Tribunal considers employee’s liability for sexual harassment

Sexual harassment in the workplace has reared its ugly head in a recent Human Rights Review Tribunal (Tribunal) decision, whereby an Auckland man has been ordered to pay more than $30,000 in damages to a former colleague.

The plaintiff “BGH” had been subjected to sexual harassment over a period of two years from the commencement of her employment in November 2014 until her resignation in November 2016. Whilst employed at Viti Panel and Paint (Vita), BGH was the only female employee alongside five or six men.

In January 2019, BGH filed a claim in the Tribunal against former colleague Mr K, alleging Mr K had sexually harassed her in breach of section 62(2) of the Human Rights Act 1993 (HRA). BGH had previously filed a personal grievance claim against Viti, but this was not resolved at mediation and Viti was subsequently liquidated.

Sexual harassment

Sexual harassment under section 62 of the HRA is behaviour of a sexual nature that is unwelcome or offensive to the person and is either repeated, or of such a significant nature, that it has a detrimental effect on that person.

During BGH’s employment she was subjected to continuous low-level harassment by Mr K, who was a more senior employee and who had close family ties to Viti’s sole director. The harassment included Mr K singing Hindi love songs in BGH’s presence, commenting on her clothing and appearance, sending inappropriate messages, touching her shoulder and encroaching on her personal space.

According to the Tribunal, the sexual nature of the harassment was “very apparent” having regard to the power imbalance and the fact the harassment was repeated and sustained over two years. The Tribunal emphasised that context is an important determinant in sexual harassment claims.

However, it was two particular incidents, which were catalysts for BGH’s resignation. The first involved K entering BGH’s office while she was on the phone whereby he proceeded to touch her inappropriately. The second incident involved Mr K allegedly peeping at BGH through a hole in the toilet. The Tribunal commented that “The peeping incident is sexual in nature and particularly humiliating, given the expectation of privacy in the toilet and again the power imbalance and the context”.

Tribunal’s findings

While Mr K denied any sexual harassment occurred, the Tribunal preferred BGH’s evidence, finding it was more probable than not that the behaviour BGH alleged Mr K subjected her to, did occur. Moreover it considered that the behaviour was unwelcome and offensive to BGH and that it was of  such a significant nature that it had a detrimental effect on BGH in respect of her employment.

In determining damages, the Tribunal considered the nature and type of sexual harassment by Mr K to BGH, including physical contact, the ongoing nature and frequency of the conduct, the age and vulnerability of the BGH and the psychological impact on her.

Employer’s responsibilities

This decision is a reminder that sexual harassment, which is considered at the ‘lower end’ of the spectrum, may nevertheless have an immediate and intense psychological impact on those subjected to it. The Tribunal has made it clear that, a workplace where an individual feels they must simply accept behaviour of a sexual nature, is a workplace where that employee is facing detriment.

This decision also makes it clear, that it is not just the employer that can be held liable for sexual harassment in the workplace. As Vita has been liquidated, we will not know the potential liability for its actions/inactions in this matter, although it is likely that any remedies awarded would have been significant.

This decision is a timely reminder for employers to ensure that they have appropriate sexual harassment policies in place, that employees are educated on the accepted behaviour is a workplace, that any inappropriate actions of employees are immediately dealt with and that disciplinary action is taken where appropriate.

If you have any queries in relation to best practice to deal with sexual harassment in the workplace, please contact a member of our Employment Relations Team.

Special thanks to Summer Clerk Stella Smith for her assistance in writing this article.

Meet the team that makes
things simple.

Andrew Shaw

Let's Talk

"*" indicates required fields

Lane Neave is not able to provide legal opinion or advice without specific instructions from you and the completion of all formal engagement processes.