Creating positive workplaces free from sexual harassment

The Public Service is an increasingly diverse workplace.  All employees are entitled to work in a safe and inclusive workplace, where people are valued and treat one another with respect.  As more people move between workplaces it is important that there are consistent understandings across Public Service agencies so that people can be confident that they will be treated with respect wherever they may work.We recognise that the Public Service is not immune to the challenges that all workplaces face.  The reality is that, sometimes, people may not behave in a way that meets the Standards of Integrity and Conduct.  Sexual harassment is an example of unacceptable behaviour that can occur in Public Service workplaces.  Research shows that sexual harassment is much less likely to occur if agencies:

  1. have a positive workplace culture
  2. have a written sexual harassment policy
  3. are committed to effective prevention measures
  4. have robust processes for dealing with sexual harassment.

The State Service Commission has a leadership role across the Public Service in relation to integrity and conduct issues.  It is expected that all Public Service agencies will reflect the standards for dealing with sexual harassment set out in this policy guideline.
Public Service agencies can choose to adopt the policy guideline directly as their internal policy statement on sexual harassment.  Alternatively, agencies may elect to check their existing internal policy for gaps using the policy guideline as a standard.

1. What is sexual harassment?

1.1 Sexual harassment is unwelcome or offensive sexual behaviour that is repeated or is significant enough to have a harmful effect on an individual's employment, job performance or job satisfaction.  Unwelcome means behaviours that are not solicited or invited and are regarded by a person as undesirable or offensive at the time.

1.2 Sexual harassment can be a form of discrimination, and has the potential for serious consequences for individuals and agencies.  One of the challenges about identifying and dealing with sexual harassment is that the inappropriate behaviours involved can be subtle, context dependent and may include different cultural understandings of what is considered appropriate behaviour. 

1.3 People who experience sexual harassment can suffer anxiety, depression, debilitating stress and loss of self-esteem.  Sexual harassment can lead to people leaving a job and affect morale.  Even for those who are not directly involved, sexual harassment can create stress in the workplace and can impact negatively on an agency's productivity, damage its reputation and leave it open to employment disputes and litigation.

1.4 Public Service employers have a statutory obligation to be a good employer and all employees have a legal right to be free from sexual harassment at work.

Examples of sexual harassment:

1.5 Below are some examples of behaviours that can constitute sexual harassment if they meet the definition in 1.1 to 1.3 above:

  • touching, hugging, encroaching on someone's personal space or kissing
  • staring or leering
  • insults or taunts of a sexual nature
  • unwanted invitations to go out on dates
  • requests for sexual favours, or pressure for sex or other sexual acts
  • repeated or inappropriate advances on email or social networking websites
  • intrusive questions or comments about a person's private life, clothing or physical appearance
  • sexually explicit pictures, posters, gifts, emails or text messages
  • sexual gestures, indecent exposure, or inappropriate display of the body
  • sexually suggestive comments or jokes, or other forms of inappropriate language
  • stalking or sexual assault.

Examples of what may not be sexual harassment:

  • friendly banter, mutually acceptable jokes
  • occasional appropriate compliments
  • behaviour based on mutual attraction.

2. Policy - preventing and addressing sexual harassment

2.1 [Insert name of agency] takes sexual harassment very seriously and our first goal is to prevent sexual harassment from occurring.  This policy focuses on developing shared responsibility across this agency for creating a positive workplace culture where gender equality and diversity are appreciated, and all people are respected and valued.

2.2 Our focus is to have a positive workplace culture that puts prevention at the centre of our sexual harassment policy.  Our commitment is to:

  • create a safe work environment that is free from sexual harassment
  • expect leaders and managers to role model appropriate behaviour and enforce this policy
  • implement communications, training and awareness creating strategies to ensure that all of us–employees, managers and leaders–know our rights and responsibilities
  • have zero tolerance for, and prompt handling of, incidents of sexual harassment
  • model appropriate standards of conduct at all times
  • encourage the reporting of behaviour that breaches this policy
  • treat everyone fairly
  • ensure the well-being of the complainant and the respondent, and be respectful of their legal rights and natural justice
  • seek to resolve issues at the lowest appropriate level of intervention.

Scope of the sexual harassment policy

Who is covered by the policy?

  • All employees, including chief executives, are covered by the policy, whether they experience harassment by another employee, contractor, visitor, volunteer or member of the public.
  • Visitors, clients, volunteers and contractors to the workplace are covered by this agency's sexual harassment policy and the laws covering sexual harassment.

Where does the policy apply?

2.3 The policy covers all sexual harassment behaviours that happen:

  • in the workplace
  • between work associates, for example, on social media; or any work situations social or professional
  • during work events such as conferences, training, and work based activities
  • outside the workplace if it is in the context of the employment relationship or affects the workplace.

 Communications, information and training

2.4 Sexual harassment prevention is more effective when people have access to the information they need.

2.5 [Insert name of agency] will ensure that employees have access to the information they need by:

  • promoting the sexual harassment prevention policy widely within the agency on a regular basis
  • conducting regular information sessions for employees about recognising sexual harassment, what is, and what is not, sexual harassment, how to report concerns and how to use the complaint process.

2.6 The policy on sexual harassment will be provided at induction and will be posted on the intranet and around the workplace so that all employees know where they can go to get help.

2.7 To ensure a high level of awareness and effective implementation of this sexual harassment prevention approach and policy, the Chief Executive will ensure that all employees and contractors who work in the business of the agency are aware of the policy and their rights and responsibilities.

2.8 Training on sexual harassment and other forms of harassment and discrimination will be provided by a facilitator with appropriate experience during induction.  All employees will have access to training at induction and at regular intervals thereafter.

2.9 Those with leadership responsibilities such as managers, leaders, Human Resources advisors and support people (if available) will receive more specialised training to ensure they have the skills to deal with questions and complaints about sexual harassment and to ensure policy and procedures are adhered to.

Roles and responsibilities

2.10 All employees are responsible for following this sexual harassment policy.  All of us have a shared responsibility to support the safety of colleagues and others in the workplace and to promote positive workplace behaviours. 

Who to approach to deal with sexual harassment

2.11 Sometimes those who are subject to harassment may find it difficult to make a complaint.  [Insert name of agency] provides a range of options to make it easier for people to speak up.  If an employee (and others) have concerns about sexual harassment, or have witnessed sexual harassment they can approach any of the following:

  • their manager or another manager
  • Human Resources
  • a contact person [for those agencies who provide contact or support people for this purpose]
  • an Employee Assistance Programme (EAP) [Both parties are entitled to EAP support before, during and after a complaint is made]
  • a trusted person who is willing to support them to raise a concern and/or test their perception of events.  This could be a union representative, colleague or friend.

2.12 If an employee discusses a sexual harassment matter with a manager or Human Resources they may be advised that if the issue is considered sufficiently serious and could affect the well-being of the agency and its employees, the agency may be obligated to progress this as a formal complaint.

Human Resources

2.13 The Human Resources team are available to help managers and employees know about and meet their obligations under the relevant legislation and this agency's sexual harassment policy.

2.14 Human Resources can give advice, support and information if an employee believes sexual harassment has occurred at any level of the organisation.  Advice will include the options available and how they may want to proceed. 

Leaders and Managers

2.15 Those in leadership roles have a special responsibility to foster a positive, respectful culture in which sexual harassment is less likely to occur.  In any investigation of a complaint of sexual harassment, leaders and managers must enforce the policy.  They need to ensure that all parties are supported and informed about what to expect during the process, how long it will take, and what will happen at the end of the process.  Managers must maintain the confidentiality of the individuals concerned at all times, during and after the completion of the process.

Designated Contact person(s) [If this role is provided for]

2.16 [Insert name of agency] provides designated contact people to assist those who have questions or concerns about sexual harassment.

2.17 Contacts are trained to listen and respond in strict confidence.  They may offer information on appropriate courses of action.  It is not the role of the contact person to act as a counsellor, complaints officer, decision maker or advocate.

Role of the union delegate

2.18 Union delegates may become aware of and support union members in sexual harassment complaints.  It may be appropriate for some union delegates to be trained as contact people.

3. Responding to sexual harassment

3.1 [Insert name of agency] is committed to providing a safe workplace for all employees so as to prevent sexual harassment occurring.

3.2 However, if an employee believes they have been subject to sexual harassment or if sexual harassment is believed to have occurred (or if there are concerns about sexual harassment), there are rigorous procedures in place to ensure that any complaint or query is treated confidentially, taken as seriously as possible, and acted on promptly.

Principles

3.3. The internal complaints process is designed to be:

  • Accessible - the complaint process is readily available.  Talk to a manager, Human Resources, contact person, union representative, or find information on the intranet about the sexual harassment policy. 
  • Fair - natural justice requires that the person, against whom an allegation is made, is told of the substance of all allegations against them if a decision is made to formally investigate a matter.  Putting an allegation does not necessarily require disclosing the identity of the person raising a concern.
  • Confidential - this means that information about a complaint is only provided to those people who need to know about it.
  • Efficient - the complaint process should be conducted without undue delay and dealt with at the lowest appropriate level of intervention. Procedures will observe the principles of natural justice. 

3.4 Based on the above principles [insert name of agency] will ensure that if a complaint is made about sexual harassment:

  • As employer, this agency meets its  equal obligation to both the complainant and the respondent to uphold their rights and provide support
  • complaints are dealt with impartially, without bias and in a timely and sensitive manner
  • information about a complaint is only provided to those people who need to know in order for the complaint to be actioned properly
  • the respondent is informed about any allegations made against them and is given the opportunity to respond to those allegations
  • those involved are informed about the process for resolving complaints
  • those involved are protected against any victimisation or reprisals and employees are assured that no action will be taken against them if they speak up
  • there is a clearly defined review process to ensure the resolution is working satisfactorily and to confirm that no victimisation has resulted from the complaint
  • issues are resolved at the most appropriate level of intervention, subject to the rights of the complainant.

Outcomes of process

3.5 Where allegations are admitted or substantiated, the outcomes for the respondent of breaching this policy may range from an apology, counselling and training to warnings and dismissal.  Disciplinary action will match the seriousness of the breach.  Factors taken into account in determining the level of seriousness include the nature of the conduct and whether or not the person breaching the policy was in a position of trust or authority in relation to the complainant.

3.6 The outcomes for the complainant may include remedies under the Human Rights Act 1993, for example crediting of any leave taken.  Outcomes may also include interventions such as supportive counselling, a change in the work environment, or participation in mediation.

3.7 Where allegations are not substantiated it may still be appropriate to undertake some action, for example, refresher training or communications training.  This ought not to single out or punish the respondent if there has been no finding.

Process diagram for internal resolution of sexual harassment

'Process diagram for internal resolution of sexual harassment

Stages in a complaint process

3.8 If an employee believes they have been sexually harassed, or has witnessed sexual harassment, trying to resolve issues at the lowest appropriate level of intervention may sometimes be the most effective and satisfactory way of dealing with unacceptable behaviour.

Self-help and supported self-help

3.9 Self-help involves an employee letting the respondent know that their behaviour is unwelcome, inappropriate or offensive and needs to stop.  This may resolve the matter quickly and in a low key manner.  This may be appropriate where sexual harassment is minor and the employee does not feel seriously harmed or threatened by approaching the person.

Self-help actions could be that the employee:

  • tells the person directly about the behaviour they do not like, and asks them to stop it
  • writes a letter on a 'private and confidential' basis to the person
  • takes a support person to tell the person that the behaviour needs to stop.

3.10 Employees should not approach someone directly about their behaviour if by doing so they would feel unsafe or threatened in any way. 

3.11 Resolution may involve a verbal or written apology or agreement on how the parties will behave towards one another in future.

3.12 If the employee is uncomfortable with this approach or if this approach does not resolve the issue then the employee can contact either their manager or Human Resources to take the matter further.

Informal intervention

3.13 Another informal way of dealing with sexual harassment is for an employee to ask for someone else to intervene on their behalf on an informal basis, either their manager or Human Resources.

3.14 The person who is intervening will:

  • discuss  what happened and what is needed to resolve the situation
  • listen impartially
  • clarify the facts being reported
  • discover what appropriate action the employee is seeking
  • clarify the complaints procedure options and [insert name of agency] sexual harassment policy
  • discuss options  with the employee and, if appropriate, the respondent and decide on an informal or formal approach
  • document the situation and outcome.

3.15 If there is agreement on what happened and what will resolve the situation, the issue can be resolved confidentially between the people concerned.

3.16 Mediation may be pursued to resolve complaints at this level.

Mediation

3.17 In some instances arranging for a complainant and respondent to discuss the complaint with a skilled mediator may be an appropriate way to address the issue.  Both parties need to agree to mediation.

3.18 Mediation is not always appropriate to resolve behaviour issues, particularly if there is a power imbalance.  Mediation may be suitable where:

  • there is basic agreement on the facts
  • both parties agree to try to resolve the situation through this method
  • the harassment is of a low level and serious disciplinary consequences do not appear warranted.

3.19 If a complainant and the respondent cannot resolve the complaint through mediation, then formal options are available.

3.20 A mediator may be someone mutually agreed between the parties or from the Ministry of Business, Innovation and Employment's mediation service.

Formal intervention

How to make a complaint

3.21 A formal complaint can be made to the complainant's manager, and/or the Chief Executive and/or Human Resources.

3.22 The complaint should detail what happened, what the complainant wants to happen, when and where it happened and the names of any witnesses.  This should be detailed enough to enable the respondent to be informed of the conduct and to be able to respond to the complaint(s).

3.23 The decision whether or not to proceed to a formal investigation will be made by the Chief Executive, or the person designated, in consultation with Human Resources.

The formal investigation process

Investigator's role
  • An investigator will be appointed by the Chief Executive or Human Resources.  The investigator can be internal or external to the agency and must be skilled and experienced.
  • If an internal investigator is proposed both parties can exercise a right to object to the appointed investigator if there is a perceived conflict of interest.
  • The investigator is responsible for determining what happened and whether or not sexual harassment has occurred.
The formal complaint process
  • The respondent is formally advised that a complaint has been made and informed of the specific allegations and of the potential outcome of the investigation.  They are given the opportunity to formally reply within a specified timeframe.
  • The employer's role is to decide what outcomes are appropriate as a result of the investigator's report.
  • The complainant is interviewed and the allegations are formally documented.  The complainant may be accompanied by a support person.  An accurate account of the incident(s) will be obtained from the complainant and the complainant will sign a record of their account.
  • A formal meeting is arranged with the respondent to allow a response to the allegations.  The respondent will be encouraged to have an appropriate support person in attendance.  The respondent's formal response will be documented by the investigator and the respondent will sign a record of their account.
  • Consideration will be given to whether it is necessary, and appropriate, to obtain statements from any witnesses and other relevant information.  That information will be provided to the complainant and respondent who will be given the opportunity to comment on that information.
  • Consideration may be given as to whether the respondent needs to be removed from the environment (or restrictions considered), should the on-going safety and security of the complainant, the respondent and/or other staff be at risk.
Outcomes of the investigation
  • The investigator will collate the information and prepare a draft report which will be provided to the complainant and the respondent for comment.
  • A copy of the final report will be provided to the complainant and respondent before a final decision is made.
  • Each party will be advised of the outcome of the investigation once a final decision is made.
  • Whether or not the respondent is subject to disciplinary action as a result of a sexual harassment complaint is a confidential matter between the employer and the respondent.
  • The complainant will be informed that the matter has been appropriately dealt with by the employer (subject to any privacy considerations arising from the employment relationship).
  • Some serious sexual harassment, or physical assault, may come under the provisions of the Crimes Act 1961.  In such a case, the employee, or the employer on the employee's behalf, can lodge a complaint with the Police.
  • Consideration may be given as to whether the respondent needs to be removed from the environment (or restrictions considered), should the on-going safety and security of the complainant, the respondent and/or other staff be at risk.
  • A review of the investigation process can be instigated by either party.

Other options

Making a complaint under relevant legislation

3.24 If an employee is not satisfied with the outcome of making an internal complaint or does not wish to use the agency's internal procedures, they can either:

  • lodge a complaint with the Human Rights Commission within one year of the alleged harassing behaviour under Parts 2 and 3 of the Human Rights Act 1993, or
  • If the employee has raised a personal grievance under the Employment Relations Act 2000 within 90 days of the alleged harassment apply to the Employment Relations Authority.

3.25 Employees cannot both lodge a complaint with the Human Rights Commission and apply to the Employment Relations Authority.

Protected Disclosures Act 2000

3.26 Sexual harassment may likely constitute "serious wrongdoing" in the agency.  If an employee considers that serious wrongdoing has occurred, they can use the agency's Protected Disclosures policy to report their concerns. 

3.27 Employees must follow the agency's policy to access the protections under the Protected Disclosures Act 2000.

3.28 Any person in the agency who is considering whether to make a disclosure under the agency's Protected Disclosures policy can contact the Ombudsman to discuss how to use the Act.  To contact the Office of the Ombudsman for guidance and advice about making a protected disclosure, including whether you can make a confidential report, see:http://www.ombudsman.parliament.nz/contact-us .

3.29 Natural justice provisions may still apply if a person chooses to make a disclosure under the agency's Protected Disclosure policy.  Making a Protected Disclosure does not guarantee confidentiality.

Sexual harassment is covered under the following legislation:

  • Human Rights Act 1993
  • Employment Relations Act 2000
  • State Sector Act 1988
  • Harassment Act 1997
  • Protected Disclosures Act 2000

A specific group of behaviours may amount to crimes or offences under:

  • Criminal legislation

4. Record keeping

4.1 Where a formal complaint is received agencies should keep all relevant documentation in a secure location.

5. Review of the sexual harassment policy

5.1 The sexual harassment policy will be reviewed at least every two years to ensure that it conforms to current law and remains best practice.

6. Workplace monitoring

6.1 [Insert name of agency] will use the following mechanisms to help determine whether sexual harassment exists in our workplace, and whether people are reporting incidences of sexual harassment, to help us improve our practices.

  • exit interviews
  • collecting statistics
  • regular staff surveys on workplace culture.

6.2 Some statistical information such as the numbers of complaints is also provided to the State Services Commission to enable monitoring of system level trends.

7. Glossary

Complainant - a person who raises a concern or makes a complaint about sexual harassment.

Respondent - a person whom is being complained about.

Employee Assistance Programme (EAP) - Provides agencies with professional strategies and interventions for personal and workplace support.

 Footnotes

[1] http://www.ssc.govt.nz/integrityandconduct.  Standards of Integrity and Conduct.   A Code of Conduct issued by the State Services Commission under section 57 of the State Sector Act.

[2] As above.

[3] The lowest level of intervention means informally approaching the person responsible and letting them know that their behaviour is not acceptable.

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