Setting the record straight: investigating sexual harassment and assault in the workplace

Having advised employers on workplace sexual harassment and assault investigations for 20 years, I feel compelled to chime in on a few things due to what seems to be a lot of misinformation disseminating about these issues.

These principles are neither groundbreaking nor new but are instead basic principals that should have universal application:

• Investigation should be independent. This means the investigator should not be reporting to the victim or the accused. The individual making a decision about the outcome of the investigation should also be independent.
• Criminal investigations are separate to workplace investigations. The criminal standard of proof is beyond reasonable doubt. The civil standard is balance of probabilities but where the allegations are serious - "we can't point with a wavering finger". Comfortable satisfaction is required.
• It is impossible to see how an individual could be persuaded to report a matter during the course of their employment, or how there is any integrity in an investigation, if the accused, bears an unfettered discretion to fire the complainant regardless of the outcome.
• Sexual harassment is a health and safety issue given its impact on the mental health of victims, especially where workplace policies preventing such actions are not promulgated and there is a lack of robust complaint procedures that ensure impartiality and prohibit victimisation. Last month Safe Work Australia released a National Guide to preventing workplace sexual harassment that clearly points out the psychological and physical health impacts on victims, and employers' associated WHS obligations. In doing so it squarely places the discussion about sexual harassment being a safety issue on the table as employers and leaders process the possibility of a 'positive duty' to eliminate sexual harassment recommended by the Respect@Work report. These recommendations have seen little action on at this stage. The guide may be a step in that direction although it may be a consolation prize.
• Sexual assault is undeniably a health and safety issue. Let's think for a second - if a manager pushed an innocent subordinate over and they broke their leg would that be investigated? Prosecuted as a safety issue? Would the manager be fired? This is much worse. Bones repair.
• Suspension pending investigation requires a judgment call carefully balancing: the safety of the victim and others in the workplace; the protection of the organisation from disrepute; and the interests of the accused including the presumption of innocence, their reputation and wellbeing.
• An employer can and indeed should (assisted by well drafted policies) investigate a serious allegation of sexual harassment or assault, even if the victim does not proceed with a formal complaint. This protects the health & safety of everyone in the workplace

Dysfunction perpetuates the status quo. It will never end until we have diversity in leadership everywhere. Conscious and deliberate actions must be taken to create healthy, respectful and inclusive workplaces.

I feel like a broken record but I hope to see it in my lifetime.

As International Women's Day approaches next week #ChooseToChallenge #IWD2021

A challenged world is an alert world and from challenge comes change. So let's all choose to challenge. Let's all do our bit to forge a gender equal world.

This content is general commentary and opinion of the writer provided for information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied upon as legal advice. Readers should obtain specific advice relating to their particular circumstances.