WA firms warned to curb boozy festive functions and ‘afterparties’ to avoid legal liability

Perth legal experts have warned businesses to rein in Christmas functions and informal afterparties to prevent sexual misconduct. Circle Green Community Legal workplace principal lawyer Elisha Butt described the often-boozy silly season events as “high-risk” settings with employers needing to be mindful of new positive-duty legal obligations. “Hosting it ‘off-site’ doesn’t necessarily sever the connection with work,” Ms Butt said. “Depending on the circumstances, this liability could extend to informal afterparties following on from end-of-year work functions.” Ms Butt said the Perth legal firm had acted for victims of attempted or actual sexual assaults during the festive period. “Our clients seek legal assistance in relation to a broad range of behaviours — from unwelcome intrusive questions to unwanted sexual advances, to sexual assault,” she said. From networking events and after-work gatherings to lunch breaks and remote work — Ms Butt said employers may still be held liable if the conduct of staff is connected to their work unless all reasonable steps were taken to prevent it. “The law just requires that the conduct of the perpetrator be in connection with their employment for an employer to be potentially liable for the conduct unless the employer took all reasonable steps to prevent it,” she said. However, firms can still be investigated by the Australian Human Rights Commission, which is the regulator for the positive duty, even if an employee doesn’t need to make a claim. Expanded protections for workplace sexual harassment under the Fair Work Act became enforceable late last year. Former sex discrimination commissioner Kate Jenkins has previously raised the issue, saying that during her tenure at a legal firm she would anticipate a wave of sexual harassment cases in January after the corporate Christmas parties season. Circle Green’s workplace respect manager Heidi Guldbaek said it can take years for some employees to feel ready to make a legal claim or report sexual harassment and assault. “Reporting or requesting legal assistance doesn’t necessarily correlate with when the incident occurred. There are so many barriers to reporting or seeking legal assistance for sexual harassment,” Ms Guldbaek said. Ms Butt said while alcohol can lower inhibitions at work-related — sexual harassment was rooted in power and gender inequality. “Cultural norms around alcohol consumption at work related events may potentially increase the risk of workplace sexual harassment, but what drives workplace sexual harassment is gender inequality and other intersecting discrimination and disadvantage,” she said. Ms Guldbaek said businesses could manage risk by encouraging responsible drinking, auditing staff culture, recruiting a diverse workforce, prompting respectful behaviour, and demonstrating consequences for inappropriate actions. “A good place to start is to make sure you have a workplace sexual harassment policy that staff are aware of and ensure they’ve had sexual harassment training,” she said. She said higher rates of sexual harassment were experienced by marginalised groups such as those from other cultures, LGBTQI+, non-binary, those with disabilities and individuals with less stable work arrangements like interns, volunteers, and casual staff. “But that said, anyone can experience workplace sexual harassment,” she said, adding the centre has also assisted WA men in workplace sexual harassment claims. She said barriers to reporting could include fear of retaliation or not being believed, poor treatment of previous matters, a toxic culture where disrespect, inequality and sexism is normalised or workplaces that lacked sexual harassment policies. Ms Guldbaek said sexist jokes and microaggressions were common and could have a cumulative toll on a person’s wellbeing. She revealed WA firms were still using non-disclosure agreements and confidentiality clauses in settlements to muzzle sexual harassment victims. NDAs often prevent victims from speaking their truth and warning others. “In our experience, many employers are not willing to consider resolving a matter through settlement without the complainant signing a broad NDA which prevents them from talking about their experiences,” she said. “The misuse of NDAs can silence victims, prevent sexual harassment from being holistically addressed in a workplace, and perpetuate harm. “This is arguably at odds with employers’ positive duty to eliminate sexual harassment. “Victims should seek legal advice before signing to fully understand their rights and the future impact of signing an NDA.” The Cook Government opened the door late last year to banning resources companies from using NDAs if the sector didn’t voluntarily stop the practice — with then mines minister Bill Johnston furious they were still in use after a landmark parliamentary inquiry into FIFO sexual misconduct. University of Sydney research recently found many Australian lawyers were failing to meet their obligations to inform their clients that NDAs aren’t mandatory or that they can be negotiated.