Sexual harassment and occupational health and safety

Some old-time safety professionals are struggling with the inclusion of psychosocial hazards in their safety management programs.  Some deny the relevance of sexual harassment to their duties and hope that the issue can be contained within the human resources department, the “dark arts” of workplace safety. 

Many of these same safety professionals are calling for more evidence-based decisions on workplace safety.

Evidence is now in on the social and work impact of sexual harassment. Australia’s Human Rights Commission has issued Effectively preventing and responding to sexual harassment: A Code of Practice for employers  which states on page 48

Employers have a common law duty to take reasonable care for the health and safety of their employees. This common law duty is reinforced by occupational health and safety legislation in all Australian jurisdictions.

An employer can be liable for foreseeable injuries which could have been prevented by taking the necessary precautions. As there is considerable evidence documenting the extent and effects of sexual harassment in the workplace, it has been argued that the duty to take reasonable care imposes a positive obligation on employers to reduce the risk of it occurring.

A work environment in which an employee is subject to unwanted sexual advances, unwelcome requests for sexual favours, other unwelcome conduct of a sexual nature, or forms of sex-based harassment, is not one in which an employer has taken reasonable care for the health and safety of its employees. A work environment or a system of work that gives rise to this type of conduct is not a healthy and safe work environment or system of work. An employer could be regarded as not having acted reasonably to prevent a foreseeable risk if practicable precautions are not taken to eliminate or minimize sexual harassment in the workplace.

Failure to fulfil the duty of care can amount to a breach of the employment contract as well as negligence on the part of the employer. This means that an employee who has been harmed could bring an action against their employer in contract or tort.

The guide can do with considerable translation to what businesses see as useful codes of practice in the application of safety management but perhaps that is for the private sector and State OHS regulators to work on.

There seems to be enough information available now on sexual harassment, fatigue, bullying, violence, fitness for work, shift work, depression and other matters, that the safety profession should be more embracing of these concepts in their own planning.  Let’s hope that in this discipline we do not have to wait for generational change to achieve a change in approach.

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9 thoughts on “Sexual harassment and occupational health and safety”

  1. You have identifed another point, that HR are compromised. Who then is mean to stand up and support the victim? EEO? HR??? And what about when manipulation and politics start to play. HR must remain impartial.
    A separate question, what recourse does a victim have when they have been defamed in the proceess? eg; When complaint made about bully (that has been well witnessed and documented), then bully has right of reply and fearing their job loss they lash out (nothing to lose attitude) creating extreme vexatious lies and malice intent, and HR does nothing about this, they actually now believe the bully, even when the vexatious can be proven. Does the victim have right to take this external for legal recourse against bully under Defamation Act? And what about the employer negligence for allowing this, and failing proper investigation?

    1. Cath
      That scenario needs to be put to a legal adviser but those sorts of process clearly identify why bullying can lead to health and safety issues such as stress and depression.

  2. Cath
    I think you are a bit harsh on the HR fraternity but I would support any investigation into bullying from a broad perspective. Many of the studies are undertaken through, or as a result of, HR processes and a multi-disciplinary approach could provide better results.
    I think that some of the sociological investigations into OHS and bullying have the greatest chance of achieving change.
    Many HR officers are very close to CEO\’s or Board members and this may be a negative but it also a position of influence that OHS professionals should aim for. The \”trick\” is to achieve such a position without sacrificing integrity and that needs to be a quality that the organization itself needs to value and promote.

  3. Thanks for posting this, you have a great blog please keep up the good work, it is a useful tool of information. You are right about the divide between HR & OHS. Fact is HR are the culprits of negligence, they exist to support Management. Any one with a serious complaint thinks long and hard before sticking their neck out and going to HR, but unfortunately as we all know it is all a numbers game (who has most support) and political (easier to get rid of the victim, rather than the bully).
    HR must be outted as incompetant and different independant organisations should run any investigation in to OHS violations, this includes having expert organisational psychologists on board to clearly identify psychopathic behaviour and its implications, so to communicate this back to the company. The victim is the victim, the harasser-bully-psychopath is a harasser-bully-psychopath.

  4. Matthew

    Thanks for reading the blog and commenting.

    In my experience HR and OHS are almost always managed as separate disciplines – \”silos\” to use management jargon. This is a poor management structure which is supported by the dominant attitudes of both professions.

    Also, Australia does not have much of a history in seeing worker safety as a human rights issue. This is a regrettable omission and one which I can\’t see improving at all. Primarily this is due to the human rights sector being distracted by the push for a human rights charter.

    I am in favour of increased attention to human rights and the charter however, in Australia the proposed charter is already being applied to what many consider frivolous applications, exactly the activities that have led to criticism of the charter in Europe and the UK. An example of this at the moment is the case of some squatters in a University of Melbourne building invoking human rights to remain in their squat. (http://www.theage.com.au/national/students-invoke-human-rights-to-fight-eviction-20081222-73ny.html)

    Human rights is not a concept that should be applied rashly. It is a concept that underpins OHS, HR and IR but is rarely invoked in Australia in these disciplines. It should be.

  5. Thanks for posting on this, I think the major issue with this will come down to management and HR handling of the complaint. 110% of the time they support the attacker, and not the victim. The all must be taught that it is easier to alienate the victim and run them out of town? Let us hope that HREOC has the victim always in their sights, male or female.

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