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employment

Sexual harassment in the workplace: Employer liability

Key Takeaway

Employers in New Zealand are legally obligated to prevent and address sexual harassment in the workplace. They can be held directly or vicariously liable for such conduct by employees. Key legislation includes the Employment Relations Act 2000, Human Rights Act 1993, and Health and Safety at Work Act 2015, which impose duties for prevention, investigation, and resolution of complaints.

Employer Liability for Sexual Harassment in the New Zealand Workplace

Employers in New Zealand have significant legal obligations to ensure a workplace free from sexual harassment. This article outlines the relevant rules, rights, and responsibilities for employers concerning sexual harassment in the workplace.

Understanding Sexual Harassment in the Workplace

Sexual harassment is defined in New Zealand law in several ways. Under employment law, it refers to unwelcome or offensive behaviour of a sexual nature that is either repeated, or of such a nature or extent that it has a detrimental effect on the employee, or creates a hostile or intimidating work environment [Source: Employment Relations Act 2000, s 103(1)(d)]. It also includes a request for sexual intercourse, sexual contact, or other sexual activity, made to an employee by their employer, a representative of their employer, or another employee, where the person making the request knows that it is unwelcome or offensive to the employee [Source: Employment Relations Act 2000, s 103(1)(a)].

The Human Rights Act 1993 provides a similar definition, stating that sexual harassment occurs if a person is subjected to unwelcome or offensive sexual behaviour, and that behaviour is repeated, or is of such a nature or extent that it has a detrimental effect on the person, or creates a hostile or intimidating work environment, or the person is treated detrimentally by reason of their rejection of or objection to any unwelcome sexual behaviour [Source: Human Rights Act 1993, s 62].

Employer's Fundamental Duties

Employers have several fundamental duties that underpin their responsibility to prevent and address sexual harassment:

  • Duty of Good Faith: Employers have a duty of good faith towards their employees. This duty requires parties to be active and constructive in their employment relationships and requires them to not do anything, directly or indirectly, to mislead or deceive each other [Source: Employment Relations Act 2000, s 4]. This includes fostering a work environment free from harassment.
  • Health and Safety Duties: Under the Health and Safety at Work Act 2015, a PCBU (Person Conducting a Business or Undertaking), which includes employers, has a primary duty to ensure, so far as is reasonably practicable, the health and safety of workers. This duty extends to managing risks to psychological health, which includes risks arising from sexual harassment [Source: Health and Safety at Work Act 2015, s 36].

Employer Liability for Sexual Harassment

Employer liability for sexual harassment can arise directly or indirectly:

  • Direct Liability: An employer can be held directly liable if they, as an individual, engage in sexual harassment of an employee.
  • Vicarious Liability: An employer can be held vicariously liable for acts of sexual harassment committed by their employees. Vicarious liability means that one party is held responsible for the actions or omissions of another. Under the Human Rights Act 1993, anything done or omitted by an employee in the course of their employment is treated as having been done or omitted by the employer. An employer can only avoid this liability if they prove that they took such steps as were reasonably practicable to prevent the employee from doing or omitting to do that thing [Source: Human Rights Act 1993, s 68].

Employer Obligations When a Complaint is Made

When an employee raises a complaint of sexual harassment, the employer has specific obligations under the Employment Relations Act 2000:

  • Inform the Complainant: The employer must advise the employee who made the complaint of their right to have the complaint dealt with under the sexual harassment provisions of the Act [Source: Employment Relations Act 2000, s 103A(1)].
  • Investigate the Complaint: The employer must inquire into the complaint [Source: Employment Relations Act 2000, s 103A(2)]. This investigation should be fair and impartial, consistent with the duty of good faith [Source: Employment Relations Act 2000, s 4].
  • Attempt to Resolve: The employer must take all such steps as are practicable to resolve the complaint [Source: Employment Relations Act 2000, s 103C].
  • Protect the Complainant: The employer has a duty to ensure that the employee making the complaint is not victimised or subjected to further harassment during or after the complaint process [Source: Employment Relations Act 2000, s 4].

Consequences of Non-Compliance

If an employer fails to meet their obligations regarding sexual harassment, an employee may raise a personal grievance against them [Source: Employment Relations Act 2000, s 103(1)(d)]. A personal grievance is a claim by an employee that they have been disadvantaged or dismissed unfairly.

The Employment Relations Authority or Employment Court can make various orders if a personal grievance is upheld, including:

  • Ordering reinstatement of the employee to their former position [Source: Employment Relations Act 2000, s 123(1)(a)].
  • Ordering reimbursement of lost wages [Source: Employment Relations Act 2000, s 123(1)(b)].
  • Ordering payment of compensation for humiliation, loss of dignity, and injury to feelings [Source: Employment Relations Act 2000, s 123(1)(c)(i)].
  • Ordering the employer to pay penalties for breaching the Act [Source: Employment Relations Act 2000, s 135].

Furthermore, failure to ensure a safe workplace free from harassment can lead to enforcement action by WorkSafe NZ under the Health and Safety at Work Act 2015, which may include penalties or other compliance orders [Source: Health and Safety at Work Act 2015, Part 4].

Prevention and Policy

Employers can mitigate their risk of liability and fulfil their duties by implementing robust preventative measures. These include having clear anti-harassment policies and complaint procedures in place, providing training to all employees, and ensuring that employees are aware of these policies and how to access complaint mechanisms. Implementing such measures is crucial for an employer to demonstrate that they have taken "reasonably practicable steps" to prevent sexual harassment, which can be a defence against vicarious liability claims [Source: Human Rights Act 1993, s 68].

When to Seek Independent Legal Advice

Individuals facing issues related to employment law, including sexual harassment, often find it beneficial to seek independent legal advice. Information presented here is for general understanding and does not replace tailored advice. Those seeking specific guidance on their situation may wish to contact Employment New Zealand, WorkSafe New Zealand, or a legal professional, including Community Law Centres for free advice, which can be found at https://communitylaw.org.nz/.

Key Resources