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15 March 2023

What the new Sexual Harassment legislation means for Employers

Since its introduction in October 2021, over the past 16 months, the Employment Relations (Extended Time for Personal Grievances for Sexual Harassment) Amendment Bill passed through several stages, lastly through the Committee of the Whole House on 7th December 2022. We are now awaiting its third reading in parliament, where they will sum up debates on the Bill’s final form, before it can be passed into law (Royal Assent).

Usually, the Third Reading occurs relatively quickly after the Committee, as it can in theory be put for a Third Reading on the next “sitting day” in Parliament, however priority may be given to other bills, etc. of which there are 70 current bills before parliament, with 53 actively being addressed since 2020.

Rarely would a Bill at third reading be rejected and not come into force, and it would be more than a surprise if this bill did not pass this stage, due to it having passed so many stages already with multi party support. Unfortunately there is no easy way to figure out when Royal Assent should be given, incase there are complications/opposition during the Third Reading debate.

However, where it passes the Third Reading stage, the Governor-General will provide royal assent usually within 7 days of the third reading. If it’s finalised as it is currently written, the Bill would come into force the day after it receives royal assent.

It is unclear, once it is in force, if the bill will be applied retrospectively, and therefore if an employee would be able to raise a new grievance or renew a previous complaint, if they believe they have been subject to sexual harassment prior to the Bill coming into force. Previously an employee only had 90 days to raise any type of grievance.

Regardless, should the Bill come into force, employers should ensure they have the right policies and procedures in place now and have fostered a culture that aims to prevent and protect workers from sexual harassment in the workplace, and follow thorough processes if a complaint is raised.

Taking into consideration how quickly this Bill could pass into law, this article is focused on providing you with key considerations and guidance for setting your business up to successfully navigate any future personal grievances for sexual harassment, and ensure you have sound practices in place to respond as a reasonable employer.

 The Purpose of this Bill

The key driving force behind this amendment to the Employment Relations Act 2000, is recognition of the challenges an employee, subject to sexual harassment, can face in processing what has occurred, and the significant period of time it can take them to reach the point of feeling safe and secure to raise to others, inappropriate behaviour that has impacted them at work.

Currently an employee has a window of 90 days to raise a personal grievance regardless of the nature of the event/situation, and the process to request a time extension requires an employee to establish extenuating circumstances, which can be hard to navigate.

The Bill has been introduced to provide an additional 9-month period, providing employees a total of 12 months to lodge a grievance with their employer (or controlling third party), from the date on which the alleged act/s of sexual harassment occurred, or from date the employee became aware of the alleged act/s of sexual harassment (whichever is later).

 What is Sexual Harassment?

Firstly, as an employer, you need to be clear on what constitutes sexual harassment. The Human Rights Act 1993 defines sexual harassment as, sexual behaviour from/by another person in the course of the employee’s work (e.g. an employee, manager or client/customer) that an employee finds “unwelcome, or offensive and that is repeated or serious enough to have a harmful effect”.

Some examples of behaviour that could amount to sexual harassment include, but are not limited to:

  • offensive sexual remarks or jokes,
  • sexually offensive images at work, including screen savers of a sexual nature, nude or partially nude calendars or pictures on office walls or in lunchrooms,
  • intrusive questions about an employee’s sex life,
  • being regularly hassled for a date,
  • being intrusively followed, either physically e.g., to a home, or via social media e.g., multiple requests to join personal social media accounts,
  • implied or actual rewards or threats of receiving or being overlooked for work opportunities in response to participating or not participating in sexual conduct,
  • unwelcome touching, patting, or pinching

What does an Employer need to do?

1. As an employer, you are legally obligated to manage any harm that arises from sexual harassment according to legislation: Health and Safety at Work Act 2015, Employment Relations Act 2000, and the Human Rights Act 1993.

Make sure you have policies/procedures in place that outline:

  • what constitutes sexual harassment and that such behaviour is not tolerated,
  • the rights of your employees to raise their concerns and how they can do so safely, and
  • the process you will follow to appropriately manage and address complaints.

Anyone can freely access guides and information on managing sexual harassment in the workplace in New Zealand, meaning there is no excuse as an employer not to have written policies and procedures focused on the prevention of sexual harassment in their business.

 Check out:

  • WorkSafe Advice
  • Employment New Zealand Advice

 2. Take steps to proactively reduce the risk of harassment occurring in your business, this may take the form of regular training sessions and/or communications to all team members around what is considered appropriate and inappropriate behaviour at work and how any complaints should be escalated and the consequences where such behaviour is proven to have occurred.

You may also ensure employees are not working in isolated or vulnerable positions (e.g., being alone in a building after work hours, needing to walk through dark carparks etc.), conduct employee culture surveys or exit interviews with specific questions to ascertain awareness and possible issues.

 3. Ensure you have an internal process or external support in place, to respond and seek resolution to all complaints, no matter how potentially minor. This could include:

a.       Coaching and guided conversation

b.       Facilitated meetings, with appropriate support people

c.       Investigations including interviews

Where conversation or meetings are either inappropriate or unsatisfactory, a thorough and fair investigation is required; however, regardless of the process followed, the outcome should be followed up in writing.

Depending on factors such as, the person the complaint is against, the size of your business and whether you have an internal HR person, any potential bias of an internal investigator etc. you may need to seek help from an external independent investigator. This person must be working under the instruction of a Law Firm, or hold a Private Investigator licence.

 4. If you are made aware of possible inappropriate conduct, whether raised as a complaint or witnessed, an employer must take action. The recipient of potentially inappropriate behaviour may not recognise, agree or want to participate in a process to assess behaviour being sexual harassment; however, from a safety and wellbeing perspective, once you become aware of a potential hazard in the  workplace, you are required to take steps to eliminate, isolate or minimise any risk and ensure you are providing a safe work environment.

If a recipient of potentially inappropriate behaviour does not want to participate in an investigation or resolution process, you must proceed carefully. There are many reasons why someone will not want to participate, such as, fear of retribution, dislike from colleagues, or feelings of being disempowered or vulnerable.  All communication should endeavour to be confidential, respectful and give the person opportunities for support and engagement.

 In an investigation, you may have witnesses or other information sources (e.g., CCTV) that provide sufficient evidence to make reasonable decisions on how to proceed.

 5. Maintain accurate notes and records for existing and departed employees. Legally you must maintain paper or electronic records for six (6) years post-employment.

 6. Document, document, document – as you take any steps to address concerns of alleged or proven sexual harassment in your business, you should ensure you have accurate notes and evidence to support your process and outcomes saved within your records. Much can happen in 12 months that can make it hard to recall or identify facts and evidence.

Documentation should be held in confidential files with limited access, and should not form part of an employee’s standard personal file (unless they have had an allegation of sexual harassment substantiated against them following a fair and reasonable process). Where an employee has raised a complaint, this complaint should not be considered as part of any other process, or disclosed to future parties, unless for the purpose of safety and wellbeing.

 Evaluate and Refresh

Whatever your business practice is now to respond to concerns raised about inappropriate behaviour, take the time to review your policies, procedures and your team’s education. If needed, reach out to your industry or business network, or seek external advice and support to evaluate and refresh your practices.

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