Vicarious liability is the responsibility an employer or principal has for the actions of their workers or agents while they are on the job. It means that if an employee is harassed, discriminated against, or vilified by another employee of the business in the course of their work, a complaint can be lodged against the business itself as well as the individual employee.
For example, if a worker sexually harasses another employee by repeatedly making remarks about her breasts in front of colleagues, and photoshopping her head on the body of a naked woman to use as his screensaver, she could lodge a complaint against both the worker himself and their employer.
The harassment, discrimination or vilification must take place ‘in the course of work’ for vicarious liability to apply. ‘In the course of work’ is not defined in the Act but previous rulings have found that the phrase should be ‘construed broadly’. In other words, the harassment, discrimination or vilification does not necessarily have to take place when employees are in the act of carrying out their jobs for vicarious liability to apply.
Bad behaviour that occurs at employer-sponsored events like conferences or seminars, or at work-related social functions like Christmas parties, may fall under the vicarious liability provisions.
Similarly, employers may be liable when computers or phones are used to harass someone – like sending text messages or emails.
Defence to vicarious liability
Employers can defend this liability by showing they took 'reasonable steps' to prevent their workers or agents from treating others unfairly or badly. These 'reasonable steps' aren't defined or listed in the Act, because what's reasonable for a large business may not be reasonable for a small company.
'Reasonable steps' can include having clear policies about fair treatment in the workplace, providing information and training for all staff, especially managers and supervisors, and having a fair process in place for dealing with complaints.
This might look like an employer making sure that:
- new staff are given training on appropriate behaviour in the workplace;
- supervisors, managers and staff are trained regularly in discrimination law;
- there is a clear workplace policy on appropriate behaviour which is reviewed and updated annually;
- there is a process to deal with any complaints quickly, privately and seriously;
- posters and brochures available from the Anti-Discrimination Commission are displayed in the workplace;
- staff are encouraged to contribute to a healthy workplace culture.
Each case will depend on its own merits, but as a general guide, employers need to do everything they can reasonably do to prevent inappropriate behaviour in the workplace.