WORKPLACE HARASSMENT

• Citation: (2015) 27 SAcLJ 286
• Published date: 01 December 2015
• Date: 01 December 2015

Persons Liable and Damages Payable under the Protection from Harassment Act 2014

The recently enacted Protection from Harassment Act offers greater protection against harassment as compared to the position before. While the said Act covers both criminal and civil liability, this article focuses on the latter and seeks to examine the persons who may incur civil liability and the principles that may apply to damages awarded. While the main focus of this article is on harassment that takes place in a workplace, the principles discussed may also apply to other contexts.

I. Introduction

1 The Protection from Harassment Act1 (“PHA”) was passed on 13 March 2014.2 The Minister, in moving the Protection from Harassment Bill in Parliament, stated that the existing laws on harassment in Singapore were inadequate both in terms of the criminal and civil aspects, and that there was a deep public concern about harassment and the need for greater protection.3 While the said Act certainly provides greater protection both in relation to the criminal and civil aspects as compared to the position before, this article seeks to examine the persons who may incur civil liability and the principles that may possibly apply to damages awarded under the said Act. Both these issues are not currently clearly addressed in the legislation.

While the main focus of this article is on harassment that takes place in a workplace, the principles discussed may also apply to other contexts.4 Further, while the main focus of this paper is on the Protection from Harassment Act, some of the issues discussed may apply in other contexts as well, such as where the employee sues the employer in negligence for sexual harassment that takes place in the workplace.

II. Persons liable

2 The PHA applies to “persons”, a term which is not defined in that Act. However, s 2(1) of the Interpretation Act5 provides, among other things, that unless there is something in the subject or context inconsistent with such construction, the term “person” includes a company or association or body of persons, corporate or incorporate. In response to a query from a Member of Parliament as to whether the PHA applied to corporate entities, the Minister in moving the Bill replied that the Interpretation Act was indeed applicable.6

3 In Tesco Supermarkets Ltd v Nattrass,7 the issue arose whether Tesco could be guilty of an offence relating to certain wrongful trade descriptions which came about because of a mistake made by a manager of a store. The House of Lords held that Tesco was not liable because the manager's actions could not be treated as that of the company's in the circumstances of the case. Lord Reid stated:8

I must start by considering the nature of the personality which by a fiction the law attributes to a corporation. A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these; it must act through living persons, though not always one or the same person. Then the person which acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. [emphasis added]

4 Thus in so far as a director, manager or even executive9 can be considered to be the mind of the company or the embodiment of the company, an action may be brought against the company. Whether this is indeed the case would depend on the nature of the charge, the relative position of the officer and the other relevant factors and circumstances,10 including the policy considerations behind the statute in question.11 For instance, if the company requests an executive to harass a client who owes the company money, to hold that the company is liable in such circumstances may be in line with the policy behind the statute. On the other hand, if the same officer sexually harasses a fellow colleague in the office on his own accord, the position may well be different.

5 Aside from primary liability, the question might also arise as to whether the employer can be vicariously liable for the actions of the employee under the PHA. Section 11(1) of the said Act provides that the “victim[12] under section 3, 4, 5 or 7 may bring civil proceedings in a court against the respondent”.

6 A similar issue arose for consideration in Majrowski v Guy's and St Thomas' NHS Trust13 (“Majrowski”). The case concerned the UK Protection from Harassment Act 199714 (“UK PHA”). Section 3(1) of that statute provided that “an actual or apprehended breach … may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question”. The House of Lords unanimously held that the employer could be vicariously liable for the actions of an employee. One of the judges, Lord Nicholls of Birkenhead opined that employers could be vicariously liable unless the statutory provisions expressly or impliedly excluded such liability. On the facts he held that this was not the case. In fact there were policy reasons why such liability was to be welcomed because it forced employers to maintain standards of “good practice”. Though this may increase the burden on employers, he stated:15

Parliament added harassment to the list of civil wrongs. Parliament did so because it considered the existing law provided insufficient protection for victims of harassment. The inevitable consequence of Parliament creating this new wrong of universal application is that at times an employee will commit this wrong in the course of his employment. This prompts the question: why should an employer have a special dispensation in respect of the newly-created wrong and not be liable if an employee commits this wrong in the course of his employment? The contemporary rationale of employers' vicarious liability is as applicable to this new wrong as it is to common law torts. Take a case where an employee, in the course of his employment, harasses a non-employee, such as a customer of the employer. In such a case the employer would be liable if his employee had assaulted the customer. Why should this not equally be so in respect of harassment? In principle, harassment arising from a dispute between two employees stands on the same footing.

7 Further, in response to the counsel for the employer who argued that introducing vicarious liability may give rise to unmeritorious claims, Lord Nicholls stated that the courts were well equipped to “separate the wheat from the chaff at an early stage”16 and hence this was not a good enough reason for barring the victim from bringing a claim against the perpetrator's employer.

8 In Singapore, Parliament in passing the PHA clearly took into consideration workplace harassment17 (though the statute is certainly not specifically or exclusively aimed at dealing with that issue). Given this, it may be argued that making the employer vicariously liable would increase workplace safety and hence this would be in line with the general intention of the legislation. As established in Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd18 (“Skandinaviska”), policy considerations are important in examining whether vicarious liability should be imposed. Chan Sek Keong CJ delivering the judgment of the Court of Appeal stated:19

In this regard, the employer is usually the person best placed and most able to provide effective compensation to the victim. In our view, making the employer vicariously liable is not only a practical solution, but also fair and just. After all, a person who employs another to advance his own interests and thereby creates a risk of his employee committing a tort should bear responsibility for any adverse consequences resulting therefrom. This view is buttressed by the consideration that the employer may redistribute the cost of providing

compensation for his employee's tort through mechanisms such as insurance.

9 Like in Majrowski, the court in Skandinaviska also recognised that vicarious liability would place an incentive on the employer to reduce tortious behaviour by his employees and at one point also remarked:20“For instance, it is difficult to argue, on policy grounds, that victim compensation should not prevail in cases involving defenceless and vulnerable victims, such as young children who have been sexually abused by employees of welfare homes, however innocent the employer might be.”

10 However, many counter arguments may also be made. The first relates to the opinions of the other Law Lords in Majrowski. Lord Hope of Craighead agreed with Lord Nicholls of Birkenhead but stressed that the issue was finely balanced and far from easy to decide. He also found it hard to disagree with the dissenting judge in the Court of Appeal who had held the employer should not be vicariously liable. However, finally what seemed to have really persuaded him was that in relation to the corresponding provisions in the same statute which applied to Scotland, there was a particular provision (namely, s 10) which imposed a time limit. Section 10 provided that an action had to be brought within three years from the time the pursuer became aware that the “defender was a person responsible for the alleged harassment or the employer or principal of such a person” [emphasis added]. Based on this, Lord Hope of Craighead concluded that the employers could clearly be vicariously liable. Baroness Hale of Richmond considered some possible policy reasons why Parliament would not have wanted to...