Understanding Vicarious Liability Under the Positive Duty

The recent amendments to Australia's Sex Discrimination Act 1984, have brought significant changes to workplace discrimination laws. One critical aspect is the introduction of a positive duty on employers to prevent workplace sexual harassment, sex discrimination, and victimisation. Alongside this, the concept of vicarious liability remains crucial, where employers can be held accountable for the unlawful actions of their employees.

What is Vicarious Liability?

Vicarious liability refers to the legal responsibility of employers for the actions of their employees conducted in the course of their employment. Under the positive duty framework, if an employee engages in discriminatory conduct or harassment, the employer could be held liable unless they have taken ‘all reasonable steps to prevent’ such behaviour.

What does ‘all reasonable steps’ mean?

There is no clear-cut definition of ‘all reasonable steps’ because what may be ‘reasonable’ for a large corporation may not be ‘reasonable’ for a small business. Instead, it is worked out on a case-by-case basis.

The key point is that employers must take active steps to minimise the risk that sexual harassment can occur in their workplace.

When deciding what level of preventative action is reasonable, an employer should consider:

• the size, structure and available resources of the organisation

• the type and nature of the work undertaken by the organisation

• the mix of employees in the workplace, including women, young and older workers, people with disabilities and people from culturally and linguistically diverse backgrounds

• the culture of the workplace

• previous incidents of workplace discrimination and harassment

• levels of employee supervision

• relevant provisions in industrial awards or agreements, and

• any other relevant factors, such as working hours, geographic isolation, live-in arrangements or duties which require working in close physical proximity with others.

Minimising Vicarious Liability

To minimise or eliminate vicarious liability under the positive duty, employers need to take proactive and comprehensive measures. Here are some key strategies:

1. Develop and Implement Clear Policies

Establishing clear, written policies on sexual harassment, discrimination, and workplace conduct is fundamental. These policies should be comprehensive and include:

• Definitions of prohibited conduct.

• Clear procedures for reporting and responding to complaints.

• An unequivocal statement that such behaviour will not be tolerated.

2. Conduct Regular Training

Regular training sessions for all employees and management are crucial. These sessions should cover:

• Understanding what constitutes harassment and discrimination.

• How to report incidents safely and anonymously.

• The consequences of perpetuating sexual harassment.

Training ensures that employees are aware of their rights and responsibilities, and it reinforces the organisation’s commitment to a safe workplace.

3. Foster a Respectful Workplace Culture

Creating a culture of respect and inclusion can significantly reduce incidents of harassment and discrimination. This involves:

• Promoting diversity and inclusion at all levels of the organisation.

• Encouraging open communication and feedback.

• Recognizing and rewarding respectful behaviour.

4. Establish Effective Reporting Mechanisms

Providing multiple, accessible avenues for reporting misconduct is essential. This could include:

• Anonymous reporting tools.

• Designated trained HR personnel to handle complaints competently and confidentially.

• Clear communication about the reporting process and the support available to victims.

6. Regular Risk Assessments

Conduct regular assessments to identify and mitigate risks related to harassment and discrimination. This can involve:

• Surveys to gauge employee perceptions and experiences.

• Audits of workplace policies and practices.

• Tailoring preventive measures to specific risk areas identified.

7. Leadership Commitment

Senior leaders must model respectful behaviour and actively promote a culture of zero tolerance towards harassment and discrimination. This includes:

• Publicly supporting the policies and procedures in place.

• Being visible and approachable to discuss workplace concerns.

• Holding themselves and others accountable for maintaining a respectful workplace.

Conclusion

Under the positive duty framework, the emphasis is on preventative measures to prevent sexual harassment in the workplace. By developing clear policies, providing regular training, fostering a respectful culture, establishing effective reporting mechanisms, conducting regular risk assessments, and ensuring leadership commitment, employers can significantly minimise their vicarious liability. These steps not only help in legal compliance but also contribute to a safer, more inclusive, and productive work environment.

For more detailed guidance and resources, you can refer to the Australian Human Rights Commission’s materials on complying with the positive duty​ (Respect@Work)​​.

At Relate Institute, we offer specialised training packages tailored to businesses of all sizes. From executive briefings to live workshops for staff, we equip every member of the company with the knowledge and skills necessary to effectively prevent and address sexual harassment.

Contact us for more information.