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The media has been in a frenzy after a New York Times investigation uncovered multiple allegations of rampant sexual harassment over decades by Director and Co-founder of The Weinstein Company, Harvey Weinstein.  Mr Weinstein was fired by the board at The Weinstein Company and new allegations continue to come to light.  The Weinstein Company have purportedly known of many of these allegations, yet have only taken action now that they have been made public.

So what is sexual harassment, how do employers deal with allegations of sexual harassment and what are the risks if you don’t deal with them appropriately?

The law
The Human Rights Act 1993 (HRA) defines sexual harassment as unwelcome or offensive sexual behaviour that is repeated or significant enough to have a harmful effect on the victim.  Examples of sexual harassment include:

Being shown sexually offensive pictures at work;
Unwelcome sexual touching or advances; and
Sexual remarks in the workplace.
Additionally, the Employment Relations Act 2000 (ERA) defines sexual harassment as language, visual material or physical behaviour of a sexual nature which is unwelcome or offensive to an employee, and which is either repeated or so significant that it has a detrimental effect on the employee’s employment, job performance or job satisfaction.  Further, if a person directly or indirectly asks an employee for sexual intercourse, sexual contact, or another form of sexual activity and their request contains an implied promise of preferential or detrimental treatment, or an implied or overt threat about their present or future employment status.

The ERA states employers must investigate allegations of sexual harassment and where the allegation is substantiated they must take whatever steps to prevent any repetition of the behaviour or request that formed the basis of the allegation.

Under the Health & Safety at Work Act 2015 (HSWA) employers have an obligation to protect employees and others against harm to their health, safety, and welfare by eliminating or minimising risks arising from work.  The HSWA defines hazard as “including a person’s behaviour where that behaviour has the potential to cause death, injury, or illness to a person (whether or not that behaviour results from physical or mental fatigue, drugs, alcohol, traumatic shock, or another temporary condition that affects a person’s behaviour)”.  This means employers also have an obligation under the HSWA to manage the risks relating to sexual harassment within the workplace.

Practical risk management
Having a policy defining and setting out steps to address harassment will assist employers to address the issue, as an instrumental document in creating a “harassment free” culture, where workers are clear about how to raise complaints, and where these are taken seriously.

Where a harassment complaint is made, employers must act swiftly to investigate, including by advising both parties of the support available to them during the investigation.  Depending on the circumstances, employers may consider engaging an external investigator to assist with this.

Where claims are not investigated, or where they are not investigated adequately, employees have the option of making claims in either the Employment Relations Authority (Authority) or the Human Rights Review Tribunal (HRRT).  Where reasonably practicable steps have not been taken by the employer to manage the risk of harm in respect of the behaviour by the employee, there is also a risk of charges under the HSWA.

Our team can assist with advice regarding harassment policies, investigations, and training for managers in implementing these.

Disclaimer: We remind you that while this article provides commentary on employment law and health and safety topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.

November 2017