Social media posts highlight workplace sexual harassment

In January, the media noted social media posts about a female employee from a Korean chain restaurant who complained about an alleged sexual harassment by her branch manager and co-workers. This was said to involve nicknames and comments of a sexual nature about her physical appearance. Screenshots of the alleged harassment in the work chatgroups were posted online and reported.

This eventually caught the attention of the Hong Kong Equal Opportunities Commission (“EOC”) who soon expressed concern over the incident and issued a press release in response to media enquiries. No further update about the incident appears to be publicly available since then.

In this article, we take this opportunity to revisit the key provisions and principles of sexual harassment law in Hong Kong, particularly in a workplace setting.

Sexual Harassment Law

Section 23(3) of the Sexual Discrimination Ordinance (“SDO”) provides that:-

“It is unlawful for a person who is employed by another person at an establishment in Hong Kong to harass a woman who is seeking to be, or who is, employed by that second-mentioned person.”

And under section 2(5) of the Ordinance, a person sexually harasses a woman if-

“(a) the person-

(i) makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to her; or

(ii) engages in unwelcome conduct of a sexual nature in relation to her,

in circumstances in which a reasonable person, having regard to all the circumstances, would anticipate the other person being offended, humiliated, or intimidated; or

(b) the person, alone or together with others, engages in conduct of a sexual nature that creates a hostile and intimidating environment for her.”

The courts will apply a 2 step test by which it will consider:-

(1) a subjective test from the point of view of the victim as to whether such conduct was “unwelcomed”; and

(2) an objective test as to whether it should have been anticipated by the perpetrator that the victim would have been offended, humiliated or intimidated.

Employer’s vicarious liability

Employers, regardless of their knowledge on the harassment, can also be vicariously liable for any unlawful sexual harassment acts by its employees. Section 46(1) of SDO provides that:-

“Anything done by a person in the course of his employment shall be treated for the purposes of this Ordinance as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval.”

However, there is a defence against the vicarious liability under section 46(3) if an employer can show that it has taken “reasonably practicable” steps to prevent the employee from sexually harassing a fellow employee in the course of their employment.

Whether the chain restaurant mentioned in the social media post can successfully defend against any potential sexual harassment claim arising from this incident will depend on the specific circumstances and policies in place.

Points to note for employers

Some of the steps that employers can take to help prevent and reduce the risk of sexual harassment occurring and also minimise the risk of vicarious liability, include:-

• formulating clear and detailed equal opportunity policy covering anti-discrimination and anti-harassment measures (including but not limited to equal opportunity statement, explanation of the relevant laws and details of grievance procedure);

• monitoring implementation of the policy and updating it as necessary;

• conducting training and issue reminders to their employees regularly And

• making sure the policy is implemented, applied and enforced properly if prohibited acts are seen or reported.

• making sure the policy is applied properly in cases where there is a report of sexual harassment

Please also see our article setting out practical steps which the employers can take to tackle sexual harassment here.

Russell Bennett and Mark Chiu

For more information on employment matters, please contact:

Russell Bennett

Partner | Email

Mark Chiu

Consultant | Email

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.