New law: Extended time to raise Personal Grievances for Sexual Harassment

Today, the Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act has come into force. The new law extends the time in which an employee can make a personal grievance claim from 90 days to 12 months, where the grievance relates to sexual harassment.[1] 

Under section 103(d) of the Employment Relations Act 2000 (ERA) an employee can raise a personal grievance against the employer for a claim that the employee has been sexually harassed in the employee’s employment.  

What is sexual harassment? 

Sexual Harassment in the workplace is defined in the ERA as a request of an employee for sexual intercourse, sexual contact or another other forms of sexual activity that contains an implied or overt: 

• promise of preferential treatment in the employee’s employment; 
• threat of detrimental treatment in the employee’s employment; or 
• threat about the present or future employment status of that employee.  

The request may be verbal or written and may be considered sexual harassment if it is conveyed through the use of language, visual material or physical behaviour that is of a sexual nature and either directly or indirectly subjects the employee to behaviour that is unwelcome or offensive, particularly where, either by its nature or through repetition the request has a detrimental effect on that employee’s employment, job performance or job satisfaction.  

Purpose of the new law 

The new law aims to reflect the serious yet complex nature of workplace sexual harassment grievances. The extended timeframe aims to reflect the reality that victims of workplace sexual harassment often need time process the events and to gather the courage to raise a claim that involves sharing and re-living their experience. [2]  

What is the impact of the new law? 

Specifically, the new law, which amends the Employment Relations Act, amends the phrase “90-day period” for raising a personal grievance to add the definition of “the employee notification period.” This makes clear that an employee must raise a grievance within the applicable notification period unless the employer consents to the personal grievance being raised after the expiry of that timeframe.  

The employee notification period for raising a personal grievance is now: 

• 12 months beginning with the date on which the action alleged to amount to personal grievance for sexual harassment allegedly occurred or came to the notice of the employee, whichever is later; and 
• 90 days for any other personal grievance beginning with the date on which the alleged action occurred or came to the notice of the employee, whichever is later. 

Does the new law apply to retrospective claims? 

The Act does not apply retrospectively. This means that where a claim arises from a pattern of behaviour which commenced before the new law came into effect, only those actions which occurred within the previous 90 day personal grievance statutory timeframe will be validly raised, without consent by an employer to accept a claim out of time. 

Because of the different timeframes for raising a personal grievance claim depending on the nature of that claim, i.e. whether or not it is sexual harassment, employers will need to be mindful of managing this when receiving any claim. Guidance may subsequently follow from any employment relationship disputes determined by the Employment Relations Authority or Court.  

What are the next steps for Employers? 

Alongside the change to the timeframe for raising a personal grievance, the new law requires employers to have a plain language explanation of services available for the resolution of employment relationship problems, which includes reference to the updated timeframes, in individual and collective employment agreements. Accordingly, employers should:   

• Update sexual harassment policies to reflect the change in timeframe for which an employee can raise a personal grievance for sexual harassment at work. 
• Update the plain language explanation of the services available for resolution of employment relationship problems in employment agreements to reflect the difference in timeframe in which a personal grievance can be raised for sexual harassment and for any other personal grievance. 

Failing to act to update employment documentation exposes employers to liability for claims outside the statutory time periods. 

While the Act does not require an update to the employment agreements of existing employees (as at 13 June 2023), this law change provides an opportunity for employers to notify employees of the change in timeframes, and to remind employees about expectations for workplace conduct, harassment policies and support available if behaviour of concern occurs. 

Need help? 

The Employment team at DTI Lawyers have specialised knowledge and experience of employment issues in a range of businesses and industries. For any assistance or advice on reviewing your workplace policies or employment agreements to implement these changes please do not hesitate to contact our team.  

We can also provide advice on raising or responding to a personal grievance claim. 

You can contact our specialist employment law team by phone on 07 282 0174, or by email reception@dtilawyers.co.nz