Introduction

On 29 July 2015, the Equal Opportunities Commission (the “EOC”) announced that it had instituted legal proceedings in the District Court under the Sex Discrimination Ordinance (the “Ordinance”) on behalf of a woman (the “Claimant”) against her former employer (the “Employer”) for (i) being vicariously liable for the unlawful sexual harassment acts committed by its employee; and (ii) victimizing the Claimant because of her sexual harassment complaint (the “Case”).

Brief facts of the Case

According to the press release published by the EOC on 29 July 2015, the brief facts of the Case are as follows:-

1.       The Claimant claimed that the Employer did not take any action upon her filing a complaint of sexual harassment by her supervisor (even there was a witness to support the Claimant’s complaint).

2.       The Employer did not have any guidance on the prevention of sexual harassment, no related training for staff, and no complaint-handling mechanism.

3.       Upon the expiry of the Claimant’s employment contract, the Employer stipulated that unless the Claimant was willing to move to a remote work location, her employment contract would not be renewed.

4.       Due to the Claimant’s childcare responsibilities, she declined the transfer and the employment was terminated.

5.       All the colleagues of the Claimant were offered new contracts without the need for relocation.

Definition of sexual harassment

Under section 2(5) of the Ordinance, “a person sexually harasses a woman if:

1.       that person:

a.       makes unwelcome sexual advances, or unwelcome request for sexual favours, to another person; or

b.       engages in other unwelcome conduct of a sexual nature in relation to that other person;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated; or

2.       any person, either alone or together with other persons, engages in a conduct of a sexual nature which creates a hostile or intimidating environment for another person.”

In view of the above provisions, there can be direct and indirect sexual harassment. The Ordinance also stipulates that reference to sexual harassment of women shall be treated as applying equally to the treatment of men.

Vicarious liability of the employer

Pursuant to section 46 of the Ordinance, an employer would be vicariously liable for the unlawful acts committed by its employees in the course of his/her employment unless the employer can show that it has already taken reasonably practicable steps to prevent its employees from doing such acts.

Discrimination by way of victimization

Section 9(1) of the Ordinance specifically stated that it was unlawful to treat a person less favourably on the ground that such person has lodged a complaint or instituted proceedings under the Ordinance. Therefore, employers shall act very carefully in respect of employees who had lodged a complaint or brought legal action under the Ordinance.

What should employers do?

As the legal proceedings in respect of the Case had just commenced, we have to wait and see how the Court applies the relevant law to the specific facts of the Case. Nevertheless, the EOC stated in its press release that “by taking the Case to the Court, it hopes to raise public awareness about the importance of preventing sexual harassment in the workplace. Employers shall provide a safe and harassment-free working environment for the employees through appropriate policies and practices.”

In this connection, employers shall consider implementing various measures, including but not limited to the following:

Anti-sexual harassment policies and training

1.       Formulate a comprehensive anti-sexual harassment policy and the relevant practices and procedures;

2.       Promulgate the company’s anti-sexual harassment policy and practice to all employees;

3.       Provide regular training to employees in respect of the anti-sexual harassment policy and practice; and

4.       Designate specific employees to implement the anti-sexual harassment measures.

Mechanism for handling sexual harassment complaints

1.       Appoint suitable employees (e.g. approachable, impartial and caring employees of the management level)  to handle sexual harassment complaints swiftly and effectively; 

2.       Establish informal and formal complaint handling mechanisms;

3.       Designate specific employees to conduct investigation; and

4.    Provide support and counselling to the complainant.

No victimisation

Employers shall also ensure that employees who have lodged a complaint, brought proceedings or have given evidence under the Ordinance will not be treated less favourably.

Conclusion

In view of the above, apart from having the relevant anti-sexual harassment policies and practices, employers have the continual obligation to ensure that such policies and practices are implemented effectively. Moreover, they shall also make sure that employees who have lodged sexual harassment complaints or given evidence in relation to such complaints will not be treated less favourably.