Lander & Rogers and Litmos have determined that summative, scored assessments may present employers with unnecessary risk. This is because they may put responsibility on the employer to prove that they have addressed gaps uncovered by assessment scores of less than 100%.
In addition, the courts determine the strength of an employer’s defence of vicarious liability based not on assessments, but on whether the compliance training is clear, comprehensive, delivered regularly and easy to understand.
Under Australian law, employers are obliged to ensure that their employees understand their responsibilities in relation to:
- Anti-money laundering
- Competition law
- Consumer law
- Electronic communication and social media in the workplace
- Equal opportunity in employment
- The Fair Work Act 2009
- Misleading conduct
- Work health and safety
- Workplace bullying
When employers have not provided appropriate training to their employees, the courts can find them liable when their employees breach their legal obligations.
The case study below demonstrates the potential risk presented by summative, scored assessments.
An employee completes a sexual harassment course. He completes the assessment at the end of the course and gets 90 per cent of the questions correct. Two months later, that employee sexually harasses a colleague in the workplace.
The colleague brings a claim of sexual harassment against the perpetrator and the employer. The employer points to the sexual harassment training that the perpetrator completed just two months prior to the offence, and argues that, by having policies in place and providing this training, it took all reasonable steps to prevent the sexual harassment.
The courts look closely at the training that a perpetrator has received. The court reviews the perpetrator’s assessment score. Because the score is below 100%, the court considers which questions were answered incorrectly.
In this example, the court would expect the employer to demonstrate the steps it took to address the perpetrator’s evident lack of understanding about sexual harassment. If the court were to find the employer did not give the employee the necessary training, the court could find the employer vicariously liable for the employee’s behaviour.
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To ensure we are helping our clients to mitigate risk in the most effective manner, we no longer provide summative, scored assessments to accompany our Australian and New Zealand compliance training.