As the world comes to terms with the #MeToo movement Hong Kong is no exception and here is what Hong Kong employers need to know writes; Charles W. Allen, partner, Orrick, Herrington & Sutcliffe, Hong Kong with contributions by Carmen Wong, associate, Orrick, Herrington & Sutcliffe, Hong Kong
In late November 2017, local athlete Vera Lui posted allegations of sexual assault on social media and drew public attention to local sexual harassment issues.
The Equal Opportunities Commission (EOC) handled 264 sex discrimination complaints in 2016/2017, of which 242 were employment-related. Almost half of those involved sexual harassment. Since the movement began, NGOs have also reported a doubling of sexual assault reports.
In this climate, it has never been more important for employers to have proper anti-harassment policies and procedures in place. Without them, the risk of legal liability and reputational damage resulting from allegations of inappropriate conduct in the workplace is much greater.
For instance, employers can be held vicariously liable at common law and under the Sex Discrimination Ordinance for harassment committed by their employees, and the potential liabilities can include compensatory, punitive and exemplary damages, and damages for injury to feelings.
Employees might also bring claims for constructive dismissal for breach of the implied duty of mutual trust and confidence, and file a complaint with the EOC, requiring it to investigate.
For a complete guide to the steps which employers should take when responding to allegations of sexual harassment or discrimination in the U.S. context, we refer readers to Lynne Hermle’s comprehensive article here. The following is a shorter version tailored to Hong Kong.
A prompt and comprehensive investigation and a fair and confidential process are critical to ensure that the employer meets its legal, moral and pastoral obligations to all parties involved. To achieve this, the employer and/or its appointed investigator should:
- Keep stakeholders informed
Relevant stakeholders including the employer’s human resources department and board (or relevant sub-committee) and the complainant should be kept appropriately in the know, but confidentiality should be safeguarded.
- Obtain legal advice
Experienced lawyers, whether in-house or external, can provide guidance on the legal issues and on the procedures to be followed, and will ensure that relevant communications attract legal privilege. It is critically important if the employer is or may be threatened with potential legal action, for an experienced lawyer to be locking down relevant documents and ensuring that new (potentially unhelpful) ones are not created.
- Take interim measures
Ensure that the complainant is treated with respect and understanding and that no one, including witnesses, is victimised for speaking up, even if the allegations are ultimately dismissed or no further action is taken. The employer may consider permitting the complainant to go on paid leave during the investigation, or placing the alleged perpetrator on paid or unpaid leave.
- Appoint an investigator
Whether this investigator should be someone inside the company or an outsider will depend on a number of factors. These include the need for speed and objectivity – she or he should not be in a close working or personal relationship with the people involved in the allegation.
- Scope out the investigation
This should be done at the first opportunity, whilst recognising that the issues may evolve as a result of new developments or evidence discovered along the way.
- Review the documents
Relevant personnel files, emails, texts, social media posts, and so on, should be carefully reviewed.
- Conduct interviews
The investigator will need to consider at an early stage who will be interviewed, in what order, and for what purpose. The complainant and the alleged wrongdoer are obvious targets, but relevant third party witnesses should also be spoken to.
- Do necessary follow-up
Additional evidence gathering and interviews may be required after interim assessment of available materials.
- Report findings and recommendations
The investigator should present factual findings together with recommendations for next steps. These should be consistent with the scope of the investigation, and, to the extent possible, should be tied to whether the employer’s anti-harassment policy has been violated rather than attempting to reach conclusions as to whether the law has been broken.
- Take action
Depending on the findings, the employer should take appropriate action with the objective of maintaining a safe and productive working environment. These may include written warnings, revision of bonus and compensation arrangements, suspension, termination and/or reports to the authorities. Changes in work assignments or reporting lines for the people involved might also be considered. Additional training should also be considered.
At the end of the entire process, the employer should review and consider editing its anti-harassment policy in light of the experience. If it did not have one, the employer should rapidly adopt one to protect its own and its employees’ interests.