The Employer’s Liability Around Sexual Harassment In The Workplace

In 2021, businesses have seen greater visibility surrounding the issue of sexual harassment within the workplace, particularly within the media and the public sphere. The impact of sexual harassment within the workplace is one that can have long-lasting ramifications on employees and employers alike. Sexual harassment is prohibited in any employment situation and relationship, with both men and women often experiencing acts of it in the workplace.

The health and safety of employees (mental, physical, and emotional) is the responsibility of the employer and must be protected accordingly. New Zealand currently has the Employment Relations Act 2000 and the Human Rights Act 1993 in place to protect people from sexual harassment.

As an employer, you may be held responsible for acts of sexual harassment committed by your employees, known as “vicarious liability”. The Employment Relations Act specifically makes the act unlawful within the workplace, but can also make you, the employer, liable in any instance involving employees. The Human Rights Act makes employers liable if one of their employees subjects anyone to sexual harassment in the workplace.

Businesses should have in place a sexual harassment policy to ensure that employees are aware of their position, and what is and is not acceptable behaviour, and how to report it if it is not. When writing a sexual harassment policy, it is important that you make it clear that sexual harassment will not be tolerated under any circumstances, and what your organisation’s commitment is in dealing with sexual harassment.

Employers can also take the following steps to prevent sexual harassment:

• Get high-level management support to implement a strategy to address sexual assault in the workplace.
• Write and implement a sexual harassment policy.
• Provide information and training about sexual assault and awareness of it.
• Ensure that employees are aware that complaints will be taken seriously and employees will face disciplinary action if they engage in inappropriate behaviour.

If sexual harassment does occur, the employer must take appropriate remedial action, with appropriate procedures on dealing with grievances and complaints once they are made.

To respond to employees who report sexual harassment, employers should:

• Take all reports of sexual harassment seriously.
• Act promptly, with set timelines, and deal with reports as soon as they come in.
• Protected all of the people involved in the report from victimisation
• Support the people involved, and make them aware of what support and representation are available to them.
• Maintain confidentiality, and ensure that all details of the matter are only known to those directly concerned and those involved in investigating.
• Ensure all actions and decisions are documented.
• Treat everyone involved fairly, with unbiased investigators and decisions made based on facts and evidence.

Employees may also decide to seek help outside of the organisation and are legally entitled to do so. These organisations could include

• The Human Rights Commission
• MBIE’s Employment Mediation Services
• Employment Relations Authority