In Part 5 of “What to include in an Employee Handbook” we take at look at ensuring equal employment opportunity in the workplace and prohibiting all forms of workplace bullying, discrimination and harassment. In Part 6, there will be more discussion on this topic, with a particular focus on vilification, victimisation, sexual harassment and staff responsibilities in these situations. 

Equal Employment Opportunity

It is important that your employee handbook communicates the business’ attitude towards equal employment opportunity and that it does not discriminate based on sex, sexual orientation, disability, religion or any other basis protected by the law.

Make sure to emphasize that the Business does not allow discrimination based on any of the above characteristics.

Bullying, Discrimination and Harassment

Bullying, discrimination, vilification, victimisation and harassment can have adverse consequences for the Business, its workplace and its staff. It should be the Business’ policy that all staff members are responsible for maintaining a workplace free of bullying, discrimination, vilification, victimisation and harassment and for reporting any such behaviour to the Business.

The employee handbook should inform employees as to the process for dealing with such abuse, either personally or on behalf of a colleague. If colleagues have been or are the subject of bullying, discrimination, vilification, victimisation or harassment, including sexual harassment, then employees should be encouraged to promptly report the behaviour. Employees should also be encouraged to report the concerns to their immediate manager. If this is not appropriate because the situation involves your immediate manager, then employee handbook should explain how and to whom to report the incident. It is also good practice to encourage victims or witnesses of such treatment not to take matters into their own hands, as this could make matters worse.

Make sure to address the relevant workplace health and safety legislation, as it requires the Business to ensure the health, safety and welfare of employees whilst at work. Under this legislation, the Business must take active measures to prevent bullying and harassment from occurring in the workplace and must take reasonable steps to stop it, whenever it occurs. Employees should be made aware of the employer’s obligations in this regard.

What is bullying and harassment?

Bullying and harassment in the workplace is generally accepted to be unreasonable behaviour that creates a risk to the health and safety of other employees. It may be direct or indirect and includes behaviour that humiliates, intimidates or offends an employee at their workplace.

The following are examples of direct bullying/harassment:

  • threatening to harm someone;
  • acts of violence;
  • offensive or abusive language;
  • public humiliation.

The following are examples of indirect bullying/harassment:

  • deliberately excluding or isolating an employee from workplace activities;
  • spreading malicious rumours about another employee;
  • deliberately denying access to information or other resources;
  • withholding access to information or other resources required by an employee to enable them to perform effectively at work.

When drafting this policy of the employee handbook, make sure it applies to repeated behaviour, as well as single or isolated incidents.

What is not bullying and harassment?

It is important to clarify what constitutes bullying or harassment in the workplace to avoid confusion. For example, the employee handbook might include a clause that gives the employer a legal right to direct employees in relation to the performance of duties at work. It should be clear that performance reviews or feedback on performance is not bullying.

Have your employment lawyer include a list of the types of conduct that would not constitute bullying/harassment in the workplace, such as:

  • setting performance goals and deadlines;
  • rostering and allocating work;
  • performance management of an employee or notifying an employee of unsatisfactory performance;
  • informing an employee about inappropriate behaviour;
  • restructuring or organisational changes.

Liability for discrimination

Discrimination can be unlawful under Federal, State and Territory legislation. It is important that your employee handbook inform employees of the business’ potential liability for acts of discrimination committed by its employees and agents in connection with the performance of their duties.

As the employer, you must take active measures and reasonable steps to prevent discrimination from occurring in the workplace and must take appropriate action whenever it occurs. Make sure this is inserted into the employee handbook. 

What constitutes discrimination in the workplace?

A person discriminates against another person if the person:

  • treats the other person less favourably than in the same circumstances, or in circumstances which are not materially different, the person treats or would treat another person because the other person belongs (or is thought to belong) to a particular group (i.e. direct discrimination); or
  • segregates the other person; or
  • requires the other person to comply with a requirement or condition which is the same for everyone but is not reasonable for the other person having regard to the circumstances as it has a disproportionate or unequal effect on the other person and the other person does not or is not able to comply with it (i.e. indirect discrimination).

When is discrimination unlawful?

Discrimination on any of the following grounds is unlawful:

  • age (including requiring an employee to retire because of their age);
  • carer’s responsibilities;
  • disability (including physical, intellectual and psychiatric disability);
  • homosexuality;
  • marital status;
  • race;
  • sex;
  • transgender.

It is also generally unlawful to discriminate against a person because an associate or relative of theirs falls into one of the abovementioned categories. You and your employment lawyer will need to ensure that all employees understand what discrimination is and what to do when it occurs in the workplace, either amongst colleagues or from the employer to the employee.

Conclusion

If you need assistance in drafting the policies contained in your business’ employee handbook, contact LegalVision on 1300 544 755. Our employment lawyers have drafted employee handbooks that are tailored to each business’ unique set of needs.

Lachlan McKnight

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