Preventing workplace sexual harassment - obligations for directors

In January 2021, Safe Work Australia released new guidance aimed at assisting directors and officers discharge their duties under WHS laws to address the risk of sexual harassment occurring in the workplace. We take a look at what directors need to know.

The Safe Work Australia guide, Preventing workplace sexual harassment, (Safe Work Guide) identifies sexual harassment as a workplace hazard that is known to cause psychological and physical harm.

Persons conducting a business or undertaking (PCBU) (including directors and officers) have a positive duty under WHS laws to eliminate, or minimise so far as is reasonably practicable, the risks of workplace sexual harassment. Managing these risks should therefore be part of an organisation’s holistic approach to work, health and safety.

According to the Safe Work Guide, this process should involve:

• identifying hazards;
• assessing any associated risks;
• implementing control measures to eliminate or minimise risks; and
• regularly reviewing control measures to ensure they remain effective.

We take a closer look at the steps directors can take to discharge these duties, and create safer, healthier and more respectful workplace.

Identifying and assessing the risks

The Safe Work Guide highlights key factors for organisations to look out for which can increase the likelihood and risk of sexual harassment occurring. These may include, for example, less diversity in the workforce (e.g. gender, age and culture); power imbalances where one gender holds most of the management positions; use of alcohol in the work context and/or attendance at social events as part of work responsibilities; and interactions with clients, customers or members which may give rise to third-party sexual harassment.

When identifying hazards to ensure the organization has appropriate controls in place, it is important that organisations draw on the experience and knowledge of their workers. Doing so can help illuminate the areas or pockets of the organisation most at risk of experiencing sexual harassment when performing their work, including outside of the fixed workplace.

To identify hazards, it may be useful to:

• walk-through and assess the physical work environment;
• assess the online working environment if relevant (e.g. how social media is used for work purposes, how workers interact with each other, managers and third-parties);
• consider work systems and practices to identify risks of exposure (e.g. working after hours with minimal supervision);
• observe the culture of the workplace to see whether sexual harassment is accepted as normal behaviour – key to this is observing how leaders, managers and works interact with one another (e.g. are sexual or gendered jokes tolerated as part of daily working life or do workers avoid being around certain people);
• carry out confidential anonymous worker surveys about the workplace culture, if workers have experienced sexual harassment, or behaviours that have caused discomfort; and
• review grievance data such as formal and informal complaints about concerning behaviours.

However, Safe Work Australia urges boards not to rely solely on formal reports of sexual harassment in the workplace, given a lack of reporting does not necessarily mean that sexual harassment is not happening. As the Australian Human Rights Commission (AHRC) identified in a 2018 sexual harassment survey, only 17% of workers who experienced sexual harassment reported the conduct.

Controlling the risks

Once the organisation has identified possible risk factors to look out for, it is important for boards and senior leadership to take steps to either eliminate or minimise the risk of sexual harassment occurring in the workplace, so far as is reasonably practicable. Critically, the focus should be on prevention and early intervention mechanisms. This might include, for example:

• implementing workplace behaviour policies and practices that make clear that sexual harassment will not be tolerated, and that promote respectful and inclusive workplace culture for all levels of the organisation;
• encouraging workers to report sexual harassment and providing safe, confidential and clear avenues to do so, including anonymous reporting;
• providing resources and training to support the overall prevention strategy – this should include training for key workers or contact persons (e.g. managers and HR personnel) on how to receive reports of sexual harassment as well as bystander-intervention for those that witness sexual harassment;
• using recruitment and promotion strategies that create a diverse workforce – this should start from the top, including ensuring diversity on the board;
• responding to reports of sexual harassment in a way that focuses on supporting the worker and is sensitive to any trauma to minimise further risk to health and safety; and
• applying appropriate consequences such as disciplinary action for sexual harassment misconduct.

Of course, determining what control measures are reasonably practicable to prevent sexual harassment is a matter for the board to weigh up. Importantly, control measures will be different for every organisation depending on the size and demographic of the workforce, as well as the nature and location of the work.

As with mitigating other WHS risks in the workplace, managing the risk of sexual harassment is an ongoing process. Directors should review the risk management systems, processes and policies regularly to ensure they remain effective.

Responding to reports of sexual harassment

Responding to sexual harassment allegations in the workplace can be a complex issue. It is important that organisations create a supportive environment where workers feel safe to discuss their experience of sexual harassment. Key to this is demonstrating not only that such information will be kept private and confidential, but that reports of sexual harassment are taken seriously with clear consequences being applied in response to misconduct.

When dealing with reports of sexual harassment, the organisation should put the complainant at the centre of the solution. As sexual harassment is best managed by responding as soon as possible after suspecting or becoming aware there is a problem, the complainant should be promptly consulted to:

• determine whether they wish to pursue their complaint formally, informally or in some other way, and what support they require;
• discuss how the information will be handled and how they can maintain their confidentiality (or where the complainant elects, the confidentiality of all parties involved); and
• advise of any mandatory reporting obligations that the organisation has as the employer, either under state and territory laws or as part of the worker’s employment contract, that may limit confidentiality.

Any information about a worker’s experience of sexual harassment is sensitive and organisations should take all reasonable steps to ensure any information disclosed by workers is kept secure and confidential (if the complainant elects). In most cases, de-identified information about a complaint or issue, particularly for reporting and discussion at board level, should be used to improve the prevention and response initiatives.