Sexual Harassment – What Role Can Whistleblowing Play?

Recent reports about ongoing sexual harassment in the legal profession (even in the highest court in the country) have been the subject of much discussion and debate. Even without the spotlight being shone on high profile alleged offenders, the statistics are alarming – the recent national inquiry into sexual harassment conducted by the Australian Human Right Commission found that 39% of women had experienced sexual harassment in the workplace in the last 5 years.[1]

Sexual harassment is also severely under-reported. The Human Rights Commission Report notes that existing laws and regulations place a heavy onus on victims to complain, and that most instances of sexual harassment are never reported. 

Despite this, most organisations attempt to deal with this issue by formulating a sexual harassment policy, running an online training session and placing the onus on victims to make a complaint. These complaints are usually dealt with through a grievance process run by the HR function, and there is no obligation to keep them confidential or to protect the complainant’s identity. The reporting process sometimes turns into a traumatic experience for the victim, and there are instances where victims have been pressured into a mediation process with the harasser or subjected to an investigation process that does not protect their confidentiality.

Could a report of sexual harassment be treated as a whistleblowing disclosure?

The reaction of most people would probably be “No”. Surely whistleblowing is only for compliance matters like fraud, corruption and bribery? The whistleblower protection provisions of the Corporations Act 2001 (Cth) appear to back this up. Disclosures that relate solely to “personal work-related grievances” do not qualify for protection under the Corporations Act.

However, on closer inspection the work-related grievances carve out is narrower than it appears. It does not apply to disclosures that:

·  have other significant implications for the entity; or

·  have implications that extend beyond those that apply to the discloser personally (such as implications for other employees).

The meaning of “significant implications” has not been tested but in my view a report of sexual harassment by a senior employee could easily be interpreted as having significant implications for the entity (particularly if reported in the mainstream media). A report that alerts the organisation to a serial sexual harasser will also have implications beyond the discloser personally and extend to all employees (and former employees) that have been harassed. 

When examined in this light, it appears that a very large number of sexual harassment reports will be protected disclosures and victims will be entitled to protection as whistleblowers. 

Use of whistleblowing channels to report sexual harassment

Given that a large number of these disclosures will be protected, organisations should consider opening up the use of their whistleblowing channels for the reporting of sexual harassment. The use of an independent external channel may also be preferable for victims, who may have a well-founded distrust of making reports through internal channels. 

Some organisations may be resistant to this idea but handling sexual harassment reports through the whistleblowing program can actually help to lower legal risk. Rather than protected disclosures being made to senior managers who may mistakenly refer them to HR (thus breaching the anonymity protections), the use of a dedicated whistleblowing channel will ensure that the reports are received in a compliant and consistent manner. 

Key Takeaways:

·  Sexual harassment reports are often treated as workplace grievances but if they involve significant implications for the entity, or have implications beyond the individual discloser, they can also be protected as whistleblowing disclosures.

·  A person who makes a protected disclosure has a right to anonymity and to be protected from victimisation.

·  Use of the organisation’s whistleblowing channels to report sexual harassment may encourage victims to report. It will also help to protect the entity from legal liability associated with careless handling of protected reports.

Elizabeth Ticehurst is a Principal Lawyer at Activate Workplace Law, a boutique firm specialising in whistleblowing and employment law. She helps organisations with all aspects of whistleblowing, from establishing a policy and program framework, to training senior managers and advising on individual reports.  Find out more or get in touch with Elizabeth at www.activatelaw.com.au