2018 has been a big year for employment law. For Wellington employment lawyers, there has been a large focus on the well-being of employees and workplace conditions that facilitate it. Issues of sexual harassment, workplace bullying, and how employees, employers and the law respond to these have been at centre stage. 2018 was a year in which employees’ emotional and physical wellbeing in the workplace was recognised to a greater extent and employment lawyers took action.
This is best illustrated through the movements around sexual harassment and workplace bullying. WorkSafe New Zealand details that between 20-33% of New Zealanders report bullying or harassment annually. 2018 saw a push for the reform of workplaces to become more supportive environments for employees. WorkSafe details that bullying and harassment are risks that affect health and safety. The focus of these reforms is to reimagine workplace culture to manage these risks and to put structures in place to deal with issues. Interestingly, WorkSafe only prosecutes around 1% of the cases brought to its attention. This indicates the importance of employment lawyers in dealing with situations that arise and the need for employers to be proactive in creating supportive workplaces. Read on to learn more about the year’s biggest employment law trends.
The prevalence of sexual harassment in the workplace had been flying under the radar until 2018. The #metoo campaign shed light on the vulnerability of people against those in positions of power. 2018 brought with it a frightening number of stories that uncovered cultures of sexual harassment in many of New Zealand’s workplaces.
Section 108 of the Employment Relations Act 2000 highlights the scope of sexual harassment in New Zealand law. It covers the use of sexual favours in order to attain an advancement in career or to prevent bad treatment in the workplace. But it also goes further to include actions that are sexual in nature and may cause distress to an employee. This includes speech, material or behaviour that is sexual in nature, whether verbal, written, visual or physical. The conduct must be unwelcome or offensive to the employee by the nature of the act or due to its repetition. If this conduct has a negative effect on the employee’s role, their performance or their job satisfaction, it may be classed as sexual harassment. For more information, see our blog Understanding sexual harassment in the workplace.
Just recently, a partner in a New Zealand law firm was censured and fined $12,500 for the sexual harassment of two colleagues. The first incident occurred at a Friday night work-drinks, where he placed his hand on his colleague’s thigh and remarked that she was “very attractive”. The second incident involved inappropriate touching and comments towards another colleague. These are two examples of physical and verbal sexual harassment.
Through the analysis of sexual harassment in New Zealand law, it is clear how the complainant is at the centre of the claims and how important it is for their voice to be heard. The test to determine sexual harassment is objective with subjective considerations. Determining whether the conduct was sexual in nature is viewed objectively. Whether the conduct was unwelcome or offensive is assessed from the complainant’s view.
Clearly, it is important for the complainant to be heard and supported when detailing what has happened. A supportive work environment with strong processes in place to deal with complaints is essential to prevent the employee from feeling subordinated and vulnerable.
Just recently, a report was tabled by Positive Workplace Culture Review on the bullying culture at Fire and Emergency New Zealand. It highlighted the need to reform workplace culture to become a more inclusive and welcoming place. As in any analysis of sexual harassment, the complainant is at the centre of analysis when determining the issue of bullying.
WorkSafe defines bullying as repeated and unreasonable behaviour directed towards a worker or a group of workers that can lead to physical and psychological harm. This behaviour occurs more than once and is behaviour that an ordinary person would term abnormal. Bullying is deemed a risk to health and safety.
An employer must eliminate all risks to health and safety as far as reasonably practicable. Where it is not reasonably practicable to eliminate all risk completely, the employer must minimise the risk as far as possible. This is relevant in the case of workplace bullying. When determining what is workplace bullying, the intention of the bully is no longer the focus.
Case law speaks to the complainant being at the centre of analysis when determining whether the conduct is workplace bullying. Beckingsale v Canterbury District Health Board  details that stress can be a workplace hazard and that the employer must address it. The Employment Relations Authority details that the atmosphere of the workplace can contribute to this. As a result, a positive and safe workplace that supports employees is needed in order to combat workplace bullying.
WorkSafe has developed the Use Your Mouth campaign which covers a range of different topics including bullying. It highlights the need to talk about bullying when it occurs in order to get the situation resolved. It is all about speaking up and saying something. Underlying this is the notion that employers must create a space where employees are enabled to do so. The campaign details that being able to speak up is “the best bit of safety gear you’ve got”.
The prominence of sexual harassment and bullying in our workplaces has highlighted the importance of a positive work environment for employees. As a result, several employers have adopted different practices to encourage empathy in the workplace. Empathy in the employment context details awareness of the emotional impacts a workplace may have on its employees. By encouraging empathy, the workplace discourse shifts to develop support structures to maintain a positive environment. Belinda Parmar, Chief Executive Officer of The Empathy Business, found that incorporating empathy into the workplace enables people to be more self-aware and conscious of how their conduct impacts colleagues. Parmar suggests that adopting the empathy model allows for behavioural change to create a happier, more supportive work environment. For more information, see our blog, The Most Common Cases of Workplace Bullying.
A flaw in many of New Zealand’s workplaces was uncovered in 2018. Employment law was tested in its responsiveness to issues within workplace environments. 2018 became the year to stand up and say something and be supported when doing so. 2018 became the year of recognising the impact of your conduct on others. 2018 became the year of self-reflection and awareness. Hopefully, it has paved the way to build workplaces that permanently focus on the wellbeing of their employees.
Every year unearths fresh challenges across New Zealand for employers and employment lawyers alike. If you have a question regarding employment law, don’t hesitate to contact an employment lawyer at Bell & Co today.