This article was written by Peter Bullock and Francois Tung.
In this alert, we provide an update on two recent changes in employment law. The first one relates to improvements to maternity benefits and the second relates to expansion of coverage of discrimination laws.
On 17 July 2020, the Employment (Amendment) Ordinance 2020 (the “Amendment Ordinance”) was gazetted. The Amendment Ordinance is expected to come into effect by the end of this year, one year earlier than originally planned by the Government.
Once the Amendment Ordinance comes into effect, it will repeal and amend certain parts of the Employment Ordinance to include:
- extending the statutory maternity leave entitlement from 10 weeks to 14 weeks;
- reimbursing employers’ payment of the 4 additional weeks of maternity leave at a maximum of HK$80,000 per employee (the Government is expected to announce details of this reimbursement scheme in 2021);
- shortening the pregnancy period as defined in "miscarriage" from 28 weeks to 24 weeks. This means that a woman suffering miscarriage after 24 weeks of pregnancy will be entitled to maternity leave; and
- entitling a female employee to sickness allowance if a certificate of attendance for a medical examination in relation to her pregnancy is presented as proof.
Expansion of discrimination protection
On 19 June 2020, the Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 was gazetted to commence with immediate effect (save for amendments to breastfeeding which comes into effect 12 months later). The existing provisions are amended to enhance the protection against discrimination and harassment in different situations.
The key changes are as follows.
The Sex Discrimination Ordinance (Cap. 480) (“SDO”) will be amended to cover breastfeeding as a ground for unlawful discrimination. According to the SDO, a woman engaging in the act of breastfeeding a child or expressing breast milk, or feeding a child with her breastmilk will be considered to be breastfeeding.
An employer will be liable for direct discrimination if he or she treats a breastfeeding woman less favourably than someone who is not breastfeeding. Moreover, indirect discrimination will be found where a requirement or condition applicable to all persons is unjustifiable and detrimental to breastfeeding women.
Expanded meaning of race and racial group
The Race Discrimination Ordinance (Cap. 602) (“RDO”) has been amended to provide for racial discrimination as well as harassment by imputation. A person will be held liable for discriminating against or harassing someone based on an impression that he / she is of a particular race or belongs to a particular racial group.
Protection for “associate” against discrimination and harassment
The RDO has been widened such that the scope of protection against direct discrimination and harassment includes the race of the person's "associate" instead of just "near relative".
The term “associate” shares the same meaning under the Disability Discrimination Ordinance (“DDO”) and the RDO. It covers a spouse of the person, another person who is living with the person on a genuine domestic basis, a relative of the person, a carer of the person, or another person who is in a business, sporting or recreational relationship with the person.
Harassment in relation to provision of goods
New provisions have been added to the DDO and RDO to protect a provider of goods, services or facilities from disability and racial harassment from customers. Before the amendments, only customers are offered such protection from the providers.
Harassment taking place outside Hong Kong but on a Hong Kong registered ship, aircraft or dynamically supported craft is within the ambit of the new laws.
Harassment at workplace
The DDO, RDO and SDO have introduced amendments regarding sexual, racial and disability harassment. Under the new provisions, unlawful discrimination or harassment arise when the claimant and respondent are "workplace participants" in the same workplace, whether an employment relationship exists or not. The meaning of "workplace participant" includes an employee, an employer, a contract worker, a commission agent, the principal of a contract worker or commission agent, a partner in a firm, an intern and a volunteer.
In particular, the person engaging an intern or volunteer may be held vicariously liable for the acts committed by that intern or volunteer, even without his or her knowledge and approval. However, it is a defence for the person to prove that reasonably practicable steps have been taken to prevent the intern or volunteer from doing the act in question or acts of that description.
Harassment by clubs
The DDO and SDO have been amended such that it is now unlawful for a club or the management committee (or its members) of a club to sexually harass or discriminate a person, who is, or has applied to be a member of the club.
Award of damages
The requirement of an intention to discriminate prior to awarding damages under the Family Status Discrimination Ordinance (Cap. 527) (“FSDO”), RDO and SDO has now been removed. As a result, a successful claimant can obtain damages for any unintentional act of indirect sex, race or family status discrimination committed on or after 19 June 2020.
What should employers do?
In light of the above, employers should review and revise the employment benefits and anti-discrimination policies to ensure their compliance with the new laws. Employers should also be aware of vicarious liability arising from the acts done by employees and/or work participants in the workplace.
In order to rely on the legal defence as mentioned in the section “Harassment at workplace” above, employers will need to take all reasonably practicable steps. As a minimum, this is expected to mean putting in place, and demonstrating a commitment to enforce, the anti-discrimination policies and providing regular compulsory training to staff.
Any reference to “Hong Kong” or “Hong Kong SAR” shall be construed as a reference to “Hong Kong Special Administrative Region of the People’s Republic of China”.