By Hong Tran, Partner, Mayer Brown
Jennifer Tam, Partner, Mayer Brown
Since the outbreak of COVID-19 last year, dealing with workplace and business issues brought by the public health situation has been a priority for most Hong Kong employers. Despite this, organisations should not lose sight of the recent and upcoming changes and developments in Hong Kong employment law. In this article, we take a look at some changes that have recently been introduced or are planned, and what employers should do
1. Passage of Anti-Breastfeeding Discrimination and Harassment Law in Hong Kong
The protection against unlawful breastfeeding discrimination and unlawful breastfeeding harassment under the Sex Discrimination Ordinance (SDO) came into force on 19 June 2021. Under the SDO, a woman will be treated as breastfeeding if she is engaged in the act of breastfeeding a child or expressing breast milk, or is a person who feeds a child with her breast milk. There are two types of unlawful breastfeeding discrimination, direct and indirect discrimination.
• Direct discrimination: An employer will be taken to have unlawfully and directly discriminated against an employee on the ground of breastfeeding if it treats her less favourably than it would treat those who are not breastfeeding in the same or not materially different circumstances.
• Indirect discrimination: Indirect discrimination arises where a condition or requirement is applied to everyone equally, but the proportion of women who are breastfeeding can comply with the condition or requirement is considerably smaller than the proportion of those who are not breastfeeding. Women who are breastfeeding suffer a detriment as a result and the condition or requirement is unjustifiable. There are two forms of unlawful harassment of breastfeeding women, namely unwelcome conduct harassment and hostile environment harassment.
• Unwelcome conduct harassment: A person engages in unwelcome conduct, which a reasonable person, having regard to all the circumstances, would anticipate that the breastfeeding woman would be offended, humiliated or intimidated by that conduct.
• Hostile or intimidating environment harassment: A person, alone or with others, engages in conduct which creates a hostile or intimidating environment for the breastfeeding woman. Employers should review and update their antidiscrimination and harassment policies to ensure that they reflect these changes. Employers should also update the training they provide, to take account of the changes in the legislation and offer refresher training to its employees.
2. Hong Kong Equal Opportunities Commission Issues Guidance on Breastfeeding Discrimination
As mentioned, the protection against unlawful breastfeeding discrimination came into force on 19 June 2021. In November 2020, the Equal Opportunities Commission (EOC) released a guidance for employers on equality for breastfeeding women and a leaflet on breastfeeding discrimination in the workplace, to provide guidance and information to employers.
The guidance and leaflet do not have legislative force. However, non-compliance may mean the employer’s practice does breach the SDO and that non-compliance with EOC’s guidance may be used against the employer in the event of a complaint or claim. It is a defence to unlawful harassment and discrimination under the SDO for an employer to demonstrate that it has taken such steps as are reasonably practicable to prevent its employees from engaging in any unlawful acts of discrimination. If the employer fails to follow the EOC’s guidance, then that may mean the employer is unable to demonstrate that it has taken reasonably practicable steps.
3. Hong Kong Privacy Commissioner Issues Guidance Notes on Work-from-Home Arrangements
For some companies, working from home (WFH) has become the new norm since 2020. Although WFH arrangements are a means of ensuring social distancing, they may also give rise to personal data privacy risks. On 30 November 2020, the Privacy Commissioner
for Personal Data, Hong Kong issued three guidance notes for the handling of personal data connected with work-from-home arrangements. The guidance notes aim to provide practical advice to organisations, covering employers, employees, and users of video conferencing software, to enhance data security and the protection of personal data privacy.
Although the guidance notes are not statements of law and employers have no legal obligation to follow the recommendations stated in them, employers that comply with the recommendations are unlikely to breach the Personal Data (Privacy) Ordinance (PDPO). It is important to note that employers have to continue to address their obligations as a data user under the PDPO in a WFH environment. Employers’ legal obligations as a data user are no different in a WFH arrangement than those in an office environment. However, the circumstances around how personal data may be used, stored, and handled will be different in a WFH setting and employers need to cater for that. For example, employers should consider the impact of handling personal data and confidential information in a WFH environment, implement appropriate protection, and review its policies to ensure adequate protective measures are in place against malware/viruses and strengthen its
4. Enhanced Statutory Maternity Benefits and Reimbursement of Maternity Leave Pay Scheme
The increase in statutory maternity leave to 14 weeks under the Employment (Amendment) Ordinance 2020 took effect on 11 December 2020. Eligible employees whose confinement occurs on or after this date are entitled to 14 weeks of statutory maternity leave instead of the previous entitlement of 10 weeks. Employers should be aware of their employees’ entitlement to statutory maternity leave and maternity leave pay. The Government has committed to reimbursing employers payment in respect of the four weeks extended period of maternity leave. The maternity leave pay which the Government will reimburse for the four additional weeks of maternity leave is capped at HK$80,000 per employee.
Employers may apply for reimbursement under the Reimbursement of Maternity Leave Pay Scheme if:
• The employee relevant to the application is entitled to maternity leave and maternity leave pay under the Employment Ordinance;
• The employee has taken her maternity leave and the employer (i.e. the applicant) has paid 14 weeks of maternity leave pay to the employee;
• The employee’s confinement occurs on or after 11 December 2020; and
• The additional four weeks’ maternity leave pay paid to the employee by the applicant has not been, and will not be, covered or subsidised by other government funding.
Employers should update their policies, handbooks, and internal guidelines to bring them in line with the latest statutory requirements.
5. Greater Bay Area Youth Employment Scheme
In the Chief Executive’s 2020 Policy Address, it was announced that the Government would create employment opportunities for local university graduates. The Government has now launched the Greater Bay Area Youth Employment Scheme (GBA Scheme) which provides 2,000 posts, with approximately 700 posts designated for the innovation and technology sector. Enterprises participating in the GBA Scheme can apply for a monthly allowance for each eligible graduate. It is important to note that the GBA Scheme entails a cross-border employment arrangement under a Hong Kong contract. As such, apart from the obligations under the relevant Hong Kong legislation including the Employment Ordinance (e.g. to provide the statutory leave benefits) and Occupational Safety and Health Ordinance (e.g. to provide a safe and healthy work environment), employers will also need to comply with any applicable local PRC law. It is therefore important for employers to seek legal and tax advice to understand their obligations and structure the arrangement appropriately, before sending the employees to work in GBA Mainland cities.
6. Employment (Amendment) Bill 2021 Gazetted - Five More Statutory Holidays by 203
The Employment (Amendment) Bill 2021 (the “Bill”) was gazetted on 5 March 2021. The Bill seeks to increase the number of statutory holidays under the Employment Ordinance from the current 12 days to match the 17 gazetted general holidays. Under the Bill, the number of statutory holidays will increase from 12 days to 17 days progressively from 2022 to 2030.
These five new statutory holidays are:
1. The Birthday of Buddha, being the eighth day of the fourth lunar month (starting from 1 January 2022);
2. The first weekday after Christmas Day (starting from 1 January 2024);
3. Easter Monday (starting from 1 January 2026);
4. Good Friday (starting from 1 January 2028); and
5. The day following Good Friday (starting from 1 January 2030).