By Anthony El Salim

One in three Australians have experienced sexual harassment in the workplace in the past five years, and even though we’ve come a long way, there’s still so far to go. The recent passage of the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (‘Respect at Work Act’) has refined the way sexual harassment must be addressed in the workplace, placing a positive obligation on employer’s to actively stamp out its occurrence rather than simply deal with it when it arises.

Here we share key factors businesses must look out for and suggest important steps to take to address employers’ new duties.

Positive duties under WHS law require every business to do all they reasonably can to prevent sexual harassment from occurring in the workplace. So, what is sexual harassment?

The legal definition of sexual harassment, as stated by the Human Rights Commission, is: “An unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated and/or intimidated, where a reasonable person would anticipate that reaction in the circumstances”. This can include things such as:

  • unwelcome touching;
  • staring or leering;
  • suggestive comments or jokes;
  • sexually explicit pictures or posters;
  • unwanted invitations to go out on dates;
  • requests for sex;
  • intrusive questions about a person’s private life or body;
  • unnecessary familiarity, such as deliberately brushing up against a person;
  • insults or taunts based on sex;
  • sexually explicit physical contact; and
  • sexually explicit emails or SMS text messages.

The Respect at Work Act has also been amended to prohibit where workplace environments are hostile and create a feeling of unwelcome or exclusion towards a person because of their sex or characteristics related to their sex. This can include conduct that isn’t necessarily sexual in nature but nevertheless creates the possibility for offensive, intimidating, or humiliating conduct to occur. The seriousness and repetition of the conduct, the role of the person, and their influence and authority will be among the relevant considerations.

It’s important to note that sexual harassment from one employee to another can also happen outside the workplace. In such cases, the business still needs to take action to address this.

How should employers address instances of sexual harassment in the workplace?

If a business has matters of potential sexual harassment within the workplace, there is an obligation to investigate the allegations.

This means that businesses should look at conducting a formal and impartial investigation to understand whether any allegations brought to their attention can be substantiated on a balance of probabilities. This could involve interviewing potential witnesses, reviewing internal communications such as emails and talking directly to the parties involved.

Depending on the nature of the allegations, it may also be appropriate to suspend the respondent (the person the allegation is against) on full pay while you fully investigate the matter. Should the respondent remain in the workplace, it’s appropriate to limit the complainant (the person making the allegation) and respondent’s contact with one another until a full investigation has been conducted and the matter has been appropriately addressed.

If the allegations are substantiated, the business should consider undertaking a disciplinary or termination process depending on the severity of the conduct.

Throughout this process, it’s important to be mindful of the sensitive nature of the matter and ensure that it’s addressed professionally and confidentially. While undertaking an investigation process, businesses should support the complainant as much as they can, and this could involve things such as offering access to the business’s employee assistance program.

How can a business mitigate sexual harassment occurring in the workplace?

Under the Respect at Work Act, businesses’ duties concerning sexual harassment in the workplace extend not only to addressing it when it occurs but taking proactive measures to prevent it in the future.

The measures that any business may be required to take to assess and address risk in the workplace will depend on what is reasonable and proportional to their size, nature of business, resources, and practicability. This can include:

  • Formal training – undertaking formal training on workplace conduct and sexual harassment can be a great education process for employees so there is a clear understanding of what is considered acceptable and unacceptable behaviour. When you are undertaking face-to-face training, it allows you to directly engage with employees and answer questions as they arise. However, this alone won’t be enough to discharge the duty.
  • Policies and procedures – having in-depth policies about sexual harassment will clearly outline the business’s expectations concerning the behaviour of employees inside and outside of the workplace, and the consequences for breaching the policy. Policies should also provide a clear outline of how to raise these matters through the appropriate channels, and procedures for how the business will investigate and address them.
  • Collecting and monitoring data – especially relevant to large and medium-sized businesses, staff surveys will be an effective tool for spotting workplaces issues. Where the surveys are anonymous, this will mean employees may be more open to disclosing the unspoken instances of harassment in the workplace that might otherwise never be addressed. This might also include exit interviews and surveys when employees leave the business.
  • Ongoing support – access to an Employee Assistance Program (EAP) and referral to relevant information and external support systems is a more hands-off approach that can ensure employees feel comfortable in being supported without directly contacting management.
  • Observing workplace culture – now that hostile working environments are considered part of the sexual harassment framework, extra attention will need to be paid to observe whether exclusionary behaviour towards one sex, sexual or gendered jokes, or otherwise sexually charged conduct is accepted in your workplace. Especially where demographics in a workplace are skewed, extra attention should be paid to interpersonal dynamics and interactions that may need to be proactively addressed.

Tools to stamp-out sexual harassment in the workplace

Taking active measures to stamp-out sexual harassment in the workplace is a must, and one of the ways you can do that is by implementing regular training and development for all workers – that’s why the team at HR Assured has designed a bespoke e-Learning course – it’s an effective way to protect your people from harm’s way and mitigate risks in your workplace. This is now available to HR Assured clients.

If any of this information has raised questions about addressing sexual harassment in your workplace, please reach out to our workplace relations experts via our 24/7  Telephone Advisory Service.

Anthony El Salim is a Workplace Relations Advisor at HR Assured. He assists clients with a range of employment relations and compliance matters via the 24/7 Telephone Advisory Service. He is currently studying for a Juris Doctor.