While it has recently been settled for a much smaller sum, the $37 million lawsuit launched by Kristy Fraser-Kirk against Mark McInnes and David Jones has firmly put the harassment and discrimination policies of corporate Australia under the spotlight.

" I don't come across any clients that don't have comprehensive policies in place" Alice DeBoos, partner, Middletons

"Taking reasonable steps is quite different to ensuring a workplace free from discrimination" Samantha Betzien, partner, Minter Ellison

"If you have policies that look good on paper, but the culture of the organisation doesn't match the intent and spirit of the policies ... then you have a nice set of documents but you don't have an effective, breathing system" Michael Byrnes, Clayton Utz

Given the chief executive of such a large and well known public company admitted certain instances of "behaviour unbecoming a CEO", many commentators were quick to state their belief that the actions of McInnes were symptomatic of an entrenched corporate culture where limiting reputational damage, not the fostering of an appropriate workplace culture, was the priority at the upper echelons of corporate Australia.

Michael Byrnes, a special counsel in the workplace relations, employment and safety team at Clayton Utz, acknowledges that just five to ten years ago, harassment and discrimination issues were seen as "soft" by employers. But today, he says that the clients he acts for now take these issues very seriously.

"Companies understand the importance of having in place mechanisms where complaints can be raised in an environment where the employee won't be victimised and the complaint will be taken seriously," he says.

As a regular speaker at various conferences and seminars on workplace relations issues, Byrnes believes that such policies are intrinsically linked with the culture that permeates through a company.

"If you have policies that look good on paper, but the culture of the organisation doesn't match the intent and spirit of the policies … then you have a nice set of documents but you don't have an effective, breathing system," he says.

Byrnes nominates a workplace culture that is not unduly hierarchical and fosters a "co-operative, collegiate and inclusive" approach as the most conducive towards then framing workplace policies that reflect that.

Many workplace relations lawyers now conduct training and refresher courses, as well as seminars, for clients with regard to these issues.

Alice DeBoos, a partner in Middletons' workplace relations and safety group, runs standard and tailored training programs for large employers, such as Fuji Xerox Australia and the Lend Lease Group on issues involving equal opportunity, harassment, discrimination and bullying.

She says the sophistication of the courses she runs and what the clients are looking to learn from such courses has changed markedly over the last few years.

"Five or more years ago, I would run training courses on the development of such policies, and information in this area was seen as being quite novel in some industries," she says. "These days, when I am running courses, they are really more refresher type training for large employers in terms of what is and isn't appropriate workplace behaviour," she says.

"I don't come across any clients that don't have comprehensive policies in place."

DeBoos runs such refresher courses for her clients around every 18 months to two years, and says that after high-profile claims such as that between Kristy Fraser-Kirk and David Jones, there is a spike from clients seeking to have their workplace policies reviewed, or conduct another refresher course.

One area that is still in its infancy with regard to the development of workplace policy is the use of social media.

Deboos says that clients are increasingly asking for her advice on the formation of appropriate policies in this area, and conversely, law firms are increasingly looking to add to its strength in this emerging space.

"There is a growing demand from large employers to put social media policies in place," she says. "On the compliance side, there is a need for employers to set down some boundaries on what is considered to be inappropriate communication on social media platforms.

DeBoos says that just because communication has taken place on sites such as Facebook after work hours, it doesn't mean that an employer can't link that back to the workforce, particularly if a person identifies themselves with a company.

A burgeoning area of DeBoos' practice is acting on allegations of bullying on social media forums, which she believes will continue to be an emerging area of law as more cases come forward and rulings are made.

Avoiding motherhood statements

In framing workplace policies, there has been a move away from sweeping general statements such as "our workplace will not condone harassment", to framing policies that categorically define acceptable and unacceptable behaviour, with specific examples.

Much of the thinking behind this has been driven by industrial relations and workplace lawyers.

Samantha Betzien, a Brisbane-based partner with the IR and HR practice at Minter Ellison, says that broad and sweeping "motherhood" statements on discrimination and harassment policies should be avoided as these can create additional sources of liability for employers.

"The types of things you often see in policies are statements such as 'the employer will ensure a workplace free of discrimination'," she says. "This is obviously a noble objective, but the reason it can create problems from a legal perspective is because in some cases policies are incorporated as terms of the employment relationship."

Betzien says that by having policies framed in such broad terms, an employer leaves themselves more exposed to possible legal action, as compared with an employer who has clearly defined policies as to what constitutes acceptable and unacceptable behaviour.

"The law does not impose an automatic liability on an employer for all discriminatory conduct occurring in a workplace," she says. "However, the law does require that employers must take reasonable steps to prevent discrimination and harassment from occurring in the workplace."

Taking reasonable steps is quite different to ensuring a workplace free from discrimination." Betzien states that the danger of having broad, sweeping, motherhood statements is that by having a policy that says you will ensure the workplace is free from discrimination, then you will sometimes see proceedings brought which plead a breach of that policy as a breach of contract claim.

"It can create obligations which don't exist at law," she says.