Preventing sexual misconduct in the workplace

Sexual misconduct in the workplace continues to be extremely topical and reported widely by the Australian media. Following, among other things, the Sex Discrimination Commissioner's 2020 Respect@Work Report, the Commonwealth Government very recently announced legislative reforms including:

• amendments to the Fair Work Act 2009 (Cth) to more clearly empower employers to dismiss perpetrators of sexual harassment by clarifying that sexual harassment can be conduct amounting to a valid reason for dismissal; and that the definition of "serious misconduct" includes sexual harassment as a type of behaviour that can justify summary dismissal;
• extending the anti-bullying jurisdiction under the Fair Work Act to cover sexual harassment, enabling the Fair Work Commission to make "stop the sexual harassment orders";
• amendments to the Sex Discrimination Act 1984 (Cth) to ensure greater alignment with work health and safety laws, to make the system for addressing sexual harassment in the workplace easier for employers and workers to understand and navigate, and to clarify pathways to commence proceedings for sexual misconduct; and
• amendments already introduced into the Senate which provide for paid leave for those experiencing miscarriage, designed to assist with rebalancing gender inequality in the workplace.

In this article, we provide practical and effective recommendations that employers can adopt to ensure that their workplaces are safe and free from sexual misconduct. Our tips will keep you ahead of the legislative reforms to come and ensure you are complying with best practice.

1. Update your policies

It goes without saying that it is important to regularly review and update internal training and policies.

Policy and training information needs to be up to date, resonate with the audience, and reflect an organisation's and the community's expectations and HR best practice. We recommend your policies are reviewed and revised to ensure they address the following points:

• Make express statements that sexual misconduct is unlawful and unacceptable.
• Policies apply to everyone in the workplace, especially managers and leaders.
• Use clear definitions of sexual misconduct, including relevant, contemporary examples.
• Acknowledge that gender inequality drives sexual misconduct.
• Provide information about internal and external reporting mechanisms and support structures.
• Listen to complainants, including by avoiding an "innocent until proven guilty" approach.
• Investigation procedures should prioritise the wellbeing, protection and safety of the complainant.
• Assurances that all persons who report misconduct will be protected from victimisation and retaliation, including bystanders.

2. Roll out a reinvigorated training program

The Respect@Work Report specifically called out that current training practices aren’t working. To provide best practice training, we recommend the following:

• Include a clear message from leadership that sexual misconduct is not tolerated.
• Training must state that sexual misconduct is against the law.
• Make the training regular and appropriate to the audience, taking into account literacy levels and language spoken; using language that's inclusive and accessible to all workers, and accommodating the needs and experiences of the particular workforces or groups in a workplace, including women, men and gender-diverse/non-binary workers.
• Training may be delivered separately to groups of men and women, before assembling the groups together to reflect on their different insights and what they have learned.
• Provide examples or scenarios that are realistic and relevant, including specific examples based on the industry, workplace environment and the size of the employer.
• Include information about the effects of such acts upon victims, and about the consequences for perpetrators and those that may know about the misconduct and have not done anything to bring it to the attention of employers.
• Training should advise how to raise a concern, make a complaint, or get support.

The roll-out of reinvigorated training programs should also focus particularly on management at all levels, from direct line managers and supervisors to executives and the Board.

You should consider how other workers who may not traditionally have been included in workplace training programs, including casual staff, contractors, consultants or expert advisers, customers and labour hire staff, could be provided with adequate sexual misconduct education.

3. Allocate responsibility to executives, management and the Board

Traditionally, responsibility for managing and preventing sexual misconduct has been with Human Resources. However, a key theme of the Australian Human Rights Commission Report Equality Across the Board: Investing in Workplaces that Work for Everyone was shifting the responsibility from HR to management and implementing changes to shape culture and attitudes towards sexual misconduct from the top down.

Responsibility for managing and preventing sexual misconduct can be allocated to executives and senior management by including it in their performance objectives (eg. KPIs) or as an accountability that they have to report to the Board or shareholders. Making it their individual responsibility will assist with a top-down zero-tolerance culture to sexual misconduct in the workplace.

Ensuring that it is an issue to be included in Board reports also ensures there is transparency at the highest level of the business about what allegations have arisen, how they have been dealt with and how they are being addressed going forward.

4. Create a risk matrix

Safe Work Australia's national guidance material for preventing workplace sexual harassment sets out that managing the risk of sexual misconduct in the workplace should be treated in the same way as any other work, health and safety risk.

We recommend creating a risk matrix to identify and assess the risk areas in the workplace, for example, groups of employees in which there is a lack of gender diversity; locations in the workplace that have little visual oversight; employees who are required to engage in social events with clients (particularly where alcohol is involved), or groups of employees from which sexual misconduct complaints have been raised in the past.

Identifying these high-risk areas will assist in developing a plan for how to address and minimise the risk of sexual misconduct occurring, as far as reasonably practicable.

5. Implement an anonymous employee wellbeing audit

An anonymous employee wellbeing audit or survey is a great way to gather information for your risk matrix and develop a plan to minimise the risk of sexual misconduct in the workplace. Free from the possibility of victimisation, retribution or career impact, employees may be more likely to identify problem areas and blind spots within the business in respect of sexual misconduct.

The other advantage of anonymous audits is that (in some cases) action can be taken to address issues without the need for a formal investigation. If issues are raised anonymously, management can, for example, implement more supervision in a certain area of the workplace, monitor email interactions or remove certain employees from the area, if necessary.

6. Create a bystander policy and training

A specific bystander policy can help empower everyone in the workplace to take responsibility for preventing sexual misconduct. Such a policy, along with training, can help people become allies against sexual misconduct, and empower employees to intervene to stop sexual misconduct, as well as report it when necessary.

A bystander policy should make it clear that it is everyone's responsibility to prevent and report sexual misconduct, regardless of their involvement or role. It should also provide assurances that no bystander reports will result in victimisation or retribution.

7. Allocate contact officers or support people within the business

HR will always play an important role in receipt and management of sexual misconduct complaints. In addition, managers should also be identified as "contact officers" or "support people" for sexual misconduct matters. This will likely assist some employees to come forward with personal or bystander complaints. Being able to raise sexual misconduct matters with a senior person that an employee is familiar with and works with on a daily basis can help the employee feel supported and safe in making the complaint. Also, having multiple contact officers and support people throughout the business sends the message that preventing sexual misconduct is taken seriously at all levels of the business.

We trust these tips have provided practical ideas for new strategies for dealing with sexual misconduct in the workplace. For any additional information on any of the topics raised in this insight, please contact our team.