#33 Handling sexual harassment in the workplace: Where are employers getting it wrong?

Welcome back to The Lawyers Talk, the podcast channel of BLawyers Vietnam. We are BLawyers Vietnam, and we are delighted to be with you again in today’s episode.

Today, we will be discussing a sensitive but increasingly important topic in the corporate environment: handling sexual harassment in the workplace.

In practice, this is not only a legal issue, but also a matter of internal governance, corporate culture, and dispute risk management. In this episode, I will focus on 03 key questions:

1. When is a conduct considered sexual harassment in the workplace for disciplinary purposes?;
2. Why do employers still lose cases even when they have grounds to take disciplinary action?; and
3. What should employers prepare in order to avoid being caught off guard when such incidents arise?

1. The 1st question: When is a conduct considered sexual harassment in the workplace?

First of all, it is important to clarify a fundamental issue: when a conduct is legally considered sexual harassment in the workplace.

1. Under the Labor Code 2019, sexual harassment in the workplace is defined as any conduct of a sexual nature by any person towards another person at the workplace that is unwelcome or not accepted by the latter.
2. In terms of manifestation, sexual harassment in the workplace may be classified into 02 main categories:
   1. Quid pro quo conduct, such as making proposals, requests, suggestions, threats, or coercion to exchange sexual relations for any work-related benefits;
   2. Conduct of a sexual nature that is not intended as an exchange, but creates an uncomfortable or hostile working environment, causing harm to the physical or mental well-being, work performance, or personal life of the person being harassed.
3. According to labor law guidance, sexual harassment may take various forms, including:
   1. Physical conduct, including actions, gestures, contact or any physical interaction with the body of a sexual nature or with sexual connotations;
   2. Verbal sexual harassment, including spoken words delivered directly, via telephone or through electronic means, with sexual content or sexual implications;
   3. Non-verbal sexual harassment, including body language, or the display or description of visual materials of a sexual nature, whether directly or via electronic means.

Based on the above regulations, a common practical scenario arises where such conduct occurs during company parties or internal events involving alcohol consumption.

Employers often question whether, in such circumstances, the conduct may still be considered sexual harassment “in the workplace” for disciplinary purposes.

In this context, an important issue that must be clarified is the scope of the “workplace”.

1. Under the Labor Code 2019, the workplace is defined as any location where the employee actually performs work as agreed or as assigned by the employer.
2. Under Decree No. 145/2020/ND-CP, the workplace includes any location where the employee actually performs work as agreed or as assigned by the employer, including locations or spaces related to work such as social activities, seminars, training sessions, official business trips, meals, telephone communications, interactions via electronic means, transportation arranged by the employer between the residence and the workplace, accommodation provided by the employer, and other locations designated by the employer.

Accordingly, activities such as company parties or internal events organized by the employer or directly related to work may, in many cases, still fall within the scope of the “workplace” under applicable laws.

However, in practice, determining the scope of the workplace is not always straightforward. There have been cases where, despite the conduct being considered inappropriate, the employer was unable to impose disciplinary action as it fell outside the scope of regulation.

For instance, in one case, the conduct occurred at approximately 8:00 p.m. on a taxi privately arranged by two individuals following an informal gathering. In this situation, the court considered the timing, location, and nature of the activity, and concluded that the incident no longer fell within the employer’s scope of management. As a result, the disciplinary decision was declared invalid.

Another factor that employers frequently question is the use of alcohol.

Pursuant to Article 122.5 of the Labor Code 2019, “Disciplinary action must not be imposed on an employee who commits a violation while suffering from mental illness or another disease that results in loss of awareness or the ability to control their actions”.

Accordingly, cases where disciplinary action is not permitted due to loss of awareness or control do not include situations where the employee has consumed alcohol.

This is because alcohol consumption does not alter the nature of the misconduct and does not constitute grounds for exempting disciplinary liability for acts of sexual harassment in the workplace.

Therefore, in order to effectively apply these legal provisions in practice, employers must clearly specify in their Internal Labor Regulations: (1) the definition and elements for determining sexual harassment; and (2) the scope of the workplace.

In particular, for employers with 10 or more employees, the Internal Labor Regulations must be in writing and registered with the competent labor authority. In the absence of such regulations, or if they are not sufficiently clear, disciplinary actions in such situations may expose the employer to significant legal risks.

2. The 2nd question: Why do employers still lose cases even when they have grounds to take action against sexual harassment?

The answer lies in a critical factor: the labor disciplinary handling procedure. Notably, in many cases, employers do not lose because they incorrectly identify the misconduct, but because they fail to handle it properly.

1. Pursuant to Article 122 of the Labor Code 2019, labor disciplinary action must strictly comply with mandatory principles and procedures. Specifically, the employer must prove the employee’s fault, ensure the participation of the employees’ representative organization, ensure the employee’s presence and right to present a defence, and record the entire process in written minutes.
   • These requirements are not merely procedural formalities, but mandatory conditions for the legal validity of the disciplinary decision. In practice, there have been numerous cases where employers had clear evidence of misconduct but still lost the case due to procedural violations.
   • For example, in one case, the employer conducted a disciplinary meeting immediately after inviting the employee to a meeting, without ensuring the minimum notice period of at least 05 working days as required by law. The Court opined that this violated the employee’s right to defence, and therefore the dismissal decision was declared invalid.
2. Another common issue relates to improper signing authority. In one case, although there was a valid authorization, the Internal labor Regulations explicitly stipulated that only the legal representative had the authority to sign dismissal decisions.
   • Allowing another person to sign, even if valid under civil authorization, was considered by the court to be inconsistent with the Internal Labor Regulations, rendering the decision legally invalid.
3. In addition, employers should be particularly mindful of several other risks in disciplinary proceedings.
   1. Taking disciplinary action for conduct that is not clearly stipulated in the Internal Labor Regulations, or where such regulations have not been properly registered;
   2. Violating the statutory time limit for disciplinary action, which is generally 06 months from the date of the violation; and
   3. Failing to comply with mandatory procedural requirements, such as the absence of the employees’ representative organization or failure to properly document the proceedings.

In practice, some employers have not established a grassroots trade union, yet their Internal Labor Regulations require the participation of such organization in disciplinary proceedings.

This creates practical difficulties in compliance and may give rise to legal risks if not properly addressed.

From the above, it can be seen that, in cases of workplace sexual harassment, correctly identifying the misconduct is only the first step. The greatest legal risk lies in whether the employer complies with the disciplinary procedure. Under labor law, even a single procedural error may render the entire disciplinary decision, including dismissal, invalid.

3. The 3rd question: What should employers prepare to avoid being unprepared when sexual harassment cases arise?

Looking at the previous two questions, a common issue emerges: employers are generally aware of the risks, but lack a sufficiently clear system to handle them.

In practice, current labor laws mainly provide for principles and procedures of disciplinary action, but do not offer detailed guidance on the initial steps of receiving, verifying, and handling sexual harassment complaints.

As a result, many employers handle such cases on an ad hoc basis, leading to inconsistency and potential legal risks. Therefore, to avoid being reactive, employers should proactively establish several foundational elements.

1. First, Internal Labor Regulations.
   • Under the Labor Code 2019, provisions on prevention of sexual harassment are mandatory contents of Internal Labor Regulations. For employers with 10 or more employees, such regulations must be in writing and registered with the competent labor authority.
   • More importantly, the regulations must not only exist, but must be sufficiently detailed to be practically applicable, including clearly defining prohibited conduct, the scope of the workplace, and principles for handling violations.
2. Second, internal procedures, to be detailed in a Sexual Harassment Prevention Policy.
   • As the law does not provide detailed procedures, employers should proactively design a clear and structured process for receiving, verifying, and handling complaints.
   • For example, it is necessary to clearly identify: who is responsible for receiving complaints, how verification is conducted, and in which cases the matter should be referred to competent authorities, particularly where criminal elements may be involved.
3. Third, mechanisms for confidentiality and protection of involved parties, which should also be incorporated into the Sexual Harassment Prevention Policy.
   • Sexual harassment cases often involve sensitive information. Therefore, employers must ensure the confidentiality of the complainant’s identity, while also safeguarding the accused’s right to respond.
   • In addition, in the current context, employers must pay attention to personal data protection requirements. Information generated during the handling process, such as messages, images or statements, may constitute sensitive personal data and must be processed in accordance with legal requirements on purpose limitation, scope, and appropriate security measures.
4. Finally, an important but often overlooked element is training and awareness.

In practice, many situations do not arise from intentional misconduct, but from a lack of awareness of appropriate behavioural boundaries in the workplace.

Therefore, employers should incorporate sexual harassment prevention into internal training programs, and conduct periodic awareness sessions for employees, particularly for management levels.

Such training should be practical and scenario-based, helping employees understand what constitutes inappropriate conduct and how to respond appropriately in different contexts.

This not only ensures legal compliance, but also contributes to building a safe, respectful and positive working environment. At the same time, it plays an important role in protecting the employer’s reputation in the long term.

Ladies and gentlemen, we have now gone through 03 key questions that employers commonly face when handling workplace sexual harassment cases, from identifying misconduct, to complying with disciplinary procedures, and to building internal systems for risk control.

We hope that these insights provide you with a more practical perspective and useful points to consider in managing human resources within your organization.

If you have any questions or comments, please feel free to leave them below. For more information about BLawyers Vietnam, please visit our website via the link displayed beneath The Lawyers Talk podcast screen.

Thank you for listening, and see you again.

The above is not official advice from BLawyers Vietnam. If you have any questions or suggestions about the above, please contact us at info@blawyersvn.com. We would love to hear from you.

Date: 28 March 2026