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What is vicarious liability?An employer or organisation can be liable for discrimination, sexual harassment and vilification done by their employees or agents because employers are obliged by law to protect staff and clients from this type of behaviour. Complaints can therefore be made against individuals, workers, employers and organisations. Previous cases show employees have been found jointly liable at law with the employer, including the payment of compensation. In practice, vicarious liability means that a complaint against an individual may also be sent to their employer. An organisation may be liable if a person could be seen as representing the organisation or as acting on behalf of the organisation. Regardless of whether they are on contract or an employee, a person might be considered to be an agent of the organisation. The easiest way to work out if someone can be considered an agent is to think about whether others might see a connection or relationship between the two. Case StudyA local government subcontracted a suburban pavement refurbishment job to a landscape company. Employees of the landscape company were required to wear local government uniforms and identification while undertaking the work. During the work Susie, a local resident, was sexually harassed by one of the landscape company employees. Because the landscape company was an agent of the local government, visibly confirmed by the uniforms and name tags, the local government was also vicariously liable for the sexual harassment and at conciliation agreed to pay compensation. An employer or organisation cannot avoid vicarious liability simply because they were not aware of the unlawful discrimination, sexual harassment or vilification done by their employees or agents. What can I do about liability?Risk management needs to take the requirements of anti-discrimination law into account. Employers can argue a defence to vicarious liability if they can show that they took reasonable steps to prevent discrimination, sexual harassment or vilification in the workplace. Although the steps may vary, generally they include:
Case StudyA company designed a sexual harassment policy and pinned it to the staff noticeboard. A year later a worker complained that another employee was subjecting her to unwelcome sexual advances. Despite the policy, the organisation was found vicariously liable for the harassment because it had failed to provide training to managers and their employees about the meaning of the policy. The company therefore appeared to only pay 'lip-service' to the responsibilities imposed by the legislation and subsequently agreed to implement its policy more seriously. As a result of conciliation both the individual harasser and the organisation were liable for the harassment and consequent compensation payment. Recent rulings and case outcomes in Queensland, other states and at the federal level have shown that an employer’s obligation does not just involve the introduction of appropriate policies, but also entails ensuring such policies are positively and actively implemented. Requirements of employment and other conditions and practices must also be examined to ensure that indirect discrimination is not occurring. Often such rules or practices appear neutral when in fact they have a disproportionately negative impact on certain people. If they do it will be against the law, unless reasonable. For example, promotion based on seniority can indirectly discriminate against women who have taken time out of the workforce because of family responsibilities. index of Discrimination in Employment
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