What employers can learn about duty of care from the government’s handling of Brittany Higgins’ alleged sexual assault

There are a lot of disturbing details in the recent story about the alleged rape of Brittany Higgins in Parliament House. 

Higgins alleges she was raped by a senior colleague in an office in March 2019 and, after reporting it to her employer, was made to feel as if her ongoing employment would be jeopardised if she took the matter further.

In a recent statement, Higgins also said she had only been made aware of “key elements” of her sexual assault as a result of her coming forward publicly with her story, including the fact that an internal review was being undertaken into the how the matter was handled at the time. She also noted in this statement that the “continued victim-blaming rhetoric” by Scott Morrison was “personally very distressing”.

The institutional failings that led to the incident are now being uncovered, and questions are being asked about whether the federal government did enough to protect Higgins in her employment.

The story has also brought a renewed focus to the duty of care that employers owe to their employees in the workplace, particularly when it comes to sexual harassment and sexual assault.

In this article, we explore that duty of care and the consequences for employers who fail to uphold it.  

The overarching duty of care

All employers have an overarching duty at common law to take reasonable care to avoid exposing their employees to unreasonable and foreseeable risks of injury. 

The degree of care and foresight required will vary in each case, meaning that employers must accommodate the particular vulnerabilities of each of its employees. 

The duty of care owed by employers is also a non-delegable one. This means an employer cannot delegate the responsibility for this duty to a third party. A failure to uphold this duty of care can render an employer liable for a claim in negligence. 

In Australia, claims of this nature are usually dealt with under the applicable statutory worker’s compensation scheme. Under these schemes, employees can make a claim for a personal injury arising from their employment.

A successful claim will usually result in a payment to the employee for weekly earnings and medical expenses. However, for more serious long-term injuries, a lump sum payment for permanent incapacity can also be made.

While a worker’s compensation claim can help ease the financial burden for an employee, it does little to address the failure by the employer to uphold its duty of care.

This can mean that once an employee is fit to do so, they are returned to the same workplace in which they were sexually harassed or assaulted, without measures in place to prevent it from reoccurring. 

Safe working environments

In addition to the common law duty of care, employers also have a duty to keep their employees safe under occupational health and safety laws.

For example, under subsection 21(1) of the Occupational Health and Safety Act 2004 (Vic), an employer must provide and maintain for employees a working environment that is safe and without risks to health. A similar duty exists under subsection 19(1) of the Work Health and Safety Act 2011 (Cth).

This duty involves, among other things, providing adequate facilities for the welfare of employees and such information, instructions, training or supervision as is necessary to enable people to perform their work in a way that is safe and without risks to health. This could include, for example, policies and training relating to sexual harassment in the workplace. 

Employers also have a duty to actively monitor the health and conditions of employees and provide information to employees about health and safety in the workplace, including the names of persons to whom an employee can make a complaint or inquiry. This could include, for example, regular compliance checks to ensure employees remain adequately trained and having a clear grievance policy setting out how and to whom complaints are addressed.

Employees themselves also have a duty under occupational health and safety laws to take reasonable care for the health and safety of their colleagues. This can include both acts and omissions by employees. Therefore, an employee who witnesses a sexual assault in the workplace, and does nothing, could be breaching their own duty to take reasonable care of the health and safety of their colleagues. 

Where an employer unreasonably fails to prevent or action sexual harassment or sexual assault in the workplace, this will usually constitute a breach of its obligations under occupational health and safety laws. 

Not only does this failure mean its employees have not been given a safe working environment, and have likely suffered as a result, it also means that the employer can be prosecuted by the occupational health and safety regulator and exposed to significant financial penalties.

Vicarious liability

In addition to its own non-delegable duties, an employer can be held vicariously liable for the conduct of its employees, where that conduct causes injury or harm to another. 

For example, sexual harassment in the workplace is prohibited under equal opportunity legislation in each state and territory and also under the Sex Discrimination Act 1984 (Cth) (the SDA) at the federal level. These laws allow employees to hold colleagues and other workplace participants to account in a civil claim.

However, subsection 106(1) of the SDA also provides that an employer will be vicariously liable for the conduct of an employee that is in breach of the SDA. 

Although subsection 106(2) of the SDA provides that an employer will not be responsible if it “took all reasonable steps to prevent” the conduct from occurring, it does mean that employers need to be proactive in their efforts to reduce and eliminate the risk of sexual harassment and assault in the workplace if they want to avoid liability for the actions of their employees. 

Investigating and taking action

As a result of these laws, an employer has an obligation to prevent, investigate and action complaints of sexual harassment and sexual assault in the workplace.

The apparent failure by the federal government to do so is perhaps the most shocking aspect of the Brittany Higgins case. That is, Brittany Higgins reported the alleged conduct to her employer, and instead of being reassured that it would be addressed, was made to feel that her employment would be in jeopardy if her complaint was pursued.

Scott Morrison has recently announced an independent review into the workplaces of parliamentarians and their staff. This is in addition to the internal review that is currently underway into how the complaint by Higgins was handled at the time. 

This reactionary response from the Morrison government is unhelpful and feels contrived. If there was a genuine concern about the welfare of Higgins, her complaint would have been dealt with seriously at the time, not after it was made public several years later. 

No employer should wait for sexual harassment or a sexual assault to occur in the workplace before they take action. Nor should they wait for a complaint to be made. Proactive steps should always be taken to minimise, as best as possible, the risk of it occurring in the first place.

These steps can include, for example, training for managers to identify risks, internal transfers where people feel uncomfortable, clear sexual harassment policies and training in same and independent cultural reviews. 

When an incident does arise, it’s important that the employer has fostered a working environment where reporting is encouraged, has a clear grievance policy, undertakes an independent investigation, implements an early intervention plan, keeps all parties to the investigation fully informed, takes meaningful disciplinary action when the conduct is found to have been substantiated and offers parties access to an employee assistance program.

Only then will we see a reduction in situations like those experienced by Brittany Higgins.

Disclaimer: This article should not be construed as legal advice and is not intended as such. If readers wish to obtain advice about anything contained in this article, they should speak with a lawyer and discuss their individual circumstances.