Improving policies and procedures for bullying and harassment
Recent changes took effect for lawyers in July this year in Aotearoa. The changes address important gaps in the rules of conduct for lawyers relating to bullying, sexual harassment, racial harassment, violence and discrimination.
They are worth considering if your policies and procedures on bullying and harassment are in need of an update.
The case for change
Before the changes, lawyers were required to comply with general law and not bully and harass clients or colleagues. Behaviour that brings the profession into disrepute was also prohibited.
But there was no clarity in the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules) about what these behaviours looked like or involved. Unlike social and health services, lawyers were not required to have policies and procedures to help them comply with their obligations to not bully or harass.
That’s now changed
Amendments to the Rules now define bullying, sexual harassment, racial harassment and violence. Policies and procedures to help compliance with the Rules are now required and there are new reporting obligations.
Some of these changes are addressed below for the purpose of considering how they might be used in policies and procedures of social, health and education organisations.
Probably the most important change is the inclusion of new definitions in the Rules of bullying, harassment and violence. There are similarities with the Human Rights Act definitions. But there are also some big differences.
A big difference is that conduct may amount to harassment under the new Rules even if the person at whom it is directed doesn’t feel harassed or was not directly impacted. The crux is whether the harassing behaviour would likely be seen as unwelcome or offensive to that person whether or not it’s conveyed to the person.
This means that sexual and racial harassment for lawyers covers a broader range of behaviour than what’s covered in the Human Rights Act 1993. Some examples of sexual harassment are:
- Personal, sexually offensive comments.
- Sexual or smutty jokes.
- Provocative posters with a sexual connotation.
- Hints or promises of preferential treatment in exchange for sex.
- Threats of differential treatment if sexual activity is not offered.
- Sexual assault and rape.
Racial harassment examples are:
- Jokes and adverse comments in the workplace about a person’s race
- Copying the way a person speaks
- Deliberately mispronouncing names or words in a person’s language/culture.
The Rules define violence broadly to include sexual violence, physical violence, psychological violence, sexual abuse and sexual assault. Psychological violence isn’t defined. But it is likely to be interpreted similarly to cover situations of psychological abuse (as in the Family Violence Act 2018) and to cover behaviours like “put-downs”, loitering near a workplace and intimidation.
Under the new Rules, lawyers will now be required to have policies and systems in place to prevent and protect all persons engaged or employed by their legal practice from bullying, discrimination, harassment, racial harassment, sexual harassment, or violence and other unacceptable conduct (section 11(2)).
They must also have a designated staff member whose job is to ensure compliance with the Rules (section 11(3)). That person must report to the Law Society on any case where a warning or dismissal is issued for bullying, violence, discrimination, harassment, racial or sexual harassment or where the alleged offender leaves before an allegation is able to be adequately investigated (section 11(4))
The implications for social and health services
Policies and procedures for social, health and education agencies that address bullying, harassment and discrimination typically align with the Human Rights Act 1993 and the Employment Relations Act 2000. It’s timely to revise them.
Adopting the definitions of bullying, harassment and violence used in the Rules will maintain alignment with this legislation but would help improve organisational policies and procedures. It’s worth thinking about.
We recently reviewed our bullying and harassment policy pages
We recently reviewed our bullying and harassment policy pages in our online policy and procedure service. As part of the review, we considered the definitions in the new Rules, relevant legislation and feedback from our members. We updated the policies and as with all reviews we do, we advised our members of the changes made and provided notes for them to use to update staff about the changes.
If you don’t want to miss out on what we did through that review, contact us now to find out more about joining our online policy and procedure service. It’s our most popular product for anyone with compliance needs relating to the social sector and health and disability standards.