#Time’s Up: Prevention is better than cure

In the wake of the #MeToo and #Time’sUp movements against the pervasive culture of sexual harassment, voices from different sectors of society, including the recent incident of the Hong Kong champion hurdler Vera Lui are now coming forward about the oppressive conduct. These voices are sending a wake-up call to all employers to take proactive steps to review their existing policies on sexual harassment and tackle the issue seriously.  With the risks of being held liable for the unlawful acts of others in the workplace, employers can no longer choose to ignore the issue.

Low public awareness

According to the data submitted by the Equal Opportunity Commission (“EOC”) to the Legislative Council Panel on Constitutional Affairs on 14 February 2018, an overwhelming 117 complaints of sexual harassment in the employment field have been received by the EOC in 2017.  Recent surveys on sexual harassment conducted by the EOC also revealed an alarming lack of awareness of sexual harassment in the workplace, and about 43 percent of the surveyed companies in the business sector have not developed any anti-sexual harassment policies.  Common reasons for not having a sexual harassment policy in place include “…no urgency to formulate a policy statement on sexual harassment”, “Never have thought of developing a policy statement”, and “sexual harassment has not occurred in the company and therefore, it is not a necessity to formulate the related policy statement”, etc.

Can employers afford to wait any further before taking steps to tackle the issue of sexual harassment? The answer is plainly no, as the misconduct can easily turn into a crisis event.

Sexual harassment acts

The legal regime for addressing the issue of sexual harassment in the workplace is set out in the relevant provisions of the Sex Discrimination Ordinance (“SDO”).  Under the SDO, “sexual harassment” means any sexual behaviour or conduct that is unwelcome, and which is offensive, humiliating or intimidating.  It therefore covers behaviours ranging from physical harassment, such as unwanted contact and touching; to unwelcome verbal or written harassment in the form of comments, emails and jokes of a sexual nature.  A sexually hostile or intimidating work environment, e.g. a workplace where there are offensive sexual materials, actions or languages that make it hard for an employee to work, is also a form of sexual harassment.

Sexual harassment may happen to a man or a woman and the harasser does not have to be of the opposite sex. A one-off incident is sufficient to constitute sexual harassment and the harassment does not need to consist of a series of incidents.

Will an employer become liable too?

While the person who sexually harasses another person is liable for his own unlawful act, the SDO stipulates that employers can also be held liable for acts of sexual harassment by others (except for criminal proceedings) in the following circumstances:

(1) Employee

Unfortunately, many employers do not know that they can be held liable for acts done by an employee in the course of his employment under the SDO.  This is so whether or not the employee’s acts were done with the employer’s knowledge or approval.  An employer can therefore be held vicariously liable for any sexual harassment committed by its employees in the course of their employment against its other employees, customers or service providers.  What’s more, sexual harassment committed by an employee may even happen outside the workplace premises and out of normal working hours, e.g., in another location for a work conference, or at a work-related social event such as a Christmas party. 

(2) Agent

The SDO provides that anything done by a person as agent for his/her principal, with the principal’s authority, shall be treated for the purpose of the SDO as done by the principal as well as by him/her. Thus, an employer can become liable for the harassment carried out by its agent against its employees.  However, if the employer has taken such steps as are reasonably practicable to prevent the agent from committing the unlawful act, then arguably the agent would have acted without authority and the employer should not be liable.  An agent might be a contractor or consultant.

(3) Third-party

An employer may also be liable for the sexual harassment by a third party (e.g. its customer or a provider of goods, facilities or services) against its employees.  For instance, if an employee reported an incident of harassment by a customer and the employer was told about it but chose to turn a blind eye, or did not take any steps to prevent further occurrence by the customer, the employer may be held liable for contravening the SDO.  The employer’s inaction amounts to unwanted conduct related to its employee that created an offensive, humiliating or intimidating environment for the employee.  Sexual harassment by such third party may also occur on a Hong Kong registered ship, aircraft or dynamically supported craft even if it is outside Hong Kong. Thus, the issue can be a potential minefield for employers with serious consequences.

In an attempt to step up Government policy to combat the sexual harassment issue, the Chief Executive announced in her 2017 Policy Address that the Government would submit to the Legislative Council in the 2017/18 legislative session the recommendation of the EOC to amend the SDO to cover sexual harassment between persons in the common workplace, such as consignment workers and volunteers.

Does an employer have a defence?

Under the SDO, employers may avoid liability for sexual harassment committed by their employees if they can show that they took all reasonably practicable steps to prevent the harassment (“Reasonably Practicable Steps Defence”). The precise meaning of “reasonably practicable steps” is unclear as it is not defined in the SDO.  The court will consider the circumstances of each case and decide whether the measures taken by the employer are sufficient and reasonably practicable.

What then should employers do?

Employers should take actions and steps as are reasonably practicable to prevent any sexual harassment from occurring in the workplace.  Prevention is better than cure.Any step, taken only after receiving a complaint, albeit swift and appropriate, is probably too late.  Accordingly, preventive steps should be taken by an employer before the occurrence of any act of harassment.

Reasonably Practicable Steps

In determining whether reasonably practicable steps were taken, the court will have regard to the code of practice issued by the EOC (“Code of Practice”). Based on the Code of Practice, reasonably practicable steps might include:

• ESTABLISHING a policy for the company, including but not limited to expressly stating that sexual harassment at work is unlawful and will not be permitted or tolerated, and that employees have a right to complain about it should it occur.
• MAKING clear what is considered sexual harassment at work and explaining what constitutes harassment including examples of such unlawful behavior.

• COMMUNICATING to all employees about how to raise a complaint, so they understand the policy and its implications and what steps will be taken.

• IMPLEMENTING the policy and training HR and all levels of management (and where appropriate, all staff) on sexual harassment issues and how to respond to complaints of sexual harassment.

• TAKING steps to deal effectively with complaints, including taking appropriate disciplinary action.

• MONITORING and reviewing complaints and how they have been resolved to ensure that the procedures are working effectively.

The Reasonably Practicable Steps Defence applies only to proceedings brought against employers in respect of the acts of their employees. As regards third-party harassment, employers may consider taking the following steps to tackle the issue:

• ENCOURAGING employees to report any acts of harassment by third parties to enable the employer to support the employee and take appropriate action.

• TAKING action on every complaint of harassment by a third party.

Conclusion

Sexual harassment is a common occurrence in the workplace.  It is clear from the various studies and surveys by the EOC that in many different sectors, the misconduct remains pervasive, and there is a lack of willingness to tackle it.  The consequence of the employer’s failure to have in place adequate procedures to prevent acts of harassment from occurring in the workplace can be serious.  The employer may not be able to rely on the Reasonably Practicable Steps Defence and accordingly be vicariously liable for its employees’ unlawful acts.  Worse still, the employer may also suffer reputational damage and costly litigation claims.  It is therefore imperative for employers to appreciate that time is now up for them to think carefully about the issue of sexual harassment in their workplace, and ‘act’ by taking proactive preventive measures without further delay!

Key Contacts

Cynthia Chung

Partner | Corporate Commercial | Employment and Pensions

Email or call +852 2825 9297