Leading employment lawyer reveals the most pressing issues for NZ employers going into 2022
HRD speaks to Kathryn McKinney, employment partner at Anthony Harper who is speaking at HRD’s employment law masterclass, New Zealand to be held in Auckland on 22 March 2022.
Kathryn McKinney has seen a rise in the number of complaints of sexual harassment and misconduct that employers are dealing with in the past 24 months, which she attributes to the knock-on effects of the “Me Too” movement - and cases being publicised in New Zealand’s media.
“I think victims of sexual harassment or bullying have found a voice, and are more willing to make complaints,” she told HRD. “Perhaps it's because people feel it's more important to raise it, so that it’s not repeated in their workplace.
“There’s an expectation that this type of conduct should be dealt with and that employees should be safe and protected and be able to work without having to deal with the negative impacts of it.”
As well as seeing a rise in the number of complaints of sexual harassment and misconduct that employers are dealing with in the last 24 months, McKinney has also seen an increase in cases where an employee is charged or found guilty of sexual assault outside the workplace and are seeking legal advice on whether it’s grounds for dismissal.
Sexual harassment in employment terms is conduct or language of a sexual nature in a workplace, a professional or social setting that is connected to the workplace, that’s unwelcome, unwanted or offensive to the person who’s subjected to it. It’s not black or white when defining what constitutes serious sexual misconduct.
“The employer must also consider the impact that the conduct has on the victim when deciding how serious the conduct is,” added McKinney. “When an employer responds to a complaint they have to listen very carefully to the complainant and consider the impact the conduct has had on the person who has raised the complaint and how they want it addressed.”
How employers can safeguard against sexual misconduct
The Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Bill, currently going through parliament seeks to extend the time which a person can raise a grievance for sexual harassment in the work place from 90 days to one year. Coming forward to report sexual harassment can be difficult, and it’s common for victims of sexual harassment to wait a long time before doing so. For a person who has been the subject of sexual harassment, 90 days may not be enough as it can take people some time to consider what has occurred and feel safe to raise it with others states the Amendment Bill.
Three pieces of legislation are potentially relevant to sexual harassment claims. The Employment Relations Act 2000 specifies that an employer must enquire into the facts of any such complaint, explains McKinney.
“Claims can also be raised under the Human Rights Act 1993 - which also establishes that an employer can be vicariously liable (so responsible) for the actions of an employee who has been sexually harassed. An employer can defend those claims by arguing they took reasonably practicable steps to prevent the act. This might include introducing suitable policies, educating staff, sending reminders of expected behaviour at social events and taking appropriate actions with any incidents that are reported.
“The wellbeing of staff is also protected under the Health and Safety at work Act 2015. This places a duty on an employer to ensure, so far as reasonably practicable, the health and safety (both psychological and physical) of workers while they are at work. If you’ve taken steps such as introducing a sexual harassment policy and providing training on those policies, then you can argue that you have taken reasonable actions to meet your obligations.”
Employers need to work to establish a work culture in which employees feel safe and confident to raise any concerns. This is especially important for our more vulnerable employees, such as migrant workers, who often worry that their immigration status may be negatively impacted by raising a complaint, added McKinney.
“Here in New Zealand, I often see complaints being raised where the employer has no policy or knowledge how to manage a sexual harassment complaint. This is despite the fact that these complaints can cause serious reputational harm. I would strongly advocate for employers to proactively take steps to educate and train staff about inappropriate behaviour and be more alive to the fact that there is a lot more work we could be doing proactively to protect employees from unwanted and harmful behaviour. Apart from being the right thing to do, and helping to look after your people, it gives employees the confidence that their employer will not tolerate that type of conduct.”
The motivation for businesses to establish the appropriate culture and policies can also be commercially driven, explains McKinney.
“We tend to work a lot in New Zealand with businesses from overseas, and they are often further along the maturity curve in terms of their growth and development of established policies and procedures to tackle harassment and discrimination. For example, businesses based in the United States and looking to expand into New Zealand will specifically enquire about these policies and will ask about previous claims of this nature.”
