Lessons from Wiles v Auckland Uni: Employer obligations to manage psychosocial risk

The Employment Court this week released its decision in the case brought by Microbiologist Associate Professor Siouxsie Wiles, against her employer, the University of Auckland. It upheld her claim that the University breached its health and safety obligations, breaching good faith, and for causing her unjustifiable disadvantage. The case has important implications for employers regarding the requirement to undertake sound risk assessments including psychosocial risks, and to put appropriate plans in place to proactively manage the risk. 

Background to Wiles v University of Auckland – Increasing safety risk

During the Covid-19 pandemic, Microbiologist Associate Professor Siouxsie Wiles became a well-known public figure, translating complex science into relevant public health information. However, despite praise for her public communications, a vocal minority subjected her to abuse and harassment.

In March 2020, Associate Professor Wiles raised concerns with the University about external communications and "low-level" harassment. However, as her public appearances increased, the level of vitriol rose rapidly in response. This included her telephone number, personal email address, and home address being posted online (known as "doxing"). She and others consistently raised concerns with the University about the harassment and threats.

In June 2021, the University informed academics that providing commentary on Covid-19 was not part of their roles. Associate Professor Wiles was subsequently questioned by the University regarding what was described as her "outside activities". In March 2022, the University advised her to keep her science communications and other public service commitments to one day per week.

In July 2021, the University engaged an independent firm to undertake an audit of safety and security. The University had regular communication with Associate Professor Wiles during the process. However, it did not undertake an internal security review, nor did it conduct an individual risk assessment in relation to her.

Employer health and safety obligations

The Health and Safety at Work Act requires employers as Persons Conducting a Business or Undertaking (PCBU) to provide a safe working environment. Accordingly, as part of its duty, the University was required to take reasonable care to avoid exposing employees to unnecessary risk or injury to physical or psychological health and to provide a safe system of work.   

The University initially asserted that because Associate Professor Wiles was not required to provide public commentary as part of her employment, this was not covered as "work" for which the University owed health and safety duties. However, by November 2023, when the Court heard the case, it had accepted that commentary was part of her work.  

The Court found that although the University had taken steps to comply with its health and safety obligations, it had not acted promptly enough, and the steps taken were insufficient to meet its obligations. 

The Court found that the harassment of academics, particularly harassment towards women, was not new. The University was responsible for obtaining advice and putting in a plan to proactively manage the risk to keep her safe and supported as she went about her work. The University was made aware of the increasing levels of harassment she was subjected to. The Court held that telling Associate Professor Wiles that she should stop providing commentary was not reasonable, and she should not have been left to come up with solutions.

The Court’s findings

The Court found that the University breached its contractual and statutory obligations to Associate Professor Wiles. Accordingly, the University was ordered to pay Associate Professor Wiles damages.

Health and safety lessons for employers – managing psychosocial safety

Although this case centres around the context of the Covid-19 pandemic, and considers the unique position of universities and academics as a critic and conscience of society, there are some key lessons for employers from the decision:

• In assessing health and safety, employers need to consider health and safety associated with employees’ work-related activities that take place outside of work premises and/or their ordinary hours of work;
• Risk assessments and appropriate plans must be in place to manage hazards arising for employees whether in or outside of the workplace. Risk assessment is a continual process. Where circumstances or risk changes, plans need to be reconsidered and may need to evolve or change accordingly;
• Employers have an obligation to manage health and safety risks in the workplace including psychosocial risks, such as harassment, even when the risks are not directly caused by the actions of the employer; and
• Although consultation with employees is important, employers hold the onus of ensuring that its health and safety duties are met.

DTI Lawyers can assist with advice on managing health and safety including psychological risks in the workplace. You can contact our specialist employment law team on 07 282 0174 or andrea@dtilawyers.co.nz.