Whether an employer has taken all reasonable steps in the context of avoiding vicarious liability for sexual harassment claims will depend on the particular organisation, including its size and available resources, the nature of the work and the mix of employees.
There are a number of things that all businesses can do to demonstrate taking “reasonable steps” and making it clear to employees that sexually harassing behaviour is not acceptable.
Below are our top tips for taking all reasonable steps based on recent case law of sexual harassment claims.
1. Have a written policy in place that includes:
- a definition of sexual harassment and provide examples of unacceptable behaviour (including detailing what behaviour outside of work hours is covered by the policy);
- a statement that sexual harassment is unlawful under legislation in Australia. If the organisation’s sexual harassment policy is global, have a supplementary policy or procedure which directly addresses Australian law;
- an emphasis on the organisations’ interest in ensuring compliance with the policy, including that legal action could be taken against both individuals and the organisation for sexual harassment;
- how employees should raise concerns and how those concerns will be dealt with;
- encouragement for employees to “speak up” when they witness others being subjected to sexual harassment; and
- generally expected behaviour in terms of respect for others in the workplace. A code of conduct can be particularly useful for an organisation seeking to address inappropriate sexual behaviour which may not be strictly sexual harassment - e.g. where no one in particular is targeted by the sexual conduct.
2. Implement your policy. Your policy must be “live” - i.e. in use and staff must be aware of it. Ways to effectively implement the policy include:
- ensure it is easily accessible;
- require employees to “sign up” to the sexual harassment policy and/or code of conduct (and keep records);
- conduct comprehensive training to ensure staff understand the policy and are aware of conduct that may amount to sexual harassment (see note below). Training should be conducted during induction and every couple of years as a refresher - it can be combined with general code of conduct/respectful workplace behaviour training;
- refer to the policy and company stance regularly within the workplace - for example in toolbox sessions, posters around the workplace, in whole of staff newsletters/emails/communications etc; and
- ensure that managers are trained on how to receive and deal with complaints.
3. Keep records of:
- training attendance. Where relevant, have participants sign on to the session and record any activities conducted (e.g. quizzes);
- the particular training presentation in years to come - i.e. even if the training changes in a few years, it is essential to be able to detail exactly what employees have been trained in; and
- anything else the organisation does to implement the policy.