Posted on June 13, 2023
A new piece of law in the area of workplace sexual harassment has come into force.
The law amends the Employment Relations Act 2000 (“the Act”), extending the timeframe for an employee wishing to raise a sexual harassment grievance against their employer.
The extended timeframe will be available to an employee raising a sexual harassment grievance if the alleged harassment occurred or came to the employee’s notice on or after the new law’s commencement.
Why the change and what is it?
Compared to other personal grievances such as unjustified dismissal, very few sexual harassment grievances are brought before the Employment Relations Authority and Employment Court.
There are several barriers, but one is the fact that it routinely takes longer than 90 days for a victim of such behaviour to open up about their experience, seek advice and feel able to pursue a claim.
Under the Act, an employee must raise a personal grievance with their employer within 90 days beginning from when the act complained of occurred or came to their notice. A sexual harassment personal grievance is now in a new category, allowing 12 months for it to be raised.
To Do List
This is a great time to review how your employment agreements and policies deal with sexual harassment in the workplace. In particular:
- Ensure all employment agreements (collective and individual) include:
- a clause that says engaging in sexual (and/or other) harassment is serious misconduct and grounds for disciplinary action, up to and including dismissal. Employers can be liable for their employee’s conduct if they haven’t taken all practicable steps to prevent the behaviour from occurring. At a minimum, this includes having such a clause.
- reference to the 12-month period for raising a personal grievance for sexual harassment. This is a requirement of the new law so you must update all employment agreement templates for new hires, and any relevant policies.
- Ensure there is at least one clear, easy to find and easy to read policy, setting out:
- a definition of sexual (and other forms of) harassment;
- the process for an employee to raise a complaint, which allows employees a clear and robustly protected path for coming forward.
This could take the form of a Code of Conduct, and/or a bullying and harassment policy and/or a complaints policy and/or a Whistleblower policy. However this is done, now is a good time to ensure these policies are up to date.
- Consider whether a training session or sessions, are appropriate and if so, how to do them. Having a clause and writing a sound policy is not going to be enough if it is not walked and talked. To meet the “practicable steps” test, an employer should ensure the policy is actioned, that employees know they must not engage in such behaviour and how to speak up safely if it occurs (either to them or to a colleague). Leaders should be leading on this.
