Career Advice Legal Case studies for employers

Make sure fun times don't become actionable crimes

The Background
One of the most positive aspects of life in Hong Kong is the diverse working population. All of the various nationalities living in Hong Kong bring with them their own traditions, including the very human love of celebrations and events. These celebrations range from the traditional Chinese New Year holiday, which closely follows the Christmas party season, to the various day-to-day social events that occur throughout the year.

Many organisations see socialising as a fundamental activity. Taking some time away from the pressures of work to socialise in a relaxed environment is usually intended to build morale and connections among work colleagues. While building close working relationships is clearly to be encouraged, employers need to fully understand their responsibilities and give some thought to avoiding, or at least mitigating, the risks. The public interest in social events that go wrong, and the nature of any resulting legal action, can cause an uncontrollable amount of reputation-damaging publicity.

The Risks
One of the biggest misconceptions that employers continue to hold is that their responsibilities as an employer end as soon as employees move off work premises (or from work-approved events to somewhere outside the office). The legal framework, however, imposes vicarious responsibility on employers – which, in general terms, means full responsibility for the actions of employees. This is whether or not the actions were approved or even known to the employer, and even if they run totally contrary to the employer’s policies and public commitments.

Employers are liable for all employee acts if those acts are committed in the “course of the employment”. While a drink between employees at the weekend and totally unrelated to work is obviously not an activity occurring in the course of employment, others, such as office parties or client dinners, clearly are workplace events.

It becomes less clear-cut when the work event continues in a late-night bar or a hotel room. Existing case law suggests employers would be wise to view their responsibilities widely. They should assume that events with a tangible link to the company, whether as part of a company-sponsored event or where the employees are in the location for a work need – even if not at that particular time – create workplace responsibilities.

The most usual risks relate to allegations of inappropriate behaviour. Sometimes these are raised as acts of bullying, or actions that undermine the mutual obligation of trust and confidence between the employer and employee. Such allegations frequently cover elements of discrimination or harassment. In Hong Kong, complaints have historically been based on gender discrimination. The Race Discrimination Ordinance has now sought to ensure inappropriate racial discriminatory behaviour is also addressed. What might be viewed as a bit of banter or a joke in a social environment, perhaps fuelled by alcohol, can lead to actionable legal action.

The Action
Employers can seek to avoid liability for unsanctioned and inappropriate actions of their employees if they can show they took all reasonably practicable steps to prevent the alleged inappropriate or discriminatory behaviour. The following steps might not prevent the allegations or legal action being advanced, and will not guarantee a successful defence, but they will at least mitigate the risks.

The first step is to clearly decide the company’s values and approach to inappropriate and potentially discriminatory behaviour in all aspects of the workplace.

Second, live the chosen values through clear communications to staff about those commitments. These begin when an employee first joins the company and at the beginning of the relationship with a good induction, clear policies that amend and change as the company changes, and continuous training.

Third, address the risk groups or individuals before the worse happens. This often means looking at the senior end of the business, which is not easy. Tailored small-group training or individual coaching might be needed.

Fourth, when you have high-risk events such as parties or off-site training, clearly communicate the behaviour expected so it is in everyone’s minds. You can expect to be labelled a party-pooper, but well-crafted, timely communications are key in mitigating risks if everyone is required to read them.

Finally, when you are faced with a difficult situation, live your values. Taking firm disciplinary action – often in a public way – can be a key part of your credibility as an organisation.

DLA Piper is a global law firm with 4,200 lawyers located in more than 30 countries throughout the Americas, Asia-Pacific, Europe and the Middle East.

Pattie Walsh is a partner and head of DLA Piper’s Asia-Pacific employment practice. She writes extensively for legal and HR publications, with a particular focus on multi-jurisdictional employment work.

The information contained in this article should not be relied on as legal advice and should not be regarded as a substitute for detailed advice in individual cases. If advice concerning individual problems or other expert assistance is required, the service of a competent professional adviser should be sought.