Posted on: Apr 09, 2018
2018 has been the year for a global movement of people, in particular women standing up and telling their stories of sexual abuse and harassment. It began when the #MeToo campaign gained traction by celebrities sharing their own experiences of sexual misconduct in their chosen industry after Hollywood producer Harvey Weinstein became known as a sexual harasser with allegations dating back several decades. The campaign became so successful internationally, that it prompted allegations across multiple industries, including the legal sector in New Zealand.
What this campaign has done has created a platform for women to share stories of sexual harassment without fearing for their own professional reputation. It has also highlighted the need for a massive shift in thinking in regard to workplace sexual harassment.
While creating this change might sound complicated, for many New Zealand businesses, any resistance from employer’s to bring about change and prevent action will only further perpetuate the problem in workplaces.
Employers need to be aware that if they receive a complaint from an employee about any type of harassment by a co-worker, manager or any colleague the employer must conduct a full and fair investigation.
What is sexual harassment?
The Human Rights Act 1993 (HRA) and the Employment Relations Act 2000 (ERA) both define sexual harassment. However, to summarise s108 of the ERA, sexual harassment can be defined as:
- Behaviour of a sexual nature;
- That is unwelcome or offensive to the complainant; and
- By its nature or through repetition, has had a detrimental effect of the complainant’s employment, job performance or job satisfaction.
Failure to take any action may result in the employer not taking all “reasonable and practicable steps” to ensure employees are safe in the workplace. Needless to say, this lays the foundation for a personal grievance claim or breach of the Health and Safety at Work Act. This type of claim can be a mind field for an employer as they balance the duty to protect the complainant with the duty to treat the alleged harasser fairly in accordance with natural justice.
How does an employer investigate?
The employer has a duty to investigate any formal complaints of harassment or bullying by conducting a full and fair investigation. This will include:
- Gathering all relevant information, including a written statement from the complainant.
- Informing the alleged harasser of the allegations in detail and providing them with all the written statements.
- Informing them of the next steps which may include a formal disciplinary meeting, and their right to have a representative at that meeting.
- Informing them of any contractual terms in their employment agreements about sexual harassment or a workplace policy
- The employer may consider whether suspension is necessary while the matter is being investigated as there could be a health and safety risk to the complainant during this time.
- Taking thorough notes of the entire process is also vital.
When the process has not been investigated properly the employer exposes themselves to a risk of not protecting the complainant.
How to reduce the risk of sexual harassment in the workplace?
Sexual harassment is deemed to be serious misconduct which will generally result in summary dismissal. There will be difficult conversations and business decisions to be made, however it is important for the employer to promote a workplace culture that is safe. Without consequences to actions that constitute sexual harassment or misconduct, nothing will change within the workplace.
Employers can take proactive steps to promoting zero tolerance towards sexual harassment. The first step would be to implement a sexual harassment policy. The policy should outline what behaviour is acceptable (and what is not acceptable) and how complaints of a sexual nature will be addressed in the workplace. This will also enable employees to comply with the expected code of conduct and be a deterrent for any unwelcome behaviour.
Employers can also educate employees on the process by holding a workplace seminar.
For more information on drafting a policy or workplace education seminars contact Three60 Consult on 09 273 8590.
This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.