8 March, 2018
Recently, a mother of a former student who suffered from attention deficit hyperactivity disorder (ADHA) (“Student”) took the school’s management committee and two relevant teachers of a well-known secondary school to court, on the ground of sex and disability discrimination.
It was alleged that the Student’s private part was touched by his classmates, and the relevant photos of the incident were being posted online and on the classroom notice board. The Student also received messages of unwelcome sexual comments or jokes. It was also alleged that the Student was bullied by his classmates in other manners. The Student’s mother complained to the School but to no avail. In the end, the mother claimed against the school and two relevant teachers for compensation and a written apology.
Under the Sex Discrimination Ordinance (“SDO”), a school can be found liable as an educational establishment for discriminating its students. In addition, under the Disability Discrimination Ordinance (“DDO”), a school can be found vicariously liable for any discriminatory/harassment action taken by its teachers against the students. However, it is a defence if the school as an employer has taken reasonably practicable steps to prevent its employees from doing any action in breach of the SDO and DDO, and accordingly will not be held liable for the employees’ actions. Generally speaking, a school will be treated to have taken reasonably practicable steps to prevent employees from committing sexual harassment in breach of the SDO and/or DDO if it has issued a policy against such unlawful act.
The Equal Opportunities Commission has issued guidelines for educational institution such as “Preventing Sexual Harassment on Campus: Formulating Sexual Harassment Policies in Schools”, and the “Code of Practice on Education”. These guidelines suggest that in view of the potential liability under the SDO and DDO, schools should develop anti-discrimination and anti-harassment policies. For instance, where sexual harassment is concerned, schools are recommended to adopt a policy which:
- states clearly that the school has zero tolerance with regard to sexual harassment;
- sets out the responsibilities of the schools, teachers and students;
- defines and gives examples of sexual harassment;
- lists the rights of victims and the actions which they could take;
- establishes complaint and grievance procedures for victims; and
- adopts disciplinary and preventive measures against sexual harassment.
To protect the position of a school, as well as the interests of its teachers and students, it is important that schools should adopt and implement a policy in line with the guidelines stated above, and ensure that their teachers/students are well aware of such policy (e.g. arranging trainings). This will increase the teachers’/students’ awareness of the prohibition against discrimination/harassment.
A previous case involving a sexual harassment claim by a staff member against a university in Hong Kong demonstrated the importance of implementing such measures. It was held that the university as an employer was not vicariously liable for the sexual harassment perpetrated by its staff member, as it had taken reasonably practicable steps to prevent sexual harassment at school. Such steps included introducing a code of ethics on discrimination and harassment to all its staff members, establishing grievance procedures for handling malicious conduct, and setting up an enquiry panel specifically for the plaintiff’s complaints.
For those schools who have not yet put in place any policy against discrimination/harassment, it is time to put in place a policy, and those who have already got a policy in place, should make sure that suitable trainings are provided to their teachers/students.
For further information, please contact:
Elsie Chan, Partner, Deacons
elsie.chan@deacons.com.hk
