Imposing Criminal Liability on Employers

2 Ms Anthea Ong asked the Minister for Law (a) whether an extension of the Protection from Harassment Act to cover entities will impose vicarious liability onto employers; and (b) if not, whether the Government plans to move away from the present individual criminal liability-based approach.

The Senior Parliamentary Secretary to the Minister for Home Affairs (Ms Sun Xueling) (for the Minister for Law): Mr Speaker, Sir, I am taking this question on behalf of the Minister for Law. For part (a) of the Parliamentary Question by the Member, the Protection from Harassment Act (POHA) covers both entities, such as companies, and individuals. Apart from POHA, there are many pieces of legislation that cover both entities and individuals. That is the norm. The Penal Code is one example. Likewise, in the Protection from Online Falsehoods and Manipulation Act (POFMA), the word "person" refers to individuals in Part 3 and to entities such as internet platforms and mass media service providers in Part 4.

The law, meaning Common Law, provides for various ways of attributing vicarious liability. Nothing in POHA specifically rules this out. Likewise, there are principles laid down in case law, establishing when an individual can be held criminally liable for the acts of an entity. Let me give an example.

POFMA empowers a Minister to issue Directions to an Internet intermediary. If an intermediary fails to comply with a Direction without reasonable excuse, its executives may be held liable for that non-compliance if, for example, they are found to have abetted the non-compliance. They may be found to have abetted the non-compliance if they had, amongst other things, suggested, supported, or encouraged the non-compliance – whether by words or by their silence. This is as per existing law.

The Member’s second question is whether the Government plans to move away from the present "individual criminal liability based approach". Criminal liability can be imposed on both entities and individuals, when they commit criminal offences. That is already the position in law today.

Ms Anthea Ong (Nominated Member): I thank the Senior Parliamentary Secretary for the response. Could I please follow up with two supplementary questions? The first is, I understand that in POHA, as much as entities are included, they are included insofar as they can seek protection from harassment, but they are not actually liable if they are the ones harassing. So, the Senior Parliamentary Secretary clarify that because I think that is the understanding that we have of POHA?

In relation to the question being specific to the employer, the concern here is about workplace harassment. So, whether the employer has the liability in addition to responsibility in maintaining a workplace that is free from harassment and violence?

I would also like to understand what was the intention behind us extending POHA to include entities in terms of being protected but not in terms of them being liable as the harassing party.

Ms Sun Xueling: I thank the Member for her supplementary questions. I think the third and first questions are in a way related, so I will try and handle them together. POHA was amended in May this year to clarify that entities can be liable for contraventions and that entities can be victims and seek relief under POHA. But I would like to add that in section 3 of POHA, an individual or entity must not, with intent, cause harassment, alarm or distress to another person by a series of means. There is a part (a), part (b) and part (c) to it. So, actually, the entities can be criminally liable. It is actually already expressly provided for in the provisions themselves. So, that is section 3, subsection (1), for harassment under POHA.

Under section 5 of POHA, it also states that an individual or entity must not by any means use towards another person any threatening, abusive or insulting communication to another person. So, there are sections in POHA which make it quite clear that entities can be criminally liable. So, that is one set of the Member's questions.

On the second question, I would just like to add that there are challenges involved in creating new rules relating to corporate criminal responsibility. I take her point that there is a need to protect employees from harassment but on the other hand, there is also a need to ensure that the burden on businesses or employers is not unduly onerous. Any proposed changes must be thoroughly thought out. This was a point that was also made by the Penal Code Review Committee in its report.

Yesterday, I heard the exchange that the Member had with Minister for Manpower Josephine Teo. It was in relation to Singapore's abstention from the vote on the ILO's Convention on Workplace Violence and Harassment. Without repeating the details that transpired, Minister Josephine Teo had talked about how MOM has put in place practical measures to eliminate workplace violence and harassment, and also that employers must meet the Tripartite Guidelines on Fair Employment Practices. So, I think that is another means, apart from criminal law, whereby employees can seek comfort in.