Australia shows the way for UK’s new duty to prevent harassment law

New laws to prevent sexual harassment in the workplace will require employers to adopt a risk assessment approach to compliance. That is the central theme of draft guidance issued by the Equality and Human Rights Commission ahead of new laws coming in to force on 26 October. Very similar laws are already in force in Australia. We’ll speak to Sydney-based lawyer about the impact they’re having on employers in Australia. 

For UK employers, this is the new duty contained within the Worker Protection (Amendment of Equality Act 2010) Act 2023. It places a new positive legal obligation on employers to take reasonable steps to protect their workers from sexual harassment. For its part, the Equality and Human Rights Commission has opened a consultation as it prepares to update its guidance to reflect the new obligations being imposed on employers from October.

Helen Corden comments on this in an article for Out-Law, explaining how the key focus will be on the preventative nature of the new duty. She says: “Anticipating scenarios [in the newly added section] means taking a risk assessment approach. The draft guidance contains examples of this, and of potential preventative steps arising from the risk assessment. These will be business and potentially area specific. A large employer may have to take a different approach for customer-facing areas of its business for example.”

As the guidance explains, what is reasonable will vary from employer to employer and will depend on factors such as the employer’s size, the sector it operates in, the working environment and its resources. There are no particular criteria or minimum standards an employer must meet. Different employers may prevent sexual harassment in different ways, but no employer is exempt from the sexual harassment preventative duty.

Whilst the new duty is not yet in force we can get a good idea of what lies ahead by looking at Australia. In 2022 Australia introduced a new positive duty on employers to prevent sexual harassment through amendments to its Sex Discrimination Act 1984. It requires employers to take reasonable and proportionate measures to eliminate:

- workplace sexual harassment, sex discrimination and sex-based harassment;

- conduct that amounts to subjecting a person to a hostile workplace environment on the grounds of sex; and

- certain acts of victimisation.

As with the UK, the duty requires employers to shift their focus to actively preventing workplace sexual harassment and discrimination, rather than responding only after a complaint is made. 

Interestingly, as with the UK, Australia has a Labour government with trade unions keen to enforce workers’ rights and hold employers to account. So let’s hear more about that. Emma Lutwyche is an employment lawyer based in our Sydney 
office and earlier she joined me by video-link to discuss it. I put it to her that the new duty has raised expectations around preventing workplace harassment:

Emma Lutwyche: “Yes, that's absolutely right. There has been a real push by both unions and employees generally in the community to push for change and to expect more of employers in preventing sexual harassment. Unions, in particular, have been really vocal and really active around campaigns for preventing sexual harassment, expecting employers to do more to prevent sexual harassment. For example, our finance sector union conducted a survey of finance sector employees and found that a really high proportion of them had experienced sexual harassment and not reported it. They then used those findings to gather finance sector bosses around the table with the Australian Human Rights Commission and the finance sector union and got them to agree to what measures they needed to take to prevent sexual harassment in their workplaces, including not using NDAs. So, yes, there has definitely been a change in expectations among the community.”

Joe Glavina: “I'd just like to move on to risk assessments, Emma, because the use of risk assessments is key in complying with a new duty, as I understand it. I gather you’ve been helping clients by conducting risk assessment audits. Can you tell me about that?”

Emma Lutwyche: “Yes, so in Australia as part of the positive duty what we are required to do is treat sexual harassment as a safety issue and so we are doing sexual harassment audits in the same way that we would previously do, and still do, physical safety audits in a workplace. Can someone fall off this, are they going to trip over this. So we're going into workplaces and assisting clients by conducting sexual harassment audits for them, doing surveys, anonymous cultural reviews, looking at practices like the use of alcohol, high risk activities, high risk interactions with clients and third parties, and those sorts of risk assessment measures so that employers can figure out what they need to do, where their risk areas are, and what measures they need to put in place to address them.”

Joe Glavina: “Can I ask you about investigations Emma, because over here in the UK we’ve noticed a trend towards using external lawyers to conduct investigations into matters such sexual harassment because they're often complex, sensitive issues with the risk of reputational damage. Is that that what you’re seeing too?”

Emma Lutwyche: “Yes, absolutely. Since the positive duty has come in, we have certainly seen an increase in the conducting of investigations that we've been required to do as external lawyers for our clients. One of the issues that, of course, is really important in conducting those investigations is covering any findings with legal professional privilege where necessary and so we are conducting a lot of investigations into issues that maybe two years ago, three years ago, we wouldn't have been investigating. Unfortunately, in investigating these things we are finding more insidious and more long-standing historical issues and so I think that kind of goes hand in hand with this change in community expectations. More employees are speaking up. more employers are taking those complaints seriously, and the culture is really changing as a result of this this positive duty.”

That Out-Law article by Helen Corden on the new preventative duty and how employers should prepare for it is called: ‘EHRC proposes changes to guidance on preventing workplace sexual harassment’ and is available now from the Out-Law website. We’ve included a link to it in the transcript of this programme for you.

LINKS
- Link to Out-Law article: ‘EHRC proposes changes to guidance on preventing workplace sexual harassment’