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Sexual harassment at work: How Small to medium businesses can deal with allegations

In light of recent allegations made against Rocky Horror Show star Craig McLachlan, it has become apparent that many employees feel that they aren’t able to speak up about sexual harassment in the workplace for fear of repercussions.

According to a study conducted by the Australian Human Rights Commission in 2012 titled Working without fear: Results of the Sexual harassment National Telephone Survey, 1 in 5 people (21%) over the age of 15 years have experienced sexual harassment in the workplace in the past five years. Despite a high percentage of people falling victim to sexual harassment there are a number of employees who feel that they don’t have a voice.

The Fair Work Act 2009 (Cth) states that employees can’t be treated differently or worse because they possess or have exercised a workplace right. In order to encourage employees to speak up employers need to implement strict policies and procedures so that employees are not fearful of adverse action when coming forward with allegations.

SMEs are just as at risk of sexual harassment occurring in the workplace as larger enterprises but might not have stringent polices or procedures in place that prevent and deal with such complaints. SMEs must first work to educate and understand exactly what constitutes sexual harassment in order to manage it.

Under the Sex Discrimination Act 1984 sexual harassment is broadly defined as unwelcome sexual conduct that a reasonable person would anticipate would offend, humiliate or intimidate the person harassed leaving a wide spectrum of behaviours considered to be unacceptable between employees.

Some SMEs may not have designated HR departments so it is vital that employees are aware that there is someone that they can go to when issues arise. Companies need to appoint members of staff who are able to deal with minor to serious allegations amongst employees as sometimes managers and supervisors are directly involved in the harassment.

The implementation of up to date policies will aid in educating staff members about what is and isn’t acceptable behaviour. Training on appropriate behaviours in the workplace as well as identifying problematic behaviours would help employees understand what sexual harassment actually constitutes. However, when claims are made, companies need to have strict protocols in place in order to swiftly deal with complaints. Policies should not only include standards of behaviour but also identify consequences for those involved.

More recently there has been a major shift in the way that sexual harassment allegations are made thanks to social media. Many people are choosing to turn to various social media channels to air such grievances rather than reporting it directly to their employer as is demonstrated by the #metoo campaign. This may make it challenging for employers to respond as an internal issue becomes public. SMEs are encouraged to promptly investigate such social media posts involving co-workers as it may implicate conduct in the workplace and falls under their duty of care.

SMEs need to be made aware that failure to act on allegations made by their employees could impact employees’ physical and mental health as well as result in potential legal action and damage to the company’s reputation.

About the author

Trent Hancock is a Senior Associate with McDonald Murholme, an employment law firm based in Melbourne and Adelaide.

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Trent Hancock

Trent Hancock

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