The public demand for age discrimination laws in Hong Kong is clear, according to a recent study by the Equal Opportunities Commission’s (“EOC”) which found 70% of employed persons were “supportive” of legislating against age discrimination. Government surveys in 1999 and 2001, which avoided asking respondents whether they favoured legislation, suggested few had themselves suffered age discrimination. By comparison, the 2016 Survey reported that over one-third of respondent employed persons said they had experienced such discrimination in the past five years.
As life expectancy rises, policy dictates that workers should be encouraged to remain in the workplace for longer. However, perceptions of the age at which discrimination is felt seem to remain the same. Workers between 20 and 49 are not feeling discriminated against, whilst those above and below are.
Different countries have vastly differing attitudes to this. In previous generations (since 1945) workers in the UK were much more likely to benefit from occupational pension schemes (and everyone had access to a state pension of meaningful proportions). Retirement age was set at 65 (for men) and 60 (rising to 62) for women. Employment beyond these ages was neither expected nor encouraged. UK workers now in their twenties can expect to work to age 70 at least as the state pension age rises to cope with an ageing population. The general retirement age has been hastily removed, and age discrimination legislation has been in place since 2010.
However, the position in Hong Kong is somewhat different. Whilst the cost of elderly health care is set to increase, this is independent of employment patterns. There is little in the way of state pension provision (at least beyond the public sector), and there is currently full employment (although we could debate the quality of some of that employment). Nevertheless, age discrimination may be alive and well. Workers in their 50s and 60s may: receive lower salaries than other workers in the same position, be denied job promotions, and be targeted for redundancy in organisational restructuring.
Unsurprisingly, the EOC’s recent survey found some employers unsupportive of age discrimination legislation, on the basis that age discrimination was not serious in Hong Kong, or that they might lose flexibility in the recruitment of staff. Such arguments are familiar in the context of discussions in advance of anti-discrimination legislation, but generally do not overcome the arguments in favour of protection as society progresses. Of course, the wording of legislation of this type needs careful thought and moderation. For example, schemes designed to ease the way to early retirement age for some, might be “gamed” by individuals of any age, who claim that age discrimination legislation requires that such a scheme be offered to workers of any age.
If the Hong Kong LegCo does decide to proceed with age discrimination legislation, it will need to consider whether it favours a comprehensive law. This would follow the route taken by the UK’s Equality Act 2010, under which it is unlawful for anyone to treat another person unfavourably because of his/her age in certain contexts, including in employment and vocational training (with exceptions for genuine occupational requirements etc). Alternatively, it could legislate in favour of seniors only (as in the US). Alternatively still, it could cherry pick certain activities (such as job advertisements and termination).
Regardless of the respective merits of such legislation, two things are clear:
In the meantime, employers should be mindful of the possibility of claims for disability discrimination under the Disability Discrimination Ordinance (Cap. 487) in the event of forced retirements of Hong Kong employees otherwise than pursuant to a pre-agreed contractual retirement date.