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Workplace Sexual Harassment: Compensation Rising

Recent decisions have shown a dramatic increase in the damages that Courts are prepared to award victims of sexual harassment in the workplace, writes experienced workplace lawyer Andrew Clare.

This is as a result of Courts recognising that community standards have changed significantly in relation to this behaviour but that the law had not changed to reflect these community standards.

Damages are intended to compensate the victim and the Courts are recognising that community standards require that they accord a higher value to compensation for pain and suffering and loss of enjoyment of life than previously awarded. Further damages are awarded to punish the perpetrator of the sexual harassment and deter others from engaging in such behaviour.

What is sexual harassment?

A person sexually harasses another person if they make an unwelcome sexual advance or request sexual favours or engage in other unwelcome conduct of a sexual nature in relation to the person harassed.

This needs to be in circumstances in which a reasonable person, having regard to all the circumstances would have anticipated that the person harassed would be offended, humiliated or intimated. Conduct of a sexual nature is not limited to conduct specifically directed towards the person harassed but can include conduct in the presence of a person. For example, exposure to sexually explicit material and sexually suggestive jokes can constitute conduct of a sexual nature. Therefore a person can be sexually harassed although there has been no avert sexual harassment directed towards them.

What do employers need to know about sexual harassment?

Employers need to be aware that if they have not taken all reasonable steps to prevent such behaviour they can be liable for the sexual harassment of a person. This is not restricted to the behaviour of their employees but can include contractors or other persons at their workplace.

The first question an employer is asked in any sexual harassment complaint is “do you have a sexual harassment policy?” If they do not have such a policy then the chances of defending a sexual harassment complaint are somewhat diminished.

If they do have a policy then it needs to be comprehensive in that it needs to clearly set out the type of behaviour that constitutes sexual harassment, that it is unlawful and that it will not be tolerated by the employer. Further it needs to provide for a proper complaint procedure.

This is an area in which there is an ever increasing number of actions being taken. Employers need to be vigilant to ensure that such behaviour does not occur at their workplace. If it does then they need to make it clear that it will not be tolerated and they will take the correct steps to investigate any complaint.

Educating employees and having proper policies in place are the best methods of preventing sexual harassment in the workplace. It is important as an employer to take proactive steps and ensure your workplace policies and procedures are kept up to date and legally relevant.

For further information or assistance with regard to workplace law, contact your nearest TGB location.

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