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Risky business - beyond #MeToo

Employment & Workplace Advisory
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ABL's Workplace Advisory team discuss the broader workplace significance of sexual harassment allegations.
The prevalence of, and responses to, workplace sexual misconduct has created a momentum that cannot be ignored. However, what is often overlooked is that the spotlight on sexual misconduct allegations has created a broader platform for employees to release the pressure valve on other grievances that have been bubbling away (and occupying employment lawyers) for years.
Whilst undoubtedly the flagship issue right now is sexual harassment at work, it would be an error for employers to limit their focus, and risk management steps, to this issue alone. In our experience, a sexual harassment incident can be symptomatic of an underlying cultural decline in a workplace, with a range of serious issues lurking just below the surface: outdated perceptions of parental leave, a persistent absence of women in the senior echelons, pay disparity and push-back on part-time and flexible work arrangements. More often than not, we are seeing employee complaints about these issues mirror, and sometimes accompany, the trajectory of sexual harassment complaints. 
This is, of course, not to downplay the recent allegations of workplace sexual harassment in Australia and around the world, which are real, repugnant and alarmingly widespread. Harvey Weinstein (the watershed), Robert Doyle, multiple partners at Ernst & Young, KPMG and Herbert Smith Freehills, middle managers, business owners, CEOs, academics, politicians and actors. 
No industry and no workplace is immune.
In fact, since 1 July 2017, reports of sexual harassment to the Victorian Equal Opportunity and Human Rights Commission have increased by 32% as compared to the previous year.  Add to that the new norm where the media, both traditional and social, is used strategically by employees to report and share grievances. So where does this leave employers?  How should they respond?  What can they do to avoid a front page disaster?  What happens when a complaint is made?
Importantly, the core principles remain the same. 
The legal framework around sexual harassment, discrimination and flexible working arrangements has not, at this stage, changed. Employers are still required to take all reasonable steps to minimise the risk of sexual harassment, and may be held vicariously liable for conduct by their employees. 

Whilst undoubtedly the flagship issue right now is sexual harassment at work, it would be an error for employers to limit their focus, and risk management steps, to this issue alone.

Employers are still prohibited from unlawfully discriminating against employees, and future employees, on the basis of (most relevant to this discussion) gender, parental responsibilities, or raising a complaint of sexual harassment or discrimination. And employers are still required to comply with a series of obligations and timeframes governing requests for flexible work arrangements that were introduced in 2009.
But while an employer’s legal obligations may not have changed, what has changed - dramatically and irreversibly - are community expectations. Employers are operating in a different world and their management of these issues needs to adapt accordingly.
A prompt, clear and sensitive approach to sexual harassment claims has become the bare minimum. More insightful employers are seeing the broader picture and the ripples that accompany such complaints, and are getting out in front. 
Not surprisingly, the range of measures and, where necessary, responses that an employer can implement are as varied as the employees who work with them. 
For some employers, the most important and pressing task is to get the fundamentals in place.  To that end, we continue to assist with bespoke strategies, including:
  • A bullying, harassment and sexual harassment policy that is easy to understand and sets out clear complaint processes.
  • Thoughtful, consistent and regular delivery of training on appropriate behaviour.
  • An efficient and considered investigation process should a complaint arise. 
  • Sensitive and carefully crafted disciplinary and termination strategies.
  • Practical and tailored legal advice to navigate the interests of the employer, the needs of the employee/s involved and the impact on the broader workplace.
For other employers, it is both appropriate and necessary to take a policy lead. For example, by developing: 
  • A continuous disclosure policy requiring senior employees to disclose if they are having a romantic/sexual relationship with a colleague. Not quite the recent ‘bonk ban’ decreed by the Turnbull government, but an oversight tool to discourage undue influence and implicit coercion. 
  • An "all roles are flex" approach where all employees, regardless of gender and outside responsibilities, can arrange their working day in a way that suits them and the business.
  • Generous and gender-neutral parental leave policies, both in terms of payment and the flexibility of how leave can be taken.
  • A system whereby, if an issue does arise, specialist investigators or leading counsel are appointed to investigate highly sensitive (and/or high-profile) allegations.
Naturally, the backdrop to any and all of these measures is getting the workplace culture right - a task that is fiendishly difficult to curate but increasingly unacceptable to ignore.  To this end, we are seeing: 
  • Formal (and informal) mentoring arrangements between senior and junior staff of different genders , an initiative recently championed by Facebook Chief Operating Officer Sheryl Sandberg.
  • Providing incentives to senior employees who demonstrate effective mentoring of junior employees (often of the opposite gender) and/or appropriate responses to complaints.
  • The introduction of informed and nuanced quotas at various levels of the business.
  • Careful selection of the method and delivery of relevant training to elevate it from a tick-box exercise to a meaningful discussion and barometer for employee concerns.
If you look behind the headlines, these are complex issues that require something far more sophisticated than a knee-jerk response. In this climate, getting it wrong or thinking that a quick fix is enough, is simply reckless.
Bridget Little heads Arnold Bloch Leibler's Workplace Advisory Practice and Rachel Soh is a Senior Associate in the team. Bridget and Rachel regularly advise clients on the prevention of, and response to, allegations of sexual harassment, discrimination, bullying, requests for changes to working arrangements and employee disputes. If you would like to discuss these matters further please contact Bridget on (03) 9299 9999 or [email protected].

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