'Complex' sexual harassment rules confuse employers – lead to hefty damages

'There's probably far more of this behaviour going on that people just aren't reporting'

'Complex' sexual harassment rules confuse employers – lead to hefty damages

Ahead of the our Melbourne HR Summit on 12 July 2022, HRD sat down with Tamsin Lawrence, senior associate at Australian Business Lawyers & Advisors, to talk about sexual harassment in the workplace and new legislation that leaders and HR teams will need to be across.

These days, the law is expecting far more from employers than it ever has before. While the topic of sexual harassment in the workplace can be an tricky one to navigate, new legislation around the topic means that businesses will need to have these conversations as a matter of priority.

The most recent data on sexual harassment in the workplace comes from the Human Rights Commission. It revealed that one in three Australian businesses had sexual harassment occurring in their workforce - but only 17% of employees that experienced sexual harassment reported it.

“The belief is that there’s probably far more of this behaviour going on that people just aren’t reporting to their employer,” said Lawrence. “I think a lot of people in the community perhaps associate sexual harassment with physical touching, whereas the actual meaning of sexual harassment encompasses quite a broad range. When you break it down, a lot more of the conduct that’s happening is sexually suggestive comments and jokes, inappropriately asking someone out, or unwelcome, touching, hugging, cornering, and kissing.”

Lawrence said that current legislation is complex and confusing, so she’ll be covering off both the federal and state gambit of the law before delving into new legislation from recommendations made in the [email protected] report.

“The [email protected] report included 55 recommendations and the government, last September, started implementing a range of those recommendations that particularly impact employers and what goes on specifically in the workplace in the legal sense,” said Lawrence

New legislation breakdown

  • Sex-based harassment – behaviour that falls between sexual harassment and sex discrimination.
  • Changes to victimisation laws
  • Stop Sexual Harassment Order

Lawrence will be presenting the details of cases that have already emerged around the Stop Sexual Harassment jurisdiction so that HR teams have a clear understanding of the avenues available to them and the types of damages being awarded in those cases. 

Lawrence told HRD that the onus to stamp out sexual harassment in the workplace is being placed more and more on the employer – and damages are inflating.

“Pre-2014, we would see damages around the $15-20,000 mark. More recently we’re seeing damages of $100-150,000. The expectation is that as courts catch up to societal expectation, we’re likely to see damages push past the $200,000 mark.”

Lawrence said that it’s no longer good enough for employers to give someone a policy and a training session in sexual harassment when they start.

“There’s an expectation that as an employer, you need to have a good culture, you need to make sure that people feel comfortable reporting. Do you do anything about bystanders and make them aware? What do you do to stop third parties engaging in conduct? Have you properly assessed the risks in your workplace?

“There's still this expectation of box ticking from employers where they think, I've got a policy and I've done training, and that's going to protect me, and as we see more cases come through, that's definitely not the case anymore.”

Would you like to learn more about your expectations as an employer? Register for the Melbourne HR Summit here.

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