The recent “Me Too” campaign and the media publicity surrounding some high profile harassment claims is a timely reminder for employers to ensure that they take appropriate steps to minimise their risks in the event of a sexual harassment claim as well as, of course, ensuring that their workplaces are healthy and safe for all employees.
So, are employers always vicariously liable for acts which constitute sexual harassment or sex discrimination under the relevant legislation, committed by one or more of their employees? The answer is no.
Whilst there are differences in terminology throughout the various State and Federal discrimination legislation, an employer is generally excluded from being vicariously liable for such acts where the employer has taken “all reasonable steps to prevent the employee or agent from doing (such acts)”.
How does an employer take all reasonable steps to prevent its employees from doing such acts? This of course depends upon the circumstances. However, having appropriately drafted policies and procedures (including complaints procedures), ensuring employees are properly trained and inducted in relation to such policies and procedures, and taking appropriate action where breaches have occurred, will no doubt go a long way in demonstrating that reasonable precautions have been taken.
It should also be noted that there are obligations imposed upon employers under the occupational health and safety legislation, as well as the general law, to provide a healthy and safe workplace. In circumstances where an employee’s health and safety has been compromised due to sexual harassment/discrimination, this will also involve a consideration of what (if any) reasonable steps an employer took to ensure the health and safety of its workforce. This in turn, will involve looking into whether the employer has implemented some of the steps/processes outlined in the preceding paragraph.
Accordingly, for the purposes of ensuring risk minimisation and stamping out unacceptable workplace conduct, it is important that employers ensure they conduct regular reviews of their internal processes and procedures to satisfy themselves (and, if called upon to do so, the regulatory authorities and/or relevant tribunal or court) that they have taken all reasonable steps to ensure they are providing workers with a healthy and safe work environment, that is free from unlawful harassment/discrimination.