What the Sexual Harassment Amendment Act means for employers

The #metoo movement was a global phenomenon that came to Aotearoa’s shores in February 2018 when there was widespread media reporting of sexual harassment allegations made against a law firm. As similar experiences came to light from across the legal profession, the New Zealand Law Society undertook an independent review of its complaints process which it concluded was not fit for purpose. The legal profession reflected on itself, and many firms have since made concerted efforts to make change, such as unconscious bias training and culture changes to promote diversity.

The #metoo movement highlighted sexual harassment and gender politics as an issue in many other sectors and has hopefully encouraged them to make similar changes. However, to date, it appears that formal reporting rates of sexual harassment in the workplace remain suspiciousl

Extended Time for Personal Grievances for Sexual Harassment

To make it easier for victims to report sexual harassment grievances to their employers, the law has changed. The Employment Relations (Extended Time for Personal Grievances for Sexual Harassment) Amendment Act 2023 passed into law and came into effect on 12 June 2023. The intention of the Act is to make it easier for a person to raise a personal grievance that involves allegations of sexual harassment by extending the time available to raise such a grievance from 90 days to 12 months. For personal grievances of all other natures, the time to notify the employer is unchanged at 90 days. The background of the Act as stated on Parliament’s website says:

“Coming forward to report sexual harassment can be difficult, and many victims wait a long time before coming forward—if they do at all—because it can take some time to consider what has occurred and feel safe to raise it with others. This bill intends to make that process more accessible by giving people more time before they decide to come forward.”

It is hard to argue with the intent behind this. However, the question remains how will it help victims in real terms?

Will it help victims?

Delay can be caused by embarrassment, a lack of understanding of what has happened, self-blame, fear of what others will think, and the cultural norms of “shame”. There is also a power imbalance in the workplace. Victims are in a situation of inherent vulnerability because their livelihoods depend on them remaining at work. It is very rare for a victim to be able to overcome pressure from management, to go against their workplace culture, process all of what has happened and the associated trauma, and muster the courage to speak out.

Many perpetrators often sexually harass or assault multiple people over the course of their career. They start with one person who feels unable to report it on their own because the reporting process feels too daunting. Others may perceive the process to be biased against victims or fear it will be handled by people who may not be trained in handling sensitive complaints. Left unreported or mismanaged, and with no repercussions for the offender, the perpetrator moves onto the next person and it becomes a pattern of behaviour throughout their careers, particularly as they take on more senior roles and organisations tolerate their behaviour due to their seniority or performance.

What is considered to be “sexual harassment” at work can be subjective, affected by our cultural and generational differences. However, it is already defined in the Human Rights Act 1993 as being “unwelcome, or offensive and that is repeated or serious enough to have a harmful effect”. This is broader than touching someone against their will and includes unwelcome sexually offensive jokes and comments, invasive questions about a person’s intimacy, and sharing sexually offensive images. It also includes being passed over for promotion due to sexual activity with a co-worker (or for turning a co-worker down).

What should organisations do now?

At an individual level, sexual harassment is traumatic for the immediate victim and distracting to team members. If the perpetrator is not dealt with directly, they can continue their behaviour, affecting more people. A no-tolerance culture needs to be cultivated within an organisation and backed up with swift action to avoid legal and reputational risk.

Now the Act has come into force, employers need to:

• Inform your employees of the law change so they know how to raise a personal grievance for sexual harassment. This should be done in writing and a copy kept on file.
• Update your employment agreement templates to reflect the change.
• Refresh your sexual harassment policies to reflect the change.

But, regardless of the Act, we recommend that you are proactive:

• Educate your employees to know what appropriate behaviour is and how complaints can be reported.
• Ask them if they are experiencing inappropriate behaviour in surveys.
• Implement processes which enable reporting to be done anonymously and independently.
• Have ways to resolve inappropriate behaviour before it escalates, such as coaching and facilitation.

Ensuring employees can speak up freely about sexual harassment can be tricky for people leaders in large and diverse workplaces; layers of process, managers and the culture of the organisation can play a part in how easy or hard it can be to report issues before they become serious or systemic. An independent third party can help shoulder some of that responsibility and enable an expedited and safer approach to handling sexual harassment complaints, enabling people to be heard, but also protecting an organisation’s reputation by providing the means for complaints to be effectively handled, so they don’t end up as headline news.

While it can take time for the law to catch up with want society wants, that doesn’t mean we need to take time. Be proactive in supporting your employees, so your organisation does not revive the #metoo movement five years on.

About Fair Way

Fair Way are experts in resolving conflict at work. Employers across Aotearoa partner with us to improve wellbeing, build internal capability and positively address conflict. We provide a range of workplace services including training and workshop packages, investigations, and dispute resolution services.

Recognising that it is often hard for people to voice their concerns at work, we created a dedicated Speak Up service so employers can provide a safe and independent channel to ensure their people can raise issues, such as bullying or harassment, without fear of repercussion.

If you would like to find out more about Fair Way’s workplace services, please get in touch via workplace@fairwayresolution.com or call 0800 77 44 08.

About the author

Kate Keddell is a Senior Resolution Practitioner at Fair Way, specialising in workplace and boardroom related issues. Kate currently sits on the Council of Arbitrators’ and Mediators’ Institute of New Zealand. Her other professional memberships include Dunedin Community Mediation, Institute of Directors, and Otago Women Lawyers Society.