For organisations, big or small, accusations of sexual harassment are alarming. With the current press surrounding the allegations of sexual harassment made against Harvey Weinstein, businesses world-wide should reflect on their own internal policies and how they would deal with allegations of this nature.
In Australia, we have an abundance of laws protecting employees from sexual harassment in the workplace. At the federal level, employees are protected from sexual harassment under the provisions of the Sex Discrimination Act 1984 (Cth). Most states and territories in Australia also have anti-discrimination legislation prohibiting sexual harassment in the workplace. In Victoria, this is the Equal Opportunity Act 2010 (Vic).
The anti-discrimination legislation at federal and state level also prohibits victimisation against employees who complain about sexual harassment in the workplace. Similarly, the Fair Work Act 2009 (Cth) prevents a person from taking adverse action against another person because they have exercised their right to make a complaint of sexual harassment.
In more serious cases, and depending on the conduct involved, sexual harassment in the workplace may also constitute a criminal office.
Unfortunately, notwithstanding these protections, a study conducted by the Australian Human Rights Commission in 2012 titled Working without fear: Results of the Sexual harassment National Telephone Survey revealed that 1 in 5 people (21%) over the age of 15 years have experienced sexual harassment in the workplace in the past five years.
Given its prevalence, employers should ensure they are equipped to deal with allegations of sexual harassment in the workplace when they arise.
Have a clear process in place
If an employer is alerted to or witnesses sexual harassment in the workplace they should be careful and thorough in dealing with it. In order to do so, there are processes that can be adopted to ensure that the employer protects itself from costly litigation for example the alleged offender is afforded procedural fairness and the complainant is protected throughout the process.
Below are a few steps that should be taken by employers if allegations of sexual harassment are raised in the workplace:
- Take the concerns seriously: Any allegations of sexual harassment should be taken seriously and should remain confidential. Full details of the initial complaint should be recorded and the complainant should be offered access to any employee assistance scheme.
- Conduct an investigation: Hiring an external investigator to thoroughly investigate the allegations will allow the company to eliminate any unconscious bias. Ensure that the investigator has access to all the information and people required. Suspension of the alleged offender during the investigation process is a common step.
- Maintain transparency: It is important to outline the process of the investigation and highlight potential timelines for both the complainant and the respondent. As a general rule, employers should have a detailed sexual harassment and grievance policy which sets out the complaints and investigation process.
- Consider and communicate the investigation outcome: The outcome of the investigation into the allegations should be communicated in writing to both the complainant and the respondent. If the allegations have been substantiated, disciplinary action ranging from a warning to termination of employment should be considered. When conducting any disciplinary meeting employers should ordinarily provide the respondent with an opportunity to have a support person present, as this will be a consideration in any subsequent unfair dismissal claim.
- Give a right of reply: The employer must provide an opportunity to the offending employee to respond to the allegations and the outcome of the investigation. If an unfair dismissal claim is subsequently made to the Fair Work Commission, the Commission will take into consideration whether the person was notified of the allegations and given an opportunity to respond to the reasons for dismissal.
As always, employers are encouraged to obtain legal advice when dealing with allegations of sexual harassment in the workplace.
About the author
Trent Hancock is a Senior Associate with McDonald Murholme, an employment law firm based in Melbourne and Adelaide.