Definitions and clear expectations

There are specific definitions for prohibited behaviour such as bullying, harassment, and discrimination in Rule 1.2. This clarifies exactly what sort of conduct is prohibited.

Lawyers have always been prohibited from engaging in behaviour that tends to bring the profession into disrepute, but from 1 July 2021 this behaviour is better defined and includes, bullying, discrimination, harassment, racial harassment, sexual harassment, and violence.

bullying means repeated and unreasonable behaviour directed towards a person or people that is likely to lead to physical or psychological harm.

discrimination means discrimination that is unlawful under the Human Rights Act 1993 or any other enactment.

harassment —

1. means intimidating, threatening or degrading behaviour directed towards a person or group that is likely to have a harmful effect on the recipient; and
2. includes repeated behaviour but may be a serious single incident

racial harassment means behaviour that—

1. expresses hostility against, or contempt or ridicule towards, another person on the ground of race, ethnicity, or national origin; and
2. is likely to be unwelcome or offensive to that person (whether or not it was conveyed directly to that person).

sexual harassment means —

1. subjecting another person to unreasonable behaviour of a sexual nature that is likely to be unwelcome or offensive to that person (whether or not it was conveyed directly to that person); or
2. a request made by a person of any other person for sexual intercourse, sexual contact, or any other form of sexual activity, that contains an implied or overt promise of preferential treatment or an implied or overt threat of detrimental treatment.

Sexual harassment can happen to, and be carried out by, someone of any sex. It can be subtle or more obvious.

Whether a behaviour is sexual harassment is viewed objectively, considering whether the conduct was unwelcome or offensive, from the perspective of the complainant.

Examples of sexual harassment:

• Personal, sexually offensive comments.
• Sexual or smutty jokes.
• Unwanted comments or teasing about a person's sexual activities or private life.
• Offensive hand or body gestures.
• Physical contact such as patting, pinching or touching.
• Provocative posters with a sexual connotation.
• Persistent and unwelcome social invitations (or telephone calls or emails) from workmates at work or at home.
• Hints or promises of preferential treatment in exchange for sex.
• Threats of differential treatment if sexual activity is not offered.
• Sexual assault and rape.

Examples of racial harassment:

• Making offensive remarks or jokes about a person's race,
• Copying or making fun of the way a person speaks,
• Calling people by racist names,
• Deliberately mispronouncing or mocking people's names.

Sexual or racial harassment by customers or clients of the employee’s employer

Harassment is also covered by the Employment Relations Act 2000 and the Human Rights Act 1993. If a customer or client of their employer subjects an employee to the behaviour, then the employee should complain to an employer in writing. The employer has to investigate and if they decide that the behaviour happened, they have to take whatever steps are practicable to stop it happening again. If harassment does happen again, and the employer hasn’t taken the practicable steps then:

• The employer will be in breach of the Human Rights Act 1993, and the employee could complain to the Human Rights Commission, or
• The employee could bring a personal grievance.

Other forms of harassment

General harassment could include any unwanted and unjustified behaviour which another person finds offensive or humiliating and because it is serious or repeated it has a negative effect on the person’s employment, job performance or job satisfaction.

If an employee is subjected to another form of harassment, they may be able to bring a personal grievance, for example, if

• Other forms of harassment are included in workplace policies or employment agreements, or
• The harassment leads to unjustified disadvantage or constructive dismissal.

Other forms of harassment that may be bullying if repeated include:

• Comments or behaviour that express hostility, contempt or ridicule, repeated put-downs for people of a particular age, body shape, gender identity, etc.
• A general work atmosphere of repeated jokes, teasing, or ‘fun’ at someone else’s expense because of a particular characteristic they have.