Harassment Complaints: What Companies Should Know & Do

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In early March 2019, Parliament announced that the Tripartite Alliance for Fair and Progressive Employment Practices (TAFEP) would provide more resources to help both employees and employers tackle workplace harassment^[1]. Although not widely discussed, harassment does take place in Singaporean workplaces.

It is important to understand that workplace harassment can affect anyone; whether male or female, senior executive or fresh grad or from any walk of life.

In 2017, the Straits Times documented some incidents of workplace sexual harassment experienced by both men and women^[2]. In the article, Singapore Human Resources Institute president Erman Tan noted that companies “sweep [the issue] under the carpet as it is a touchy topic and the HR may not be trained to handle complaints”.

However, in the backdrop of the #MeToo movement, topics such as workplace harassment are no longer taboo. Women and men alike are encouraged by both international movements and local organisations such as the Association of Women for Action and Research (AWARE) to report incidents of harassment^[3].

Against this backdrop, it is thus crucial for companies to be ready to handle harassment complaints effectively in order to create a safe working environment. Workers should not have to resort to public forums to seek recourse and justice: it is the government’s and TAFEP’s stance that companies should have a formal framework to manage harassment complaints. Companies should also be aware of the types of recourse available to victims and seek to aid them with the reporting process where necessary.

This article takes a deeper look into how companies should respond to harassment complaints, and what role the law plays in such incidents.

What is Workplace Harassment

The Ministry of Manpower defines workplace harassment as behaviour that is likely to cause “harassment, alarm, or distress to one party”^[4]. A similar definition of harassment is provided by the law. Enacted in 2014, the purpose of the Protection from Harassment Act (POHA) was to protect persons against harassment and unlawful stalking. The Act sets out different types of harassment, including but not limited to:

1. Communication with the intent to harass, alarm, or distress;
2. Provocations of violence; and
3. Unlawful stalking.

In our article “Workplace bullying: Knowing your rights and remedies”, we further break down these offences with reference to both the POHA and also the Penal Code.

Is a Company Liable for Workplace Harassment?

In general, the answer is no. The POHA does not explicitly set out vicarious liability for employers, so one must look to liability under torts like negligence when pursuing legal action against the company for harassment. Another possible claim against a company could arise where the harassment is committed in such a way that it may amount to unfair constructive dismissal of the employee. However, there is a lack of case law in Singapore to support a successful claim against the company, although there have been successful ones in Australia and the UK^[5].

However, as awareness increases, we may well see the day where a company in Singapore is held liable for enabling or allowing workplace harassment to continue.

While not definitively legally liable for the harassment, companies still have a great incentive to prevent and better manage their harassment complaints. There are many important reasons why companies should enforce a robust harassment prevention policy and ensure a safe working environment for all. Failure to prevent harassment can result in reduced productivity of the workforce, loss of talent through resignations, and damage to employee morale and to the company’s reputation.

Harassment Prevention Policy– What is it?

Most importantly, companies need to communicate a clear understanding of what workplace harassment means to them in their policy. Such harassment prevention policies serve to both mitigate and resolve harassment complaints effectively. In this regard, TAFEP has issued the Tripartite Advisory on Managing Workplace Harassment (the Advisory) to help companies formulate their harassment policy along with a sample Workplace Harassment Prevention Policy for reference.

It is in companies’ interests to deal with workplace harassment. As laid out in the Advisory, “harassment may directly or indirectly cause anxiety to employees at the workplace, affecting the morale and productivity of the organisation”. It is thus crucial for the company’s functioning and public image to prepare for and address harassment complaints.

A key solution is to prevent workplace harassment from even arising at all. TAFEP and MOM recommend communicating certain core ideas and values in the company’s harassment policy, or its company handbook:

1. Definitions and examples of harassment;
2. Zero tolerance policy for harassment;
3. Leadership and collective commitment to establishing a workplace free of harassment; and
4. Holistic management of harassment as a part of the organisation’s safety and health risk management

This information gives employees reassurance that their complaints will be taken seriously, thereby contributing to a more positive work environment. Companies should also make an active effort to communicate the overall policy – for example, they could make it available on the company intranet, hold an in-house seminar to introduce and explain the policy to employees, or circulate it to all employees by email once a year.

Subsequently, a formal harassment management strategy not only assures victims of harassment of due process, but also helps to mitigate harassers’ actions. The Advisory advises for strategies to include internal reporting and resolution systems, training on workplace harassment, as well as information on the resources available for victims of harassment.

Harassment Prevention Policy– Managing the Harassment Complaints

Harassment reporting should be confidential and recorded systematically – as the Advisory states, “there should be “clear documentation of each step of the investigation process and thorough records should be kept”. A non-retaliation policy should also be adopted; victims and witnesses should feel comfortable sharing their report to a neutral party, and confident that the company will take active steps to correct the wrongdoing.

The Advisory breaks down an effective reporting and response system into the following components:

1. Harassment Reporting Line

Companies should not limit themselves to only one channel of reporting harassment complaints. Companies could look to their HR departments, direct superiors, or external hotlines to act as reporting channels. This is to avoid a situation where the alleged harasser’s department is the only department to whom the victim can make the report. All such channels should maintain the complainant’s confidentiality and should receive the appropriate training to uphold empathy and respect in their communication. To the extent possible, the alleged harasser’s identity should also be kept confidential while investigations are ongoing. All parties involved, including witnesses, should be told to avoid discussing the matter with others until the investigation is complete. Additionally, the company may consider anonymous “whistle-blowing” mechanisms such that employees may surface their grievances if they do not wish to be identified.

2. Investigation and Appeal

Trained neutral parties should be appointed to help review the complaint, such as employees from various departments who may be appointed to a committee to review such complaints or external lawyers.

The complainant should be updated at each stage of the investigation process. The complainant should also be informed of the findings of the investigation. If wrongdoing is found, the complainant should be informed of the remedial or corrective action which will be taken to ensure the behaviour does not occur again.

3. Closure

Lastly, the company should rectify and monitor the behaviour of the harasser post-investigation.

For instance, the company may issue a formal warning and require the harasser to attend communication workshops if they had previously used abusive language towards an employee. After the workshop, the company could seek the feedback of the harasser’s colleagues and the victim to see if there has been a meaningful improvement. If the situation has not improved, companies may consider moving the harasser to another department or taking more severe action such as a suspension.

Furthermore, the company should provide support to the victims post-investigation. Counselling services may be provided to the victims; TAFEP or AWARE provides third-party counselling services. The company should equip their managers to help the victim through this difficult time – TAFEP’s Grievance Handling Handbook provides useful information when training their management to provide such services. Lastly, the company could also consider interim options such as additional leave or the flexibility to work from home during the investigation and/or post-investigation recovery period.

Harassment Prevention Policy– Training and External Resources

Beyond providing resources for the victim and formal investigative procedures, the company’s harassment policy could also provide the overall organisation with the relevant training and resources.

Training the organisation to take harassment seriously helps to raise awareness of unacceptable behaviour and reduces the likelihood of harassment occurring. It also better equips management to handle such disputes when they occur. All employees will be more aware of the behaviours, signs, and risks of harassment. Managers and HR teams could be further trained in grievance handling, neutral investigation, and counselling. All in all, all these serve to inculcate a company culture where harassment is not tolerated, nipping the issue in the bud.

A list of further resources could be provided to help victims seek other means of recourse if necessary^[6]:

1. Seeking help from Trade Unions
2. Emotional Support or Counselling
3. Legal Action, either in the form of a civil remedy or criminal sanction^[7]

Further, companies may assist victims of workplace harassment to take legal action as a means of recourse, if necessary and appropriate to do so, instead of dissuading victims from seeking more resolute actions against the harasser. The company management may wish to appoint its own in-house or external lawyers to guide them through the process and advise on what they should or should not do.  By ensuring effective systems are in place, companies can be of assistance to the courts and the victim, instead of being complicit in enabling the harassment.

An in-depth look into what kind of civil and criminal proceedings are available and outlined in our article “Workplace bullying: Knowing your rights and remedies”. 

Conclusion

Workplace harassment is an issue which affects companies and employees alike. Resolving it at its roots is by no means easy as it requires the efforts of everyone in the organisation. Yet, a safe working environment is a fundamental priority to any company. Companies should begin combating workplace harassment by developing an effective company policy which plays a vital role in determining the office culture.

Companies may use the frameworks provided by TAFEP as a foundation for developing their own harassment prevention policy. Beyond this, they should be aware of the alternative remedies that their employees may seek if the harassment persists. Legal action could mean a difficult time for both the victim and the company, and it is thus the company’s interest to conduct their own investigation and provide support for the victim when necessary.

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Have a question about workplace harassment?

If you have a legal question about workplace sexual harassment, you can request a quote with Farrah Isaac and  Kennedy Chen and from Eversheds Harry Elias. You can also get a Quick Consult with other lawyers. With Quick Consult, you can check out in minutes and for a transparent, flat fee, the lawyers will call you back on the phone within 1-2 days to answer your questions and give you legal advice.

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This article is written by Farrah Isaac and Kennedy Chen from Eversheds Harry Elias and edited by Yun Wen Soh from Asia Law Network.

 

This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.