Raising Sexual Harassment Claims

The Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act 2023 (‘the Act’) came into force on 13 June 2023.  This means employers need to be aware of changes that will affect all new employment agreements from this date.

Speaking to the bill in it’s final reading, Labour party member Ibrahim Omer described that:

“Everyone is entitled to a safe, healthy workplace that’s free from all forms of harassment and bullying. However, it’s important that safeguards and processes are in place for those who experience any forms of harassment in the workplace. The purpose of this bill is to amend the Employment Relations Act 2000 to extend the time in which someone can raise a personal grievance for sexual harassment from 90 days to 12 months. It aims to improve the personal grievance process for victims of sexual harassment by allowing them more time to consider what has happened before deciding whether to raise a personal grievance, offering a more survivor-centric approach”. 

The act of coming forward to report sexual harassment can be difficult, and it is common for victims of sexual harassment to wait a long time before coming forward, if at all. The purpose of the Act is to allow victims of sexual harassment more time to consider what has happened before deciding whether they wish and feel safe to raise a personal grievance.

In short, the Act extends the timeframe for employees to raise a personal grievance with their employer (or a controlling third party) for sexual harassment from 90 days to 12 months (‘Extended Timeframe’). The Extended Timeframe commences from the date the sexual harassment occurred or came to the employee’s notice, whichever is later, and it applies where an employee has been sexually harassed in the employee’s employment.

The deadline to raise a personal grievance for all other personal grievances remains at 90 days beginning with the date on which the action alleged to amount to a personal grievance occurred or came to the notice of the employee, whichever is later.

What should employers do?

New employment agreements entered into from 13 June 2023 will need to be updated to set out the Extended Timeframe, however employers are not required to amend employment agreements for current employees.

A failure to update employment agreements entered into from 13 June 2023:

  • could give rise to a potential penalty of up to $20,000; and
  • provides employees with a defence if they fail to raise a personal grievance for sexual harassment within the Extended Timeframe.

If you have any company policies that refer to resolving employment relationship problems, and/or bullying & harassment – then these may also need to be reviewed and updated to reflect the extended timeframe.

Transitionary arrangements

The Act does not apply retrospectively. This means that if an employee experienced sexual harassment (and this had come to the employee’s attention) before the Act came into force, the employee will only have 90 days to raise a personal grievance and cannot rely on the Extended Timeframe in relation to that alleged incident. However, if the alleged sexual harassment occurred before the Act came into force but the employee only becomes aware of it after the commencement of the Act, the Extended Timeframe applies.

Other implications

It is likely that in the short-term, guidance from organisations such as MBIE and WorkSafe will be updated to reflect the Act. It will take longer however for case law to develop in regard to the new legislation, for example the potential ‘grey’ areas of, for example, how the Extended Timeframe interacts with other personal grievances that must be raised within 90 days (for example, a personal grievance for unjustified dismissal, where sexual harassment may have been a factor). This will require clarity from the Employment Relations Authority and Employment Court.

The longer timeframe for raising a sexual harassment personal grievance may have additional implications for employers. For example, it may be more difficult to investigate these types of allegations and take appropriate action, as there is greater chance that relevant staff (witnesses or those involved in the alleged behaviour) may have left the organisation or have faded recollections of events. These issues will need to be carefully and sensitively navigated on a case-by-case basis.

Get the right advice

We encourage you to liaise with one of our experienced consultancy team should your workplace face any such allegations.

Our team is available to support employers to create a high-performing, psychologically safe workplace – including creating and updating policy and employment agreements, providing awareness training relating to bullying & harassment, and independent investigation of bullying and harassment allegations.

Call 0800 437 072 to discuss how we can assist you. 

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