By Anita Lam, Of Counsel, DLA Piper Hong Kong
Harassment is generally associated with appreciably more conflict in work teams as well as with less team cohesion and less success in meeting financial goals. Eliminating harassment in the workplace therefore makes good moral sense, legal sense as well as business sense.
It may now also be possible for someone who is not the intended victim of harassment to successfully sue the harasser. In this article we explore the development of case law on harassment for employers and HR professionals in Hong Kong.
Current position on harassment (Hong Kong)
The Anti-Discrimination Ordinances outlaw harassment on the grounds of sex, race or disability in the workplace and certain other contexts.
Hong Kong, however, also recognises claims involving general harassment¾as introduced by the case of Lau Tat Wai v Yip Lai Kuen. 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 messages¾up to 120 per hour; making false reports about him to the police; cancelling his credit cards; and repeatedly turning up at social and family events¾including a family holiday¾he was attending.
In that case, the Judge set out the necessary ingredients to establish a case of general harassment as, "A course of conduct by a person whether by words or action, directly or through third parties, sufficiently repetitive in nature as would cause, and which he ought reasonably to know would cause worry, emotional distress or annoyance to another person."
General harassment: expanded scope (UK)
In the recent case of Levi v Bates, the UK Court of Appeal expanded the scope of claims involving general harassment. It is now possible for someone who is not the intended target of the harassment¾in this case, the victim's wife¾to successfully sue a harasser.
Background
The case concerned the ownership and management of Leeds Football Club. Mr Levi was one of the former managers of the English club, before it was sold to a company in which a Mr Bates had a majority interest. Mr Bates began a campaign of harassment against Mr Levi. He would regularly publish defamatory articles in the programme distributed to fans attending the Club’s football games including, among other things:
- calling Mr Levi a 'money grabbing spiv' and a 'shyster';
- incorrectly stating that Mr Levi was blackmailing him; and
- inferring Mr Levi assisted in the theft of GBP190,400 of fans' money.
Harassment of target
Mr Levi was able to successfully sue Mr Bates for libel and harassment. In addition to the examples listed above, however, Mr Bates also:
- used the programme to publish an article inviting fans to 'question' Mr Levi, followed by the publication of his home address; and
- at the end of an article which falsely claimed Mr Levi was blackmailing him, directed fans to Mr Levi's home phone number.
Mrs Levi shared a home and home phone number with her husband. Mr Bates also used the local radio station¾in which he had a controlling interest¾to broadcast messages about Mr Levi, including an incorrect suggestion that he and his wife had separated. Following publication of the Levis' home address, Mr Bates also used a live broadcast of a Leeds game to twice ask listeners to 'find' Mr Levi, and report on his whereabouts.
Effect on target's wife
Mrs Levi successfully argued that Mr Bates' actions caused her alarm and distress. English football fans are renowned for their devotion to 'their' club. Publication of the Levis' home address, with an invitation for fans to either visit their home or send letters, had put Mrs Levi in a dangerous situation.
Court ruling
The Court of Appeal in the UK found that Mrs Levi had suffered mental harm as a result of Mr Bates' behaviour. The Court ruled she was being harassed by Mr Bates, even though she was not his intended target. The examples set out above were a sufficient 'course of conduct' to meet the UK test for harassment.
How might harassment affect your workplace in Hong Kong?
Situations where workplace harassment could foreseeably result in alarm and distress being caused to staff members and a third person could include, but not be limited to, the following.
- A group of activists call on hundreds of protestors to protest outside shops and shopping arcades every day for three weeks, shouting at shop assistants and smearing them. The shop assistants are distressed by this.
- Employee A uses the workplace newsletters he edits to regularly complain about a co-worker, Employee B. Employee A encourages other employees to contact Employee B, and provides the home phone number of Employee B. Employee B's wife feels threatened by the phone calls.
- Employee B ends her romantic relationship with Employee C. Employee C takes to social media to regularly post negative comments about Employee B. Employee C then also posts Employee B's home address, which is the number for the apartment that Employee B shares with her mother. Employee B's mother is worried and distressed by this.
- Employees D and E both live in an apartment complex subsidised by their employer. Employee E is vehemently anti-Occupy Central, and discovers that Employee D was involved in the Occupy Central protests in 2014. Employee E begins leaving letters and flyers first in Employee D's pigeonhole at work, and then at Employee D's apartment¾which Employee D shares with his girlfriend. These letters and flyers criticise the Occupy Central movement, and promote the anti-Occupy Central agenda. The contents of these publications become increasingly aggressive, and personally target Employee D. Employee D's live-in girlfriend is alarmed by this.
Could the Employer be liable?
Apart from disruption to work and adverse effect on productivity, employers may also incur liability for general harassment caused by their staff members.
- Employers are liable for the actions of employees carried out in the course of their employment.
- There is a real risk that if a third party successfully sued an individual for harassing them during the course of the latter's employment, the employer would be liable.
- It would need to be demonstrated that the conduct in question occurred during the course of the employment, and each case is judged on its own merits and facts.
The Hong Kong courts have generally been quick to find a link between the behaviour in question and the employment. It is therefore important that you take steps to make sure the work environment is harassment-free.
What does this mean for Hong Kong employers?
It is clear from the cases that the acts of harassment must be fairly extreme to merit intervention by the courts.
Alarm or distress suffered out of nothing more than sympathy for the targeted victim of harassment is insufficient to found a claim by a third person related to the targeted victim.
The claimant must be ‘harassed’ by it, in the sense that the conduct complained of must have a direct effect upon the claimant¾in terms of causing foreseeable harm, usually, but not limited to, alarm and distress.
The claimant must be sufficiently connected to the victim of the harassment.
As the test for harassment in Hong Kong is wider than the UK, Hong Kong courts may follow the footsteps of the UK Court of Appeal if it is asked to make a ruling in a similar situation.
Key points
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Paul Arkwright
Publisher
