Employers risk being sued if they turn a blind eye to ‘general harassment’
In Hong Kong, sexual harassment, disability harassment and racial harassment are outlawed by anti-discrimination ordinances. But does the law recognise a claim involving general harassment, not based on sex, disability or race? The short answer is yes.
It makes no difference whether harm is caused by physical violence or non-physical harassment – if there is intention to inflict harm and if a victim is harassed in the workplace, employers who turn a blind eye to it may also be sued.
The first precedent case for general harassment was decided in 2013 in the case of Lau Tat-wai v Yip Lai-kuen, Joey. This case involved a nurse stalking her ex-boyfriend after he ended their four-month relationship.
Her behaviour included: hacking into her ex-boyfriend’s email account; bombarding him with emails and SMS messages – up to 120 per hour; making false reports about him to the police; cancelling his credit cards; and repeatedly turning up at social events, including a family holiday. Not only did the victim suffer insomnia and anxiety, he also had to change jobs, as well as his telephone number and email address.
In that case, the court granted the victim an injunction to restrain the ex-girlfriend from continuing with the harassment. It also awarded him compensation.
To bring a claim for general harassment, the victim must establish three things.
Firstly, there must be a course of repetitive conduct by the harasser, which caused worry, emotional distress or annoyance to the victim. Secondly, the harasser must be reckless as to whether the victim would suffer injury, although they ought reasonably to know that the repetitive conduct would cause another person worry, emotional distress or annoyance. Thirdly, the victim must have suffered damage as a result.
In general, anxiety on part of the victim is sufficient to establish a claim. If the victim suffers certain conditions leading to, say, psychiatric illnesses, additional compensation will be payable.
The following types of repeated conduct, intended to cause worry, emotional distress or annoyance, may amount to harassment: following or keeping someone under surveillance; eavesdropping and wiretapping; reading private emails and other communication; using surveillance devices to monitor, intimidate and distress someone; publishing private information; taking photos of someone in a private context; and making persistent and unwanted contact by telephone or email.
Employers can be found liable for harassment of their staff, as they are liable for the actions of their employees carried out in the course of employment (known as “vicarious liability”). Employers may also be liable for the actions of their managers for harassing staff members through pervasive or abusive staff monitoring.
If the harassment occurred during the course of employment, and if the employer turns a blind eye to such conduct, it could be found to be vicariously liable for the harasser’s actions.
Employers should establish a policy to prohibit general harassment and bullying in the workplace, defining harassment to include repetitive conduct which would cause worry, emotional distress or annoyance to colleagues.
They should provide examples of unacceptable harassment and channels to report unacceptable conduct, and establish internal guidelines for HR to deal with harassment and bullying complaints. An information governance policy and an employee monitoring policy to identify, among other things, the types of data that may be collected in the workplace, and how they may be collected and used, is important.
Finally, they must take disciplinary action against the harasser if a complaint is established.
Hong Kong courts are generally quick to find a link between the unacceptable workplace behaviour in question and the employment. Employers should make sure the work environment is harassment-free.
This article appeared in the Classified Post print edition as Head off 'general harassment' headaches.