SEXUAL HARASSMENT is illegal. It is an employer’s responsibility to ensure that employees have a healthy and safe work environment. A friendly touch to one person could be an unwanted advance to another. A hilarious joke could make a co-worker feel uncomfortable. Sexual harassment in the workplace is a huge issue all over the world. It is something that both employers and employees need to be aware of, both for the protection of themselves and others. It is important to take steps to prevent sexual harassment from occurring, but also to react appropriately to incidents of sexual harassment.
Sexual harassment is unlawful when it occurs in employment under section 62 of the Human Rights Act 2003 and is also grounds for a personal grievance under section 108 of the Employment Relations Act 2000.
Sexual harassment is unwanted behaviour of a sexual nature, it can include, but is not limited to:
- Requests for sexual contact with an implied or overt promise of preferential treatment or threat of detrimental treatment if the request is refused.
- Behaviour of a sexual nature that is unwelcome or offensive, which has a detrimental effect on an employee.
- Sexual jokes.
- Comments about another person’s sexual activities.
- Touching or grabbing someone.
As an employee it is important to know when your conduct may be perceived by someone else as sexual harassment, even if it doesn’t seem that way to you. If you are the victim of sexual harassment it is important to keep records of incidents that offend you. Talk the situation over with someone you trust. You may confront the person who is harassing you, though it is understandable if you might feel uncomfortable doing this. Report the sexual harassment to a superior or human resources. If it is not resolved you have the right to contact a lawyer, the Department of Labour, or possibly the Employment Relations Authority for further assistance. There are many remedies available.
As an employer it is important that you foster a healthy working environment. Sexual harassment can come from fellow employees or customers. All allegations of sexual harassment must be taken seriously and investigated. Steps must be taken to prevent it from happening again. Not all sexual harassment will be reported so it is important to keep vigilant in order to prevent liability and make your business a safe and enjoyable place to work. Make all employees aware of the sexual harassment policies and create welcoming channels for reporting.
The Courts have taken a very hard line when it comes to sexual harassment, Chief Judge Goddard in Z v Y Ltd and A observed that:
“…sexual harassment poisons the atmosphere in the workplace. It is wholly unacceptable and entirely devoid of any redeeming features. It follows that its occurrence can never be met with matters of justification, excuse, or mitigation. It is an attack on the basic human right that all persons must be supposed to have to pursue their economic well-being in conditions of freedom and dignity.”
The Court of Appeal in Smith v Christchurch Press Company Ltd held that the conduct at issue doesn’t have to occur in the workplace:
“It is not so much a question of where the conduct occurs but rather its impact or potential impact on the employer’s business, whether that is because the business may be damaged in some way; because the conduct is incompatible with the proper discharge of the employee’s duties; because it impacts upon the employer’s obligations to other employees or for any other reason it undermines the trust and confidence necessary between employer and employee.”
Mr Smith was held to have been justifiably dismissed after a complaint from a co-worker about an incident at Mr Smith’s house where the two went for lunch.
The way an employer reacts to incidents of sexual harassment is extremely important, both for fostering productive employment relationships and for preventing liability. In Adkins v Turk’s Poultry Farm Ltd an employee had complained of sexual harassment and had reported it to her superiors. The employers raised concerns with the employee accused of sexual harassment and took some steps to separate the man from the complainant; however, they never told the complainant of the outcome of her complaint. Unbeknownst to the employer the harassment continued. The complainant, thinking her complaint had been ignored, suffered in silence. The complainant eventually resigned due to the continued harassment. The employer was found to be liable for constructive dismissal, due to the fact that they had not informed her of steps they were taking to fix the situation and stop the harassment.
Due to the sensitive nature of sexual harassment it is often not smartest course of action to deal with complaints internally. The people investigating may be too close to the parties involved and may find it difficult to act impartially and thus within the law. This is where it would be best to have a third party act for the business. As they are sufficiently removed from everyone involved they can act fairly and ensure that the necessary procedures are followed. This safeguards the business from flawed procedure and decision making and ensures that employees can have confidence in the systems in place.
It is essential that you have in place:
- A system for educating your staff on sexual harassment;
- Policies and procedures in place for the prevention and reporting of sexual harassment; and
- Systems in place to appropriately address incidents of sexual harassment.
BuckettLaw is always available for advice in these situations and has the systems in place to thoroughly investigate issues in your workplace.