The daily allegations of harassment in the press and social media campaigns highlighting the prevalence of harassment around the world should prompt business leaders and HR teams to ensure that they understand their obligations and review whether their internal processes will effectively manage employee complaints and withstand scrutiny. With this in mind, this month, we take a look at the key obligations and remedies in respect of workplace harassment, around the region.
Contents
Australia
Is workplace harassment prohibited?
Federal anti-discrimination laws prohibit discrimination on the basis of certain grounds (e.g. race, age, sex, pregnancy, sexual orientation, gender identity, disability, religious belief, political belief etc.). Accordingly, any “harassment” which involves discriminatory treatment of an employee based on one of these grounds is prohibited by law.
In addition, sexual harassment is expressly prohibited under federal anti-discrimination law. Sexual harassment occurs if the conduct is unwelcome and of a sexual nature and, a reasonable person would have anticipated the conduct would offend, humiliate or intimidate.
Anti-discrimination laws also operate at a state and territory level and these will generally overlap with the federal prohibitions.
Separate laws also exist to prohibit “bullying” (repeated unreasonable conduct, directed to an individual or group of individuals that causes risk to health and safety).
Is it mandatory to implement policies or training on workplace harassment?
In order to minimise the likelihood of being found to be vicariously liable for employee harassment, employers must be able to demonstrate that they have taken all reasonable steps to prevent harassment from occurring in their workplace. Although no particular measures are mandated, employers should:
- have a comprehensive workplace behaviour policy in place which prohibits harassment at work;
- regularly train and educate staff on the policy and their rights and responsibilities under it; and
- ensure they have a sound complaints mechanism in place to deal with any complaints promptly and fairly.
Victorian laws further impose a positive obligation on employers to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation (as far as possible).
What remedies are available for workers who have been harassed?
Australian courts have broad powers to make orders as they deem fit under anti-discrimination legislation, including orders:
- declaring that the behaviour has occurred and directing that the behaviour not be repeated;
- for re-employment of the harassed person; and
- for compensatory damages.
Under the federal anti-bullying laws, the Fair Work Commission can make orders to stop bullying but it does not have the power to order any monetary compensation.
If harassment gives rise to a breach of health and safety laws, this could lead to prosecutions that result in fines or imprisonment.
China
Is workplace harassment prohibited?
Sexual harassment against women is expressly prohibited by law.
There is no clear legal definition of what constitutes sexual harassment so employers must turn to local regulations and court judgments. Generally, sexual harassment will be conduct which is related to sex and against a woman's will.
Sexual harassment may be conducted by way of language, text, image, electronic information, physical activity, etc.
Is it mandatory to implement policies or training on workplace harassment?
Employers are required to prevent sexual harassment towards female employees at the workplace.
In practice, the extent of this obligation is unclear and is it clear what the employer must do to fulfil its obligation or when it will be held the responsible for sexual harassment.
While employers must establish internal rules and policies, it is not mandatory to implement policies or training relating specifically to workplace harassment.
If the employer's internal policies include prohibition against harassment in the workplace, the employer may be permitted to terminate the employment of a harasser without severance pay on the ground of serious violation of the employer's rules and policies.
What remedies are available for workers who have been harassed?
Severe cases may involve criminal liability, for example, indecent assault or insult.
Alternatively, a person who has been harassed may bring a tort claim against the harasser.
Hong Kong
Is workplace harassment prohibited?
Employers are prohibited from discriminating against any employee (or job applicant) or apprentice on a number of grounds.
The anti-discrimination ordinances also protect employees against victimisation, sexual harassment and harassment on the ground of disability or race as well as vilification.
In addition, there is a common law duty on the employer to provide a safe place and a safe system of work to his employee.
Is it mandatory to implement policies or training on workplace harassment?
There are no mandatory policies or training requirements to implement in Hong Kong, but the Equal Opportunities Commission (EOC) has published guidance on Preventing Sexual Harassment in the Workplace - Formulating Corporate Policy on Sexual Harassment which includes a Framework for Corporate Policy on Sexual Harassment.
Companies are encouraged to adapt/adopt policies in accordance with this Framework.
Employers may be vicariously liable whether or not they knew about or agree with their employees' acts of sexual harassment in the course of employment. An employer may have a defence if it can prove that it took "reasonably practicable steps" to prevent harassment in the workplace.
What remedies are available for workers who have been harassed?
An aggrieved employee can lodge a complaint with the EOC who must (with limited exceptions) conduct an investigation into the complaint and endeavour to settle it by conciliation.
An individual alleging harassment can also bring civil action in the District Court against the alleged perpetrator.
The court has broad powers to award remedies, which include orders for damages (or even punitive or exemplary damages).
Indonesia
Is workplace harassment prohibited?
The Ministry of Manpower issued a Guideline on Prevention of Sexual Harassment at the Workplace (Sexual Harassment Guideline) which includes:
- physical harassment;
- verbal harassment;
- gesture harassment;
- written or pictured harassment; and
- psychological/ emotional harassment.
Is it mandatory to implement policies or training on workplace harassment?
The Sexual Harassment Guideline states that it is mandatory for employers to prepare, ratify, and inform all employees of a policy regarding sexual harassment in the workplace. Employers must establish internal mechanisms to prevent sexual harassment which include:
- a policy prohibiting sexual harassment;
- a complaint mechanism;
- disciplinary sanctions;
- protection for and rehabilitation of victims; and
- on-going monitoring to prevent harassment.
What remedies are available for workers who have been harassed?
The Sexual Harassment Guideline sets out that every victim should have the right to make an internal complaint as follows:
- an informal complaint which should be dealt with in 30 days (in confidential manner); or
- a formal complaint to senior management.
An employer will then have discretion to punish the perpetrator in various forms such as transfer, wage reductions, etc.
Individuals can also make a criminal complaint to the police.
Japan
Is workplace harassment prohibited?
Companies have a duty to provide a safe and work-conducive working environment to their employees and that they can be liable for breaches of this duty.
The Ministry of Health, Labour and Welfare (MHLW) has issued guidelines under which sexual harassment includes:
- where workers suffer disadvantage in their working conditions because of how they respond to remarks or conduct of a sexual nature; or
- where the environment of the workforce is damaged by some sexual remarks or conduct in the workplace.
The MHLW has also issued guidelines under which "power harassment" includes:
- any kind of behaviour by an individual, aimed at a person in the same workplace, which takes advantage of a superior position at work and which, exceeds the appropriate scope of [the instigator’s] work duties;
- inflicts physical or psychological pain; or
- deteriorates the working environment.
Is it mandatory to implement policies or training on workplace harassment?
Employers must put in place appropriate measures to:
- deal with allegations of workplace sexual harassment;
- ensure no disadvantage in employee working conditions because of allegations of sexual harassment in the workplace; and
- ensure employees do not suffer any harm due to sexual harassment in the workplace.
MHLW has formulated guidelines on what measures employers should implement to comply with these articles.
What remedies are available for workers who have been harassed?
Claims are usually brought as a civil tort.
Severe cases may involve criminal liability (for example, indecent assault) but in practice, this is less common.
Civil and criminal liability exposure for the individual perpetrator and civil exposure for employing entity.
Singapore
Is workplace harassment prohibited?
Harassment and related anti-social behaviour such as stalking are prohibited however, this is not limited to conduct that occurs during the course of employment and will apply generally.
The Tripartite Advisory on Managing Workplace Harassment (Guidelines) describe harassment as "behaviour that causes or is likely to cause harassment, alarm or distress to another party. Such behaviour can violate a person’s dignity or create an unfavourable work environment for him/her, which poses a risk to the person’s safety and health.”
Is it mandatory to implement policies or training on workplace harassment?
The Guidelines recommend that employers:
- have in place a transparent policy on the prevention of harassment in the workplace,
- provide information and training on workplace harassment to employees; and
- ensure they have an effective framework for responding to allegations and grievances.
Although the Guidelines are not legally binding, in practice, employers should seek to follow them.
What remedies are available for workers who have been harassed?
Individuals alleging harassment can seek civil remedies such as a protection order), or monetary damages. Alternatively, criminal sanctions including fines of up to SD$5,000 or imprisonment of less than 12 months or both may be imposed on first time offenders. These sanctions increase for repeat offenders.
South Korea
Is workplace harassment prohibited?
Employers, supervisors or co-workers are prohibited from committing an act of sexual harassment on the job against another employee; provoking in another a sense of sexual humiliation or insult by any sexual language or act; or creating unfavourable employment conditions as a result of the victim's refusal to accept sexual advances.
In certain circumstances, harassment may also amount to criminal conduct (for example, insult).
Is it mandatory to implement policies or training on workplace harassment?
Employers must provide employees (including temporary employees) with education to prevent sexual harassment. This must be provided at least once a year, taking into account the size and circumstances of the business. Such training can take the form of a training course, discussion during morning meetings, conferences, etc.
What remedies are available for workers who have been harassed?
Employers must impose appropriate sanctions on a harasser which may include transferring the employee to another department; issuing them with a warning; suspending their employment; directing them to take unpaid leave; and even dismissing them. Employers are also prohibited from taking retaliatory measures against a victim for lodging a complaint.
Individuals may be able to seek compensation for losses or injuries resulting from harassment.
Severe cases may involve criminal liability, for example, insult.
Thailand
Is workplace harassment prohibited?
It is unlawful for employers to discriminate employees on the basis of a person's sex (unless the nature or condition of work allows employers to do so). It is also for employers, chiefs of staff, supervisors or inspectors to sexually harass employees.
There are also protections against discrimination on the basis of trade union membership or participation in trade union activities or an individual having given or agreed to give evidence or information in connection with an alleged contravention of any labour law.
Is it mandatory to implement policies or training on workplace harassment?
It is not mandatory under the law to implement policies or training regarding workplace harassment in Thailand.
However, it would be prudent for employers to:
- have a comprehensive workplace behaviour policy in place which prohibits harassment at work;
- regularly train and educate staff on the policy and their rights and responsibilities under it; and
- ensure they have a sound complaints mechanism in place to deal with any complaints promptly and fairly.
What remedies are available for workers who have been harassed?
Employees alleging harassment can bring a civil claim seeking remedies such as a protection order or monetary damages.
Alternatively, employees may bring a criminal case and if successful, the court may impose criminal penalties against employers including fines of up to THB10,000 and/or imprisonment term of up to 6 months.
If you would like further information on this topic, please contact Fatim Jumabhoy at fatim.jumabhoy@hsf.com.
Disclaimer
Herbert Smith Freehills LLP has a Formal Law Alliance (FLA) with Singapore law firm Prolegis LLC, which provides clients with access to Singapore law advice from Prolegis. The FLA in the name of Herbert Smith Freehills Prolegis allows the two firms to deliver a complementary and seamless legal service.