As seen in our previous article, Employers’ Statutory Obligations Against Sexual Harassment, it is currently not mandatory for employers to implement an anti-sexual harassment policy in the workplace. However, as part of an employer’s social responsibility and safeguarding the welfare of its workforce, it is still a best practice to have a policy that addresses the issue of sexual harassment.
What should go into an anti-sexual harassment policy?
1. Legal Considerations:
- At the very least, the policy should specify an employer’s obligations as prescribed under the Employment Act 1955 (“EA”), including:
- procedures and timelines for investigating complaints; and
- the consequences where an individual is found to have committed sexual harassment in the workplace.
This is to ensure compliance with the EA (which is important as the statutory liability of employers for non-compliance will increase significantly effective 1 January 2023).
2. Practical Considerations:
In Malaysia, most will turn to the Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace (“The Code of Practice”) for guidance. Although this was issued by the Ministry of Human Resources over two decades ago in 1999, it is still a reliable source of direction today for employers who wish to formulate their own internal policy.
The Code of Practice sets out some basic standards in respect of policy statements, complaint procedures and disciplinary rules. The Courts have often referred to the Code of Practice in claims involving sexual harassment.
Generally, an anti-sexual harassment policy should address the following elements:
Zero tolerance for any act of sexual harassment
- The Company should have a policy statement setting out the Company’s aims, and commitment to achieving its goals to maintain an environment free of harassment.
Clear definitions of sexual harassment
- The policy should contain an illustrative but non-exhaustive list of examples of prohibited acts of sexual harassment. This will provide a framework of boundaries and indicates what is unwanted or unwelcome behaviour in the workplace.
Balancing employees’ duties and rights
- Protection from retaliation and victimisation for genuine complaints
- Protection from fabricated or false accusations from complainants
Complaint / formal grievance procedures
- Encourage reporting and protect complainants who do so in good faith.
- Ask yourself these questions: How can employees complain? How will you as an employer handle inquiries? What are the consequences of being found guilty of an offence? What is the appeal procedure?
- Set up communication channel(s) which allow and encourage employees to raise their concerns or make a report (including on an anonymous basis).
Disciplinary rules and penalties
- Act quickly in investigating. The accused should be given an opportunity to explain their actions and behaviour.
- Take disciplinary action where necessary. The penalty should be commensurate with the severity of the offence.
- Take steps to enact protective and remedial measures: Ensure confidentiality as information relating to sexual harassment cases should only be shared on a need-to-know basis. Employees will be encouraged to speak up.
- Training and education: It starts with management, and setting a tone from the top helps create a culture of respect in the workplace.
- Conduct surveys: Understand your employees and how they feel; do they feel that it is a safe environment to work in? How can things be improved?
Employers should practice what they preach. If an anti-sexual harassment policy emphasises combating sexual harassment but management is not putting this into action (or worse, committing sexual harassment themselves), the policy is worthless.
Management has a duty to display leadership and trustworthiness within the workplace by setting a good example.
Prevention is better than cure, and enacting an internal policy is a good starting point for employers to handle cases of sexual harassment with dignity and respect.
This article was written by Adelyn Fang (Associate) from Donovan & Ho’s employment law practice.
Donovan & Ho is a law firm in Malaysia, and our employment practice group has built a reputation for providing strategic employment advice to local and global organisations. Our team of employment lawyers provide advice on employment law and industrial relations including review of employment contracts, policies and handbooks, advising on workforce reductions, and managing dismissals of employees for poor performance or misconduct. We also represent clients in unfair dismissal claims and employment-related litigation. Have a question? Please contact us.