6. If an incident involving sexual harassment happened in an office or another part of the workplace, to what extent may the employer be held responsible or liable?
With reference to section 46 of the SDO, employers may also be liable for acts of sexual harassment committed by their employees in the course of employment, regardless of whether or not the acts were done with the employers' knowledge or approval. However, it is a defence for the employers to show that they have taken reasonably practicable steps to prevent employees from committing such acts. The Code of Practice on Employment under the Sex Discrimination Ordinance (issued by the Equal Opportunities Commission) contains some practicable steps or guidelines for employers' reference. The important points are highlighted below:
- employers should issue a policy statement to employees which expressly states that sexual harassment at work is unlawful and will not be permitted;
- the statement should also expressly state that employees have a right to complain if they are suffering from sexual harassment;
- a co-ordinator, preferably with special training, should be designated to establish and administer both formal and informal complaints procedures.
There may be both formal and informal ways of dealing with complaints of sexual harassment. The two approaches are both valid and can be included in a sexual harassment policy. The approach to take will usually depend on the wishes of the complainant. Employers need to set out clear procedures for both approaches and make the information available to all staff. This is particularly important in helping staff to understand the steps involved when making a complaint of sexual harassment.
Confidentiality would also strengthen any policy regarding handling sexual harassment. In short, any information relating to a complaint of sexual harassment must only be given out on a need-to-know basis. Employers need to ensure that managers understand this principle when dealing with such complaints. Adopting such a principle gives assurance to the complainant or potential complainant that management appreciates the sensitive nature of sexual harassment and that the details of complaint will not be disclosed to other colleagues.
For more information on how to formulate a policy on handling sexual harassment at work, please refer to clauses 19 – 22 of the Code of Practice.