Malaysian legislation targets sexual harassment

New rules could have significant implications for employers if harassment relates to conduct at work

Malaysian legislation targets sexual harassment

Malaysia recently introduced the Anti-Sexual Harassment Act 2022 (ASHA) which, once fully implemented, will provide an avenue for an individual to bring a sexual harassment claim against another individual before a specially constituted tribunal.

While the tribunal has yet to be set up, several provisions of the ASHA have taken effect since March 2023.

The ASHA was gazetted on 18 October 2022 and would come into operation on a date to be notified by the Minister for Women, Family and Community Development. On 28 March 2023, ss. 1, 2, 24, 25 and 26 of the ASHA came into effect.

These provisions deal with, amongst others, the definition of sexual harassment and the function and powers of the Ministry of Women, Family and Community Development to formulate policy and issue guidelines relating to sexual harassment and to make the necessary regulations in respect of the Tribunal for Anti-Sexual Harassment.

The rest of the provisions are anticipated to take into effect in stages.

Unlike the Employment Act 1955, which only covers workplace-related sexual harassment complaints (those filed by an employee against another employee or their employer, and by an employer against an employee), the ASHA is not limited to sexual harassment in the workplace context.

The ASHA generally defines “sexual harassment” to mean any unwanted conduct of a sexual nature, in any form, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is reasonably offensive or humiliating or is a threat to their well-being.

Tribunal for Anti-Sexual Harassment

The ASHA provides for the setting up of the Tribunal, which will comprise of legally trained and non-legally trained members. Members of the Tribunal will include current or past members of the Judicial and Legal Service, advocates and solicitors with at least seven years’ standing, and individuals who have knowledge of, or practical experience relating to, sexual harassment.

Issues in a sexual harassment complaint filed before the Tribunal may not be the subject of proceedings between the same parties in any court, except in certain circumstances, including where the complaint involves criminal conduct.

All hearings before the Tribunal are closed to the public, and parties may not be represented by a lawyer unless the matter involves complex issues of law.

The Tribunal may order the respondent to:

  • Issue a statement of apology to the complainant (including to publish the apology if the act was carried out in public)
  • Pay compensation or damages not exceeding RM 250,000 (approximately USD$54,000) for any loss or damage suffered by the complainant
  • Attend any programme as the Tribunal thinks necessary.

The Tribunal may dismiss a complaint of sexual harassment which the Tribunal considers to be frivolous or vexatious.

Key takeaways

While the ASHA does not specifically deal with sexual harassment in the employment context, it will have significant implications on employers if the conduct relates to conduct at work (between employees or between an employee and a third party) or if it is filed by an employee against another employee (relating to conduct at or outside of work).

The Tribunal has wide powers to administer the proceedings, including to:

  • Order the preservation and interim custody of any evidence.
  • Summon any person to attend the proceedings to give evidence or to produce any document or record in their possession or otherwise to assist the Tribunal.

Where the complaint relates to conduct at work or relates to conduct between two employees, it is possible that an order be issued to the employer preserve evidence, or to summon the employer or another employee to attend the proceedings.

Additionally, employees are not prevented from filing a claim before the Tribunal even if they have already filed an internal grievance complaint with the employer, and regardless of the outcome of any internal investigation conducted by the employer.

As sexual harassment complaints under the ASHA may have a trickle-down effect to the workplace, it is crucial for employers to have robust policies to deal with sexual harassment at work, including to keep a proper record of grievances and investigations, and to consider from a governance-perspective the implications of complaints being made relating to conduct at work or by an employee.

Fatim Jumabhoy is the Asia Head of Employment, Pensions, and Incentives and Managing Partner of Herbert Smith Freehills in Singapore. Nurul Ayu Fajarani is an associate in the Employment, Pensions, and Incentives practice at Herbert Smith Freehills in Singapore.

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