Introduction

Sexual harassment in the workplace is a deeply entrenched issue with significant societal implications. Beyond the immediate distress caused to victims, it undermines the fundamental principles of equality and respect, creating hostile environments that impede professional and personal growth. The Hong Kong legal framework, underpinned by the Sex Discrimination Ordinance (the “SDO”), Cap. 480, provides robust mechanisms for redress, ensuring victims can claim damages for the harm they suffer.

In this update, we delve into the case of C v Hau Kar Ki [2023] HKDC 974, a judgment that underscores the Court’s unwavering commitment to supporting victims and penalizing offenders. This case highlights how damages for personal injury, both compensatory and punitive, are assessed in instances of workplace sexual harassment.

Case summary

The Claimant in C v Hau Kar Ki, represented with the support of the Equal Opportunities Commission (EOC), initiated legal proceedings against her former colleague under the SDO. She alleged persistent sexual harassment during her tenure as an Event Coordinator at a recreation club. The Respondent, an Operations Manager at the same club, engaged in unwelcome physical contact and sexually suggestive behaviour over more than a year, exploiting his seniority to target the Claimant.

Despite repeated complaints to management and even a police report, the Respondent’s behaviour continued unabated. The Claimant eventually resigned, citing an intolerable work environment caused by the harassment. The court proceedings focused on assessing damages for the emotional and psychological harm inflicted, as well as determining whether exemplary damages were warranted to punish the Respondent’s actions.

Key decisions

Injury to feelings

The Court recognized the severe impact of the harassment on the Claimant’s mental health and well-being. She suffered from anxiety, nightmares, and strained interpersonal relationships, particularly with male colleagues and her partner. The Court re-examined the legal principles from Yuen Sha Sha v Tse Chi Pan [1999] 1 HKC 731 and Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871 and is convinced by the evidence that this is a clear case of sexual harassment which justifies a claim for damages for injury to feelings under the SDO.

The Court awarded HK$80,000 for damages for injury to feelings as claimed by the Claimant, emphasizing the sustained nature of the harassment and its progressive impact. The Respondent’s repeated actions over an extended period compounded the distress suffered by the Claimant. The judgment also noted that the Claimant’s forced resignation reflected the intolerable environment created by the Respondent’s behaviour. Therefore, the Claimant should be compensated for the anxiety, stress, humiliation as a result of the sexual harassment.

Exemplary damages

Exemplary damages, aimed at punishing egregious misconduct, were also deemed appropriate. The Court highlighted the Respondent’s abuse of his managerial position and his continued harassment even after being cautioned by the club’s management. His disregard for both the claimant’s protests and formal complaints demonstrated a blatant disregard for professional and social norms.

During the investigation conducted by EOC, the Respondent simply refuted most of the claimant’s allegations without providing any reasonable explanation or justification. In order to deal with the psychological distress resulting from the sexual harassment incidents which was further escalated during the EOC complaint process, the Claimant had to seek psychological support from professionals.

The Court awarded HK$10,000 for exemplary damages as claimed by the Claimant, underscoring the need to send a strong message that such behaviour will not be tolerated. This decision aligns with precedents such as L v David Roy Burton [2010] 5 HKLRD 397, where the courts have consistently punished offenders who exploit power imbalances in professional settings.

Costs

Under normal circumstances, parties in SDO claims bear their own costs. However, the Court found special circumstances in this case due to the Respondent’s failure to engage in the proceedings and his blatant disregard for the Claimant’s complaints. This led to a costs order against the Respondent, reflecting the seriousness of his misconduct and his refusal to participate in the legal process.

Legal takeaway

The SDO protects a person from sexual harassment and victimization in prescribed areas of activities, including employment, education, provision of goods, services and/or facilities, disposal and/or management of premises, and membership of clubs. The SDO provides a robust mechanism for victims to claim compensation for emotional and psychological harm. This judgment reiterates that Courts will assess damages thoughtfully, ensuring victims receive fair redress for the distress caused.

In cases involving egregious misconduct, Courts can impose exemplary damages to punish offenders and deter similar behaviour. This sends a clear message that power imbalances and malicious intent will be met with severe consequences.

Although the Claimant did not file a claim against the Club (i.e. the employer) in this case, employers should be aware that they can be held vicariously liable under the SDO for unlawful act committed by their employees while they are acting in the course of their employment, whether or not it was done with the employer’s knowledge or approval.  Meanwhile, employers may also be liable for failing to provide a safe working environment if they know about the acts of harassment but take no step to prevent or stop them.