New 12-month timeframe for raising sexual harassment personal grievances

8 June 2023

This article was updated on 13 June 2023 to reflect the Act coming into force after receiving Royal Assent.

The Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act 2023 (the Act) has received Royal Assent and comes into force on 13 June 2023.  This means employers need to be aware of changes that will affect all new employment agreements from this date.

Coming forward to report sexual harassment can be difficult, and it is common for victims of sexual harassment to wait a long time before coming forward, if at all. The purpose of the Act is to allow victims of sexual harassment more time to consider what has happened before deciding whether they wish and feel safe to raise a personal grievance.

In short, the Act extends the timeframe for employees to raise a personal grievance with their employer (or a controlling third party) for sexual harassment from 90 days to 12 months (Extended Timeframe). The Extended Timeframe commences from the date the sexual harassment occurred or came to the employee’s notice, whichever is later and it applies where an employee has been sexually harassed in the employee’s employment (section 103(1)(d) of the Employment Relations Act 2000 (ERA)). This type of personal grievance links into specific definitions about sexual harassment in section 108 (sexual harassment by the employer or the employer’s representative) and section 117 of the ERA (sexual harassment by a person other than the employer).

The deadline to raise a personal grievance for all other personal grievances remains at 90 days beginning with the date on which the action alleged to amount to a personal grievance occurred or came to the notice of the employee, whichever is later.

Considerations for employers

A number of clients have asked how this change will impact their business in practice. We set out some frequently asked questions below.

•  Do we need to update our employment agreements?

Although employment agreements entered into from 13 June 2023 will need to be updated to set out the Extended Timeframe, employers are not required to amend employment agreements for current employees1.

A failure to update employment agreements entered into from 13 June 2023:

  •  could give rise to a potential penalty of up to $20,000; and
  •  provides employees with a defence if they fail to raise a personal grievance for sexual harassment within the Extended Timeframe.
•  Do we need to notify our employees of the change?

There is no positive obligation for employers to notify current employees about this change in law. However, as a matter of best practice, we recommend informing all current employees of this change in writing (e.g., in a letter or via email, or as a communication about any necessary updates to your current company policies). In the event that current employees enter into new or varied employment agreements in the future, that would also be an opportunity to update any clause which refers to the 90-day period for raising a personal grievance.

•  Do we need to consider updating any other employment documentation?

The most important implication for employers is that all employment agreements entered into from 13 June 2023, must include reference to the Extended Timeframe. We recommend checking that all template employment agreements reflect this change.

Employers should also review their company policies (specifically those relating to resolving employment relationship problems and/or harassment and bullying). If these policies refer to the time periods or process for raising a personal grievance, they should be updated to reflect the Extended Timeframe.

•  Does an employee still have 12 months to raise a personal grievance for sexual harassment, if the harassment occurred before the Act came into force?

The Act does not apply retrospectively. This means that if an employee experienced sexual harassment (and this had come to the employee’s attention) before the Act came into force, the employee will only have 90 days to raise a personal grievance and cannot rely on the Extended Timeframe in relation to that alleged incident. However, if the alleged sexual harassment occurred before the Act came into force but the employee only becomes aware of it after the commencement of the Act, the Extended Timeframe applies.

We anticipate that guidance from organisations like MBIE and WorkSafe will be updated to reflect the Act. However, it may take some time for guidance to be provided by the Employment Relations Authority and Employment Court on some potentially grey areas, for example, how the Extended Timeframe interacts with other personal grievances that must be raised within 90 days (for example, a personal grievance for unjustified dismissal, where sexual harassment may have been a factor).

The longer timeframe for raising a sexual harassment personal grievance may have practical implications for employers. For example, it may be more difficult to investigate these types of allegations and take appropriate action, as there is greater risk that relevant staff (witnesses or those involved in the alleged behaviour) may have left the organisation or have faded recollections of events. These issues will need to be carefully and sensitively navigated on a case-by-case basis.

If you have any questions about the matters raised in this article, or would like assistance with a template clause for your employment agreements to reflect the Extended Timeframe (to be used once the Act comes into force), please get in touch with the contacts listed or your usual Bell Gully adviser.

[1] Section 5 Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act.

Disclaimer: This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.