Introduction

In a recent case, B v 皇上皇集團有限公司 (DCEO 9/2010), the District Court held that King of The King Group Limited (“the Defendant”) was vicariously liable for the sexual harassment act committed by one of its employees against another employee. This is the first case of its kind in Hong Kong.

The Defendant was ordered to pay compensation to the Plaintiff for injuries to feelings, to pay the legal costs of the Plaintiff and to give a written apology to the Plaintiff within 28 days of the Judgment.

Facts of the case

1.       The Plaintiff (identified as B) was an employee of the Defendant and worked in its restaurant.

2.       On 14 May 2008, a dim sum chef with the surname Leung (“Leung”) deliberately touched the breast of the Plaintiff and called her “Big Tits Lin” when she walked past him.

3.       The Plaintiff complained to her supervisor, Ms. Tse (“Tse”) on the same day.

4.       The Defendant did not handle the complaint properly and told the Plaintiff that the incident was no big deal.

5.       On 8 June 2008, the Plaintiff told Tse that she wanted to report the incident to the Police. However, Tse urged the Plaintiff not to do so and said that both Leung and the Plaintiff would be dismissed if the Plaintiff reports the incident to the Police.

6.       On 10 June 2008, a meeting was arranged by Tse and the manager of the restaurant. At the meeting, Leung said “sorry” to the Plaintiff as requested but he did it unwillingly, adding that he apologized to the Plaintiff only to please Tse and the manager.

7.       The Plaintiff felt that the apology was not sincere at all and felt very disrespected. The Plaintiff was very angry and slapped Leung at the meeting.

8.       The Defendant terminated the employment of the Plaintiff at the meeting.

9.       The Plaintiff lodged a complaint with the Equal Opportunities Commission which gave rise to the present proceedings.

What constitutes Sexual Harassment?

According to s 2(5) of the Sex Discrimination Ordinance (Cap. 480 of the laws of Hong Kong) (“SDO”), an act of sexual harassment includes “an unwelcome conduct of a sexual nature in relation to a person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person would be offended, humiliated or intimidated”. "Conduct of a sexual nature" includes “making a statement of a sexual nature to a woman, or in her presence, whether the statement is made orally or in writing”.

In this case, the Court held that calling the Plaintiff “Big Tits Lin” and hitting her breast constituted "conduct of a sexual nature" and that a reasonable person would anticipate that the Plaintiff would be offended and humiliated. As the Plaintiff had reacted strongly to Leung’s action, the Court took the view that the Plaintiff was indeed offended and humiliated. Thus, the Court held that Leung had sexually harassed the Plaintiff.

Liability of the Employer

The Defendant, being the employer of Leung was held to be vicariously liable for the sexual harassment act of Leung pursuant to s. 46(1) of the SDO which stated that “anything done by a person in the course of his employment shall be treated for the purposes of the SDO as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.”.

Possible Defence

If any proceedings are brought against an employer for vicarious liability for the sexual harassment act of its employee as in this case, the employer shall have a defence if it can “prove that it took such steps as were reasonably practicable to prevent the employee from doing that act”. However, as the Defendant did not provide any evidence to prove that it had taken reasonable steps to prevent the sexual harassment act of Leung, it is vicarious liable for the sexual harassment act of Leung

The Importance of an Anti-Sexual
Harassment Policy for the Employers

In a sizeable company, it may be difficult to foresee and prevent individual employees from transgressing the sexual harassment boundary. To prevent and/or to stop sexual harassment and to raise defence against any vicarious liability for the sexual harassment act of its employees, employers should put in place anti-sexual harassment policy which clearly sets out the employer’s commitment towards preventing and eliminating sexual harassment. Employers should also have internal complaint procedures to handle sexual harassment complaints seriously and properly. Moreover, such procedures and practice shall be reviewed from time to time. Employees should also be assured that they will not be victimized by making a complaint. In fact, the Equal Opportunities Commission had issued Code of Practice which provides guidelines on the steps which may be taken by employers to eliminate sexual harassment.

In light of the Judgment in this case, employers should seriously consider the steps which they should take in order to prevent sexual harassment and to deal with the sexual harassment complaint properly.

It is advisable for employers to engage lawyers to assist them in developing and/or reviewing the relevant policy and procedures so as to defend such vicarious liability claim if sexual harassment is committed by the employees. In this connection, please do not hesitate to contact us if assistance is required.