Chapter 8: Guidelines for small business - Effectively preventing and responding to sexual harassment: A Code of Practice for Employers (2008)

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Effectively preventing and responding to sexual harassment: A Code of Practice for Employers

Chapter 8: Guidelines for small business

Contents

Key points 8.1 What should small business do to prevent and respond to sexual harassment?

(a) Policies (b) Complaints (c) Assistance with sexual harassment issues for small business

8.2 What about very small businesses?

(a) Policies (b) Complaints (c) Assistance with sexual harassment issues for very small business

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Key points

• There is no exemption in the Sex Discrimination Act for small business.
• Employers, whatever the size, may be vicariously liable for acts of sexual harassment committed by employees in connection with their employment unless all reasonable steps were taken to prevent it occurring.
• Recent case law suggests that even very small businesses will need to have a written policy on sexual harassment to demonstrate that all reasonable steps were taken to prevent harassment occurring. However, this need only be a simple written policy effectively communicated to all staff.
• The policy should include:
• a definition of sexual harassment
• a statement that sexual harassment will not be tolerated in the workplace
• how sexual harassment complaints will be dealt with
• sanctions that will attach to sexual harassment if it occurs
• contact numbers for external complaints agencies such as the Commission.
• To implement the policy, management must ensure that all employees are aware of the policy and understand it. In a small business this can be done by orally informing and regularly reminding each employee about the policy.
• Small business enterprises are encouraged, where necessary, to adapt particular recommendations in this Code according to their needs, circumstances and resources. However, many of the recommendations contained in this Code can and should be adopted by businesses of all sizes.

8.1 What should small business do to prevent and respond to sexual harassment?

A significant number of sexual harassment complaints received by the Commission involve small businesses. Employers should be aware of the potential for sexual harassment to occur in the context of close working relationships where staff are on familiar terms with one another and should take appropriate precautions to avoid this risk.

(a) Policies

It is recommended that small businesses have a written policy on sexual harassment.

The employer should ensure that all employees are aware of the sexual harassment policy and that sexual harassment is unlawful. This can be done by, for example, orally informing all employees of the policy, displaying the policy on notice boards, distributing brochures and displaying posters on sexual harassment. Training for general and supervisory staff should incorporate information on sexual harassment.

(b) Complaints

Owners and employers in small business should nominate themselves or a responsible senior employee as a sexual harassment complaints officer. This person should be provided with any training or resources offered by employer organisations, small business associations, industry associations, the Commission or state or territory anti-discrimination agencies. The general principles that apply to informal and formal complaint procedures outlined in Section 7 should be observed.

(c) Assistance with sexual harassment issues for small business

If it is difficult or impractical for a small business to develop its own policy, employer organisations, small business associations, industry associations or state or territory anti-discrimination agencies may be able to assist. Some organisations will be able to provide a generic model sexual harassment policy or examples of policies which can be adapted for use in the enterprise.

Small businesses in a particular industry sector may wish to consider developing a joint policy for implementation throughout the industry. Interested businesses should approach the relevant industry association for assistance in co-ordinating the process.

Brochures and other educational material on sexual harassment can be obtained from the Commission, state or territory anti-discrimination agencies and/or relevant unions and employer organisations.

If assistance is required to deal with a complaint, advice should be obtained from employer organisations, small business associations, industry associations, the Commission or state or territory anti-discrimination agencies. [32]

8.2 What about very small businesses?

(a) Policies

The case law suggests that even very small businesses should have a simple written sexual harassment policy. [33]

In very small businesses where the owner or employer has direct contact with all employees and is responsible for overseeing all aspects of daily operations, steps to address sexual harassment and implement the sexual harassment policy may include:

• orally informing all employees that sexual harassment will not be tolerated under any circumstances and that disciplinary action will be taken against an employee who sexually harasses a co-worker, client or customer, contractor or other workplace participant

• providing all staff with brochures and displaying information on noticeboards regarding sexual harassment [34]

• informing new staff that it is a condition of their employment that they do not sexually harass a co-worker, client or customer, contractor or other workplace participant
• keeping a diary note, which may later be useful as evidence, when staff are informed of the employer's policy on sexual harassment and when information is displayed and updated.

(b) Complaints

Employees in very small business should be advised to make a complaint to the owners or employer if they are subjected to sexual harassment. The general principles that apply to informal and formal complaint procedures outlined in Section 7 should be observed.

Employees should be advised that they also have the right to approach their union, the Commission or their state or territory anti-discrimination agency.

(c) Assistance with sexual harassment issues for very small business

If the owner or employer requires assistance to deal with a complaint, they should contact employer organisations, small business associations, industry associations, the Commission or their state or territory anti-discrimination agency for advice.

Owners or employers in very small business are encouraged to attend relevant seminars or training sessions run by employer organisations, small business associations, industry associations, the Commission or their state or territory anti-discrimination agency.

Owners or employers in very small business are encouraged to obtain any available resources on discrimination, harassment and their legal responsibilities from employer organisations, small business associations, industry associations, the Commission or their state or territory anti-discrimination agency.

Case example: Small business

A woman was employed in a photographic laboratory by the respondent company. She alleged that she was sexually harassed by her supervisor and that the behaviour also constituted sex discrimination for which the company was liable.

The respondent company argued that it took reasonable steps to prevent sexual harassment, pointing to the general instructions given to new employees to treat others with courtesy and respect.

Federal Magistrate Driver found that sex discrimination had occurred, and that the company was liable. He said:

[t]he [Sex Discrimination Act] does not distinguish between large and small employers, in terms of [the meaning of “reasonable steps”]...however, it would be unrealistic to expect all employers, regardless of size, to adhere to a common standard of preventative measures. [“Reasonable steps”] has been interpreted in Australia as requiring the employer to take some steps, the precise nature of which will be different according to the circumstances of the employer. Thus, large corporations will be expected to do more than small businesses in order to be held to have acted reasonably.

In this case, the steps that had been taken were, even for a small business, found to be “insufficient and ineffective”.

Cooke v Plauen Holdings [2001] FMCA 91

Another case, Gilroy v Angelov [35] , below, demonstrates the importance of a written policy, even for small business. Note that a written policy still needs to be implemented effectively, through communication to all employees, for employers to feel confident that they will not be vicariously liable for employees' harassing behaviour.

Case example: Small business

A woman made a sexual harassment complaint against a male co-worker in a small cleaning business. She told her employer about the harassment but it continued.

Since her employer had actual knowledge of the harassment, it was not necessary for the court to determine whether all reasonable steps had been taken. However, Justice Wilcox made important comments indicating what a small business must do to establish that it took all reasonable steps to prevent harassment. He said:

[i]t may be more difficult for a small employer, with few employees, to put into place a satisfactory sexual harassment regime than for a large employer with skilled human resources personnel and formal training procedures. But the Act does not distinguish between large and small employers, and the decided cases show that many sexual harassment claims concern small businesses, often with only a handful of employees. A damages award against such an employer may have devastating financial consequences; so there is every reason for such an employer to be careful to prevent claims arising.

Justice Wilcox said that there was a “simple procedure” that would go “a long way” towards allowing a small business employer to argue that all reasonable steps had been taken to prevent sexual harassment. This was:

...to prepare a brief document pointing out the nature of sexual harassment, the sanctions that attach to it and the course that ought to be followed by any employee who feels sexually harassed. ...[S]uch a document could be provided to each employee on recruitment, as a matter of routine and before there was, or could be, any suggestion that the employee had done anything wrong or was the victim of inappropriate conduct.

Gilroy v Angelov (2001) 181 ALR 57

References

[32] Contacts for complaints assistance from the Commission and state and territory anti-discrimination agencies are at Appendix B. [33] See Gilroy v Angelov (2000) 181 ALR 57, case study at pages 53-54. See discussion above at 4.2.2 on developing such a policy. [34] These may be obtained from the Commission. See contact details at Appendix B.