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How To Handle a Sexual Harassment Claim in Your Business

Published December 14, 2021 (last updated May 23, 2022) - F2F Manager, ANZ
how to handle sexual harassment claim

Claims of workplace sexual harassment are on the rise. It could be an indication that people are willing to speak up against their perpetrators and demand justice.

The global pandemic shifted the ways in which a traditional workplace functioned. This allowed employees to work from home, find the distance, space, and courage they need to speak out without fear or judgment. No longer having to face the offender in person who have been harassing them, victims of harassment are finding their voice to let businesses know what’s happening in the workplace. Perhaps we can look at this as an opportunity to make real change in our modern workplace.

Sexual harassment in the workplace can be less clear-cut than a direct and unwanted sexual advance. Yes, sexual harassment is an unwelcome sexual advance, but it is also any unwelcome conduct of a sexual nature that makes a person feel offended, humiliated, or intimidated. It can be between employees or managers and it can also involve customers.

Employers have an obligation to protect their workers from hazards, and sexual harassment is a serious workplace health and safety (WHS) hazard that can cause physical or psychological harm. It is prohibited in the workplace. Sexual harassment is against the law and is a criminal act. The Sex Discrimination Act 1984 prohibits sexual harassment in the workplace. 

In this blog post, we will explain how to deal with a sexual harassment claim in your business.

What Is A Sexual Harassment Claim In A Business?

As we’ve mentioned, sexual harassment is more than direct sexual advances, it can also mean the creation of a workplace environment that feels imbued with a sexual nature that could offend or make someone feel uncomfortable or intimidated. This could be anything from displays of sexual images or include general sexual banter, crude conversation, innuendo, and offensive jokes. 

As a business owner, you might be thinking that you can’t dictate your employees’ banter or jokes or ask your customers to act differently. What you can do, is be a business that has strict policies that ensure its employees all feel comfortable in the workplace, policies and procedures that support a safe healthy workplace with happy employees.

A sexual harassment claim is when an employee tells someone that they have experienced sexual harassment in the workplace and asks for protection from this hazard. An employee should feel they can report the harassment without recrimination. An employer should handle it quickly and with confidentiality to all sides. There are protocols to handle a sexual harassment claim in the workplace. 

How To Handle A Sexual Harassment Claim In Your Business

An employer can be held legally responsible for acts of sexual harassment committed by your employees. This is called ‘vicarious liability’. The Sex Discrimination Act 1984 makes employers liable, unless employers have taken all steps that are reasonable to try to prevent sexual harassment from taking place. There are two actions that employers must implement:

  • The business has a sexual harassment policy and that they have actioned it as best they can. 
  • That the business has appropriate complaints procedures and will action these to put things right once it is notified of sexual harassment in the workplace. 

Any allegations raised by an employee regarding sexual harassment, (regardless of whether the alleged harassment occurred in the workplace), are serious and should be investigated confidentially and promptly. It’s important to ensure that you consider the health and safety of the person who is suffering the sexual harassment and implement measures to minimize further potential harassment. This can include minimising contact and communication between the alleged and complainant. For example, implementing working from home arrangements, organising alternative duties or in serious cases considering a paid suspension. 

To Sum Up

  • Interview the victim of the sexual harassment
  • Interview the person being accused 
  • Inform all parties of the process that will follow
  • Obtain other facts – This may involve witnesses or messages, emails, or CCTV
  • Maintain confidentiality of the process. During the investigation process, all parties should be instructed to treat the matter as confidential and advised not to discuss the matter with other colleagues, or disciplinary action may follow.

If the outcome of your investigation is that sexual harassment did take place, and that action is deemed serious enough, even for a first offence, you may be able to dismiss an accused employee without notice or pay in lieu of notice.

Sexual harassment in the workplace is a serious claim to have in your business, not only is it a work health and safety issue but it’s a criminal act. Allowing it to happen in your business is not okay. Make sure you have procedures and policies in place, read our in-depth e-guide for a much more detailed guide on this issue, detailing how to minimise sexual harassment in your business. Download here.

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About Employsure

Employsure is one of Australia’s largest workplace relations advisers to small- and medium-businesses, with over 30,000 clients in ANZ. We take the complexity out of workplace legislation to help small business employers protect their business and their people.

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