Sexual harassment is unlawful and can cause deep physical and psychological harm to employees. It poses serious work health and safety risk, and businesses have a legal and ethical responsibility to identify and prevent the risks. This is especially true for business owners and directors, who can be held vicariously liable for sexual harassment under anti-discrimination laws in addition to breaching their obligations under WHS laws.
The prevention of sexual harassment and early interventions is key, but just as important is adopting a complainant-centric approach when responding to sexual harassment in the workplace. So, what can employers do to improve their approach when dealing with sexual harassment misconduct, keeping the safety and wellbeing of the complainant front of mind?
What can I do to change how my business responds to workplace sexual harassment?
When it comes to responding to sexual harassment in the workplace, bringing about change relies heavily on support, encouragement and guidance from business owners and directors. The current focus on compliance and reactive management has done little to reduce the number of incidents of workplace sexual harassment, with management prioritising business reputation, and legal and financial liability over other important factors such as the harm to victims.
Allowing this type of misconduct to go unchecked can lead to toxic workplace cultures, and employers should look to taking a more decisive, transparent and ‘complainant-centric’ approach when responding to workplace sexual harassment. The aim is to minimise any further harm to a complainant and puts the focus on a complainant’s safety, wellbeing and wishes in determining what actions are to be taken by the business, and how.
What steps can I take to support a complainant-centric approach?
Flexible response framework
Business owners and directors should work with management to develop a flexible response framework to support a ‘complainant-centric’ approach, understanding that the circumstances surrounding each incident will be different and will therefor require a different response. To support this approach, management should undergo training to understand how trauma and fear can shape how complainants may or may not present, and how to best engage with them.
Procedural fairness
Assessments or investigations should be implemented in a fair and impartial way that supports and empowers the complainant, while still ensuring procedural fairness and the alleged perpetrator’s right to respond to the allegations against them. In cases of serious misconduct, however, the business may need to prioritise employee safety and workplace culture. Unfair dismissal and other risks can be mitigated by following a procedurally sound investigation.
Transparency and confidentiality
Commonly, businesses have responded to workplace sexual harassment by keeping allegations, investigations, and outcomes confidential through enforced confidentiality agreements. While it is a delicate balancing act when navigating confidentiality and transparency, employers should develop policies that enable an exercise of judgement regarding the complainant’s preferences for how the complaint is handled, the seriousness of the misconduct and the benefits to all parties and the business in consideration of these.
Why is this so important?
Incidents of workplace sexual harassment come with significant risk to the business, both legal and reputational. The key legal risks that can stem from a failure to prevent sexual harassment in the workplace include vicarious liability under discrimination laws, WHS claims for failure to mange WHS risks and provide a safe place of work, victimisation claims under anti-discrimination legislation, and civil claims for failing to protect employees from reasonably foreseeable harm arising out of their employment.
Mismanagement of sexual harassment claims can not only cause ongoing trauma for complainants, but also expose businesses to further legal risks. This can include workers compensation claims or stress leave claims on the basis the business has created a hostile workplace, responded to the matter in a way that is discriminatory, breached its WHS obligations, or failed to afford procedural fairness.
Business owners and directors can play a direct role in guiding organisational responses to complaints, by working with management to develop a framework for response to sexual harassment misconduct that applies throughout the business. This would include systems, policies and procedures that prioritise a complainant-centric and transparent approach when responding to workplace sexual harassment. A framework that includes accountability for perpetrators will send a strong message about culture and standards set by the business leaders.
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