It is difficult for victims of sexual harassment to speak out in any context, but in a workplace characterised by an imbalance of power, it can be overwhelming.  The personal challenges faced by any person who has been subjected to this type of behaviour are compounded by the unfortunate reality that raising complaints can often result in further victimisation, stigma or even loss of employment.

On top of these barriers, the current law requires that a person wanting to raise a personal grievance alleging sexual harassment, must do so within 90 days of the event occurring or coming to their notice.  If they fail to do so, there is a limited ability to raise a late claim, but only if the employee can establish that the delay was occasioned by “exceptional circumstances”.

In practice, and for obvious reasons, an employee is unlikely to raise a personal grievance based on sexual harassment whilst they are still employed.  It can take months or years for a person to be able to fully comprehend and talk about what happened to them, and to even consider whether to seek legal redress.

In such cases an employee is immediately on the back foot, having to first meet the “exceptional circumstances” test.  The grounds for establishing this include where the employee “has been so affected or traumatised by the matter giving rise to the grievance that he or she was unable to properly consider raising the grievance within the period specified”.

Whilst this provides a potential avenue for victims of sexual harassment, the Employment Relations Authority has tended to apply the test strictly, requiring truly exceptional circumstances. 

In one such case an employee was dismissed for non-performance in 2012, and subsequently raised a grievance relating to an incident which allegedly occurred in 2008.  The employee claimed she had been sexually harassed by the Managing Director of the company and that she had reported this to the Distribution Manager at the time who suggested that she put in a formal complaint.  She did not do so because she said that she was not confident that her complaint would be fairly dealt with and was worried about the impact on her job.  She had children and was not in a position to risk her employment.

The authority refused to allow the employee to bring her grievance out of time as she did not provide sufficient evidence of being so affected or traumatised by the alleged sexual harassment that she was unable to consider raising the grievance within the required 90 day time period.  The medical evidence was that she sought assistance only after the employer commenced an investigation into her performance in 2012.

In another case, an employee claimed that she was upset and depressed as a consequence of being harassed at work, and produced medical records showing she had ended her employment due to stress and illness.  She also provided evidence from her GP who wrote “she [the applicant] stated she had left her last job at a bakery in Paihia, citing her boss as the reason, stating that he had harassed her, was too stressed to deal with it at the time”.

The authority accepted that the applicant had been “incapacitated” at the point her employment ended, but held that there was insufficient evidence that this condition was caused by the alleged harassment, or that it prevented her from raising a personal grievance during the 90 day period.  The fact that the applicant had been able to apply for other jobs and get married during this time was seen as evidence that she was reasonably able to consider raising a grievance too.

These cases demonstrate clearly that the current legal framework does not support victims of sexual harassment in the workplace and in fact creates artificial and potentially insurmountable barriers to raising claims.

It is therefore long overdue that a Private Members Bill to extend the timeframe for raising a personal grievance involving allegations of sexual harassment has recently been pulled from the biscuit tin and will be considered by Parliament. The Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Bill, sponsored by backbench Labour MP Deborah Russell, seeks to extend the timeframe for raising a personal grievance in cases of sexual harassment from 90 days to 12 months.

This is absolutely the right thing to do and should be supported by parties across the political spectrum.  The only logical argument against this Bill is that employers will be exposed to personal grievance claims for up to 12 months after the alleged incident occurred, and this ongoing liability is undesirable. 

That may well be true but the number of sexual harassment claims that currently make it to the courts are very few, and given all of the other barriers that exist, it is hardly likely that the floodgates will open.