Sexual misconduct and what employers need to know

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It is common belief that sexual misconduct only involves the perpetrator and the victim(s). However, that is not the case in the Hong Kong workplace.

Simon McConnell and Mun Yeow, partners of Clyde & Co Hong Kong, reminded HR professionals that employers behold a legal responsibility for any sexual misconduct that happens in the workplace; and prompted them to review their workplace policy as soon as possible.

Here is an excerpt of the Sex Discrimination Ordinance (Cap 480) Liability of employers and principals:

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. (s.46 (1))

Employers are vicariously liable for their employees’ misbehaviour to some extent.

The Hong Kong Court has previously accepted the employer (Hong Kong Polytechnic University)’s defence due to the university’s code of ethics against discrimination and sexual harassment, staff appeal and grievance procedures and mechanism for resolving claims about violation of the code of ethics in the case of Alice Li Miu Ling.

An excerpt of a valid employer’s defence from the Sex Discrimination Ordinance in terms of its vicarious liability: 

In proceedings brought under this Ordinance against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description. (s.46 (3))

Yeow stated that not only can sexual misconduct in a workplace damage a business’ reputation, it can also lead to legal consequences and associated costs, difficulties with recruitment or retention of individuals and a negative impact on workplace morale and culture.

She recommended employers update their policy on sexual harassment with an awareness of the code of practice by the Equal Opportunities Commission:

1. Employer’s zero tolerance to sexual harassment.
2. Objectives of the employer and management.
3. Legal definition and examples of sexual harassment.
4. Victim’s rights and available actions.
5. Principles and mechanism of handling complaints.
6. Time bars for taking actions.
7. Possible disciplinary measures.

Tips for implementing an anti-harassment policy:

• Means of promoting the policy: distribute hard copies of the policy to the staff; upload the policy to the institution’s intranet/website; request the staff to sign a declaration of understanding the policy; post notices of the policy prominently in the workplace; provide continual staff training.
• Ensure zero tolerance of harassment and discrimination in the workplace.
• Establish and administer both informal and formal complaints procedures in a confidential, discreet and serious manner.
• Different disciplinary measures towards one-time offenders and sexual predators with a pattern.
• Review the policy regularly.