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Liberty Specialty Markets

Sexual harassment reforms 'have implications for insurance'

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Australia’s Sex Discrimination Commissioner Kate Jenkins says the insurance industry has a role in encouraging employers to better manage issues, as action is stepped up to reform workplace practices that have failed complainants.

Ms Jenkins is completing a national inquiry into harassment in Australian workplaces and says a report later this year will make recommendations on improving education, providing better guidance for employers and strengthening laws.

Changes will focus on preventing harassment, removing barriers that prevent people coming forward, and finding alternatives to adversarial approaches, she told the Australian Professional Indemnity Group (APIG) conference in Sydney today.

“I am trying to make everything incentivised for employers to prevent, rather than hide, or kind of fight, sexual harassment cases,” she said.

Ms Jenkins says insurance has not been a focus during the recently completed consultation period, but there is “absolutely” a role for the industry.

Insurance policies affected by harassment claims include employment practices liability (EPL) and directors’ and officers’ (D&O) cover.

“I am really curious for you to think about what role you have in encouraging employers to stop claims [occurring] rather than dealing with them when they come about,” she said.

Ms Jenkins says the current system isn’t working well and many complainants say they would never have come forward if they had known how they would be treated. Employers have also been concerned over reputational damage.

“It is clear that in the legal process everyone has disregarded the welfare of the victim,” she said.

Ms Jenkins told the conference that complainants should have access to external support, beyond a firm’s HR department, and be given information on where they can receive assistance.

“If someone has a sexual harassment complaint the employer is at risk of a legal claim against it,” she said. “The employer is actually never independent in relation to that claim.”

APIG President Jeremy Scott-Mackenzie said the upcoming report would have implications for the industry and also presented opportunities for engaging with clients.

“It is clearly going to affect us right across both EPL and D&O insurance,” he said.

Gilchrist Connell Special Counsel Sarah Wood earlier told the conference that historically payments for the general damages part of compensation claims had been around $10,000-20,000.

But she said a 2014 case was awarded $100,000, after recognising previous levels had been too low, and more recently there had been payments of about $180,000.

Payments for aggravated damages had also been creeping upwards, she said.