Power Harassment Policy Drafting in Japan — Detailed Explanation

In Japan, power harassment (パワーハラスメント / pawa-hara) policy drafting should be based primarily on the Act on Comprehensive Promotion of Labor Policies, particularly the employer's obligation to take employment-management measures against workplace power harassment, together with the Ministry of Health, Labour and Welfare (MHLW) guidelines.

The statutory prevention measures became mandatory for large employers from 1 June 2020 and for small and medium-sized employers from 1 April 2022.

1. Meaning of power harassment

Under the MHLW guideline, workplace power harassment requires all three of the following:

1. A superior relationship or advantageous relationship in the workplace;
2. Conduct that exceeds the necessary and reasonable scope of work; and
3. Conduct that harms the employee's working environment.

The concept is therefore broader than simply "abuse by a manager." A person without formal managerial authority may potentially engage in power harassment where they have a sufficiently advantageous relationship—for example, because of expertise, influence, group position, or practical control over the victim.

A policy should also expressly state that legitimate management, instruction, performance management and disciplinary action are not automatically harassment when objectively necessary and reasonably conducted.

2. Core elements that a Japanese power-harassment policy should contain

A. Purpose

The policy should explain that its objectives are to:

• prevent power harassment;
• protect employees' dignity and working environment;
• establish reporting and consultation mechanisms;
• ensure prompt and impartial investigation;
• prevent retaliation;
• protect confidentiality;
• take proportionate corrective action; and
• prevent recurrence.

The MHLW framework specifically requires employers to clarify their policy and communicate it to employees, including managers and supervisors.

B. Scope of application

The policy should cover:

• directors and officers;
• managers;
• supervisors;
• permanent employees;
• fixed-term employees;
• part-time employees;
• temporary/dispatch workers;
• interns and trainees where appropriate;
• contractors and other workplace participants where relevant.

It should also cover conduct occurring through:

• offices;
• business trips;
• meetings;
• training;
• business dinners or workplace events;
• telephone communications;
• email;
• messaging applications;
• video conferences;
• remote-work environments; and
• other work-related digital communications.

The policy should avoid limiting harassment to conduct occurring physically inside the office.

3. The six MHLW categories

A particularly useful drafting technique is to reproduce the six typical categories identified by MHLW, while expressly stating that the list is not exhaustive. MHLW itself describes six typical categories and cautions that they do not encompass every possible form of power harassment.

1. Physical attacks

Examples:

• hitting;
• kicking;
• pushing;
• throwing objects;
• physically restraining an employee.

The policy should make clear that physical violence is prohibited regardless of whether the perpetrator describes it as "discipline," "training," or "joking."

2. Psychological attacks

Examples:

• abusive language;
• humiliating an employee publicly;
• shouting aggressively;
• repeated personal insults;
• threats;
• degrading comments;
• deliberately humiliating criticism.

This category is especially important because management can legitimately criticize performance, but criticism must remain within an appropriate business-related framework.

3. Isolation from human relationships

Examples:

• deliberately excluding an employee from necessary meetings;
• isolating an employee from colleagues;
• refusing necessary workplace communication;
• deliberately creating an environment intended to force resignation.

4. Excessive demands

Examples:

• assigning impossible workloads;
• demanding work beyond the employee's reasonable capacity without justification;
• imposing unreasonable deadlines;
• repeatedly assigning work unrelated to the employee's role for punitive purposes.

5. Insufficient demands

Examples:

• deliberately assigning meaningless work;
• removing meaningful responsibilities as punishment;
• systematically giving an employee work far below their position without legitimate business reasons.

6. Invasion of privacy

Examples:

• unnecessarily probing private matters;
• exposing personal information;
• discussing an employee's private circumstances with colleagues;
• using personal information to humiliate or intimidate the employee.

These six categories should be presented as examples rather than an exhaustive checklist.

4. Distinguishing legitimate management from power harassment

This is one of the most important parts of the policy.

A poorly drafted policy may say simply:

"Managers must not criticize employees."

That is inappropriate because Japanese employers retain legitimate authority to:

• allocate work;
• evaluate performance;
• give instructions;
• correct mistakes;
• impose reasonable deadlines;
• conduct disciplinary procedures;
• reorganize work; and
• provide performance improvement directions.

The policy should instead establish a reasonableness test.

Relevant factors include:

• the purpose of the instruction;
• the necessity of the instruction;
• the circumstances in which it was given;
• the employee's position and experience;
• the manner and tone of communication;
• whether the conduct was repeated;
• whether the conduct occurred publicly or privately;
• the degree of psychological or physical distress;
• the relationship between the parties; and
• whether less harmful methods were reasonably available.

MHLW's guideline similarly requires consideration of the circumstances of the individual case rather than applying a mechanical test.

5. Policy statement

The policy should contain a clear prohibition such as:

The company prohibits workplace power harassment and will not tolerate conduct that, based on a superior or otherwise advantageous workplace relationship, exceeds the necessary and reasonable scope of work and harms an employee's working environment.

It should also prohibit retaliation against:

• complainants;
• witnesses;
• persons cooperating with investigations; and
• employees seeking advice.

MHLW specifically requires employers to protect privacy and ensure that employees are not subjected to disadvantageous treatment for consulting about harassment or cooperating with fact-finding.

6. Reporting and consultation mechanism

The policy should establish a clearly identifiable harassment consultation channel.

It should specify:

• who can receive complaints;
• how complaints can be made;
• whether anonymous consultations are possible;
• whether complaints can be made orally or in writing;
• whether an external hotline is available;
• how urgent situations are handled;
• how confidentiality is protected; and
• what happens after a complaint is received.

The MHLW guideline requires employers to establish a mechanism capable of appropriately and flexibly responding to consultations.

A combined consultation system for power harassment, sexual harassment and other workplace harassment is expressly contemplated by the MHLW framework.

7. Investigation procedure

A strong policy should create a defined investigation process.

Stage 1 — Receipt

Record:

• date;
• complainant;
• alleged perpetrator;
• description of conduct;
• location;
• witnesses;
• documents/evidence;
• immediate safety concerns.

Stage 2 — Preliminary assessment

Determine whether immediate protective measures are required.

Examples:

• temporary reporting-line changes;
• separation of the parties;
• temporary reassignment;
• remote-work arrangements;
• leave or other protective measures.

Such measures should not themselves become disguised punishment of the complainant.

Stage 3 — Fact-finding

Interview:

1. complainant;
2. alleged perpetrator;
3. witnesses;
4. relevant managers.

Review:

• emails;
• chat messages;
• work records;
• attendance records;
• performance documents;
• meeting records;
• relevant CCTV or other lawful evidence.

Stage 4 — Findings

The investigator should distinguish:

• established facts;
• disputed facts;
• corroborated evidence;
• uncorroborated allegations;
• credibility issues.

Stage 5 — Decision

The company should determine:

• whether the conduct violated the policy;
• whether it violated employment rules;
• whether disciplinary action is appropriate;
• whether corrective workplace measures are necessary.

Stage 6 — Follow-up

After the investigation:

• prevent retaliation;
• monitor the workplace;
• provide appropriate support;
• correct management practices;
• conduct training;
• reassess risk of recurrence.

MHLW requires prompt and accurate fact-finding, appropriate action toward the victim and perpetrator, and measures for preventing recurrence.

8. Confidentiality provisions

A policy should expressly state that investigation information will be handled confidentially.

However, it should avoid promising absolute confidentiality, because an investigation may require disclosure to:

• investigators;
• HR personnel;
• legal advisers;
• management decision-makers;
• witnesses;
• relevant external professionals.

A better formulation is:

Information will be disclosed only to persons who reasonably need the information for consultation, investigation, protection, decision-making or legal compliance.

This approach is consistent with the MHLW emphasis on privacy protection.

9. Anti-retaliation clause

This should be a separate provision.

Prohibited retaliation should include:

• dismissal;
• demotion;
• reduction of responsibilities;
• unjustified negative evaluation;
• reduction of opportunities;
• exclusion from meetings;
• undesirable transfer;
• intimidation;
• threats;
• ostracism;
• adverse treatment of witnesses.

A complaint should not become the basis for automatically treating either party as guilty.

The policy should protect both complainants and accused employees from improper retaliation.

10. Disciplinary consequences

The policy should connect harassment to the company's work rules and disciplinary regulations.

Possible measures include:

• warning;
• reprimand;
• suspension;
• demotion where legally permissible;
• reassignment;
• other disciplinary measures;
• dismissal in sufficiently serious circumstances.

The exact sanction should depend on:

• seriousness;
• frequency;
• duration;
• intent;
• position of the perpetrator;
• harm caused;
• previous misconduct;
• cooperation with investigation;
• recurrence.

MHLW specifically contemplates establishing a policy explaining that perpetrators will be dealt with strictly and communicating the applicable disciplinary measures to employees.

11. Manager-specific provisions

Because managers exercise organizational power, the policy should impose additional responsibilities on them.

Managers should be required to:

• communicate respectfully;
• document significant performance concerns;
• avoid public humiliation;
• distinguish performance criticism from personal attacks;
• intervene when they observe harassment;
• escalate complaints;
• avoid retaliatory conduct;
• cooperate with investigations.

A manager should not be able to argue:

"I was only exercising management authority."

The issue is whether the particular exercise of authority remained within the necessary and reasonable scope of work.

12. Training requirements

A policy should require periodic training covering:

• definition of power harassment;
• six typical categories;
• legitimate management;
• reporting procedures;
• confidentiality;
• retaliation;
• investigation responsibilities;
• manager responsibilities;
• digital/remote harassment;
• bystander responsibilities.

MHLW expressly recognizes training as an appropriate means of communicating the policy and its background to employees.

13. Digital and remote-work harassment

Modern policies should expressly address:

• abusive Slack/Teams messages;
• repeated hostile emails;
• humiliating comments during video meetings;
• deliberately excluding employees from online meetings;
• excessive after-hours messaging;
• unreasonable digital monitoring;
• public criticism in group chats;
• recording meetings for intimidation;
• misuse of employee information online.

This is increasingly important because a policy restricted to "office conduct" can leave substantial gaps in remote and hybrid workplaces.

14. Bystander obligations

The policy should not place responsibility only on victims.

Employees should be encouraged to:

• report serious incidents;
• preserve relevant evidence;
• cooperate with investigations;
• avoid spreading rumors;
• avoid retaliating against either party.

The MHLW framework recognizes employee responsibilities concerning understanding harassment and cooperating with employer prevention measures.

15. Six important Japanese case laws

1. Toshiba Fuchu Factory Case

Tokyo District Court, Hachioji Branch, 1 February 1990

This is an important case concerning strict managerial instruction.

The case demonstrates that strong criticism or workplace instruction does not automatically become unlawful harassment. The circumstances, purpose and manner of the managerial conduct matter. MHLW uses the case in its discussion of cases involving supervisors' warnings and instructions.

Policy lesson:
A policy must preserve legitimate performance management and avoid defining every harsh instruction as harassment.

2. Nihon Fund (Power Harassment) Case

Tokyo District Court, 27 July 2010

Three employees sued their supervisor and employer for power harassment. The court recognized particular conduct as unlawful and awarded damages; in one employee's case, the court also recognized a relationship between the harassment and a depressive condition, leave and associated losses.

Policy lesson:
The policy should cover both the individual perpetrator and organizational responsibility, including situations where workplace management fails to respond appropriately.

3. Nihon Doken Case

Tsu District Court, 19 February 2009

The court found the company's response to power harassment by a senior employee constituted a breach of the employer's duty to prevent harassment and also constituted an unlawful act.

Policy lesson:
A company can face legal exposure not only because harassment occurs, but because it fails to respond appropriately after becoming aware of it.

4. Kokusai Shinpan Case

Tokyo District Court, 9 July 2002

A series of workplace actions, including isolation and assignment practices, were found to constitute harassment aimed at causing the employee to leave. Liability was imposed on the relevant corporate representatives and the company.

Policy lesson:
The policy should address cumulative conduct, not merely isolated incidents. Several individually ambiguous actions can collectively constitute unlawful workplace harassment.

5. Yodobashi Camera and Others Case

Tokyo District Court, 4 October 2005

The case involved physical violence and forced apology. The court treated the conduct as unlawful and imposed liability in relation to the harassment.

Policy lesson:
The policy should expressly prohibit physical aggression and coercive humiliation and should make clear that "training," "discipline" or "customer-service instruction" cannot justify violence.

6. Meikou Advance Case

Nagoya District Court, 15 January 2014

The case concerned repeated physical violence, power harassment and pressure to resign. The court recognized a causal relationship between unlawful conduct and the employee's death and ordered substantial damages against the company and an executive.

Policy lesson:
Harassment policies should have an early intervention mechanism, particularly where there are repeated incidents, threats, violence, resignation pressure or serious deterioration in an employee's condition.

16. Additional useful case: Kofu City/Yamanashi Prefecture

Kofu City/Yamanashi Prefecture (Municipal Elementary School Teacher) Case, Kofu District Court, 13 November 2018

A school principal required a teacher to apologize in circumstances involving unreasonable demands from a student's parents. The court found the principal's response constituted power harassment and an unlawful act giving rise to damages.

Drafting lesson:
The policy should cover situations where a manager's response to external pressure from customers, clients, parents or business partners itself becomes abusive toward an employee.

17. Recommended structure of the actual company policy

A Japanese company's policy can be structured as follows:

18. Key drafting principles

A legally robust Japanese power-harassment policy should therefore follow seven principles:

1. Define rather than merely prohibit.
Employees must understand what constitutes prohibited conduct.

2. Use the MHLW three-element test.
This prevents the policy from becoming either excessively broad or unnecessarily narrow.

3. Include the six typical categories.
But expressly state that they are examples and not exhaustive.

4. Protect legitimate management.
Performance criticism and disciplinary action should not automatically be classified as harassment.

5. Make investigation obligations concrete.
"Complaints will be investigated" is weaker than a defined procedure for intake, interviews, evidence, findings and corrective measures.

6. Protect against retaliation.
This is an essential component of the statutory prevention framework.

7. Treat failure to respond as a compliance risk.
The Japanese case law demonstrates that employer response—or failure to respond—can itself become legally significant.

Conclusion

In Japan, a power-harassment policy should not be drafted simply as an anti-bullying statement. It should function as a complete HR governance system covering definition, prevention, management conduct, reporting, investigation, confidentiality, interim protection, disciplinary action, retaliation protection and recurrence prevention. The MHLW framework makes policy clarification, consultation mechanisms, appropriate investigation/response, privacy protection and anti-retaliation measures central components of the employer's obligations.

The case law further demonstrates why the policy must distinguish legitimate management from abusive conduct, address cumulative harassment, impose responsibilities on employers after complaints, and provide effective mechanisms for early intervention.