Unfortunately, instances of harassment and discrimination are common practices within the workplace. Often employees participate in acts of wrongdoing that contravene laws that aim to prohibit all discriminatory conduct. Significant implications for employers can arise if they are found to be vicariously liable for the wrongdoings of their employees. Nevertheless, an employer may be able to protect itself against vicarious liability and avoid paying substantial damages for an employees conduct if it can be established that all reasonable steps to prevent unlawful acts occurring in the workplace were in fact taken.
The issue of what amounts to ‘reasonable steps’ is one of contention, given the operational and size differences from one business to another. Therefore, it is extremely important for employers to be aware of all they can do to best cover themselves from being held liable. A recent case, involving Centerprise Resource Group, highlights this issue for employers. The NT Anti- Discrimination tribunal found Centerprise to be vicariously liable for their employee’s offensive race-based language towards another employee and therefore liable to pay damages. Despite having anti-discrimination policies in place, it was held by the tribunal that there was insufficient communication and promotion of these polices at all levels.
What can be considered ‘reasonable steps?’ (Lessons for Employers)
Essentially, simply having an anti-discrimination policy may be found to be inadequate when arguing that reasonable steps were taken to prevent the conduct. There needs to be continued communication of the policy and company’s code of conduct at all levels. Promoting a well written and effective anti-discrimination policy that covers individual areas including race, disability, sexual harassment and anti-bullying is crucial. It is imperative that employees understand that unlawful actions will not be tolerated and are reminded of the legal ramifications associated with discriminative behaviors.
Providing training programs and awareness sessions are important. They allow employees to properly identify hypothetical workplace discrimination situations and equip employees with the necessary skills required to respond to discrimination and harassment.
Developing and implementing an internal complaints system can be a valuable way for employers to demonstrate they have undertaken reasonable steps in dealing with discrimination in the workplace. This often involves providing formal remedial procedures for dealing with complaints, whereby appropriate action is taken against those involved. Counselling services may also be provided for those who have been aggrieved.
The use of government anti-discrimination agency posters on notice boards and distribution of brochures may also be beneficial in reiterating company policy and reminding employees on the zero tolerance of harassment and discrimination in the workplace.
Andrew Bland – Principal - BlandsLaw
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