HRD investigates how workplaces must rethink sexual harassment in the COVID era
Despite COVID-19 becoming the catalyst for physical distancing and remote working, workplace health and safety risks such as sexual harassment are still a major concern for employers.
For example, employees can still experience sexual harassment through social media platforms or via mobile text messages.
The Human Rights Act in New Zealand defines sexual harassment as unwelcome or offensive sexual behaviour that is repeated or serious enough to have a harmful effect.
It may contain an implied or overt promise of preferential treatment, or an implied or overt threat of deferential treatment.
James Warren, partner at Dentons Kensington Swan, told HRD that the traditional idea of sexual harassment - involving physical contact - is less likely to happen in remote working situations.
“There is less likely to be situation where an employee is doing something inappropriate in the office late at night or making stupid comments after a few drinks,” he said.
“However, offices are much less occupied environments now. More people are out of them and you only have a few people left in them,” he said.
Warren said the current requirements around physical distancing has created an extra barrier that means that there is less likelihood of inappropriate contact.
But in this remote working environment, many employers will be asking themselves ‘how do we know it’s even going on?’, added Warren.
“You don’t have a general managerial eye over interactions between staff and you are not on every single Zoom call,” he said.
“Presumably you are not recording them. If you are, you might have some privacy issues to be thinking about. This is possibly one of those issues where there is ongoing tension between employee privacy and right to privacy in relation to their home life.
“It has to be weighed against the need for employers to understand that they are providing a healthy and safe workplace and ensuring things like sexual harassment are not happening.”
Indeed, managing risks such as sexual harassment is a requirement for all businesses under the Health and Safety at Work Act 2015.
Addressing it means organisations must be proactive, assessing the risks and having clear processes in place to handle complaints.
This includes creating a culture that identifies appropriate behaviour and values people being able to speak up, followed by prompt and careful resolutions to allegations.
Warren told HRD that in this remote working environment, protection mechanisms around sexual harassment will look very different to how they did pre-COVID-19.
“If it’s happening in an environment where managers and the employer don’t have a direct view upon it, then it will be hard the employer to know what’s happening,” he said.
“It’s a bit like the question around how far employers should go when they think about monitoring how long people are working and performance management.”
Warren posed the question: What sort of monitoring do you put in place to ensure employees are interacting with their colleagues appropriately?
“Employers have to think carefully if they are peering into someone’s home environment – where does the boundary lie? Employers are able to ask legitimate questions about how employees work, but there is a line beyond that which is intruding on people’s private lives.”