As an employer, you are responsible for your staff if they harass or discriminate against others.
If you can't show you have taken reasonable steps to prevent discrimination and harassment, you can be held responsible - even if you were not directly involved. This is known as vicarious liability.
You could be liable for a claim of discrimination, sexual harassment or victimisation if you:
- knew about it, or should have known about it
- did nothing to stop it or prevent it from happening again.
Discrimination can be direct or indirect. See types of discrimination for more details.
Vicarious liability applies to discrimination or harassment that happens in all work situations including functions, seminars, conferences, office parties, business or field trips.
- Do staff know that treating customers and other staff unfairly is unacceptable?
- Are staff treated fairly in all your dealings with them - hiring, training, promotion, changes to working conditions or dismissal?
- Do you have a system for dealing with problems if they arise?
- Do you know where to get help?
- Is communicating with your staff a high priority?
If one of your staff unlawfully discriminates or harasses someone, you could be vicariously liable if you have not taken reasonable steps to prevent it.
To decide what steps are reasonable for you, consider:
- the size and structure of your business
- industry nature
- working hours
- levels of supervision
- numbers of customers and staff
- workplace culture
- any history of discrimination or harassment in your workplace.
What is reasonable for a large corporation may not be reasonable for a small business.
Here are some recommended reasonable steps for any business to take:
- Develop and promote a written policy that rules out discrimination and harassment.
- Make your policy accessible to everyone in your business.
- Brief new staff on your policy and other discrimination and harassment information.
- Inform all your staff of what you expect of them.
- Provide awareness training for managers and staff.
- Display anti-discrimination posters in the workplace.
- Review your policy regularly to keep it up to date.
- Treat your staff fairly in all your dealings with them.
- Consider making one of your staff an equal opportunity contact person.
- Know how to handle inappropriate behaviours before they escalate.
- Have an internal complaints procedure for dealing with problems if they arise.
- Encourage staff to come forward with problems or complaints.
- Treat complaints seriously, quickly and confidentially.
- Monitor the workplace culture.
- Survey staff on workplace behaviour or discuss it at staff meetings.
If a person with a disability, including a work-related injury, applies for a job and they are the best person for the job, you are obliged to provide special assistance or equipment to help them do the work.
This is known as reasonable accommodation.
If you fail to do this and it is found to be unreasonable, you could be unlawfully discriminating against your prospective employee.
Here are some ways you can reasonably accommodate people with disabilities:
- Make your workplace accessible to a wheelchair by putting in a ramp, rearranging office furniture, providing an accessible toilet or adjusting the height of work surfaces.
- Replace fluorescent lighting for a person with epilepsy, who may react to flickering or strobing.
- Provide a chair for a person who is unable to stand for long periods.
- Provide a large computer screen or screen reader and large print signs for a person who is visually impaired.
- Provide a sign language interpreter for a deaf person, or a medical assessor who is familiar with a person's particular disability during a job interview.
If a worker is unable to perform the core duties, you are not expected to keep a position open indefinitely or make adjustments that cause unjustifiable hardship to the employer.
For example, a small business would not have to alter a work vehicle for a disabled worker if the cost was too high.
You are not expected to hire someone who is unable to:
- perform the work required without endangering themselves or others
- respond adequately to any likely emergency at work.
It is up to you to prove there is a work health and safety risk that you can't reasonably accommodate.