Sex, drugs and rock’n roll — your liability as an employer

Sex, drugs and rock’n roll — your liability as an employer

More than half of Australian employees will have at least one office romance during their working life.

Hangovers cause 11.5 million ‘sick days’ per year at a cost of $3 billion to the Australian economy, and 61% of regular drug users are in full time employment. For employers, this can mean increased liability for sexual harassment claims, decreased workplace health and safety, and decreased productivity. So what can employers do when sex, drugs or alcohol start to impact the workplace?

How do you prevent the office fling going bad for your bottom line?

There is nothing unlawful about employees engaging in a consensual sexual relationship. There are, however, legal and non-legal risks to office shenanigans.

The predominant legal risk is a sexual harassment claim, and this risk is at its greatest at the end of a workplace dalliance.

Sexual harassment is any unwanted or unwelcome sexual behaviour where a reasonable person would have anticipated the possibility that the person harassed would feel offended, humiliated or intimidated. What constitutes sexual harassment is heavily fact specific, and it is difficult to draw a line around what will be appropriate versus inappropriate behaviour without the full context.

Sexual harassment is unlawful under the Sex Discrimination Act 1984 (Cth). Employers can be held vicariously liable for the actions of their employees, unless they can establish that they took all reasonable steps to prevent the sexual harassment, such as:

  • introducing a sexual harassment policy.
  • training employees about the policy, both at induction and on an ongoing basis.
  • Investigating complaints and consistently enforcing the policy, including issuing warnings and, where necessary and reasonable, terminating employees who breach the policy.

A relationship between two staff members can also have non-legal impacts, such as an adverse impact on staff morale, especially if there is a power imbalance and other staff perceived that there is favouritism. Employers should be careful to ensure that, wherever possible, reporting lines are adjusted to reduce any perceived conflicts of interest or favouritism.

When can you test your employees for drugs or alcohol?

All employers should have a drug and alcohol policy because it will:

  • help fulfil obligations under work health and safety legislation.
  • provide clear guidance to employees about acceptable drug and alcohol consumption.
  • provide a legal foundation on which to implement testing (subject to our next comments).
  • form grounds for dismissing or disciplining any employees who are not compliant with the policy.

But not all employers should include drug and alcohol testing as part of their policy. Drug testing is invasive, can generate inaccurate results, invades employee privacy, and a positive result does not necessarily mean an employee is unfit for work. If the policy requirements are disproportionate to the intended objective, employers could face difficulties in enforcing the policy.

For most employers random drug and alcohol testing should only be introduced where it can be demonstrated that it is reasonably necessary to maintain a safe workplace, taking into account the level of risk in the particular workplace and risks to the individual workplace participants, and whether or not there are viable alternatives to testing (for example, education, awareness and support). Construction is a prime example of an environment where drugs and alcohol represent such a risk that testing is recommended.

Employers may also have ancillary obligations that necessitate the introduction of drug and alcohol testing. For example, workplaces where it is necessary to deal with vulnerable people (teachers or day care), where there is a high exposure to alcohol and drugs (wineries or chemists), where the integrity of employees is important to the employer’s organisation (law enforcement and customs) or where duty or care obligations and professional qualifications may be adversely affected by excessive drug and alcohol use (lawyers or doctors).

When introducing a drug and alcohol policy, it is recommended that you seek advice to ensure that the policy is appropriately tailored to address the particular risks involved in your workplace.


For more information contact the Employment & Industrial Relations Team

William Ward — Special Counsel — Employment and Industrial Relations
(02) 6279 4366
william.ward@mvlawyers.com.au

Kirsty Easdale  Senior Lawyer — Employment and Industrial Relations
(02) 6279 4441
kirsty.easdale@mvlawyers.com.au