Unwelcome advances

Unwelcome advances

Businesses must put in place policies to deal effectively with sexual harassment claims

SOCIAL & LIFESTYLE

Traditional values and different perceptions regarding inappropriate conduct of a sexual nature make sexual harassment a thorny issue in the workplace, and one which is still commonplace in Thailand.

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While prohibited under the Penal Code and the Labour Protection Act, the existing laws are vague when it comes to their definition of sexual harassment, conduct which may constitute sexual harassment, and how to deal with it should it arise. Moreover, the law does not cover harassment among employees of the same ranking, but rather institutes potential punishments of fines or imprisonment only for cases involving superiors and their subordinates.

Sexual harassment may take various forms, ranging from the most severe and easily determined acts, such as sexual assault, to more subtle forms, such as jokes of sexual nature, inappropriate gestures, sending pornographic emails or viewing pornographic websites. It is important for employers to be aware that these subtle acts can also lead to sexual harassment complaints, for which the employer has the responsibility to promptly investigate and resolve.

When handling a sexual harassment complaint, the employer should allow all parties involved to tell their side of the story, taking into consideration the facts and circumstances surrounding the situation - especially if there's a personal relationship between the victim and the perpetrator - in order to most effectively determine whether harassment occurred.

It is important to note that the notion of what constitutes sexual harassment is subjective and depends on the victim's feeling towards the action, as opposed to the intention of the perpetrator. If the company gathers sufficient evidence to conclude beyond reasonable doubt that the action in question placed the victim in a "hostile environment", it should be enough to conclude that sexual harassment has occurred, regardless of how trivial or insignificant the perpetrator or other people view the situation. It must be remembered that a company can be held liable for damages related to sexual harassment acts committed by its managers or employees, though no court decision has yet addressed this issue of organisational liability in Thailand.

Multinational companies normally have an anti-sexual harassment policy and code of conduct to handle sexual harassment, either incorporating them into their work regulations or introducing them as a separate document. However, even though Thai law requires an employer with 10 or more employees to provide work regulations in Thai language containing minimum particulars as prescribed by law (e.g. working days, holidays, leave, termination of employment, discipline), the law does not require sexual harassment and its sanctions to be included in work regulations or any company policy.

This absence of a sexual harassment policy could make the company's ability to terminate the employment of a worker guilty of sexual harassment more complicated, as normally an employer is required to provide severance pay to a dismissed employee. There are only limited situations where the law allows the employer to terminate employment immediately without severance pay, one of which is the violation of the work regulations or the rules or orders of the employer, which are fair and lawful, in a serious case.

Thus, if a company sets forth internal rules and policies on sexual harassment, either specified within its work regulations or in a separate policy, violation of these conditions would provide viable means to terminate employment. Additionally, a company could face criminal and civil liabilities jointly with the employee, particularly if the employee committing the harassment is of a high position (e.g. managing director, chief executive office, manager).

In such case, the action of the employee could be considered a serious violation of work regulations, which may lead to employment termination without severance pay. On the other hand, the absence of such a policy would make it much more tedious to terminate employment.

In order to promote good practice and harmonious working relationships among employees and protect their well-being, as well as to safeguard the company itself from unnecessary risks and complications, the issue of sexual harassment should be explicitly addressed in work regulations or separate policies, and be made clear to all employees that this behaviour will not be tolerated in the workplace.


Suriyong Tungsuwan is a partner and Nam-Ake Lekfuangfu is an associate at Baker & McKenzie Ltd.

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