Taiwan Update: HR Investigations Rising in Importance

Sexual harassment in the workplace can be divided into two types under the Gender Equality in Employment Act (GEEA). The first type is hostile-workplace sexual harassment, which occurs when an employee is at work and an employer, co-worker, or customer uses sexual advances, or sexually explicit or sexist words or behaviours to create a hostile, intimidating, or offensive work environment, which infringes or interferes with the employee’s personal dignity and personal freedom or affects the employee’s work performance. 

The second type in the workplace emphasizes the role of a power dynamic (namely the relationship between superiors and subordinates). In this type, an employer uses the power of their position to make explicit or implicit sexual demands, makes sexually explicit or gender-discriminatory remarks, or uses any other verbal or physical conduct of a sexual or gender discriminatory nature towards employees or job applicants as an exchange for some employment-related benefits. 

In order to prevent employees from suffering continuous sexual harassment, the following three situations are also included in the enforcement scope of the GEEA: 

1. Suffering from continuous sexual harassment by the same person in the company during non working hours; 
2. Suffering from continuous sexual harassment during non-working hours by the same person within other entities which the company works with or has business relationships with;
3. Suffering sexual harassment from the top responsible person or employer during non-working hours. 

Upon becoming aware of any incident of sexual harassment, GEEA Article 13 requires employers to undertake corrective action and remedial measures while caring for the safety and privacy of victims. The law positions employersto be on the side of the victims. Employers are required to help victims with filing a grievance and preserving evidence and notifying police if necessary. Employers must also review the safety of the place where an incident has occurred. Under Article 36 of the GEEA, during the course of investigating and reviewing a reported incident, an employer must not act in any discriminatory or retributory manner toward the complainant or any employee who assists others in filing complaints. 

Similar provisions are also found in the Sexual Harassment Prevention Act. 

Don’t “BYOD” 

In recent years, it has been fashionable for companies to let employees “bring your own device.” The reason is ostensibly because the employees will be happier using the brand of phone, tablet or computer they prefer. The problem with this arises during an investigation of wrongdoing or in the aftermath of a termination: employers have little to no control over these devices. An employer may be able to shut off intranet and email access to ex-employees, but it is difficult, to the point of impossibility, to get timely access to any electronic device that does not explicitly belong to the company. 

A few years back, a European company used monitoring software to confirm that one of its Taiwan employees was leaking their trade secrets – future product plans, specs, designs, etc. – by copy/pasting them into private emails sent from his work computer. In another matter, a European company discovered that a recently fired employee’s still-powered-up Apple phone was displaying new messages in which secrets were being offered between the ex-employee and a competitor’s manager in the People’s Republic of China. These cases turned out well, but their results hinged on the company owning the devices and having full access to them. 

Messaging Apps in the office 

A lot of managers wrongly think that just because they used WhatsApp or Line to send horrible messages to employees, it is “private” and can’t be reviewed by a court. We’ve seen aggrieved employees pull out binders filled with hundreds of pages of messaging screenshot printouts, all of which could be produced at trial. Conversely, we have seen employees present very thorough defences against misconduct allegations with similar messaging screenshots to demonstrate context and timing. Within many offices, there are informal messaging groupsthat, when abused, can be filled with content that can be defamatory and poisonous to a good working environment. 

What to do if you’re in an investigation 

In addition to our work for multinationals, we have sometimes been hired by senior managers to counsel them on how to respond to an investigation. It is important to be honest, not to lie, to provide documents and information that will shed light on what happened, and to engage with the process in a good-faith manner. Establishing a chronological timeline is important, and organizing email copies and message screenshots to allow an appropriate and clear explanation is essential.

We have cleared a significant number of managers from allegations of wrongdoing, both in our role as investigators acting on behalf of the company or in our work as advocates for the executives. In these cases, the managers engaged with the investigation in an open and forthcoming manner, provided context, and did not hide or mischaracterize evidence. 

From the complainant’s side, it is important to speak up when something wrong happens, and it’s important to be fair and accurate in characterizing the actions and communications, both in the complaint and in the investigation process afterwards. The global policies used by multinationals and Taiwan’s laws have gradually evolved to support an environment where employees can speak up and be heard. 

A version of this article appeared in Euroview magazine on March 26, 2024.  

By Eiger, Taiwan, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact taiwan@transatlanticlaw.com

Disclaimer: Transatlantic Law International Limited is a UK registered limited liability company providing international business and legal solutions through its own resources and the expertise of over 105 affiliated independent law firms in over 95 countries worldwide. This article is for background information only and provided in the context of the applicable law when published and does not constitute legal advice and cannot be relied on as such for any matter. Legal advice may be provided subject to the retention of Transatlantic Law International Limited’s services and its governing terms and conditions of service. Transatlantic Law International Limited, based at 84 Brook Street, London W1K 5EH, United Kingdom, is registered with Companies House, Reg Nr. 361484, with its registered address at 83 Cambridge Street, London SW1V 4PS, United Kingdom.