Practical steps in tackling sexual harassment in the workplace

The UK’s Equality and Human Rights Commission (the UK counterpart to the Hong Kong’s Equal Opportunities Commission) recently published a guideline under the Equality Act to address the specific issues of sexual harassment and harassment at work (the “Guide”).[1]

Although the statutory framework of the Equality Act in the UK differs in many ways from the Sex Discrimination Ordinance in Hong Kong, both pieces of legislation make sexual harassment in the workplace unlawful. They also both impose vicarious liability on the employer for any such act done by its employee (whether or not it is with its knowledge or approval) unless the employer can show that it has taken reasonable steps to prevent the act. [2]

This article seeks to highlight some of the useful suggestions in the Guide which may be equally applicable and useful to employers in Hong Kong in tackling sexual harassment at its workplace. By adopting some of these measures, employers may in turn reduce the legal risk faced by them due to the potential for vicarious liability for sexual harassment claims or complaints.

1. All employers (regardless of their size) should already have in place an anti-harassment policy. One area that an employer may be concerned about is relating to a malicious complaint. Whilst noting the employer’s rights to state that malicious complaint may lead to disciplinary action, the Guide suggests it should be made clear that:-
    
   1. the employee concerned will not face disciplinary action or other detriment simply because his/ her complaint is not upheld; and
       
   2. the employee will only face disciplinary action if is found that the allegation is false and made in bad faith (meaning that there is no honest belief in the truth of the complaint).
       
2. Some employers may think that it is a good idea to promote the employees’ awareness of the anti-harassment policy by placing a copy in the common areas of the office (e.g. pantry or staff room).
    
   1. The Guide notes that this may in fact discourage employees from reviewing the policy as he or she may not want to be seen doing so by other colleagues.
       
   2. It therefore suggests that the circulation of the policy be done by providing a physical copy to each employee or publishing it on the intranet.
       
3. Employers should not merely rely on the formal complaint mechanism in detecting instances of harassment in the workplace. The Guide suggests that employers should give the employees as many opportunities as possible to raise issues with them. This could include:-
    
   1. informal one-to-ones;
   2. return-to-work meetings (after sickness absence or other types of prolonged absence);
   3. during performance review;
   4. staff meeting;
   5. exit interviews; or
   6. post-employment surveys.
       
4. In providing training to the employees, the Guide suggests that the employer should ensure that its contents are tailored to not only the business nature of the employer, but also the seniority of the employees.
    
   1. For businesses which do not require the employees to come into direct contact with the customers (e.g. call center), more focus can be put on training the employees handling verbal abuses.
       
   2. For businesses which involve direct contact between the employees and the customers (e.g. restaurants), the focus can be put on training the employees in handling physical abuses to them.
      
   3. For employees with supervisory and managerial responsibilities, their training should include detection of harassment and handling/ investigating complaints.
       
5. In dealing with a complaint of harassment, it is important that the employer has a range of options or measures to deal with the complaint promptly, efficiently and sensitively. In this regard, the Guide suggests that:- 
    
   1. there should be multiple channels for employees to report harassment to minimize the risk of an employee being required to make a complaint to the alleged perpetrator or someone who he/ she feels not to be objective;
       
   2. there should be different options in dealing with harassment complaints ranging from informal solution (e.g. through mediation) to formal disciplinary process (e.g. by forming a panel from different seniority and department to investigate); and
       
   3. there should also be a range of appropriate consequences and sanctions should the complaint be established.
       
6. It is not uncommon that a complainant of harassment will have legitimate concerns and requests as to the handling process by the employer. The Guide has underlined a number of areas which the employer should pay particular attention to.
    
   1. One of the most important element is to ensure the confidentiality of the investigation and complaint process to avoid subjecting the complainant to further disadvantage. This will mean that it is for the employer to directly follow up with other witnesses for evidence (not the complainant or the alleged harasser).
       
   2. At times, the complainant may not want the employer to take any action with respect to the complaint.
       
      1. The employee’s wish should generally be respected unless the risk of not doing so outweighs the risk to do so (e.g. any serious/ immediate threats posed by the alleged harasser to other employees).
          
      2. Whether to not action is ultimately taken in respect of the complaint, the employer may still consider providing support to the complainant (e.g. in the form of counselling).
          
      3. If the harassment act involves criminal behaviour, the employer should also remind the complainant about the possibility of reporting the incident to the Police. The employer should again evaluate the pros and cons for doing so.
          
   3. Another critical aspect is to prevent further harassment or victimization during the complaint handling process. The employer should consider implementing measures to limit contact between the complainant and the alleged harasser. These may include:-
       
      1. redeploying the alleged harasser to a different part of the employer;
          
      2. arranging the alleged harasser to work from home; or
          
      3. removing duties from the alleged harasser which may bring him/ her into contact with the complainant.
         
         It is important to note that such measures should apply only to the alleged harasser unless the complainant requests otherwise.[3]
          
   4. After the conclusion of the investigation, there may be concerns as to the disclosure of the investigation outcome to the complainant, particularly if it is established and actions are taken towards the same.
       
      1. The Guide highlights the importance of reporting the outcome to the complainant, but it also cautioned against the employer about its obligations under the relevant personal data legislation.[4]
          
      2. In the event that the alleged harasser is dismissed as a result of the upholding of the complaint, the Guide also reminds the employer to consider whether it can lawfully disclose the reason for dismissal in a reference or to the prospective employer of the alleged harasser.[5]

The suggestions provided by the Guide do not by any means form an exhaustive list of measures which can tackle sexual harassment in the workplace. Conversely the above is by no means a mandatory or minimum set of measures all requirements. The points highlighted above can be areas where employers can start in reviewing the relevant policies and measures to make them both practical and suitable to their business and workplace.

Sexual harassment in the workplace is one of the more common type of complaints received by the Equal Opportunities Commission in Hong Kong. Having an effective anti-harassment policy may help employers reducing the risks of being held liable for not having taken ‘reasonably practicable steps’. It may, therefore, also be prudent for employer to review with legal professionals any existing policies and measures to maximize their effectiveness.

Mark Chiu

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Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

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[1] This can be accessed via https://www.equalityhumanrights.com/en/publication-download/sexual-harassment-and-harassment-work-technical-guidance

[2] This is phrased slightly differently in the two legislations. Equality Act 2010 requires the employer to take “all reasonable steps” whereas the Sex Discrimination Ordinance requires the employer to take “such steps as were reasonably practicable”.

[3] It may amount to an act of victimization which is unlawful under the Sex Discrimination Ordinance if the complainant is subject to detriment/ less favourable treatment as a result of his/ her complaint.

[4] Generally, disclosure of the outcome will be in accordance with data protection principle 3 of the Personal Data (Privacy) Ordinance as the use of personal data is likely to be related to the original purpose when collecting the data (i.e. handling employment related matters). However, if in doubt, specific legal advice should be sought in this regard.

[5] There are exemption provision under the Personal Data (Privacy) Ordinance. In particular, disclosure under such circumstances may fall under section 58(1)(d) of the Ordinance which is for “the prevention, preclusion or remedying (including punishment) of unlawful or seriously improper conduct, or dishonesty or malpractice, by persons”.