Episode 2, World@Work: Sexual harassment: Different approaches to tackling the same complex problem

Tamara Lutvey:

Hello and welcome to Ashurst Legal Outlook. My name is Tamara Lutvey. I'm an Employment Partner in the Ashurst Brisbane office, and I'm delighted to be hosting this podcast episode, which is part of our ongoing World@Work mini series. Shortly, you'll hear my discussion with three special guests, Cristina Grande, Counsel and Head of Employment in our Madrid office, Raquel Mendieta, Counsel in Dispute Resolution in our Madrid office, and Liz Parkin, Senior Associate in Employment in our London office.

Before we hear that conversation though, it's important that I first explain that here in Australia, we acknowledge at the start of the podcast that we are speaking to you on the country of First Nations people who are part of the oldest continuous living civilization on earth and who never ceded sovereignty. I'd like to pay my respects and acknowledge the traditional custodians of the Turrbal country, the land from which I'm joining this podcast today. I would like to pay my respects to elders both past and present, and to all First Nations people listening today. And so to today's episode.

In this podcast, we explore some vastly different recent legislative measures that have been taken by various governments around the world to address the longstanding and serious issue of sexual harassment in the workplace. Because this issue is truly global, I tapped into the expertise of the panel on the position in Spain and in the UK. Here's our conversation.

So Christina, we saw recently that the Spanish government has taken what seems to us in Australia, as a drastic measure in criminalising certain workplace harassment and discrimination, with the employer as a legal entity now able to be held criminally liable if these practices occur within the organisation. Could you tell us how it came to reach this point in Spain and what else has been tried in Spain to control workplace harassment and discrimination?

Cristina Grande:

Yes, since 2010 inSpain, companies, can be held criminally liable for some workplace conduct. From October 2022 harassment has been added, to the categories of conduct for which a company can be held criminally liable.. So the introduction of criminal liability for companies in 2010 is considered to be the single most important change in our Spanish criminal law in the last century. This change was intended to comply with several European standards and recommendations. But the real reason behind this change is the intention to firstly give companies a strong incentive to invest in crime prevention within the company, given that corporate environments are often conducive to certain crimes. And secondly, give employers a more proactive role in monitoring or raising awareness among their staff of these undesirable behaviours.

The recent addition of harassment crimes to this list of conduct has been made in the context of a new law, the law on comprehensive guarantees of sexual freedom, the so-called Spanish law, only yes is yes, and additional measures aimed at ensuring effective equality between men and women and the LGBTI community. This new legal framework is based on the premise that sexual violence is not an individual issue, but a social issue, astructural problem that must be addressed in the public sphere as a matter of State.

Tamara Lutvey:

And so if a company is found to be criminally liable, what are the possible consequences under the current laws, Cristina?

Cristina Grande:

Well, in Spain, in accordance with our Labour, Social Security and Health and Safety legislation a case of harassment within the company can lead to four liabilities: (1.) an administrative fine of up to 225,000 euros can be imposed to companies that's around USD$240,000,(2.) an obligation to pay statutory termination pay if the harassed employee asks for the termination of their employment relationship plus the payment of damages compensation,(3.) reputational risk and (4.)the qualification of the harassment as an accident at work, if health and safety measures at work have not been observed resulting in a surcharge to the company for social security benefits. So the new possibility that employers are also criminally liable for harassment will lead to greater internal control and supervision of employees' conduct, and this will hopefully prevent or at least hinder such behaviour.

Tamara Lutvey:

Thanks so much, Cristina. That's a really interesting background to these laws. Raquel, can you now explain for us how these new criminal laws work in practice?

Raquel Mendieta:

Firstly, it is important to bear in mind that the criminal liability of the company is entirely independent of the liability of the individual who commits the offence, the perpetrator. The existence of one does not automatically determine the existence of the other. For the company to be liable for these offences, they must be committed in the course of the company's business and for the direct or indirect benefit of the company. It may seem difficult to imagine a scenario in which harassment of a worker could benefit the company, but it cannot be ruled out at all, as the concept of "benefit" is quite broad. For example, if as a consequence of the offence, the employee decides to leave the company that's saving the company dismissal, compensation and remuneration or social security costs, or the employee decides to accept a job transfer that they would not have accepted under normal conditions, the company could be considered to have received an indirect benefit.

Additionally, for the company to be liable, the offence must be committed either by the directors or managers, (meaning the top of the organisation), or by subordinates who have been able to commit a crime precisely because the directors or managers did not supervise them properly. The only means of defence for the company is to have a criminal compliance programme in place and up to date that meets all legal requirements and is effective. In this case, criminal liability of the company could be mitigated or even exempted altogether. In relation to the offences at hand, an effective compliance programme should include internal anti-harassment policies, a harassment protocol to manage internal complaints, specific training and awareness campaigns for staff and the establishment of measures to prevent, for example, that sexual videos or images are disseminated within their organisation by company computers or telephones.

The company will have to show that these measures have been an obstacle to the crime being committed and that there was an ethical culture at all levels, with zero tolerance for legal infringement. On the other hand, the company can mitigate its liability if it reports the crime to the authorities or if it provides relevant evidence leading to the clarification of the facts, which may encourage these incidents not to be covered up.

Tamara Lutvey:

Thanks so much for that overview, Raquel. As an Australian lawyer, I find the Spanish government's approach really interesting. In Australia, there's a debate at the moment about whether people who are the subject of workplace harassment and discrimination want to or should have to, go down the prosecution route as it's obviously traumatic for them to have to endure the inevitably long and drawn out process of a criminal trial and of course giving evidence. And another issue being debated in Australia at the moment about criminalising conduct, is the higher standard of proof that has to be satisfied in order to successfully prosecute the offending person. On the other hand, criminalising behaviour obviously sends a very strong message to the community that the problem behaviour will not be tolerated, and will be met with heavy and life altering penalties. 12 years ago in Australia, we saw the Victorian government implement what's known as Brody's Law, which was a law criminalising workplace bullying.

And while there are reports of about 140 offences having been recorded under Brody's law in the first five years of its existence, the resounding message from various commentators more recently at least, is that the laws haven't eradicated the issue of workplace bullying and there remains a strong need for people to stand up and to report it. So Cristina, how have these concerns with criminalization been addressed in Spain?

Cristina Grande:

In Spain, the most frequent reality in companies is the lack of knowledge and non -application of the regulations in the case of sexual harassment and harassment based on sex, which affects Spanish female employees. According to a report of the Ministry of Equality published in March 2021, when female workers were asked whether they had informed the company about being harassed, 72% answered no. And of these, 62% did not do so for fear of retaliation. So from our experience, this situation is due to a lack of awareness and establishment of strong ethical principles leaving it clear there is a zero tolerance for these practises.

Thus, we must point out the difficulty of providing evidence since this conduct usually happens without witnesses. So despite, that the burden of the proof, that there has not been harassment, lies with the perpetrator (except in criminal cases),. the harassed believe that their accusations will be treated as a crossword of words, and versions in which her word will not be believed. On the other hand, as I said, there are other conditions which limit the women's willingness to make complaints to a company or to trade union representatives or to initiate criminal proceedings for various reasons: feelings of guilt, lack of career credibility, fear of losing their jobs, lack of support among their colleagues, also the long duration of the whole criminal process and the fear of constantly reliving the situation with the resulting psychological suffering. So in Spain there is also a need to stand up and report and we will need to weigh how this new Spanish approach works.

Tamara Lutvey:

Thanks so much, Cristina. Liz, what's been happening in the UK? Has consideration been given to criminalization of workplace conduct in the UK?

Liz:

The framework in the UK in respect of protection in the workplace has actually got two core limbs. We have the statutory protection from discrimination and that includes harassment relating to protected characteristics such as sex or religion or disability. And this is enforced by our employment tribunal system and that leads to financial penalties for employers. There's also then separate protection, where the conduct that is complained of will be a criminal offence. So you're thinking about assaults or things like stalking. However, the liability under the criminal justice system remains with the perpetrator and does not lie with the employer.

Tamara Lutvey:

So that sounds pretty similar to the situation here in Australia. What approaches is the UK exploring to deal with workplace harassment and discrimination?

Liz:

So the government is actually supporting a new bill to amend our Equality Act, and that's going to result in employers becoming liable for harassment of their employees by third parties. So clients and customers for example. And it also introduces a mandatory duty to prevent sexual harassment of employees in the workplace. So our current legislation already means that employers would be vicariously liable for harassment by one of its employees, unless the business can provide evidence it's taken reasonable steps to prevent the harassment. So things like regular training and workplace policies being properly enforced. The bill looks to introduce further protections by allowing employees to bring tribunal claims where the harassment suffered was by a third party. So that's going to include people like consultants, clients, customers. The bill will also allow the employment tribunal, when they're looking at a harassment claim, to assess whether an employer has contravened this new mandatory duty to prevent sexual harassment.

And if they find that it has, then they've got the power to increase compensation by up to 25%. Under the current drafting, the bill would still allow for defences to be available for an employer. So if it's able to show that they've taken those reasonable steps to prevent harassment, then hopefully they'd be able to minimise their liability. And the reasonable steps are going to depend on the nature of the business. Things like resource and size, for example. At the moment it's also anticipated that the Equality and Human Rights Commission is going to publish a code of practice on workplace harassment, and that's going to sit alongside this new legislation to compliment it.

We're anticipating at the moment that this bill will pass and probably with very minimal amendments, and we should have hopefully some more information in the coming year from the government and also the Equality and Human Rights Commission on what is expected from employers in practice.

Tamara Lutvey:

Thanks so much, Liz. I think the range of responses across these three countries is really just so interesting, and I think it's also interesting that some of what you were just talking about, Liz, in relation to the UK Bill has actually recently come into effect here in Australia, particularly the express extension to cover conduct by customers, clients and other third parties. Over the last three years here in Australia, the focus has really been on giving people who experience sexual harassment in the workplace as much choice as possible in how they wish to report or address the issue.

And that philosophy has really stemmed from the Australian Federal Government's Respect@ Work Report, which was published in March 2020. That report found that at least at that time, the legal and regulatory system for addressing workplace sexual harassment was complex and it was confusing both for the complainant and for employers.

And it also found that the model was reactive and complaint based, which it found placed a really heavy burden on complainants, and on people coming forward, as opposed to a proactive model that required some positive action from employers. And the complaints based model also focused on individual misconduct rather than on any cultural or systemic prevention of sexual harassment in the workplace, which is obviously really important to consider. The Respect@Work Report made a number of recommendations for legislative reform, a number of which have now been implemented here in Australia. And the current federal Labor government has committed to implementing all 55 recommendations of the Respect@Work report. So there is a lot more change to come here in Australia.

So in terms of the changes that have already been implemented here in Australia, some amendments to our Sex Discrimination Act came into force in December last year, which imposed a positive duty on employers to take reasonable and proportionate measures to eliminate workplace sexual harassment, workplace environments that are hostile on the ground of sex, sex discrimination and victimisation as far as possible.

This positive duty expressly covered conduct of third parties like customers and clients, but the significance of the positive duty under anti-discrimination legislation has to be considered in connection with duties that already exist under safety legislation in respect of psychological safety and managing psychosocial risks more generally. So we are seeing really for the first time here in

Australia, a focus on the prevention of sexual harassment in the workplace being seen not only through a human resources lens, but also through a safety lens. And by approaching the issue in this way, sexual harassment has been acknowledged and recognised as a psychosocial risk to employees, which must be eliminated or at least minimised to the greatest extent possible like all other physical workplace health and safety risks. Positive duty also represents a shift from a reactive complaints based model I mentioned, to a proactive preventative model that compels employers to foster to the greatest extent possible, a workplace environment that's free from sexual harassment.

Liz:

It's fascinating, Tamara, to hear what's being done in Australia as it sounds like the UK government is actually starting to take on board some of these developments and is applying them to our framework. But how else are things developing in this area? You said all 55 recommendations from the Respect@Work report are being implemented.

Tamara Lutvey:

Yes, there's a number of other developments, Liz. The other key development is that the legislative reforms in 2021 and also late last year in response to the Respect@Work report have also introduced two new jurisdictions that people who experienced sexual harassment in the workplace can access, in terms of making a claim. So the first is a jurisdiction allowing people to apply for what's known as a Stop Sexual Harassment Order, and that can be made by the Fair Work Commission, which is our national specialist employment tribunal here in Australia.

And that type of order can be made in response to even a single instance of sexual harassment that occurs in the workplace, but the tribunal has no power to award any monetary compensation if it makes that type of order. In addition to this, there's also a new civil penalty provision that prohibits sexual harassment in connection with work including after-hours conduct, which came into effect on the 6th of March this year. Now this prohibition is supported by a new dispute resolution framework that will allow the Fair Work Commission to conciliate or mediate disputes. And if the matter doesn't resolve at conciliation or mediation, the Fair Work Commission can arbitrate the dispute with the parties's consent or otherwise the claimant can then commence proceedings in the Federal Court of Australia. And unlike the Stop Sexual Harassment Order jurisdiction, the specialist tribunal or the court can award uncapped damages in this new framework in addition to ordering a civil penalty. The new prohibition also allows for applications to be made jointly by one or more aggrieved persons against one or more respondents.

So the Australian government hasn't gone so far as to criminalise sexual harassment in a workplace setting, but it has tried to offer people more avenues to seek redress for this unacceptable behaviour and to discourage it by way of tribunal intervention, civil penalties, and more avenues to award civil compensation. So coming back to you, Raquel, what impact are legal and HR professionals in Spain predicting from the new Spanish law?

Raquel Mendieta:

The new legislation will certainly compel companies to review their criminal compliance plans. They will have to measure the risk of such harassment crimes taking place in the specific company, taking into account all its particular circumstances, its activities, sector, size, or staff structure. Because it has been proven, for example, that this type of offence is more frequent in companies with a majority of male staff, with night time working hours or with physical isolation of female workers. And then the companies will have to adopt the necessary measures or protocols to prevent such crimes and to be able to react efficiently to their potential commission.

However, it remains to be seen whether the new rule will encourage victims to report such offences. Being optimistic, we hope that the victims may be encouraged by the possibility that the company, if involved in the criminal proceedings, will make the necessary structural changes in its organisation or if the company is convicted, it will compensate them financially for the consequences of the crime, given that companies are usually more solvent than private individuals.

Tamara Lutvey:

They are some really interesting perspectives. Thank you so much for sharing your insights. And Liz coming back to you in the UK, has there been much of a safety focus on workplace harassment and discrimination over there similar to where Australia is moving its focus?

Liz:

So this isn't an area that our Health and Safety Executive has become actively involved in. There have been some areas such as workplace mental health becoming more of a safety focus in recent years, but nothing targeted yet in terms of harassment and discrimination. This is very much seen as outside the remit of the HSE and there's no current indication that this approach will change anytime soon.

Tamara Lutvey:

Thanks so much, Liz. So to wrap up this podcast, I think there are three key takeaways. So firstly, the need for legal reform to address sexual harassment in the workplace has been recognised globally.

Spain, the UK and Australia have all taken different approaches to tackling this really complex issue, and it remains to be seen if each approach will be equally successful in reducing the incidence of workplace sexual harassment to the extent that it's possible to get accurate statistics on the issue. Second, there's somewhat of a tension, I think, between adopting a proactive and a victim centric or choice-based legislative model and adopting a criminal or a complaint based legislative model to tackle sexual harassment in the workplace. And finally, I think regardless of which model a jurisdiction adopts, it's going to be critically important that all employers globally focus on maintaining a positive workplace culture that promotes gender equality. And this in turn reduces the risk of sexual harassment and other harassment, discrimination and bullying from occurring in the workplace.

I thoroughly enjoyed our session today and I hope that you found the comparative analysis to be valuable and gain some insights into how to manage workplace harassment and discrimination. I'd like to really thank our panellists, Cristina, Raquel and Liz for their time today.

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