have found themselves at the centre of harassment scandals as more and more people come forward to unveil their traumatic experiences. With a shocking 60% of surveyed women working in tech in Silicon Valley saying they have been subject to unwanted sexual advances, the time for action is long overdue.
 
Let’s be clear, harassment comes in many forms – be it sexual or otherwise – and it is certainly not confined to the tech industry. While the Employment Equality Acts are in place to ensure all employers are obligated to prevent harassment in the workplace, more can be done when it comes to developing a workplace environment that stamps out harassment of all kinds.
 
Being the go-to department for dealing with harassment in the workplace, HR is crucially placed to help companies knock both harassment, and bullying, on the head. Of course there are many ways to tackle this issue – from having harassment policies in place to disciplinary action, however, there’s one aspect of business which is becoming increasingly important when dealing with harassment in the workplace: company culture.
 
So, here are 4 ways in which organisations and HR professionals can promote and uphold a strong company culture that is open, fair, and fosters the necessary conditions to help prevent harassment in the workplace.  

1. Ensure Voices are Heard

Speaking out is often one of the hardest things to do for victims of harassment of any kind. Organisations simply must create a company culture where speaking out about problems or issues, no matter how big or small, is the norm. This relies on HR professionals ensuring that all employees are encouraged to speak their minds and are not afraid to express how they feel.
 
Importantly, what may seem like a small issue to one member of staff may not be for another. It is vital that HR departments realise this to ensure that harassment in all forms is being prevented. Giving employees both the confidence and the platform to talk about issues affecting them at work creates a company culture that promotes fairness and equality. When employees know they have a voice and are being listened to, it’s more likely for them to find the strength to come forward - in turn creating an invaluable company ethos and team spirit.

2. Clear the Grey Areas
 
When it comes to identifying and stopping workplace harassment it is very important that a company, as far as possible, sets out policies that are void of grey areas. This means generating a culture that is always open and crystal clear with what is, and is not, tolerated in the workplace. In turn, each and every employee must know the boundaries which cannot be crossed. One person’s joke may be another person’s insult – HR professionals must always keep this in mind and treat every issue of harassment with the seriousness it deserves. In a nutshell, the clearer an organisations policy is, the less likelihood of grey areas.

3. Keep Check on Positions of Power

Unfortunately, abuses of power are often the cause of workplace harassment. It is vitally important, therefore, that HR professionals make sure to treat all members of staff on a level playing field when it comes to dealing with issues of harassment. Remember, there is a vast array of different types of harassment, which may be hard to detect. For example, not giving someone a promotion due to their age, gender or race, is a form of harassment that HR professionals may not spot at first. So, it is astutely important to keep an eye on the inner goings on of the office, especially the power dynamics, to prevent all forms of harassment. Creating a company culture that bases its management system on respect and fairness throughout its ranks will go a long way to helping stop workplace harassment.
 
4. Promote Diversity
 
Last, but by no means least, harnessing a company culture that both promotes and champions diversity is key to preventing workplace harassment. As businesses diversify more and more, drawing in talent from all over the world has become an essential way for organisations to increase talent acquisition, productivity and profitability. After all, it is only through a diverse workforce that businesses can have a fair, well-measured opinion on the requirements of its customers. Of course, HR professionals need to be aware that a melting pot of cultures and opinions can lead to more workplace clashes and managing this is a crucial aspect of HR nowadays.

Clearly, company culture is not a silver bullet for dealing with workplace harassment. However, upholding a strong company culture that encourages employees to speak up and promotes diversity can go a long way when it comes to tackling workplace harassment. Businesses striving to create the most open, fair and value driven processes they can is no longer an option - it’s a necessity.
 
For more helpful HR tips and advice, CLICK HERE to sign up to our newsletter. 

There’s been a lot of talk lately about the challenges facing businesses across Ireland in attracting and retaining the very best employees. The economy is growing and the pool of talent is shrinking daily, and every business advisor and HR expert is keen to offer their two cents. Indeed, I’ve written a number of pieces on the topic.

However, this article looks at the less popular but equally (if not more) important issue of dealing with problem employees. You know the type, they always miss deadlines, refuse to take on any more than they absolutely have to, and ultimately drain the motivation and productivity of the whole team.

Research conducted last year by Northwestern University’s Kellogg School of Management and Cornerstone OnDemand revealed that, replacing a problem worker generated almost four times the value of hiring a top performer. According to the research, replacing a toxic employee with an average one produces almost €13,000 in cost savings. Even super star employees – those in the top one percent of all workers – only bring an extra $5,300 in value by doing more work than the average employee, which just demonstrates the necessity of paying attention to both ends of the employee spectrum.

Firing an employee – even a blatantly negative one – is a difficult process and, despite your best efforts can still damage team morale. Before deciding if a problem worker should go, I would always recommend addressing the issue head-on in a bid to correct their behaviour. Quite often, with a little support and the right approach, these heel-draggers can become your biggest heroes. The infographic below, courtesy of cloud communication company GetVoIP, helps describe some of the most common toxic employees and offers tips on how to deal with them.

If you do find yourself in a situation where there’s no other option but to go down the route of terminating an employee’s contract then ensure you follow your company’s policies and procedures to the dot, otherwise you may find yourself before the employment equality tribunal for unfair dismissal.

For more helpful HR tips and advice, CLICK HERE to sign up to our monthly newsletter.
 
David Bell is Managing Director of The HR Department, outsourced human resources specialists for Irish SMEs.
​

It’s that time of year again, the day that people either love or hate: St Valentine’s Day. You may think that your employees should be kept busy with work, but apparently nothing stands in the way of potential love.  While they can't be prevented, office liaisons are not always a joy for business owners, so keep an eye out for these tell-tale signs that an office love affair is brewing and manage it before it gets out of hand.

Six Signs that John and Mary have become star crossed lovers:

They Avoid Eye Contact
When John was first hired and met Mary from the office, there was a bit of competition between them, which at times led to team tension. It was only natural as an employer to be relieved when they became cordial with each other and finally clicked as colleagues.

Everything seemed to be going smoothly, until suddenly they became extremely formal with each other. Now they barely make eye contact in public any more. In fact, when found in a room together, Mary blushes, John looks pale, and they both suddenly leave.

They Never Leave the Office Together 
“OK, I'm out of here,” Mary announces loudly, making sure everyone in the office can hear.

“Lucky you! It will be a late one for me.” John answers just as loudly. “See you tomorrow”.

Regardless of office size, most employees tend to leave work around the same time. However lately, for some odd reason, John and Mary make a point of letting everyone know they are leaving individually.

They're Both Putting in an Awful Lot of Overtime 
John and Mary have always been good employees, but they used to have lives outside of work. Now (when they aren't making sure everyone knows they are leaving separately) they are both the first into work in the morning and the last to leave, and when someone is needed to put in some overtime, John and Mary will be the first to volunteer.

Their Annual Leave and Sick Days Keep Matching Up 
The first time John and Mary took time off at the same time it seemed to just be a coincidence, however when they also began calling in sick on the same days, office gossip started. In fact, it has become more surprising to see one of them in the office on a day when the other is out, even more intriguing, if either one of them is asked what they did on their time off, they reply with a vague answer. 

They Start Fiercely Defending Each Other
Your business may be known for imaginative, brainstorming sessions, with no hard feelings and employees being able to enjoy the freedom of engaging in lively debate and witty banter. They are confident and skilled, and everyone knows it's nothing personal if an idea doesn't get backed.

At the last development meeting, Mary offered an idea that was immediately shot down by other team members, however when John adamantly defended her position beyond any logic, it created a strange tension amongst the group.

They Both Look Great 
Mary was always pretty, but there were days when it looked like she had just rolled out of bed and wasn't too put together. Now her make-up is always perfect, she's sporting a new hairstyle and she wears stylish new outfits. 

John was a good-looking guy, but a bit of a couch-potato outside of work. Then he started jogging at lunch time, and instead of eating his usual crisp sandwich he was suddenly discussing benefits of protein and eating lean chicken and salad. Soon Mary started going for a lunch time run too and they both joined the same local gym which they now attend regularly after work.


FACTORS TO CONSIDER

Before potentially facing sticky situations like above, it’s important to consider factors that come into play when co-workers begin to mix their personal lives with professional responsibilities on the job.

In addition to the legal consequences that could arise, more often than not, office relationships have an overall negative impact on the workplace, as workplace relationships may spur gossip, rumours and innuendo, which can be disruptive to the office and can negatively impact the reputation of the company if customers or clients are exposed to it. The same activity can make the affected couple feel bullied, which can lead to harassment charges from them.

Whilst office romances are not ideal, the most potential to cause problems are those that involve a supervisor and one of their subordinates. Often, fellow team members believe favouritism is occurring between the two, and that the supervisor is not being fair and objective when delegating responsibilities in the work place. It could be questioned that the lower level employee is being given special consideration by their partner when it comes to handling tasks or completing job requirements.

Another matter to take into consideration would be that other employees may believe they can’t discuss or complain about their team member to the supervisor involved in the relationship. If this is the case, issues that would generally be discussed will remain unspoken and un-addressed, which could lead to a decline in moral, and quite possibly filing of a discrimination suit.

Issues can become even more complex when you consider the likelihood of the supervisee having a certain influence over the supervisor that other employees wouldn't have. In addition to this, potentially due to the relationship, employees could accidentally disclose information to their partner, which could easily happen when sharing events of the day with one another.

Perhaps two of the most important factors to consider are when the couple has an argument or splits up. It would take a very professional employee to be able to keep their personal life separate from business matters and it could be possible that the couple may act out their feud on an employer’s time. Potentially, co-workers may be pulled into the argument and feel they need to take sides. This in turn may detract from the team’s productivity as a whole.

As office romances that end badly can roll into the daily work environment, employers may find themselves dealing with concerns such as diminished productivity or mediating between employees who are no longer co-operating with each other. This may also affect other employees, who could potentially feel hostility towards one of the team members in the former relationship, creating a negative tension in the workplace environment.

Additionally, there is the potential for employees to seek out employment elsewhere when relationships come to an end, which means employers risk losing strong employees who feel that they can no longer work at the company because of the breakup.

Finally, the most harming factor to consider as a result of an office romance breakup, especially if there is a difference in rank between the two individuals involved, is a sexual harassment claim. There could come a point where one person wants the relationship to continue and the other person doesn't, which in turn may lead to an employee seriously considering filing a sexual harassment lawsuit.


TAKING THE RIGHT STEPS

Simply speaking, the best way to avoid negative repercussions on office romances is to forbid employees from dating and never hire married couples, however in today’s world, the is unrealistic and would prove very difficult to sustain.

It is critical to work closely with an HR professional to anticipate problems and set solutions. All employers, regardless of company size, should have formal policies on office relationships in place, which should include what is allowed and what the consequences are if rules are broken. In every policy, it should be stated that any office relationship, regardless of rank, should be disclosed to the employer.

The employer should also reserve the right to decide on which type of employment action, if any, needs to be taken due the relationship, whether it is transferring an employee to another department or termination of employment.

However, just having a company policy in place isn't enough; companies need to ensure there is regular training available, particularly on the topic of sexual harassment. Often employees don’t know the extent of liability that could potentially arise from office romances, and how disruptive they could be in the workplace.

It is also imperative that the policy needs to be consistently enforced at every level of the organisation. Whether it is a CEO or an Assistant Executive that violates the policy, the same rules should apply. If not, team morale will be dampened and no one will follow the policy. Employers may even open themselves up to potential lawsuits from employees who believe they have been discriminated against.

At the end of the day, the goal of an employer is to provide a professional atmosphere where company targets can be achieved. Ideally, the working environment should be pleasant enough that your staff can enjoy themselves while being as productive as possible.

Interpersonal relationships between employees are unavoidable, so being aware of the potential downsides and types of relationships that are developing will go a long way to sustaining as much of a "hazard free" environment as possible.



The contents of this article are necessarily expressed in broad terms and limited to general information rather than detailed analyses or legal advice. Specialist professional advice should always be obtained to address legal and other issues arising in specific contexts.

As every employer will know, employee rights are a minefield that needs to be navigated carefully. One wrong step could result in very costly legal proceedings. Nowhere is this truer than in the case of unfair dismissal. In the last month alone numerous cases of unfair dismissal have been reported in the media, from the Dunnes Stores worker who sold alcohol to a minor to the customer services representative at Oxigen who was dismissed for using expletives in an open office.

Also remember in a unfair dismissal claim it is presumed the employee was unfairly dismissed unless the employer can prove otherwise!

So how do so many companies end up in this position? While every case is different, there are two points at which the majority of businesses fall down:

1.       Clearly outlining the disciplinary process in the contract of employment and staff handbook

2.       Poor implementation of the disciplinary investigation

1.       Your Contract of Employment and Staff Handbook

From the time that employment commences, each staff member should be provided with a contract, which they must sign, and staff handbook that clearly stipulate the terms and conditions of their employment. Amongst these terms and conditions are the disciplinary procedures adopted by the company for dealing with issues of performance, bullying, negligence, misconduct and so forth. The procedure serves as a guideline, not just for the employee but for the employer too, that can be implemented when necessary, ensuring that a fair, unbiased and systematic series of series of steps.

Here are some considerations when drafting your employment contract and staff handbook:

a.       How long a probation should I have?
b.      Will I pay employees on sick leave and if so for how long?
c.       Do I have a clear job description?
d.      Will my employees be working at different locations?
e.      Who will carry out disciplinary investigations?
f.        Do I need a CCTV policy?
g.       Do I need a social media policy?
h.      What are the employees statutory leave rights?
i.         Do employees need to keep some annual leave for Christmas or Easter

2.       Poor Disciplinary Investigation Process

While it is important to clearly state the disciplinary process in your staff handbook, it is equally important that it is implemented effectively. As part of the process, an employer should carry out a disciplinary investigation, even in cases of apparently ‘obvious guilt’ or where there is an admission of guilt. With this in mind, an investigation should always be carried out prior to any disciplinary action if an employer is to ensure it does not fall foul of the principles of fairness and natural justice established by case law.

Remember, as an employer you must be able to demonstrate that you genuinely believe that the employee is guilty and that this belief is based on reasonable grounds, after having carried out as much investigation into the matter as is reasonable in all the circumstances of the case. A flawed or incomplete investigation can undermine the entire disciplinary process, leading to claims of unfair dismissal, costly legal battles and hefty pay-outs that often cripple smaller businesses.

Below are some points, provided by UK based commercial law firm Hill Dickinson, that every person carrying out the investigation should consider before commencing:

1. What’s the problem? Clearly identify the allegation to be investigated.
2. Independence and impartiality - ensure the investigating officer is independent: they should not have any previous involvement in, or knowledge of, the matter.
   
3. Open mind - the investigating officer should keep an open mind. Their task is to look for evidence which weakens, as well as supports, the employee’s case; it is a fact finding exercise.
4. Swift investigation - ensure the investigation is commenced and concluded without unreasonable delay; it is important to establish the facts and put the allegations to the employee promptly before recollections fade.
   
5. Expectations - where significant delays in concluding the investigation are anticipated, this should be notified to the affected employee and where possible a timescale for completion given.
6. Preserving evidence - the investigating officer should consider what evidence or documentation they might require. Where evidence is likely to perish or be removed or destroyed this should be gathered as a priority.
   
7. Fair investigatory meeting - interview the ‘accused’ employee to establish his/ her version of events; give the employee advanced warning of the meeting and time to prepare. The employee should be made aware of the allegations against them, preferably in writing and be provided with any documentation that the investigating officer wants to speak to them about.
8. Representation - be aware that, although there is no statutory right for an employee to be accompanied at an investigatory meeting, the right may apply under the company disciplinary procedure or by reason of custom and practice.
   
9. Witnesses - interview witnesses, sometimes more than once if necessary. Employers need not interview all available witnesses once a fact has become clearly established.
10. Record keeping - if possible, have someone accompany the investigating officer to interviews so they can take a note of the interview allowing the investigating officer to focus on the questions. Ask the witnesses to read through the notes and confirm they are a true reflection of the conversation by signing and dating them.
    
11. Confidentiality - witnesses should be advised not to discuss the investigation with other employees or third parties and, where appropriate, be reminded of their legal duties of confidentiality.
12. Impartial reporting - after collating the evidence, including statements and relevant documents, the investigating officer should draft an investigation report setting out a summary of the evidence including any inconsistencies. They should not draw any conclusions: that is the role of the disciplinary panel.
    
13. Recommendations - depending on what the employer’s disciplinary policy says, it may be within the investigating officer’s remit to recommend whether the matter should proceed to a disciplinary hearing.

The contents of this article are necessarily expressed in broad terms and limited to general information rather than detailed analyses or legal advice. Specialist professional advice should always be obtained to address legal and other issues arising in specific contexts.

Bullying in the workplace continues to be a major human resources issue in Ireland. For small to medium business owners discovering that a member of your staff is being bullied can be a major cause of stress and anxiety. More significantly, if it is not addressed in a timely and appropriate manner it can lead to damage to your business’s reputation, costly legal disputes and a loss of earnings.

Let’s set the scenario: A member of staff comes to you to complain that they are being bullied by a fellow employee and that they are considering leaving the business as a result of this behaviour. What do you do?

Firstly, there are two issues that you should be concerned about in this situation that are linked but should be dealt with separately;

1.       Properly investigating the bullying allegation

2.       Ensuring that if the staff member leaves that you don’t face an action for constructive dismissal.

Unless you have experience in these matters and are happy that you will be able to deal with the investigation, you should consider getting advice from a HR consultant before embarking on taking any action.  However, if you do decide to proceed on your own here is a seven step outline of the process you should go through:

1. Refer to your policy on bullying that you should have in your handbook or safety statement and should have been given to every staff member.  If you don’t have a policy you are already in a difficult situation as you will have to investigate the allegations without a written policy or procedure in place that could result in problems if you do find yourself defending a claim for constructive dismissal. 
2. Sit down with the staff member who is making the allegations and take a full and detailed statement from her under the following headings:

·                     Confirmation of who she is making the allegations against;

·                     Full details of the particular incidents she is complaining about and

·                     Whether there are any witnesses to the alleged incidents.

Difficult as it may be you should resist drawing any conclusions or committing yourself to any particular course of action before you have had a chance to talk to all those concerned. 

1. Depending on the seriousness of the bullying allegations and the state of mind of the staff member making the allegations you might also want to consider if it is appropriate to offer her time off, on full pay, whilst you are carrying out your investigation. You should then, if practical, put the allegations into some form of a statement for the employee to consider and sign. You should also assure her that she should remain on as an employee until the investigation is completed and a decision is made as to what action to take, if any.

1. Following this, talk to the person who has been accused of the bullying behaviour.  This is clearly going to be an awkward situation and it is not uncommon for the person to express disbelief and shock at the allegations.  Again it is important that you give as much information on the allegations so that the person has time to consider them and respond accordingly.  You should also make it clear that you are merely conducting an investigation into the allegations and that this is not a disciplinary process.  Again, if possible you should get the staff member to prepare some form of statement in response to the allegations.  As with giving the alleged victim an option of time off, you may also have to consider a suspension on full pay of the person accused of the bullying if you feel the situation is serious enough for that course of action. 

It is essential that you assure the staff member who has been accused of bullying in the workplace that the suspension option is only because the work circumstances mean that it would be difficult for the two individuals to work together and not part of a disciplinary sanction.

1. You should also take statements from any other members of staff or otherwise that either of the employees offer as witnesses.
2. Once you have completed the process of taking the statements you will then have to consider if there are grounds to take the next step which is a disciplinary investigation.  The difference with this investigation is that you are taking an action on a staff member under your disciplinary procedure.  Again, if you don’t have a written procedure in place you have to make sure that you carry out the investigation fairly and give all parties as much information as possible as to what is being alleged and an opportunity to answer any claim made against them.

1. Once the disciplinary investigation is completed, depending on the outcome of the investigation, you will then have to take the appropriate action against the staff member.  For example, if the allegations are found to be true and to be at the higher end of the scale you may have to consider a dismissal or a suspension.  For lesser offences you could issue a written or verbal warning on the clear understanding that if there is a re-occurrence that the possibility of dismissal is high.  This process will be a lot easier if you have in place a proper written procedure on how a disciplinary process will work, irrespective of the type of conduct by the staff member that requires action by the employer.

As I mentioned at the start, investigating and addressing the accusation of bullying in the workplace is one issue. As an employer it is important to ensure you minimise your exposure to claims of unfair dismissal. The best way to do this is to clearly demonstrate a fair and rational disciplinary procedure. It should clearly set out the basis for the disciplinary action and the range of penalties that can be imposed. It should also provide for some form of internal appeal mechanism.  This is another reason why an employer should consider having another senior member of staff or an outside person carry out the initial investigation as the employer can be the person to hear the appeal.  Any allegations should be clearly explained to the employee concerned and they should be given a chance to respond fully to these allegations.  An employee has the right to be represented, if they wish, and if appropriate all allegations should be set out in writing.

Following on from this if an employer can show that a fair process was followed then it would be more difficult for a disgruntled employee to resign from her job and then bring an action for constructive dismissal.  A lot of constructive dismissal claims, where an employee resigns but claims that they were left with no option, are grounded on the allegation that the investigative and/or the disciplinary procedures followed by the employer were flawed and did not follow the employers own policies or if there were no policies did not follow the rules of fairness and natural justice.

Given the relative size of a lot of small businesses the reality is that investigations into these types of allegations are difficult, particularly as both the accuser and the accused often work in close proximity to one another.  The employer can also find it difficult because they don’t want to have to take sides or be seen to make the wrong decision.  If you feel that you are unable to be objective you should consider getting another senior person unconnected with the situation to carry out the investigation or alternatively get someone from outside the business to do it who has some experience in these matters.  That way you will certainly be able to show that you took the allegations seriously and had a full and thorough investigation into the allegations.

The contents of this article are necessarily expressed in broad terms and limited to general information rather than detailed analyses or legal advice. Specialist professional advice should always be obtained to address legal and other issues arising in specific contexts.

David Bell, Managing Director of the HR Department, recently joined Bobby Kerr on Newstalk's Down to Business for a panel discussion to discuss the importance of human resources in business. David discusses a number of the challenges employers face and the necessity of introducing clear cut processes. Listen back here: