Sexual harassment policies, procedures and investigations – a guide for employers
Unfortunately, workplace sexual harassment is again in the spotlight. As a result, many employers may be wondering whether their sexual harassment policies, systems and procedures are up to standard.
Employers that do not maintain up-to-date policies, fail to provide the appropriate training and support, and bungle the management of complaints, risk not complying with their duty to provide a safe workplace for their employees. The effects of sexual harassment can be devastating on individuals and these effects can be exacerbated by a sub-standard, poorly handled or unnecessarily drawn out investigation following a complaint.
Preventing and responding to workplace sexual harassment – a summary
- Employers have a duty to provide a safe workplace, which includes mitigating against the possibility of sexual harassment;
- Employers can be held responsible for sexual harassment by employees;
- Policies should clearly set out employer expectations of employees, and should be communicated to employees;
- Robust and timely investigation of complaints is essential for fairness and employee confidence;
- Proper systems and procedures can help to minimize the risk of sexual harassment, ensure a safer workplace and minimize employer liability.
What is sexual harassment?
Sexual harassment is defined as "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." Such conduct might include:
- Unwelcome touching;
- Staring or leering;
- Sexually suggestive comments, jokes or insults;
- Display of sexually explicit pictures;
- Requests for sex;
- Comments on a person's body or appearance;
- Sexually explicit emails, text messages or phone messages; or
- Repeated unwanted requests to go on dates.
Sexual harassment in the workplace is unlawful under the Sex Discrimination Act 1984 (Cth). The person who engages in the harassment is primarily responsible, however, in many cases, employers can also be held responsible for sexual harassment by employees or agents.
The appropriate approach for employers when it comes to sexual harassment involves two broad areas of focus – firstly, prevention of harassment, and secondly, an appropriate complaints management and resolution procedure.
It is imperative that all workplaces have a comprehensive sexual harassment policy, including a complaints procedure. But just having a policy is not enough – employees must be aware of the employer's expectations of its employees regarding sexual harassment. The reasons for this are three-fold:
- It reduces the likelihood of harassment – helping to ensure a safe workplace for all employees;
- It provides the business the ability to properly discipline employees in breach of the policy; and
- In the event of any sexual harassment, the scope for the business to be held liable for the harassment is mitigated.
The best way to raise awareness of policies is through regular and effective training - communicating to employees a clear idea of what is and is not acceptable.
Despite effective policies and training, complaints can still arise. Employers should clearly designate in their policy how and to whom complaints should be made.
Employers (especially large or high profile employers) can also benefit from having a team in place to assist in the management of any public fallout – this team may include lawyers, HR and public relations advisors.
When a complaint is received, it will in almost all circumstances be appropriate to investigate the complaint.
Before an investigation is commenced, firstly the employer must ensure the safety of all employees in the workplace. This may mean that the alleged harasser may need to be stood down with pay until the conclusion of any investigation. The reasons for this include safety of co-workers, or the prospect that the alleged harasser may seek to influence the investigation. It would also be appropriate to direct the alleged harasser not to contact the complainant.
The employer ought to offer the complainant support and if possible, access to an employee assistance program (EAP) – it is not easy for an employee to raise complaints of this kind, especially if they are in relation to a more senior employee and employer support is essential.
The next step is deciding how to investigate. The investigation is a fact-finding exercise and it will be up to the employer to determine the most appropriate way to establish the facts of the situation. If the business is sufficiently well resourced, an internal investigation by a person appointed to do so (usually a representative from the HR department) may be appropriate. However, if the organization is under-resourced, or if the allegations are serious, it may be appropriate to appoint an external investigator.
In either event, it is essential that the person conducting the investigation be able to perform their role without any pressure to reach a particular result. It is also essential that the investigation be commenced, undertaken and concluded as expeditiously as possible.
In general, an investigation will likely proceed along the following lines:
- An investigation plan is developed, in consultation between the investigator and the employer.
- The investigator may wish to conduct interviews with the complainant, the alleged harasser and any witnesses. All participants in the investigation should be informed that any statements they give will, to the extent possible, remain confidential and be directed not to otherwise discuss the investigation. Notes should be made of any discussions with interviewees and consideration should be given to preparing formal statements to be signed by the relevant interviewees.
- The investigator may wish to peruse any relevant documents, which may include emails, text messages, voicemails or notes. In this regard it is essential that documents be preserved not only for the purposes of the investigation, but also in the event of any court proceedings.
- The investigator will prepare a written report containing their views on whether the allegations are substantiated or not substantiated.
- Based on the findings of the report, the employer will need to make a decision on the appropriate action to take. This decision should be made in light of the employer's policies and other documents such as employment contracts. Action may include training, counselling, or disciplinary action, up to termination of the harasser's employment.
- Generally, it is not appropriate to share with employees the outcome of an investigation beyond confirming that the investigation has concluded and appropriate action has been taken.
Benefits of robust policies and procedures
Proper communication of employer policies on sexual harassment, as well as efficient handling of complaints has the following benefits:
- It minimizes the risk that sexual harassment will occur, resulting in a safer and more inclusive workplace;
- It engenders employee confidence that their employer is actively working to mitigate the risk of sexual harassment, as well as confidence that the employer will deal with complaints fairly and expeditiously;
- Employers can have confidence that investigation findings are soundly based, and further, that the decisions made and action taken following an investigation is appropriate and legally defensible;
- Reduced liability for employers if and when a sexual harassment claim is made by an employee.
Having appropriate and robust sexual harassment policies, training and complaint procedures is essential for any employer. If you have questions about any of the matters raised in this article, or would like advice on implementing an appropriate sexual harassment policy and complaints procedure, or conducting investigations, please contact James Francis, Senior Associate and Head of Employment Law on 03 9629 7411.