Do you have to act on reports of sexual harassment if no formal complaint is made?

Often it is the case that victims of sexual harassment don’t feel comfortable reporting incidents of sexual harassment. As a result, the victim and the perpetrator may merely remain the subject of office gossip. This is not a healthy situation for employees, or indeed as we have seen in the news recently, the organisation’s culture. These incidents can fester and develop a culture that rewards, or at least ignores harassing behaviour without accountability or consequence.

But do employers have to act when they hear this office gossip without an actual or formal complaint? Unfortunately, we hear this question more than we like. The answer is YES!

Why should you address these rumours?

  1. It is the right thing to do. Even in the absence of law, most people believe that individuals should have the right to work free from harassment.
  2. The law backs up this societal expectation by requiring employers to take all reasonably practical steps to eliminate or minimise harm or risk to the health and safety of their workers. Sexual harassment and assault constitute harm for the purpose of these obligations. Failure to take reasonably practicable steps could constitute a breach of this requirement and could, in certain circumstances, result in an employer being liable to prosecution or other penalties in addition to the reputation harm.
  3. Employers can be held vicariously liable where an employee sexually harasses another employee in the course of employment. In some jurisdictions, vicarious liability arises from common law, and in others, including Victoria, it arises from legislation. Vicarious liability for employers means that an employer is held accountable for the actions of its employees. It can result in significant penalties or damages being payable to an employee who has been wronged. Generally, an employer can refute vicarious liability where they can show that they took all reasonable steps to prevent the harassment occurring – we discuss this below.
  4. Culture is another reason to act. In a marketplace where attracting diversity and skilled employees is becoming increasingly difficult – organisations should be demonstrating that their workplace culture is sound.

How do you address these rumours?

No doubt it’s tricky, and sometimes uncomfortable, to deal with allegations of sexual harassment in the workplace but as noted above, it is unavoidable. Employers must demonstrate they have taken reasonable steps which involves considering:

  • the likelihood of the hazard or risk occurring – you may not know this if the victim isn’t complaining; the degree of harm that might result – sexual harassment can cause considerable harm particularly mental illness and stress which is a good enough reason to act; and
  • ways of eliminating or minimising the risk – there are many options available from staff training to counselling to investigations and dismissal.

The steps we recommend employers take include:

  • talk to the alleged victim about the incident – offer them counselling services and make them aware of other support available, while being discreet at the same time;
  • take into account the preferred outcome of the alleged victim, if any, and make an assessment about what should be done having regard to your various work health and safety obligations as an employer;
  • consider whether you need to undertake a formal investigation, suspend or terminate the alleged perpetrator – or consider whether a formal warning and workplace training is all that is required;
  • adhere to the principles of natural justice – both parties have a right to be heard and to respond to the allegations; and
  • take records throughout the whole process – keep those records confidential and appropriately secure the records.

Moving beyond a specific incident, organisations should ensure that harassment policies are reviewed regularly, with staff reminded, as part of their induction and on an ongoing basis, of their obligations not to engage in conduct that may be considered sexual harassment. A robust and practical whistle-blower policy and procedure would also be a useful way to demonstrate a culture that discourages unacceptable behaviour.

Speak to us if you have any issues. We can help you navigate this tricky issue.

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