A world-first case has established that workplace harassment is inappropriate, no matter the nature of the victim’s work. What can Kiwi employers learn from the landmark case?
In a world-first case, a prostitute has won damages for sexual harassment by her boss, a brothel owner in New Zealand.
The Human Rights Review Tribunal awarded the 22-year-old sex worker $25,000 for enduring three months of harassment from her older, male employer. The court records indicate that he consistently made inappropriate comments about the nature of her work, saying he could do what he liked with his employees. He also criticised her weight and also tried to intimidate the worker to prevent her from being involved with the New Zealand Prostitutes’ Collective.
While the Tribunal accepted that the place of employment as a brothel needed to be considered, it found that "context was everything" as even in a brothel, language with a sexual dimension can be used inappropriately or abusively Rebecca Rendle, a senior associate in law firm Simpson Grierson, told HRM. The Tribunal observed, if in a brothel language or behaviour of a sexual nature could never be considered unwelcome or offensive sex workers would be denied the protection of the Human Rights Act.
It found that “sex workers are as much entitled to protection from sexual harassment as those working in other occupations”.
Rendle said that when the Human Rights Act 1993 was implemented prostitution was illegal and the prospect of a sex worker bringing a sexual harassment claim against an employer wasn’t probably contemplated, “however, workplaces in 2014 are increasingly diverse and this case is a firm reminder that sexual harassment is not tolerated in any workplace”.
Recommendations for employers
It’s important for employers to note that an employee can be subjected to sexual harassment from a colleague, or a customer or client. Upon receiving a complaint in those situations the employer must investigate and take whatever steps are practicable to ensure that it does not happen again Rendle said.
“If the employer fails to do so, and there is a repeat, the employee is deemed under the Employment Relations Act to have a personal grievance on the grounds that they have been sexually harassed,” she warned.
Employers also cannot wait until a complaint to take action over sexual harassment adds Rendle. In an Employment Relations Authority case last year (D v E) the Authority held that sexual harassment is a workplace hazard and that employers have an obligation under the Health and Safety in Employment Act to be proactive about preventing and addressing it in the workplace.
“In the D v E case the Authority found that simply having a policy that did not condone sexual harassment and providing this to new employees was insufficient. The Authority observed in this case that there was no material explaining what behaviour can amount to sexual harassment, no induction or other educational process, no promulgation of the procedure available to employees who feel they are being harassed, and no regular or periodic reinforcement of the sexual harassment policy.”
Rendle advised that employers should ensure that:
“In this case the employee gave detailed evidence of the impact of the behaviour on her, including difficulty sleeping, eating and exacerbation of her depression. She was found to be a credible witness and her evidence that she was scared and uncomfortable was accepted. Her former manager's conduct was described as ‘overbearing and exploitative’,” Rendle explained.
Employees can also elect as an alternative to bring a personal grievance claim on the grounds of sexual harassment in the Employment Relations Authority Rendle added.
“In the Employment Relations Authority, average compensatory awards are around $6,000, however compensation of up to $25,000 is not out of the range where reprehensible behaviour by an employer has caused an employee significant distress,” she said.
The Human Rights Review Tribunal awarded the 22-year-old sex worker $25,000 for enduring three months of harassment from her older, male employer. The court records indicate that he consistently made inappropriate comments about the nature of her work, saying he could do what he liked with his employees. He also criticised her weight and also tried to intimidate the worker to prevent her from being involved with the New Zealand Prostitutes’ Collective.
While the Tribunal accepted that the place of employment as a brothel needed to be considered, it found that "context was everything" as even in a brothel, language with a sexual dimension can be used inappropriately or abusively Rebecca Rendle, a senior associate in law firm Simpson Grierson, told HRM. The Tribunal observed, if in a brothel language or behaviour of a sexual nature could never be considered unwelcome or offensive sex workers would be denied the protection of the Human Rights Act.
It found that “sex workers are as much entitled to protection from sexual harassment as those working in other occupations”.
Rendle said that when the Human Rights Act 1993 was implemented prostitution was illegal and the prospect of a sex worker bringing a sexual harassment claim against an employer wasn’t probably contemplated, “however, workplaces in 2014 are increasingly diverse and this case is a firm reminder that sexual harassment is not tolerated in any workplace”.
Recommendations for employers
It’s important for employers to note that an employee can be subjected to sexual harassment from a colleague, or a customer or client. Upon receiving a complaint in those situations the employer must investigate and take whatever steps are practicable to ensure that it does not happen again Rendle said.
“If the employer fails to do so, and there is a repeat, the employee is deemed under the Employment Relations Act to have a personal grievance on the grounds that they have been sexually harassed,” she warned.
Employers also cannot wait until a complaint to take action over sexual harassment adds Rendle. In an Employment Relations Authority case last year (D v E) the Authority held that sexual harassment is a workplace hazard and that employers have an obligation under the Health and Safety in Employment Act to be proactive about preventing and addressing it in the workplace.
“In the D v E case the Authority found that simply having a policy that did not condone sexual harassment and providing this to new employees was insufficient. The Authority observed in this case that there was no material explaining what behaviour can amount to sexual harassment, no induction or other educational process, no promulgation of the procedure available to employees who feel they are being harassed, and no regular or periodic reinforcement of the sexual harassment policy.”
Rendle advised that employers should ensure that:
- They have robust policies in place that define sexual harassment, provide examples of what might constitute sexual harassment and set out a clear process for making and investigating complaints;
- All new staff are inducted on policies and procedures in respect of sexual harassment;
- Policies and procedures are well-publicised;
- The policies are regularly reinforced and employees are provided with refresher training on behaviour that might constitute sexual harassment and the process for making a complaint. In particular, it is recommended that this cover acceptable boundaries for joking and banter in the workplace;
- Managers are provided with training on their obligations to be proactive in avoiding sexual harassment, to lead by example and how to deal with complaints of sexual harassment;
- Complaints are promptly investigated and responded to in an appropriate way depending on the seriousness (eg. counselling, training, demotion, transfer or disciplinary action up to and including potentially summary dismissal of the harasser).
“In this case the employee gave detailed evidence of the impact of the behaviour on her, including difficulty sleeping, eating and exacerbation of her depression. She was found to be a credible witness and her evidence that she was scared and uncomfortable was accepted. Her former manager's conduct was described as ‘overbearing and exploitative’,” Rendle explained.
Employees can also elect as an alternative to bring a personal grievance claim on the grounds of sexual harassment in the Employment Relations Authority Rendle added.
“In the Employment Relations Authority, average compensatory awards are around $6,000, however compensation of up to $25,000 is not out of the range where reprehensible behaviour by an employer has caused an employee significant distress,” she said.