Discrimination in the workplace can cost more than just money. It can cost the reputation of the business, and the wellbeing of staff. So, it is important that a company has sound measures in place to ensure a discrimination-free workplace.
A good place to start is to develop a policy that protects workers from all forms of discrimination and harassment.
Some policy areas to focus on may include recent areas of contention, namely the prevention of a hostile work environment and the accommodation of flexible working conditions.
Preventing a hostile work environment
Many discrimination cases have considered the issue of a ‘hostile work environment’. This includes a series of behaviours, which on their own may not constitute discrimination, but which overall may amount to discrimination. One such example occurred in the case of Hill v Water Resources Commission, where the complainant raised issues of ‘repeated acts of gender-based harassment in the workplace’. This conduct included ‘stirring’ behaviour by male colleagues about the complainant being appointed a spokeswoman for a commission. These colleagues asked her ‘why isn’t there a spokesman?’ and ‘why isn’t it spokesperson?’ While this conduct would not normally result in a successful claim for sex discrimination, it did in this case, as it formed part of a repeated pattern of behaviour that contributed to a ‘hostile work environment’.
Therefore, companies may wish to include reference to the hostile work environment in their anti-discrimination policies, and deplore any pattern of conduct, small or large, seen to be discriminatory in any way to other employees.
Allowing flexible work arrangements
While employees generally do not have a right to part-time work or flexible work arrangements, cases currently establish that employers need to genuinely consider such requests and require a strong reason to refuse them. In Mayer v Australian Nuclear Science & Technology, the applicant requested to work part-time following her maternity leave and was refused. This refusal was found to be unreasonable and discriminatory because work was available to be completed on a part-time basis, and there was no strong reason for the refusal.
Thus, while employees are not to automatically entitled to these flexible arrangements, it may be prudent to include a policy stating that the company will try to accommodate flexible work arrangements where it is reasonable to do so.
However, as Driver Fm stated in Johanson v Blackledge ‘it is not enough to have a policy. One has to apply it.’ Companies should therefore also focus on ensuring staff are properly trained in those policies to ensure that discriminatory conduct is prevented, or complaints are adequately addressed.
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Snedden Hall & Gallop is an experienced and trusted leader in both employment law, as well as discrimination law.
Thank you to for the valuable contribution from Dominic Cookman.