When Conduct is Deemed to Occur in the Workplace and the Liability of Employers for the Sexual Harassment of one Co-Worker by Another

Abstract

This paper analyses the different approaches of the Employment Relations Act 2000 and the Human Rights Act 1993 as to whether sexual harassment of one co­worker by another occurs as a part of the employment relationship. It examines the Court of Appeal and the Human Rights Review Tribunal regarding the liability of the same person (Smith) for sexual harassment. The Court of Appeal upheld Smith’s dismissal as it impacted on his employment relationship, while the Human Rights Review Tribunal held Smith’s behaviour was not in the in the course of his involvement in employment. Reasons for the difference between the two decisions are examined, looking in particular at employer liability for the actions of co­workers, and the different ways the two Acts deal with such liability. Canadian and Australian approaches to employer liability are examined, noting consistency between the approaches in their human rights and employment legislation. It is suggested that inconsistencies between the Employment Relations Act and the Human Rights may lead to different outcomes regarding employer liability. Finally it is suggested that, given the differences between the two Acts, it would be better for matters of sexual harassment to only be dealt with under the Human Rights Act.