There have been cases where doctors have been sued for sexual harassment of their colleagues in the workplace. It is important for employers to ensure that the doctors whom they employ do not commit such conduct, otherwise employers run the risk of being held vicariously liable for the acts committed by the doctors.
Civil sanctions ‐ Sex Discrimination Ordinance (Cap.480) (ʺSDOʺ)
Employers should be aware of the provisions set out in the SDO.
Under the SDO, a person sexually harasses another if that person:
- makes an unwelcome sexual advance;
- makes an unwelcome request for sexual favours; or
- engages in other unwelcome conduct of a sexual nature
which a reasonable person, taking into account all the circumstances would have considered offending, humiliating or intimidating.
The SDO provides that it is unlawful for a person who is employed by another person at an establishment in Hong Kong to sexually harass a man or a woman who is employed by that second‐mentioned person. Significantly, it also provides that anything done by an employee in the course of his/her employment shall be treated as done by the employer, whether or not it was done with the employerʹs knowledge or approval.
There is a limited defence for employersʹ regarding their liability for acts committed by employees under the SDO. The SDO provides that an employer will not be liable if:
ʺit took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description.ʺ
Therefore, if an employer takes adequate steps to prevent employees from committing discriminatory acts, the employer may avoid liability for acts committed by employees under the SDO.
Civil sanctions ‐ Common law
Sexual harassment is a legally recognised tort in Hong Kong.
In sexual harassment cases, damages are awarded for injury to feelings and like in defamation cases, apart from ordinary compensatory and aggravated compensatory damages, punitive and exemplary damages may also be awarded.
At common law, an employer is liable for a tort committed by an employee against another if the employeeʹs tort was so closely connected with his/her employment that it would be fair and just to hold his/her employer vicariously liable.
This common law position is re‐affirmed in a recent Hong Kong Court of Final Appeal decision. The Court of Final Appeal referred to a UK case which stated the following:
ʺCases which concern sexual harassment or sexual abuse committed by an employee should be approached in the same way as any other case where questions of vicarious liability arises. I can see no reason for putting them into any special category of their own.ʺ
Therefore, if a doctor is found to have sexually harassed a colleague, both the employer and the doctor may potentially be made the subject of civil proceedings in like manner both under statute and common law.
Medical Registration Ordinance (Cap.161)
Under section 21 of the Medical Registration Ordinance, if the Medical Council of Hong Kong is satisfied that a doctor has been convicted of an offence or guilty of misconduct (i.e. sexual harassment of a colleague), it may, among other things, impose the following sanctions in its discretion:
- order the name of the registered practitioner to be removed from the General Register or the Specialist Register (or for such period as it may think fit);
- order the name of the registered medical practitioner to be reprimanded;
- make any of these orders but suspend the application, subject to such conditions as the Medical Council may think fit, for a period not exceeding three years; or
- order that a warning letter be served on the registered medical practitioner.
Employers may potentially be held vicariously liable in civil proceedings for sexual harassment acts committed by doctors against their colleagues. In order to reduce the risk of being held vicariously liable for sexual harassment acts committed by doctors, employers should:
- formulate a clear policy on sexual harassment and ask all doctors to sign a declaration stating that they have read and understood the policy and will comply with the same;
- remind their doctors to maintain good medical practice as the bringing of claims not only causes reputational damage to the doctors, but also to the employers as well;
- monitor and observe whether the policy is working in practice; and
- update the policy as required and communicate the policy to all staff on a regular basis.