Further to our previous article, the Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Bill (the Bill) had its Third Reading on 10 May 2023 and is expected to come into force shortly.
The Bill would allow employees to raise sexual harassment personal grievances within 12-months (as opposed to 90 days) of the date on which the action alleged to amount to the personal grievance occurred, or came to the notice of the employee, whichever is later.
As the Bill is likely to pass into law it would be prudent for employers to start considering how they will go about making changes to their employee’s individual employment agreements (IEA).
This is because section 5 of the Bill amends section 65 ‘Form and content of individual employment agreement’ of the Employment Relations Act 2000 (Act).
Section 65 sets out that an IEA “must include” a plain language explanation of the services available for the resolution of employment relationship problems. A strict reading of the Act means that this plain language explanation therefore must include a reference to the new time period for raising a personal grievance for sexual harassment, as noted above, when the Bill passes into law.
Section 65(4) also provides that an employer who fails to comply with section 65 is liable, in an action brought by a Labour Inspector or the employee concerned, to a penalty imposed by the Authority.
There are several methods of updating an employee’s IEA where legislative change has occurred. The main two methods are:
- via a letter of variation, or similar correspondence; or
- by providing a new and up-to-date IEA that incorporates this new wording.
A business may therefore take this as an opportunity to review and make any necessary changes to its template IEA and provide an updated copy to its staff members for their review and agreement.
Alternatively, a business may issue a letter of variation, that varies the plain language explanation of their employee’s existing IEA. This option is attractive given that it is more efficient that providing a brand new IEA, and further the parties do not have to mutually agree to changes set out in a letter of variation, provided that those changes are only reflecting legislative updates.
Of course, any changes contained in either an IEA or a letter of variation that go beyond simply reflecting legislative amendments will require the employee’s written consent.
It is also a timely occasion for employers to review and update their sexual harassment policies, procedures, and consider whether further effort is required to encourage a ‘Speak Up’ culture within the business to encourage employee’s raising concerns and/or complaints about issues that may affect the workplace.
If you have questions about the Bill or updating your employment agreements, please reach out to the Employment Team at Lane Neave.
