April 7, 2021
Sexual harassment at work: what you need to do
Unfortunately, sexual harassment is too common in Australia’s workplaces. And, if it happens in your workplace, you may find that you’re liable.
According to the law, there is only one way around this. This involves taking certain steps to investigate allegations in a distinct way. Let’s look at what you must do when it comes to sexual harassment in the workplace.
What the law says constitutes sexual harassment
Under the Sexual Discrimination Act 1984, sexual harassment is unlawful in all work-related situations. That means circumstances such as training conferences and the office Christmas party – where harassment is often more likely to occur – usually count just as much as the office itself.
The Act also defines sexual harassment as unwelcome sexual conduct that makes someone feel offended, humiliated or intimidated. The question of whether behaviour is unwelcome is a subjective test. That means it’s enough that the victim didn’t want it to happen. However, the question of whether the victim was offended, humiliated or intimidated is an objective one. This means a court must decide whether a reasonable person would anticipate that the behaviour would have this effect.
Under the Act, employers can be held vicariously liable where their employees commit sexual harassment. This is unless they’ve taken ‘all reasonable steps’ to prevent it. As an employer, this is an extremely difficult threshold to overcome. This is because recently, courts have tended to find in favour of the victim.
Your legal obligations as an employer
Your legal obligations as an employer take two forms. The first is to take steps to prevent it from occurring. The second is to take appropriate corrective action if it does occur.
Preventing it begins by having a solid sexual harassment policy in place. But this is not enough on its own. You must also communicate this policy to employees. They must understand, and know how to report any instances of alleged harassment. Your management must also model what appropriate behaviour looks like. If the bosses aren’t behaving appropriately you can’t expect staff to either.
Often, sexual harassment takes the form of offensive emails or electronic communications. It’s also vital that your sexual harassment policy covers appropriate digital behaviour in the workplace.
It’s also important that you train staff and managers in your sexual harassment policy. They need to know both what to look for and what to do if an instance occurs.
What to do when alleged sexual harassment happens
Even with the very best sexual harassment policy in place and all the training in the world, you may not be able to prevent every alleged instance from occurring.
When someone makes a specific complaint of sexual harassment, you’re obliged to take appropriate remedial action. That means having a proper complaint-handling procedure so that people can report the behaviour. It also means having trained people investigate the incident and making sure that both the alleged perpetrator and the victim are treated fairly and in line with the principles of natural justice.
The law doesn’t provide for any particular procedure businesses should implement but leaves some degree of flexibility. However, the Human Rights Commission recommends businesses use both informal and formal complaint procedures.
An informal response is one that emphasises resolution and it’s more appropriate where the alleged harassment isn’t too serious but the victim wants the behaviour to end. For more serious allegations – or where the complaint involves a senior member of staff or informal means fail – you should conduct a formal investigation.
How to run a sexual harassment investigation
When you’re carrying out a formal investigation of any kind, you should be sure to document as much as you can. You should also be careful to act impartially and responsibly.
Make sure a senior, independent and skilled person runs the investigation. They should interview the alleged victim and particularise the allegations in writing. They should also put these to the alleged perpetrator in full, giving them the chance to respond.
Once this is done, you need to gather all the evidence that you can, although it’s important to remember that facts are likely to be disputed.
Also, often in sexual harassment claims no one has witnessed the event but you still need to speak to other relevant people and gather what evidence you can.
Once that’s done you can determine whether, on the balance of probabilities, sexual harassment has occurred.
What are your options if you find someone has committed sexual harassment?
How you should respond to a finding of sexual harassment depends on factors such as its severity, the harasser’s level of contrition, the wishes of the victim and any past actions, such as warnings or prior incidents.
With these factors in mind, your options can range from counselling and a formal apology to official warnings and disciplinary action, including termination of employment.
It’s also important that you treat the victim fairly, such as offering to reinstate any leave they may have taken as a result of the incident and reimbursing any costs they’ve incurred.
The consequences of getting it wrong
Finally, it’s important to remember that there can be severe consequences for getting sexual harassment wrong.
Most frequently, courts have found in favour of the victim where they bring a claim against an employer for vicarious liability. It’s only in the most watertight cases that an employer escapes sanction. For instance, in one of the rare cases where the court found that an employer had taken all reasonable steps, the employer had:
- A complaint-handling procedure in place which employees knew about.
- Communicated its policy of no sexual harassment to staff through a senior manager.
- Made employees attend training.
Outside of the legal consequences, a sexual harassment incident can often cause real reputational and business damage too – not to mention damage to workplace morale. On the other side of the equation, dismissing an alleged harasser without adequate evidence can leave you exposed to a claim of unlawful termination.
In short, sexual harassment is a fraught area with real repercussions for the victim and potentially for your business too.
If you’d like help preventing harassment in your workplace or need advice on how to deal with a specific incident, get in touch.