The case of Ray Chen v Taramus Rus and IBM (HK) Ltd, handed down on 6 April 2000, dealt with the liability of employers under the Sex Discrimination Ordinance. The Plaintiff, Mr Chen, was employed by the second Defendant (D2) as a senior IT specialist. The first Defendant (D1) was the project manager for one of the companies within D2's group and the Plaintiff was assigned to work with D1 on a particular project.
The Plaintiff alleged that he was sexually harassed by D1 during his period of employment and that D2 had discriminated against him by way of victimisation. He had been dismissed by D2 and then made a complaint of sexual harassment against D1.
Besides determining whether D1 had sexually harassed the Plaintiff and whether the dismissal was in some way connected with the allegation, the Court had to consider whether D2 had availed themselves of the defence provided under section 46 of the Sex Discrimination Ordinance ("the Ordinance"). This section imposes vicarious liability on the employer for any act done by his/her employee in the course of employment, if in contravention of the provisions of the Ordinance.
Section 46(1) says that, "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".
There is only one statutory defence open to the employer. It is stipulated in section 46(3) that the employer has to prove that he/she took such steps as were reasonably practicable to prevent the employee from doing that act.
In this case, D2 had issued a standard copy of their internal "Business Conduct Guidelines" to each individual joining the company. These dealt with sexual harassment and each employee was required to acknowledge in writing having read and understood the guidelines. They stated that D2 maintained a "zero tolerance" policy regarding sexual harassment and encouraged "two-way communication". Employees were free to bring complaints to their immediate superior or senior management. An "open door" style of management was designed to make communication easy.
The Court found that D2, by providing clear guidelines and requiring employees to sign a declaration after reading them, had discharged the burden placed upon them as employers. They had availed themselves of the defence provided under section 46 of the Ordinance.
The Court's judgment, therefore, indirectly confirmed the Code of Practice ("the Code") issued by the Equal Opportunities Commission in respect of the elimination of sexual harassment in employment. The Code encourages employers to formulate and implement policies which can help to establish working environments free of sexual harassment.
The Code recommends that employers take the first step in showing a commitment to dealing with this problem by issuing a policy statement which expressly states that sexual harassment at work is unlawful and will not be permitted. The statement should provide information about the organisation's internal complaint procedures and the assurance of confidentiality. The policy should be made known to all employees.
For effective implementation, the Code suggests that a coordinator with appropriate training is first designated to establish and administer both formal and informal complaint procedures. This person should understand all the issues and be fully briefed on how to deal with any kind of complaint. The coordinator's name and contact details should be circulated to all staff.
In view of the recommendations of the Code, it is clear that, in cases of alleged sexual harassment, the Court will look first at whether the employer has formulated and implemented a proper policy. Without one, an employer will be at an immediate disadvantage, if trying to establish a credible defence in any case where his/her employee has committed an act of sexual harassment.
|Q&A on employer's liability under the Sex Discrimination Ordinance |
|Q1 ||Is there any defence, other than that set out in section 46(3) of the Ordinance, which the employer could use to avoid liability for an employee's act of sexual harassment?|
|A1 ||No. Section 46(3) is the only defence available. Furthermore, the legislation requires that an employer take steps to prevent an employee from committing such an act. These preventive measures alone will be taken into account when the Court decides whether the Defendant can avail himself/herself of the defence. Any remedial measures taken after the act has been committed, such as dismissal of the accused, will not help the employer |
|Q2 ||Why should a coordinator with special training be designated to deal with complaints and provide information and advice?|
|A2 ||A common feature of such cases is that the employee subjected to sexual harassment is reluctant to complain, thinking that the employer will take no action or will trivialise the complaint. In certain cases, the employee may fear reprisals or dismissal. Therefore, in order to implement the policy effectively, an officer with appropriate training should be designated to deal with complaints and promote general awareness. |