We have psychosocial risks, of which sexual harassment is one of the most common hazards. We have a new positive duty to prevent sexual harassment at a federal level that we discussed in our previous blog. The duties are at least similar: "So far as is reasonably practicable'' under health and safety law and "reasonable and proportionate measures" to prevent sexual harassment.

Traditionally, HR has lent expertise and leadership in relation to the prevention of, and response to, sexual harassment. Not surprisingly, HR is drawing on their health and safety specialists in adopting a safety-driven approach – a systems and risk management-based approach.

At Seyfarth, we are adopting the same: bringing together our safety and employment law expertise on this important issue for the benefit of our clients.

In doing so, the following questions are typically being asked:

  1. What should a hazard and risk assessment entail?
  2. When is sexual harassment (or an allegation of sexual harassment) reportable to a safety regulator?
  3. How should a sexual harassment investigation be handled?
    • What steps need to be considered to support the wellbeing of all parties during an investigation?
    • What changes does a trauma-informed approach require when compared to a standard investigation?
    • What about the right against self-incrimination?
  4. What are our control measures for addressing this risk?
  5. How do we respond to an incident:
    • Being the incident itself;
    • The impacts of the investigation;
    • The interaction with any police procedure or regulatory investigations; and
    • More broadly?
  6. To this end, how and when do we monitor control measures?
  7. What audits/surveys, if any, should be undertaken, and to what end?
  8. What should be reported to management about unproven allegations and how should this factor into workplace decisions?

For HR, there is the realisation that traditional HR measures alone (training, a policy and a complaints process) won't be sufficient to satisfy the positive duty.

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