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A scandal which broke in 2020 relating to a former High Court judge provided a stark reminder that no workplace is immune from the risk of sexual harassment. It is happening, and every employer has an obligation to keep staff safe. Elizabeth McLean, expert employment lawyer from Pragma Lawyers, explains how.
In June 2020, an independent inquiry commissioned by the High Court found former High Court Justice Dyson Heydon – one of the nation’s pre-eminent judicial figures – had sexually harassed six young associates during a decade-long stint on the bench until 2013.
Heydon’s conduct is said to have included unwelcome physical contact and comments relating to the Associates’ appearances among other unwanted advances. The experience left the Associates feeling so disillusioned and unsafe in their workplace they quit their roles, with some leaving the legal profession altogether.
The Heydon scandal has added fuel to the global #MeToo movement against sexual harassment by turning the spotlight back on to the prevalence of sexual harassment in Australian workplaces and how it is handled.
According to the Australian Human Rights Commission’s recent report into sexual harassment, over the past five years, 33 per cent of people have experienced sexual harassment in the workplace (roughly two in five women and one in four men). In most of these cases, the victim has done nothing about the experience, even in workplaces with a zero-tolerance harassment policy.
To help employers navigate these murky waters and better protect their people, Pragma Lawyers expert employment lawyer Elizabeth McLean has this advice to share.
“At law, sexual harassment is characterised as any unwanted, unwelcome, or uninvited behaviour of a sexual nature which would make a reasonable person feel humiliated, intimidated or offended,” explains Elizabeth.
“It can include unwelcome advances or touching, sexist comments or jokes, intrusive questions or requests, or the exchange of sexually explicit texts, emails or images.”
According to Elizabeth, a pinch of prevention is worth a pound of cure.
“Employers have an obligation to provide a safe workplace for their employees. This includes in the context of sexual harassment an obligation to take all reasonable steps to implement measures to prevent and act on such conduct. If an employer doesn’t do this, they may be vicariously liable for an employee’s actions.”
Crucial to preventing and managing sexual harassment in the workplace is a robust policy that clearly explains that the behaviours are unlawful and intolerable, then sets out what will happen if they occur.
“Good policies clearly define sexual harassment and provide examples of the different forms it takes. It is imperative that all employees, regardless of seniority or position, understand that they must adhere to the policy,” says Elizabeth.
“It can be difficult for individuals to report incidents for fear of the consequences. Organisations should designate reliable and trustworthy points of contact for any complaints and develop confidential complaints mechanisms to ensure all complainants feel supported.”
It’s important employers not simply rely on written policy – or a ‘good workplace culture’ – to ensure a stop is put to sexual harassment. Elizabeth says the policy should be regularly reviewed and updated, and reinforced by regular training provided to all employees.
If sexual harassment or abuse is reported, it is crucial that it is treated seriously and responded to quickly according to the process set out in the policy.
“Procedural fairness is the hallmark of a proper investigation. It is a facet of natural justice which requires, among other things, that an employee with an allegation(s) levelled against him/her is provided with sufficient detail of the allegations to enable him/her to properly respond,” Elizabeth explains. “In workplace investigations, procedural fairness does not require the level of evidentiary scrutiny seen in courtrooms.”
“The investigation should be carried out by someone with sufficient qualifications or experience. This may be someone from Human Resources or, in some circumstances, someone independent and external. An external investigator may be necessary where internal personnel lack the requisite experience, where the allegations involve a particularly senior employee or where risks of bias exist, for example where the investigator knows the complainant or the alleged perpetrator personally.”
To ensure the integrity of the investigation, and to protect all parties involved, Elizabeth stresses the importance of a fair and thorough process – the independent investigator must gather all the relevant evidence then fairly and objectively consider and test that evidence. If an investigation is prejudiced in any way, it can lead to expensive litigation, prosecutions and serious reputational damage to the employer.
“All parties should be supported and treated with respect during investigations. The employer owes duties to the complainant, the alleged perpetrator and the witnesses,” says Elizabeth. “Where sexual harassment has occurred, employers should review their procedures, policies and culture to see what can be done to prevent such conduct in the future.”