Workplace sexual harassment is still common, but many businesses are unaware of their obligations

Recently Employment Law Partner and Director Lisa Berton spoke with the ABC regarding workplace sexual harassment and employers' obligations, and said employers now had to actively prevent sexual harassment at work.

An excerpt from the article is reproduced below:

"Organisations cannot sit back and wait for complaints to land, but when they do, the organisation needs to take a safety first, trauma informed approach to dealing with complaints," she said.

"It is a big deal."

It’s also now unlawful for a person to be hostile on the grounds of sex, even if it’s not directed at a specific individual, for example displaying pornography in the workplace.

Ms Berton, a partner at Sydney firm Henry William Lawyers, said companies will need to review polices and reporting processes.

Increased scrutiny around confidentiality clauses, also known as non-disclosure agreements (NDAs) led to the Human Rights Commission issuing new guidelines in December 2022.

The guidelines suggest considering a "carve out" clause, which may allow the complainant to discuss the matter with their family or doctor.

"Sometimes the complainant wants anonymity and privacy, but in my experience, it's usually the organisation that would seek the confidentiality," Ms Berton said.

A report published earlier this year revealed that three quarters of lawyers specialising in sexual harassment claims never settled cases without strict NDA terms.

It also found half of the responding solicitors had never advised their clients that these matters can be resolved without strict confidentiality terms.

Concerns have been raised that the systematic overuse of NDAs has enabled employers to cover up patterns of misconduct and protect repeat abusers.

The Victorian Government is progressing legislative reform to restrict the use of NDAs in workplace sexual harassment cases, however nothing has been introduced yet.

In Ireland, legislation has been drafted to restrict the use of non-disclosure agreements, unless it is the expressed wish and preference of the employee concerned.

Ms Berton believes there will be a shift in workplace culture here.

"I think there will be a move to change them [here], to change the usage of NDAs," she said.

"We've got to create these cultures where people know that they can speak up."

You can view the full article on the ABC news website here: