PHOTO: Arvid Eriksson

Wiles v. University of Auckland Employment Court judgment released – Expert Reaction

Associate Professor Siouxsie Wiles‘ employer breached its contractual obligations to protect her health and safety in the wake of harassment she experienced as a result of her work, an Employment Court judgment today has found.

The long-awaited judgment comes around two-and-a-half years after she and then University of Auckland employee Professor Shaun Hendy initially filed their claim with the Employment Relations Authority in January 2022.

Dr Wiles alleged the university failed to protect her from a “tsunami of threats” she received for her public commentary on the Covid-19 pandemic. She said she had raised concerns to the university about her safety since April 2020, shortly after the pandemic began.

The university has denied unjustifiably disadvantaging Wiles, breaching their agreement or its statutory obligations. It said it had also acted in good faith towards her. However, the Employment Court’s judgment does not agree.

Both the University of Auckland and Associate Professor Siouxsie Wiles have released public statements in response to the decision.

The SMC asked experts to comment on the implications of the judgment on the public-facing roles and responsibilities of academics and their institutions.

Dr Sarah-Jane O’Connor, Lecturer (Science Communication), Victoria University of Wellington, comments:

“I was involved in the Science Media Centre’s COVID-19 work in the early part of 2020, and I saw first-hand the toll it took on experts like Professor Michael Baker and Associate Professor Siouxsie Wiles responding to immense need for media commentary. Few experts will be called upon to this degree in response to a public health crisis, but Aotearoa was lucky to have experts like Siouxsie going beyond the call of duty to front up over and over again on the crucial science behind the virus and resulting pandemic, including what we did and didn’t know especially in those early days as the pandemic unfolded.

“Siouxsie regularly and consistently communicated the science of the pandemic couched in her usual cheerful, kind and empathetic manner. When I ask my students if they can name a science communicator, they universally know and admire Siouxsie; when I tell people I teach science communication, they say ‘oh, like Siouxsie’. She was New Zealander of the Year precisely because people recognised her immense public service in responding to a crisis and providing consistent and evidence-informed commentary, even while that evidence was still accumulating. This was never about fame for her, but led by a deep-seated moral drive to protect our most vulnerable and provide people with the best information to make their own decisions in a scary and uncertain time in all of our lives.

“It has been distressing to witness the torrent of abuse that was directed at Siouxsie because she stepped up into this much-needed role. It would be easy for academics to shy away from public discourse, and for women and other under-represented demographics to avoid such public-facing commentary because of the harassment they have seen Siouxsie experience. At a time when we are actively discussing academic freedom, freedom of speech, and the role of universities in wider society, this case has major implications for how academics should be supported in exercising that role.

“As we continue to have these important discussions, I would hope our universities are taking heed of this case and considering how they can ensure that everyone’s voice can be heard. If academics are encouraged to speak out in their role as critic and conscience of society, then that needs to be all academics’ voices, and that means protecting the safety of those that we know will receive a disproportionate amount of hostility.”

Conflict of interest statement: I have known Siouxsie professionally for many years through the Science Media Centre and Sciblogs.

Shaun Hendy, Chief Scientist, Toha, comments:

“The issue at the heart of Wiles v the University of Auckland, a case heard by the Employment Court in Auckland in November last year, was the extent to which a university is obligated to manage the risks arising from harassment of its academic staff who engage in public commentary.

“Associate Professor Siouxsie Wiles, one of New Zealand’s most prominent and celebrated Covid-19 commentators, was subject to sustained and distressing harassment, both online and in person, during the pandemic.

“Unsatisfied with the University’s support of her during that time, Wiles filed a personal grievance in August 2021, which eventually made its way to the Employment Court late last year. Today’s judgement upholds Wiles’ grievance as well as making other findings in her favour.

“In particular, the Court has found that the University had indeed failed in its health and safety obligations to Wiles and, in the process, breached its duty of good faith as an employer. Crucially, the Court found that Wiles’ commentary was, in fact, part of her job, which meant that her employer had obligations to protect her under New Zealand’s health and safety legislation. The judgement is also critical of the attitudes and behaviour of some of Wiles’ managers, which compounded what the judge called “the University’s problematic response”.

“The judgement should be a wake-up call for New Zealand’s universities. Wiles’ courageous stance, in taking on New Zealand’s largest university, has left academic freedom in a much stronger position.

“In New Zealand, universities have obligations to preserve academic freedom, which includes “the freedom of academic staff and students, within the law, to question and test received wisdom, to put forward new ideas, and to state controversial or unpopular opinions”. The Education Act also says universities have a responsibility to disseminate knowledge and to promote community learning and must accept a role as “critic and conscience” of society. One of the ways universities meet these obligations is to encourage their academics to use their expertise to engage in public commentary.

“By finding that public commentary falls within Wiles’ scope of employment, something that the University at times disputed, the judgement substantially strengthens the freedom of academics to act as the ‘critic and conscience of society’.”

Conflict of interest statement: “I was a co-complainant with Associate Professor Wiles to the Employment Relations Authority, although I settled the matter with the University of Auckland when I left in 2022. Dr Wiles remains a close personal friend.”

Professor Michael Baker, Professor of Public Health, University of Otago, comments:

“It is good to see this employment court judgement in the case brought by Associate Professor Siouxsie Wiles against the University of Auckland.

“The key finding for me was the judge’s declaration ‘that the University has breached its (express and implied) contractual obligations to protect Associate Professor Wiles’s health and safety.’

“This appears to be a landmark finding that has implications for universities and other institutions with a role in research and knowledge translation.

“As a fellow ‘Covid commentator’ I appreciate the huge personal effort and cost that Associate Professor Wiles has put into taking this case to court.

“I assume that this judgement has established an important precedent for the responsibilities of employers in this area. However, as a non-lawyer, I will need to wait for expert commentary on the wider legal implications of this case.

“This judgement will hopefully encourage universities and other research-intensive organisations across New Zealand to develop a comprehensive strategy to ensure better protection for staff who need to communicate to the public and policy-makers, particularly in crisis situations like pandemics and natural disasters. Universities New Zealand might have a useful role in facilitating this process.

“This case also highlights the pervasive harms being caused by disinformation. This threat requires an all-of-society response and strong government leadership. It shouldn’t be left to determined individuals to fight this problem on their own in the courts.”

Conflict of interest statement: “I also work for a university and have promoted measures to protect and support staff who are in the public eye through their service work in public and government facing communication.”

Professor Michael Plank, School of Mathematics and Statistics, University of Canterbury, comments

“The Employment Court has ruled that the University of Auckland failed to meet its health and safety obligations to protect Associate Professor Siouxsie Wiles from the threats and harassment she was subjected to as a consequence of her public science communication about the pandemic. Universities have an obligation to act as Critic and Conscience of society. In practice, that means they need to encourage academics to speak publicly about issues relating to their expertise, and protect them from online and offline harassment and threats, which have become alarmingly common.

“The need for expert science communication and the level of public scrutiny are amplified in the pressure cooker of a pandemic or other emergency situation. It would be easy for academics to stay out of the spotlight: science communication is too often viewed as an optional extra for academics, rather than a core part of the job. This is particularly true for women, Māori and ethnic minorities, who are often subjected to the most horrendous abuse. However, hearing from a diverse set of expert voices on issues of enormous public interest is essential to a democratic society.

“Academics and the wider community owe a debt of gratitude to Wiles for her courage in taking this case to court. Taking on the University of Auckland and reliving the appalling abuse in court must have been incredibly difficult for her. Academic freedom isn’t worth the paper it’s written on if trolls and extremists can silence voices they dislike with intimidation. Today’s landmark judgement should send a message to all New Zealand universities that they need to take seriously their duty to make sure that academics, particularly those who are disproportionately likely to be on the receiving end, can safely have their voices heard.”

Conflict of interest statement: I know Siouxsie in a professional context, I have co-authored research articles with her and worked with her as part of Te Pūnaha Matatini, including on the Covid-19 response. 

Dr Sanjana Hattotuwa, Research Director, The Disinformation Project, comments:

“The judgement in Siouxsie Wiles’ case against the University of Auckland acknowledges the severity of harassment she faced and the university’s breach of contractual obligations to protect her health and safety. However, it falls short in addressing the full extent of online harms and the inadequacy of the university’s monitoring and assessment processes.

“This verdict has significant implications for academic freedom and the safety of public-facing academics in New Zealand. It highlights a worrying gap in understanding and addressing the complex nature of online threats within institutional frameworks. The court’s reluctance to provide specific recommendations for managing such risks leaves academics vulnerable to ongoing and potentially escalating harassment.

“The case exposes the urgent need for universities to develop robust, comprehensive systems for monitoring and responding to online threats against their staff. The current approach, as demonstrated by the University of Auckland, is woefully inadequate in capturing the full spectrum of harassment across various digital platforms.

“Moreover, the judgement’s assumption that the situation has improved and that the university can now provide fit-for-purpose threat assessments is concerning. This overlooks the persistent and evolving nature of online harms, particularly in the context of ongoing public health debates and inquiries.

“As academics continue to engage in public discourse on contentious issues, they face increasing risks of targeted harassment. The verdict missed an opportunity to establish clear guidelines for institutional protection of academics, potentially leaving other universities ill-prepared to safeguard their staff.”

“This case underscores the critical need for academic institutions to recognise and address the changing landscape of public engagement and the associated risks. Failure to do so may have chilling effects on academic freedom and public scholarship in New Zealand.”

Conflict of interest statement: I was called upon as an expert witness, and provided the court with a detailed brief of evidence in support of Siouxsie’s case against the University of Auckland. 

Emeritus Professor Gordon Anderson, Faculty of Law, Victoria University of Wellington, comments: 

“The importance of individual academic freedom and the role of universities as the critic and conscience of society were exemplified by the ability of Dr Wiles to effectively communicate the science and the management challenges posed by the Covid-19 pandemic through a wide range of media. However, as has become common over recent years, contributors to public debate often face a hostile and threatening response, particularly if they happen to be women. It follows that if academic freedom and the public role of universities is to be meaningful it is incumbent upon universities to proactively take steps to support or protect their academic staff engaged in public debate.

“That such obligations have legal teeth has been made clear by the Employment Court in Wiles v the Vice-Chancellor of the University of Auckland. That decision makes it clear that universities have legal duty to ensure that such support and protection is provided as part of a university’s employment and health and safety obligations.

“Several key conclusions can be drawn from the decision. First, it provides strong support for the public role of universities and of the importance of academic freedom. Second, the Court was unsympathetic to arguments that attempted to limit the scope of “academic work” so as to avoid its health and safety and employment obligations. Third, it stressed the need for a proactive approach, rather than a reactive one, to the health and safety risks posed to academics engaged in legitimate and expected public debate.

“Given the current debates in universities relating to academic freedom and freedom of speech it is a decision that the management of universities will need to consider seriously.”

Conflicts of interest: None

Dr Dawn Duncan, Faculty of Law, University of Otago, comments:

“This case is important for organisations where staff have public profiles or are engaging with traditional or social media. It confirms that employers have a legal duty to take all reasonable steps to protect their employees from harm, including  mental and physical harm posed by third parties. Where employees are required to be in the public eye or have an online presence, they can face very real risks to their mental health and physical safety. Risks can include online abuse and harassment, disclosing personal information, stalking and threats of violence to themselves or their loved ones.

“Employers need to ensure they have the right policies and processes in place, that they are proactive in getting the right advice and taking appropriate action, that they listen to and work with their staff to get the right solutions, and that they tailor their health and safety responses to an employee’s individual risk profile. What the law requires of an employer will vary depending on the situation and the nature of the risks but could include a range of online or physical security measures, practical changes to working practices, specific training, additional workload support, help in working with Police or other agencies, or providing access to counselling.

“This case highlights the growing problem of online abuse and harassment faced by people working in the public eye. Responding to the risks posed by this behaviour is an essential part of an employer’s health and safety obligations.”

Conflicts of interest: I am an employee of a University. I am a former employee of the University of Auckland -I left prior to this matter arising and have had nothing to do with this case in any capacity. My comments are limited to the general legal obligations of an employer and the implications of the decision rather than to any specifics of this case.

Our colleagues at the Australian Science Media also gathered comments

Lyndal Byford, Director of News and Partnerships, Australian Science Media Centre, comments:

“The court decision highlights the incredible levels of abuse that were directed at scientists and academics during the pandemic and contains lessons for the university and research sector in Australia.

“The judge’s decision makes it clear that simply telling experts that they should stop providing public commentary is not reasonable. The harassment of scientists and researchers cannot be solved by just telling researchers to “stay off the internet”. This sort of response just shuts down important conversations, removes key voices from the debate, and ultimately may pose a threat to the health of our democracy. Instead, universities and research institutions should better support scientists so that they can continue speaking to the media and engaging with the public.

“The judgement highlights that while the scale of the harassment experienced by Associate Professor Wiles may have been worse than that previously experienced by other academics, harassment was a known risk for academic staff, especially women, and a well-developed strategy for dealing with these issues might have been expected to be in place.

“This should send a message to Australian research institutions and universities to make sure they have clear strategies in place for managing the harassment of academics. This should include preparing researchers who are likely to speak to the media, having a simple process for reporting these issues, and having a plan for dealing with harassment and threats when they occur.

“The Australian Science Media Centre (AusSMC) has developed an online toolkit and workshops for researchers that could form part of a university’s strategy for managing the harassment of academics.”

Conflict of interest: The AusSMC has developed workshops and materials to help scientists and academics manage online harassment

Professor Julie Leask, School of Public Health, University of Sydney and Sydney Institute for Infectious Diseases, comments:

“This case highlights just how difficult and stressful it can be for academics who engage in the public arena. Academics can receive unwanted attention – including sometimes extreme harassment and concerns for personal safety – after sharing their expertise in the public domain. Immunisation, vaping, COVID-19 origins, the Voice to Parliament, and other issues that we bring our expertise to, can generate heated responses.  Women and people of colour are more likely to be harassed.

“External expertise in a crisis like COVID-19 has been incredibly valuable. The public and universities benefit from the sharing of specialised knowledge. Taxpayers invest in the generation of our knowledge. We have an obligation to ensure society benefits from that sharing.

“The judgement stated that Associate Professor Wiles’ employer “breached its health and safety obligations to her in that it failed to provide adequate protection and support to her.” Universities need to pay attention to this judgement. Not doing so puts them and their employees at risk. They cannot afford to keep ignoring this risk, as our work and personas are increasingly accessible to the public and academics are encouraged to engage in the course of their work.

“My employer, the University of Sydney, has been more proactive in this space in the last few years. There’s still more to do but it has been a good start. When universities make comprehensive and proactive plans, it makes such a huge difference, just to know your institution is behind you.  When you get that abusive email, there is somebody who you can send it to and behind that is a web of supportive infrastructure you can call on. ”

Conflict of interest: None declared