In our recent International Employment Lawyer article, we reviewed the global transformation of workplace sexual harassment prevention laws and touched on the challenges that multinational corporations are facing as a result. As mentioned, from 26 October 2024 (this Saturday), UK employers will have a new duty to take reasonable steps to prevent sexual harassment of workers in the course of their employment. Employers cannot simply mitigate incidents of harassment; they must now actively prevent them through risk assessments and other measures such as training and creating safe reporting systems.
Ahead of this new change, we spoke to Rachel Bernasconi, a Seyfarth employment partner, and Sarah Goodhew, a Seyfarth health and safety partner, about the key lessons that can be drawn from Australia's experience with very similar legislation introduced last year.
While Australia's positive duty to prevent harassment covers a broader range of unlawful conduct in comparison to the UK's (which focuses only on preventing sexual harassment), UK employers can learn valuable lessons from their "Aussie" counterparts. This is particularly so given both frameworks share a common goal: employers must anticipate scenarios when their workers may be subject to workplace sexual harassment and take positive action to prevent it.
Q: The UK legislation requires employers to take "reasonable steps" to prevent sexual harassment of their workers. What does the positive duty mean for employers in Australia?
Rachel: The duty requires all organisations to take "reasonable and proportionate" measures to eliminate unlawful workplace sexual harassment, sex-based harassment, sex discrimination, hostile work environments on the ground of sex, and victimisation related to complaints about these issues. The big shift here is that it's no longer enough for employers to wait for complaints to arise—they have to act preventatively.
Sarah: This duty aligns closely with existing work health and safety (H&S) obligations for organisations to ensure, so far as is reasonably practicable, that workers and other persons are not exposed to risks to their psychological or physical health and safety. This includes psychosocial risks such as sexual harassment and sex or gender-based harassment. In Queensland, there are specific regulations relating to the control measures to be implemented to address these risks.
Q: How have Australian employers adapted their practices to meet this duty?
Sarah: Organisations are integrating what have historically been two separate functions, drawing on their experiences from the traditional 'HR' and 'safety' functions. This includes integrating sexual harassment prevention into their broader safety management systems and utilising existing frameworks such as their WHS risk assessments and management processes, to help with their compliance. This can include regular audits, clear reporting mechanisms, and the use of technology to enhance prevention efforts. Many organisations have implemented anonymous reporting channels and use data analytics to identify trends and areas needing attention or to assess the effectiveness of control measures. Previously, safety teams have taken a much more structured approach to compliance issues than their HR counterparts but we are seeing the more rigorous safety-oriented approach being applied in the employment context more and more.
Rachel: We've seen engaged employers use a multi-disciplinary approach (i.e., including business stakeholders from legal, HR, safety, operations, and leadership) to proactively identify how the risks of sexual harassment might arise in each part of their businesses, what control measures are already in place and how those measures can be enhanced to avoid or mitigate risks. Quite often they are taking this approach more broadly in relation to managing workplace psychosocial risks (of which workplace sexual harassment is just one). We've also seen a change to the approach some organisations are taking to their training programs to go beyond the traditional annual tick-box exercise. Organisations that are genuine in wanting to proactively address sexual harassment risks are implementing more comprehensive programs by including mandatory leadership training, regular refresher courses for all employees, and bystander intervention training. This also has implications for the frequency and updating of training modules, to capture learnings following any incident.
Q: What challenges have you seen Australian employers face in implementing these changes?
Rachel: The Guidelines from the Australian Human Rights Commission (the first instance regulator) (AHRC Guidelines) are so comprehensive (and to some extent impractical to achieve for businesses that operate in the real world) that many employers are overwhelmed. We say, make a start—if a regulator comes knocking, or employees are asking what their organisation is doing, you will be better placed if you have done something rather than nothing. We also recommend prioritising your actions in recognition of the fact that you can't do everything immediately—work out your primary and secondary priorities based on risk, resources, and timing.
Sarah: In addition to the extensive AHRC Guidelines, there are also a variety of H&S guidance materials from regulators in various states that address both psychosocial hazards and sex and gendered based harassment. The overwhelm that Rachel has mentioned is very much seen on both the traditional safety and employment sides. I agree with Rachel that starting is important—organisations should start with a risk assessment and follow the health and safety risk management process to implement control measures based on the highest H&S risks in their business.
Q: Employers in the UK are being encouraged to carry out regular risk assessments to identify where sexual harassment may occur. We understand a similar suggestion is contained in the AHRC Guidelines. Do you have any tips for employers to consider when undertaking these risk assessments?
Sarah: Yes, follow the risk management process for H&S risks. In Queensland, the new regulations that commenced on 1 September 2024 require a review of control measures following any report—even if unsubstantiated—of an allegation of sexual harassment or gender-based harassment. Time will tell how onerous such a requirement may be. A risk assessment should be reviewed on a regular basis, which will be informed by the levels of exposure and likelihood of the risk in your business.
Rachel: Yes, the approach I've outlined above to identifying risks is helpful because it ensures relevant stakeholders are at the table and have input. We also recommend this process is conducted regularly—this can't be a 'set and forget' process that you do once and say you're done.
Q: The UK obligation covers harassment from customers, clients, and other third parties. Does a similar obligation apply in Australia, and do you have any tips for employers to address this?
Rachel: Yes, this is similar to the Australian laws, and it also includes harassment by employees of those third parties in a work setting. We are encouraging clients to build this into their risk assessments, so that they are thinking beyond the employee/employee harassment scenarios to all interactions that can occur in a work setting and how to mitigate those risks.
Sarah: Yes, the H&S duties in Australia extend to a very broad definition of 'worker', as well as to 'other persons' in the workplace. From a safety perspective, we are giving the same advice as Rachel to build this into the risk assessment process and into the implementation of control measures.
Key takeaways for our UK employers
- Start somewhere and prioritise appropriately: Given the comprehensive nature of the guidance materials, it's better to start the process and show a genuine effort rather than being overwhelmed and do nothing. Prioritise actions based on your organisation's specific risks, resources, and timing.
- Thorough risk assessments are key: These assessments should identify the particular risks within each organisation's unique working environment (e.g., where there may be power imbalances, involvement of alcohol, or employee interactions with clients, customers, and other third parties).
- Take a wholistic approach: It is not enough to simply update policies. Employers need to take a range of steps to show compliance and implement a proactive risk management approach.
- Leadership buy-in is crucial: This sets the tone and drives meaningful change throughout the organisation. Without it, efforts will lose momentum.
- Integration with existing systems: Employers don't need to reinvent the wheel. Instead, they should integrate sexual harassment prevention into their broader safety management systems, utilising existing frameworks like H&S risk assessments and management processes.
- Robust and clear reporting systems are essential: Employers should consider anonymous reporting channels and how they can use reporting systems to gather data, spot trends, and pinpoint risk areas.
- Adopt a multi-disciplinary approach: Employers should involve stakeholders from various departments (e.g., legal, HR, safety, operations, leadership) when identifying risks and developing prevention strategies.
- Ongoing review: Compliance is not a one-off task. Employers must regularly review and update their prevention strategies to ensure they remain effective, adapting them based on feedback, new risks, and/or incidents.
Further to the practical insights from our Australian counterparts, UK employers can also draw valuable guidance from the Equality and Human Rights Commission's updated Technical Guidance and Practical Step Guide.
What are considered 'reasonable steps' will vary depending on the employer's size, available resources and risk factors. But, both the EHRC guidance and Australia's experience highlight the need for employers to: (1.) consider potential risks; (2.) develop comprehensive action plans to address and mitigate such risks; and (3.) implement proactive measures to prevent such incidents occurring. Harassment is not just an employee relations issue—it is a health and safety issue and needs to be treated with the utmost seriousness.
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