TAUTOKO MAI LEADERS’ SUMMIT

IT’S TIME TO TALK ABOUT SEXUAL HARM AT WORK

People-centred complaints processes – time for a new paradigm

Steph Dyhrberg

Introduction
Many of us at the coalface of the patriarchy have been talking and writing about sexism, sexual harm
and harassment, and the need for change, for a very long time. One of my staff recently asked me
why I don’t get tired of talking about how to prevent harassment. I do, I said, but I won’t stop while
it is still happening.

In recent years it has become very plain, through media stories, blogs and surveys, that sexual harm
is common in New Zealand workplaces, in sports and recreation, in entertainment, in government.
But it is even now being under-reported and there are plenty of people who doubt it happens much,
or at all.

When sexual harassment is reported, the processes employers and other organisations undertake
are often defective, unfair and re-victimise the complainant. My professional colleagues and I, as
employment lawyers and advocates, and HR professionals are frequently guiding these processes or
undertaking investigations.

We are doing what we have always done. It’s not working well. We need to do it differently; we
need to do better.

What are we talking about?

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We tend to focus in policies and processes on the legal definition of sexual harassment 1. Frankly, I
think that is a problem. We should be focussed on preventing sexual harm at work: eliminating and
dealing with issues of unprofessional, disrespectful behaviour in the workplace, sexual conduct that
makes people uncomfortable, gendered bullying and sexism. The legal definitions are really only
relevant when a claim is being litigated through the Employment Relations Authority or the Human
Rights Review Tribunal.

People of any gender can be the victim of, or the perpetrator of sexual harassment and assault. The
workplace environment survey 2018 recorded 14% of male respondents were subject to sexual
harassment in the previous 5 years. Under-reporting by men is linked to a number of different
factors but is heavily influenced by how men and women are socialised. The reality, however, is
sexual harassment is most often carried out by men, and most often against women. Transgender
women, Māori and Pasifika women, women of colour and disabled women suffer the highest levels
of abuse. They have the least power to address it. Their cultural norms may make it impossible for
them to speak up especially against a superior.

The examples of workplace harassment being given by many people, mostly women, include a range
of harmful behaviour such as sexist or dirty jokes, questions about whether they have a boyfriend,
asking about sexuality or sex life, comments about being hot, joking about young women being hired
to look good or to be ‘nice’ to clients, repeatedly asking a colleague out on dates, making sexual
suggestions, unwelcome flirting, inappropriate touching, through to sexual assault, attempted rape
and rape. Stalking is common and cyber-abuse is rife. Sending sexual images and videos, messages
and persistently contacting people on social media is all very common and distressing.

Sexual harassment and assault stem from entitlement and societal norms about personal bodily
autonomy. Harassment in the workplace (and other social institutions) commonly occurs where
there is a power and/or privilege imbalance. People who do this in the workplace think they can get
away with it, and they often do.

If we want to eliminate harmful sexual behaviour we must focus on the full spectrum. We know that
in an environment where it is OK to call out and deal with the ‘small’ stuff, people are less likely to
experience more serious issues because a very clear line has been drawn about what is acceptable
and what isn’t. Sexualised behaviour creates a workplace where people feel unsafe and unhappy
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Under the Employment Relations Act 2000, an employee is sexually harassed if their employer (or a
representative of their employer):
 asks the employee for sex, sexual contact or other sexual activity, with a:
o promise (it can be implied) of better treatment in their employment, or
o a threat (it can be implied) either of worse treatment or about current or future job security;
or
 subjects (either directly or indirectly) the employee to behaviour that they don’t want or is offensive
to them (even if they don’t let the employer or the employer’s representative know this) and which
either is so significant or repeated that it has a negative effect on their employment, job performance
or job satisfaction:
o by using (in writing or speaking) sexual language, or
o by using sexual visual material (eg pictures, diagrams, photos, videos, etc), or
o through sexual physical behaviour.
An employee who is treated in any of these ways by someone who is not their employer or a representative
will have a personal grievance claim against the employer if they report the behaviour, adequate steps are not
taken to enquire into it and prevent repetition, and it is repeated.
Under the Human Rights Act 1993, sexual harassment has the same definition, except that the first instance of
harassment by a co-worker will give rise to liability unless the employer has taken appropriate steps to prevent
such conduct occurring.

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which can lead to isolation and more serious incidents can occur. An unsafe drinking culture will
provide plenty of scope for sexual behaviour that is even less acceptable.

Why are we still talking about it?

There has been a culture of ‘3 monkeys’ complacency about it: we don’t see it, we don’t hear about
it, but that is because those affected by it can’t speak about it. If you have never experienced
harassment, or have not seen it, or received a complaint, please do not assume that means it
doesn’t happen, including in your workplace.

I am frequently told by men (and some women), in person and on social media, that they have never
seen or experienced sexual harassment, so it doesn’t happen in their workplace or sector. I often
respond that I haven’t been to the moon but I believe the people who say they walked on it. I tell
them the stories the women in their workplaces tell me. I tell them about the last few times I was
harassed (in the past year or 2), how it feels, and how I challenged the men who did it. And how
difficult that was, even for me. Men often tell me no one has ever talked about this stuff to them, in
a plain, unvarnished way, in their whole lives. Astounding.

When senior people behave this way or see sexism and harassment but do nothing about it, they are
perpetuating and condoning what is happening. Other staff see what is happening and when no one
intervenes, they think this is how things work around here and it is OK to behave this way. Or there
is no point saying anything because it won’t be taken seriously. It is normalised.

The tide of public opinion is turning. We hear people saying ‘everything has changed, we don’t know
how to behave anymore’. This is nonsense. Nothing has changed: the kind of behaviour we are
talking about today has always happened and has never been acceptable.

Publicity including the #metoo campaign, and the use of the internet and social media has simply
helped people to find a voice and support. This means those who experience this behaviour no
longer feel so alone or powerless.

It has also grown an awareness of what kind of behaviour is OK and what isn’t. We have heard
people talk about being harassed. When they go on to explain what happened to them, it is actually
sexual assault, but they hadn’t realised because what was happening had been so normalised.

Why don’t they complain?

Statistically, few people who are subjected to sexual harassment feel able to confront the behaviour
or make a complaint. Women are socialised to accept disrespectful behaviour and not to make a
fuss when it happens. Men are silenced because it isn’t manly to say you have been sexually
harassed. The importance of due process and natural justice results in emphasis being placed on
getting formal complaints and running investigations; otherwise, HR say, “our hands are tied” and so
they do nothing.

There is also a huge amount of energy put into protecting alleged or even proven perpetrators. The
risk to their career or family life is played up. ‘He’s a decent family man.’ ‘He’s a pillar of the
community.’ ‘He makes us so much money.’ It is always an open secret: later when it comes out,
people will say they knew, everyone knew.

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People often blame the complainant in subtle and not so subtle ways. This makes me really angry: if
you are mugged and your wallet, phone and watch are stolen, people don’t immediately blame you
for walking home alone, or ask what you were wearing, or how much you had to drink.

People lack confidence in processes and outcomes. They may have heard others say nothing
happened when they raised a similar issue. They may have seen how complainants are victimised,
the stories in the media about how people say the process was worse than the sexual assault.

Survivors feel intimidated about having to make formal complaints to HR or senior managers (who
may be seen as closely aligned to the alleged perpetrator). Formal processes are too often used to
silence those who have been brave enough to speak up and other potential complainants: to protect
the organisation and the perpetrator.

We also know the lack of flexibility in process and outcomes is a problem. Hardly anyone who
experiences sexual harassment wants a big formal investigation or to see the harasser fired: they
want the harmful behaviour to stop and not to happen to anyone else. There is little focus in most
workplaces on empowering people to have safe conversations with measures implemented to raise
the unacceptable behaviour, support healthy relationships and monitor the situation to make sure it
doesn’t happen again.

Legal obligations on employers to inquire and act

There are specific legislative requirements setting out an employer’s obligations where a complaint
of sexual harassment is made. The key provisions are found in the Employment Relations Act 2000
(ERA) and the Human Rights Act 1993 (HRA).

Employment Relations Act 2000

If someone is harassed by their employer (or a representative of the employer, i.e. a manager), the
organisation is automatically legally responsible. If a person makes a complaint about being sexually
harassed by someone other than the employer, which would include co-workers or clients, the
employer “must inquire into the facts”. If the employer is satisfied the behaviour took place, the
employer must take whatever steps are practicable to prevent any repetition of such behaviour.

If an employer has failed to take whatever steps are practicable to prevent sexual harassment after
an initial complaint, an employee can raise a personal grievance.

“Whatever steps are practicable” would include disciplinary action if justified, changing work
arrangements, education, setting expectations, providing support, coaching, EAP etc. This does not
have to mean a formal investigation process. You need to talk to the complainant or informant and
work out what is the right starting point. Maybe you can try informal processes first. Can a
restorative process be safe?

The employee who raised the conduct must be informed of the outcomes of any process (and the
respondent should be told too) to ensure they are not disempowered, for example if the conduct
continues. Many complainants say they were not informed of the outcome of their complaint, had
no idea whether they were believed, or felt nothing happened, so would not bother reporting again.
This deters others.

The duty on an employer to investigate complaints was confirmed where the Employment Court
stated in Clear v Waikato District Health Board:

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 A fair and reasonable employer faced with the plaintiff’s repeated complaints should have
undertaken a comprehensive investigation at the earliest opportunity, reached a firm
conclusion on the complaints, kept her fully informed of the process, advised her of the
decision, and then taken steps to address the dysfunction. 2

Human Rights Act 1993

The HRA sets out similar obligations on employers to inquire into complaints of sexual harassment
and provides that the failure to do so gives rise to a cause of action under the HRA. 3 However, s68(3)
is important: there will vicarious liability (i.e. an employee’s actions will make the employer liable)
unless the employer can prove it took reasonably practicable steps to prevent the act or such acts
occurring.  This is usually talked about as meaning having suitable policies, education, regular
reminders of the expected behaviour, taking action about any incidences of low level behaviour etc. 
So the HRA obligation requires proactivity: first offences by a co-worker will result in liability for the
employer if inadequate preventive steps have been taken. Frequently, in my experience, the
employer can’t prove any preventive measures were put in place. Just having a policy on the
intranet is not enough.

The Health and Safety at Work Act 2015 (HWSA)

HSWA places a duty on PCBUs4 to ensure, so far as is reasonably practicable, the health and safety of
workers while they are at work. Health means physical and mental health. As sexual harassment can
cause both physical and mental harm, an employer should be proactive about preventing harm, and
investigate any complaint to avoid breaching its obligations under HSWA. WorkSafe has recently
indicated greater willingness to investigate employers for serious failures to keep their workers safe
from sexual assault or harassment.

How to address sexual harm in the workplace

Be well aware of power imbalances. Select and train managers and team leaders with
great care: they are the most likely to sexually harass – and the employer is automatically
liable for their conduct. They do what they do because employees are often powerless.
Receiving a disclosure or complaint

Where an employee raises harassment in the workplace, however they raise it, they need to be
treated with respect, made to feel safe, and not burdened with fixing the problem. Their needs,
safety and wellbeing should be the primary focus.

People in management and HR seldom know how to receive and deal with a disclosure of sexual
harm at work. It does not come naturally to most people. Even the most well-meaning person can
spout out unhelpful comments borne of shock, denial, unconscious bias or prejudice.

Larger organisations could have designated contact and support people who have had training.
Managers and HR need training in how to receive disclosures. There should be a complaints register
2
[2008] ERNZ 646.
3
Note an employee wanting to pursue a complaint about causes of action which fall under both the ERA and
HRA must choose one or other before filing proceedings.
4
Persons in control of a business or undertaking i.e. employers, senior management and directors.

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and clear processes to follow. If you are a large employer, consider having safe, independent
channels for raising complaints.

It is essential for all employees to have basic training and education so they know what is acceptable
and what is not, about the organisation’s policies and processes, who to go do and what to do if they
witness inappropriate conduct or a colleague discloses it to them. Bystander awareness training is an
excellent investment.

Ways to address the behaviour

If you have a mature workplace culture where it is widely understood that disrespectful behaviour is
not tolerated and it is safe to say something is unacceptable, people can say “stop it, I don’t like it”.
That is, sadly, quite rare.

If an informal or formal complaint is made or people see behaviour they are concerned about, there
are several options for addressing it. None of these options exist as a prerequisite for another and
different options will be appropriate in different situations.

The decision whether to make a formal complaint should be left entirely up to the person who
raises the conduct. They should be supported and given information about their options to help
them make a decision.

Employers often panic and assume they have to leap into a very formal process. Or they are so
rattled they try to avoid doing anything at all. Or try to persuade the person talking about
harassment that it wasn’t that bad, not to make a big fuss. Whatever you are feeling, stay calm,
listen compassionately to the person raising the issue, see what they need right now to be safe.
Then get expert advice and support and work out what is the best thing to do.

Potential options to address sexual harm at work include:

 Direct Approach or “self-help” – an opportunity for an employee to speak directly with the
person concerned about their behaviour. This is a scary option for anyone and there should
be no pressure to do it. The employee who decides they want to do this will need support to
do so, or a bystander may speak with the person instead. It is recommended the employee
keeps a note of any conversation, in case there is dispute about what occurred, or the
behaviour continues.

 Informal Intervention – an informal option doesn’t result in any finding of wrongdoing. The
employee’s manager and/or HR representative have a careful informal discussion with the
person alleged to have harassed someone. The concerns and basis for them are raised and
discussed, without any assumption the conduct occurred. The expected standard of
behaviour is made clear, and the likely consequences should any further concerns arise. The
complainant needs to know this has happened so they are brave enough to speak up if it
happens again.

 Facilitation– discussion between both parties is led by a skilled, independent facilitator. The
aim is to allow both parties to hear each other’s account and how they as individuals feel
impacted, before focusing on how they can interact more respectfully. No determination is
made regarding fault: attention is on establishing expectations for future behaviour and
ensuring compliance. The parties can bring a support person and the employer may, or may
not, be involved. Any agreed outcomes are recorded, with the expectation that subsequent

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 non-compliance may result in a formal complaint. Note if an MBIE mediator is engaged, they
will expect the employer to attend.

 Tikanga approach – if anyone involved is Māori or the organisation has a culture of engaging
with its people consistent with tikanga Māori, this should be incorporated into any process
to try to resolve an issue of sexual harm at work. The complainant must not be
disempowered by any process. It must be safe and comfortable for all.

 Review/health and safety check – if the employee raising concerns does not want to be
identified or does not wish to participate in an investigation, the employer may choose to
conduct some form of review or enquiry about how people in the workplace (or part of it
where the parties work) feel about their working environment. This may be internal or
conducted by an external expert. An anonymous survey or an employee engagement survey
including specific questions about sexual harassment can be used.

 Formal Complaint – this is the only option that seeks a formal determination of facts and/or
behaviour by an individual that breaches an organisation’s code of conduct or employment
expectations. A formal complaint does not have a prescribed format. Ideally it should be in
writing (or written down from a verbal account and confirmed) and set out the following
details:

o the specific details of the alleged wrongdoing, including where, when, and what;

o identify the complainant and the person being complained about; and

o request the employer to investigate the allegation.

Whatever approach is taken to addressing sexual harm at work, the safety, mana and dignity of all
people involved should be foremost in the employer’s mind. Unfortunately, I find this is often not so.

Investigations

An employer can commence an investigation even if there is no formal complaint or the complainant
does not want to be involved. However, that may make it difficult to gather the required evidence.
If a formal complaint is made, the employer must act. Explore the options with the complainant and
consider a formal investigation. If there is enough evidence to put an allegation of misconduct to an
employee, a disciplinary process can be commenced.

Any investigation process must be undertaken consistent with good faith and due process, and any
applicable policy in the workplace. This is in the interests of both the complainant and the
respondent (individual being complained about). Different approaches can be undertaken
depending on the people involved, the information available, and the nature of the complaint.

A clear understanding of the complaint and assessment of the information available is important to
determine what kind of investigation is required.

Preliminary questions to consider at the outset of any investigation process include:

 are there immediate needs in terms of safety, health, wellbeing and/or security? If there are,
how should these be met and by whom?

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  how should the complainant be supported? And anyone else potentially affected, including
the employee who is the subject of the allegation or issue?

 what kind of behaviour or issue is being raised?

 is there enough information to work out what the issue is, and whether anything needs to
be done? If not, how should additional information be obtained?

 is there a need for HR, legal, or other advice?

 is it a type of issue for which there is a specific process? If so, what is the process, and what
are the next steps?

 does a fact-finding investigation need to be undertaken, or is there enough information to

undertake a disciplinary process (i.e. to put the allegations formally and seek an
explanation)?

 who should be handling this?

 who else needs to know / should be involved?

 is EAP or more specialised counselling support required for anyone involved?

 should suspension of the respondent be considered? And if so, does the employment
agreement allow it or can it be justified because of the high risk?

 if it is potential criminal behaviour, does the complainant want support to approach the
Police? Should this happen first, before any employment process? An employer is under no
legal obligation to report such complaints to the Police and should not try to compel or deter
an employee from going to the Police. HR and managers dealing with such issues should be
able to give clear advice on possible options to the complainant or obtain independent,
expert advice for them.

 In such situations, the accused harasser can refuse to participate in any parallel employment
investigation if that might incriminate them in the criminal investigation. This might mean an
employment investigation is put on hold while a criminal investigation/prosecution is
completed.

There is no legal requirement to hire an independent investigator but it can be very wise where, for
example, HR and/or managers are unable to undertake the process, the issues involved are
sensitive, there is a widespread/systemic issue involved, HR is involved in the allegations, or the
environment is low trust.

If the complaint is against a very senior manager, the CEO, business owner or a director, advice
should be sought to ensure an appropriate process is undertaken, preferably independent. If the
employer or a representative of the employer (a manager, someone in a position of authority over
the employee) is proven to have harassed an employee, the employer is automatically liable. This
can make it impossible for anyone internal to the organisation to be impartial.

An independent investigator only makes findings of fact and reports those to the employer. It is
inappropriate for an external person to run a disciplinary process or make disciplinary findings or
recommendations.

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Outcomes of an investigation

A formal investigation into alleged harassment will result in a finding (on the balance of
probabilities) that the allegation is proven or not. This must be on the basis of a fair and robust
assessment of the relevant evidence. Any finding of misconduct is reached only after a fair
disciplinary process by the decision-maker with authority to make the decision.

Outcomes where an allegation is upheld might include formal warnings along with safety measures
and coaching, facilitation, education and careful monitoring, or dismissal. Working relationships
between employees after an investigation process (including managers and witnesses) will require
attention and support. Clear expectations and boundaries may need to be established to ensure a
safe working environment. Expert facilitation and/or counselling may be required.

Specific disciplinary action taken may need to be kept confidential. However, the complainant does
need enough information to feel safe at work. The sad reality is that often it is the person who has
been harassed who leaves their employment. Or a proven perpetrator is allowed to resign and leave
with dignity and fanfare, and maybe a settlement with confidentiality and non-disparagement
provisions. On their way to another unsuspecting workplace.

Where complaints of harassment are made by employees about the conduct of clients, a range of
options are available to the employer (if the identity of the client is known) including:

 the client or their employer could be warned;

 the firm’s relationship with the client may be terminated;

 the firm may request that the client provide another contact person in the future; and

 the individual may be prevented from attending the firm’s premises or any firm function or
event.

Issues of privacy
Employers undertaking investigations need to manage the competing privacy interests of the
individuals involved, while still meeting the requirements for a fair investigation. The ERA requires an
employer to provide an employee with all information which may be relevant to the continuation of
their employment (along with an opportunity to comment on it). The principles in the Privacy Act
2020 set out how an employer should collect, manage, and disclose personal information.

An employee who has been the subject of an anonymous complaint can make a request for personal
information under the Privacy Act. Where the release of the complaint may disclose the identity of
the complainant, an employer may be able to withhold information as that would involve the
unwarranted disclosure of the affairs of another. Where an anonymous complaint details
harassment of a serious nature, an employer may be able to justify withholding information where
the release of the information would be likely to endanger the safety of any individual (a high
threshold). In a new provision under the 2020 Act, a request for access to personal information may
be declined if it would create a serious risk of harassment (s49).

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But we have a policy…
We tend to focus on putting in place detailed written policies and procedures, as if that were
enough. The problem is 3-fold. First, most of the policies and procedures people like me have been
writing for decades are legalistic, impractical and do not take a harm minimisation, people-focussed
approach. Policies need to be plain spoken, focus on harm minimisation and supporting the people
involved, empowering complainants and setting out fair ways to sort out problems at the lowest
level possible.

Secondly, organisations fail to promote the policies, educate everyone about eliminating the
conduct or make it genuinely safe to challenge harassment.

Thirdly, when a complaint is raised or an issue arises, either the employer does nothing or fails to
run a fair, even handed process in accordance with their policy. Too often, processes re-traumatise
and disempower survivors. They will often say they wish they had never made a complaint.

Just having a policy isn’t enough – you have to follow it

In every case of a complaint being made, formal or informal, or someone picking up on an unsafe
situation, there needs to be a fair and transparent process which puts safety and respect first and
minimises the risk of the process being derailed.

As well as EAP, employers should offer to pay for complainants to get independent legal advice to
have someone in their corner.

Too many HR people and employment lawyers don’t really understand employers’ legal obligations
or how people who experience harassment feel and behave. I have had to explain to quite senior
lawyers the legal requirements for employers to enquire into complaints, to take all steps
practicable to prevent such conduct and to prevent repetition. Complainants are interrogated about
why they didn’t tell anyone, why they didn’t protest, and, ironically, whether they are making a big
fuss about nothing.

If a complaint process isn’t handled well, it disempowers the complainant and can make them feel
victimised, vulnerable and ashamed. At its worst, a formal process can be used to protect the alleged
perpetrator and the complainant leaves the organisation.

Confidentiality agreements or non-disclosure agreements (NDAs) can prevent survivors of

misconduct speaking out and leave the remaining employees vulnerable. I find it morally repugnant
that NDA’s and confidentiality clauses are being used to silence survivors of sexual harassment.
People should be free to talk about their lived experience. Our defamation laws already protect
perpetrators to an extraordinary degree. Threatening a complainant with defamation is a common
tactic and it is abhorrent. Do we as a society really still think fairness involves ensuring a proven
sexual harasser is free to do it again and again?

Are we all part of the problem?

Many smaller workplaces are run by people without management expertise or who don’t have HR
people. They will do their best, but without specialist advice, they may make serious mistakes. Other

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businesses may outsource or rely on ad hoc advice from HR or legal advisers. Some of those people
may not have a lot of experience in this area.

Where there is inhouse HR, those staff have a dual role and can be or feel they are in a conflict of
interest position. They advise and support managers, partners and the business while also working
alongside the employee who has made the complaint. The complainant will often say they “thought
HR would be there for me but they were really protecting” the respondent, management or the
employer.

HR and health and safety professionals, and the lawyers who advise them need to start seeing the
wellbeing, the safety of everyone in the business as their priority. Protecting an alleged perpetrator,
or even ensuring a proven harasser stays because of their “value” to the organisation is unsafe and is
not, objectively viewed, in the best interests of the employer. Remember, the story may end up in
the media and the cover-up or the awful process becomes the story. Our processes need to be
respectful, people-focussed and culturally safe.

The new paradigm

All allegations of, or evidence suggesting sexual harassment must be taken seriously. Every time. No
matter how valuable, senior, well respected, long serving or well connected the alleged perpetrator
is. Doing nothing at all or running a poor process will be devastating to the complainant. It will also
be a failure to provide a safe, inclusive and productive workplace.

Focus on safety and support first, not as an afterthought. How can you protect and empower a
complainant or would-be complainant: how do you make sure they have someone looking out for
them?

Organisations have to stop using both their policies and the spectre of defamation or privacy risks as
a shield to protect the brand and enable harassers.

Letting a perpetrator leave with your very best wishes to spend more time with family before going
on to another high powered job (with your positive reference under their arm) puts other people’s
staff at risk. The public sector now has obligations to finish processes even if the respondent resigns.
There are obligations to inform prospective employers of such formal processes and dismissals and
to be very careful about giving positive references where there has been serious misconduct.

Employers should of course have a simple, clear, fit for purpose policy about sexual harassment.
They also must make it widely known and available. At induction go through the expected standard
of behaviour and the policy and how to use it. Organisations must do regular training with all staff to
ensure the expectations are embedded. If you are never getting complaints, your processes aren’t
right or trusted. Do you need to appoint contact people or an external, impartial channel?

Managers need training to be able to deal with situations as they arise and understand their own
responsibilities. Creating a safe, respectful work culture is about living shared values, professional
behaviour and solid leadership. It requires more than just having a written policy or encouraging
people to speak up.

Your workplace culture needs to be genuinely empowering: all voices must be heard. Teaching
people to talk and listen to each other in a mature way, to act respectfully and ways to resolve issues
between themselves safely is imperative.

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I strongly urge you to stop running internal investigations into serious sexual harm allegations. The
employer has a vested interest in shutting allegations down and not finding sexual harm occurred,
especially if the alleged harasser is a manager and there is vicarious liability.

If there isn’t a formal complaint or people are too scared to put their name on the record, think
about what else you can do to get evidence or otherwise make the workplace safe. Be creative. You
can’t just say “Without a formal complaint, our hands are tied, there’s nothing HR can do”.

Senior managers, employment lawyers, HR and health and safety professionals, we all need to step
up our game. If we continue to do what we have always done, with the policies and procedures we
have always used, we will continue to see the same outcomes.

Leadership in this area is about relentlessly role modelling and demanding adherence to shared
values of decency and respect, and holding people all the way to the top accountable for ensuring
those values are lived and breathed, every day. All officers of an employer have serious health and
safety obligations and this applies to sexual harm prevention. It is not being tackled this way in most
organisations. It must be.

Steph Dyhrberg

Partner

Dyhrberg Drayton Employment Law

Wellington

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