As the #MeToo movement gains significant global traction, including a recent resurgence in Taiwan with a new wave of sexual harassment allegations sweeping (among others) the entertainment and political sectors, there is undoubtedly growing awareness of workplace harassment in Hong Kong.
The recent ruling in the case of C v. Hau Kar Kit [2023] HKDC 974 sends a strong reminder to employers that there should be zero tolerance to sexual harassment in the workplace.
Background
The Claimant was an event coordinator of a recreation club (the Club) where the Respondent was the Operations Manager. The Claimant complained to the Club after the first sexual harassment incident, in which the Respondent stroked her back near the buckle of her bra and stared at her legs.
The Respondent was cautioned by the Club not to have any physical contact with the Claimant. Despite being cautioned, the Respondent continued to sexually harass the Claimant. He intentionally made repeated unwelcome physical contacts with the Claimant, including, for example, touching her hand, and bringing his chest against her shoulders and upper arms. He also gave her unwanted attention of a sexual nature by staring at her breasts and legs.
The Claimant lodged a written complaint to the Club, but was dissatisfied with its handling of her complaint. The Claimant was forced to resign due to persistent distress caused by the Respondent's conduct.
The Claimant lodged a complaint against the Respondent with the Equal Opportunities Commission (EOC). The EOC subsequently granted legal assistance to the Claimant to pursue her sexual harassment claim in the District Court.
The Court's Decision
The Respondent did not participate in the proceedings in the District Court and a default judgment was entered against him. That said, the court was satisfied that the Claimant's case was well supported by the witness evidence and documentary proof adduced by the Claimant.
The Claimant sought damages for injury to feelings and exemplary damages. She did not claim for any non-monetary relief.
Taking into account the duration of the harassment and the fact that the Claimant was forced to resign to avoid any further harassment by the Respondent, the court awarded the Claimant damages for injury to feelings in the sum of HK$80,000.
The court also ordered the Respondent to pay a further HK$10,000 of exemplary damages to the Claimant. The Court considered that exemplary damages were required to mark its disapproval of the Respondent’s outrageous conduct and abuse of power.
The court further considered there were special circumstances in the present case to warrant an award of costs against the Respondent and made an order to that effect.
Takeaways for Employers
Although the Claimant in the case of Hau Kar Kit did not bring a claim against the Club (i.e. the employer), employers are reminded that they can be held vicariously liable under the Sex Discrimination Ordinance for unlawful act committed by any of their employees during the course of their employment, regardless of whether the employers have knowledge of the unlawful act.
It should also be noted that protection against unlawful sexual harassment covers not only employers and employees, but all persons sharing a common workplace, including interns, volunteers, partners in a firm, contract workers and their principals, and agents and their principals.
The law provides a defence for employers where they can demonstrate that they have taken "all reasonably practicable steps" to prevent individuals in the workplace from committing an unlawful act.
To reduce the likelihood of being held vicariously liable for the unlawful harassment acts of their employees, employers should develop and implement an anti-harassment policy and provide regular training sessions for employees of all levels and other participants in their workplace. Employers should also take steps to promptly investigate any complaints in accordance with their internal procedures.
Harassment complaints should also be handled with sensitivity, as this type of complaint tends to attract media attention and may negatively impact the employer’s reputation. While the court may make an anonymity order to protect the identity of parties, such order is usually made for the benefit of employees (such as the Claimant in this case) but not employers.
Employers should be aware that unless court proceedings are brought maliciously or frivolously, or there are special circumstances which warrant an award of costs (like the circumstances in this case), each party usually bears their own costs in any court proceedings brought under the anti-discrimination ordinances. However, it is not uncommon that the court would award costs to an employee who succeeds in an unlawful harassment claim against an employer.
The judgment is available at the following link:
https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=154073&currpage=T
