Section 103(1)(e) of the Employment Relations Act 2000 provides that an employee will have a personal grievance where the employee has sexually harassed in their employment. There are two types of personal grievance for sexual harassment:
Sexual harassment by the employer, or a representative of the employer; and
Where the employer has failed in its obligations with respect to a complaint of sexual harassment.
It's important here to note that the personal grievance of sexual harassment is clear: either sexual harassment has occurred or it has not occurred. It is not subject to any tests of what is fair or reasonable, and it is not subject to any consideration of the circumstances, as with the other personal grievances.
Sexual harassment by the employer, or a representative of the employer
The first type of personal grievance is where the employee has been sexually harassed by either the directors personally, or by a representative of their employer. Section 108 provides that an employee is sexually harassed by their employer, or a representative of that employer, if that person:
Directly or indirectly makes a request of that employee for sexual intercourse, sexual contact, or other form of sexual activity that contains:
an implied or overt promise of preferential treatment in that employee's employment; or
an implied or overt threat of detrimental treatment in that employee's employment; or
an implied or overt threat about the present or future employment status of that employee; or
by -
the use of language (whether written or spoken) of a sexual nature; or
the use of visual material of a sexual nature; or
physical behaviour of a sexual nature, -
- directly or indirectly subjects the employee to behaviour that is unwelcome or offensive to that employee (whether or not that is conveyed to the employer or representative) and that, either by its nature or through repetition, has a detrimental effect on that employee's employment, job performance, or job satisfaction.
Sexual harassment by a person who is not the employer, or a representative of the employer
There are also situations where an employee may be found to have a personal grievance for sexual harassment when the harassment has come from an employee who is not a representative of the employer.
In the first instance, the victim must have made a complaint about another employee's behaviour, and that the nature of that complaint is that they experienced behaviour of the nature outlined above: that is, whether the employee used language of a sexual nature, used visual material of a sexual nature, or displayed a physical behaviour of a sexual nature (see above), and where that behaviour is welcome or offensive to that employee, and that, either by its nature or through repetition, has a detrimental effect on the employee's employment, job performance, or job satisfaction.
Where an employer receives such a complaint, they must enquire into the facts. With respect to that investigation, section 116 states that: "Where a personal grievance involves allegations of sexual harassment, no account may be taken of any evidence of the complainant's sexual experience or reputation."
It's important here to note that the complaint does not have to say "this is a complaint of sexual harassment." It's likely that the victim will want to avoid any terminology of "sexual harassment", however, what is important is the content of that complaint. If it contains any reference to use of language of sexual nature, the use of visual material of a sexual nature, or physical behaviour of a sexual nature, it must be treated as a sexual harassment complaint: obviously, the behaviour is offensive or unwanted if the employee is making a complaint.
There is an expectation that the employer will make a finding as to whether, or not, sexual harassment occurred. This obligation is implied in section 117(4), where upon concluding that sexual harassment did occur, the employer must "take whatever steps are practicable to prevent any repetition of such a request or of such behaviour."
If the employer fails to do this, and the employee is then subject to further sexual harassment by that same employee, then by virtue of section 118, the employee is deemed to have a personal grievance in accordance with section 103(1)(d); irrespective of the fact that the employee was not sexually harassed by their employer or a representative of their employer.
Conclusion
In my experience, it is clear that many employers do not understand their obligations with respect to sexual harassment. It is important that every complaint of a sexual nature is treated seriously: it must be investigated, and there must be action to prevent the behaviour from occurring again.
An investigation may only be with the victim, and the victim may say that they do not want the complaint to be investigated further. It is at this stage that an employer may want to seek professional assistance, because health and safety obligations are engaged, irrespective of whether the victim wants the complaint to be progressed. The reality is that, at this point, the employer is aware of a risk of sexual harassment in the workplace, and steps must be put in place to reduce that risk as far as is reasonably practicable.
