What the new sexual harassment legislation means for employers

This article was provided by K3 Legal

Since its introduction in October 2021, the Employment Relations (Extended Time for Personal Grievances for Sexual Harassment) Amendment Bill has passed through several stages over the past 16 months. The bill finally went through the Committee of the Whole House on 7th December 2022, and 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, a third reading occurs relatively quickly after going through the Committee, as legislation can in theory be put for a reading on the next “sitting day” in Parliament. However, priority may be given to other bills; there are currently 70 bills before parliament, and just 53 have actively been addressed since 2020.

When a Bill passes the third reading stage, the Governor-General will usually grant Royal Assent within 7 days of the reading. If finalised as currently written, a Bill comes into force the day after it receives Royal Assent.

Rarely does a Bill get rejected at third reading and not come into force, and it would be a surprise if the Employment Relations (Extended Time for Personal Grievances for Sexual Harassment) Amendment Bill did not pass this stage given that it has already passed so many stages with multi-party support. Unfortunately, there is no easy way to figure out when Royal Assent should be granted in the event of complications or opposition raised during the third reading debate.

Once it is in force, it is unclear if the Bill will be applied retrospectively; therefore, it is not certain whether 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’s implementation.

Taking into consideration how quickly this Bill could pass into law, this article is focused on providing 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. Should the Bill come into force, employers should have the right policies and procedures in place, should foster a culture that aims to prevent and protect workers from sexual harassment in the workplace, and should intend to follow thorough processes if a complaint is raised.

The purpose of this Bill

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

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

The updated Bill is set to extend this window by an additional 9 months, providing employees with a 12-month window 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 the 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 the 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
• 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 to not have written up policies and procedures focused on the prevention of sexual harassment in their business.

You may 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, how any complaints should be escalated, and the consequences that a perpetrator of such behaviour can face where such behaviour is proven to have occurred.

You may also ensure that 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), conduct employee culture surveys, or include specific questions in exit interviews 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:
   1. Coaching and guided conversation
   2. Facilitated meetings, with appropriate support people
   3. 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.

You may also need to seek help from an external independent investigator depending on factors such as the person a complaint has been filed against, the size of your business, whether you have an internal HR person, and any potential bias that could be shown by an internal investigator. External investigators must be working under the instruction of a law firm or hold a private investigator licence.

4. If you as an employer are made aware of possible inappropriate conduct, whether raised as a complaint or as a witness account, you 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, you are required to take steps to eliminate, isolate or minimise any risk and ensure you are providing a safe work environment once you become aware of a potential hazard in the workplace.

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 disempowerment or vulnerability. All communication should endeavour to be confidential, respectful and give the person opportunities for support and engagement.

In the course of an investigation, you may have witnesses or other information sources (e.g., CCTV footage) that provide sufficient evidence, enabling you 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 the 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

Take the time to review the policies and procedures you have in place now to respond to concerns raised about inappropriate behaviour. Evaluate your team’s education on such matters as well. If needed, you can reach out to your industry or business network; alternatively, seek external advice and support to evaluate and refresh your practices.    

Katrina Kemp and Robert Lim

As a passionate HR generalist, over the past 18 years Katrina Kemp has worked across a range of industries in both public and private sectors.  She has developed an in-depth understanding of each business she works within, including the industry specific intricacies and challenges. Katrina has experience within the industries of Architecture, Apprentice Industry Training, Infrastructure, Construction, Land and Property Development, Financial Services, Government, Consumer Products, Hospitality, Telecommunications, Consultancy and supporting small niche businesses.

Katrina prides herself on providing sound HR advice, guidance and support. Her work ethic and strong relationship skills have enabled her to build a client base through previous working relationships and word of mouth recommendations.

Katrina’s clients describe her as passionate, credible, and thorough. She works with clients in an open and transparent manner that engenders trust.

Robert Lim began his legal career working in a Community Law Centre for children and youth where he worked in a wide variety of legal areas such as employment, care of children, youth justice, and education law. He holds a LLB from Auckland University of Technology, and while studying, worked in-house as a legal administrator in a property management firm. Robert prides himself on being able to connect and build relationships with clients from all walks of life and brings his range of experiences to K3’s civil litigation team.