It should be standard practice for all business, big or small, to have policies in place that deal with workplace discrimination, harassment and bullying. If you do not have such policies in place, it could expose your business to possible claims of discriminatory, bullying and harassing behaviours.
By not managing accordingly the risks, or the possible risks, caused by the workplace discrimination, harassment and bullying, it could give raise to a number of possible claims:
- Your business being liable for the conduct or actions of your employees while employed, or in connection with their employment. That represents vicarious liability.
- In such situations, an employer could be relying on ‘all reasonable steps’ defence in relation to such a claim. However, the ‘all reasonable steps’ defence is not defined in the legislation and it applies to employers in different ways depending on the size of the business, number of employees, number of offices, nature of work and other characteristics that may be relevant.
- The perpetrators could be personally liable for their actions even though such actions were taken while at work or in connections with their employment.
- Both you and the employee could be held jointly liable for the actions or behaviors that could amount to discrimination, harassment or bullying.
You can protect your business by implementing and adopting risk management policies. Preventing possible claims from occurring should be done through current and complete policies. Such policies should provide the tools needed by your business (or your HR department) to manage any claims and if possible to prevent them from being referred to external government agencies like anti-discrimination commissions or tribunals.
- As a minimal way of protecting your business, you should consider the following:
- To provide copies of relevant policies to all new employees upon commencement of employment
- To review the policies on regular basis so they reflect any changes in legislation
- To make employees aware of any updates and changes to their policies within a reasonable period of time
- To conduct formal or informal training sessions in relation to discrimination, bullying and harassment
- To make it clear that treating a fellow employee in a discriminatory or harassing way is against the law
- The policies should discuss breaches that could occur through social media even though the social media platform is accessed and used during employee’s private time or from employee’s personal device (i.e. a mobile phone during a lunch break)
- The policies to identify the relevant acts that deal with such behaviour.
If you would like advice on drafting, reviewing or implementing policies on bullying, harassment or discrimination in your business contact Matthew Bridger:
