In any business, best results can be achieved when employees work closely together. In fact, it is not uncommon for personal relationships to develop out of such working relationships.

Difficulties arise, however, when attraction between employees is not reciprocal. So, as we celebrate Valentine's Day, how can an employer manage unwanted Valentines in a way that working relationships are able to continue effectively?

Define sexual harassment

A common response to an allegation of sexual harassment is that the alleged perpetrator does not believe or does not understand that they have engaged in inappropriate behaviour. Most businesses have policies and procedures in place that take a stand against sexual harassment in the workplace, but many do not define what constitutes sexual harassment.

In addition to setting a legal definition within your policy, give examples and make it clear that sexual harassment takes many forms, and need not be between employees only.

This definition may include acts such as unwelcome hugging and touching, 'off-colour' jokes and unwelcome Valentines. Sexual harassment can arise where a man harasses a woman, a woman harasses a man, or where there is harassment between people of the same gender. It may also cover situations in which a visitor to the workplace sexually harasses an employee, or vice versa.

Generally, a person sexually harasses another person (the person harassed) if the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or engages in other unwelcome conduct of a sexual nature in relation to the person harassed in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

Have an easy and effective complaints procedure - and follow it!

Victims of unwelcome advances or other conduct that may be considered sexual harassment must have a clear and easily navigable process to follow in raising concerns. Ensure that there are alternative contacts, which are not limited to one gender, should an employee be uncomfortable speaking with a particular designated complaints officer. Mechanisms should also be in place for employees to raise concerns in cases in which they may be worried that a particular incident may not be serious enough for a formal complaint.

As well as representing a practical issue, policies and procedures that are out of date, impractical to apply or simply cannot be located may be a hindrance to defending a claim.

An employer will be vicariously liable for the actions of an employee or agent who has engaged in sexual harassment in connection with their employment or duties as an agent, unless it is established that the employer took all reasonable steps to prevent the employee or agent from engaging in the sexual harassment. It has proved extremely difficult for an employer to escape liability for the actions of their employees, directors and agents.

In considering whether an employer has taken all reasonable steps to prevent sexual harassment from occurring, court decisions have held that, amongst other things:

  • The size and sophistication of the business will be highly relevant. Businesses that are big enough to 'know better' may be held to a higher standard than a smaller business.
  • The reasonableness factor applies to the nature of the steps actually taken and not to determine whether it was reasonable not to have taken steps in the first place. In this respect, how a situation of sexual harassment that arises is dealt with, or not dealt with, and how a purported victim of sexual harassment is treated, will (beyond any non-compliance with 'best practice' management of sexual harassment) be highly relevant to determining whether reasonable steps were taken by the employer.
  • There is a minimum expectation, irrespective of the nature of the business, that there will be a policy in place that defines sexual harassment and sets out a complaints procedure, which is communicated to all employees, as well as regular training.

To this end, we suggest that employers take occasions such as the lead up to social events as an opportunity to remind employees of policies that are in place and the procedures they may follow in instances of suspected sexual harassment. There must also be a strong culture of lead by example amongst managers and executives.

Understand the scope of your potential exposure

There have been a number of decisions that have interpreted the reach of the workplace very broadly, and have found that an employer may be vicariously liable for the conduct of their employees or agents in situations that may, on the face of it, be considered quite removed from the workplace as we think of it.

Courts have held that any location at which employees are located in connection with their employment, even where this is outside working hours or away from any employer endorsed function. For example, after hours in hotel rooms or other staff accommodation during a conference or other work related excursions. Liability for sexual harassment may also extend to employee homes and other locations away from work which may not themselves be a workplace, but the fact of employees being gathered in circumstances where there is a continuation of acts that have occurred in the workplace, may have that effect.

You can read more about our findings about sexual harassment in Australian workplaces, and further tips for employers in relation to the issue of sexual harassment, in our publication The Serious Business of Sexual Harassment .

For more advice about how to manage an actual or suspected instance of sexual harassment, or to have your anti-discrimination strategies, policies or practices reviewed or updated, contact a member of our team.

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