12 May, 2017
1. Reinstatement proposal goes to the legislature
We previously wrote about a proposal to allow the Labour Tribunal to issue an award for reinstatement or re-engagement of a claimant employee. Since our update in February 2016, the Employment (Amendment) Bill 2016 (the “2016 Bill”) has been scrutinised and consensus has now been reached; the original legislative proposal will remain unchanged but the ceiling of the penalty for refusing an order for reinstatement or re-engagement will increase from HK$50,000 to HK$72,500. The amendments were introduced again into the Legislative Council for first and second readings on 17 May 2017.
It is worth noting that under Hong Kong’s anti-discrimination legislation, the court already has authority to make an order of reinstatement without the employer’s agreement.
Although the Labour Advisory Board is of the view that the proposed amendments will not impose considerable costs on employers because the number of cases where employees seek reinstatement or re-engagement is very small, this has been under discussion since 2000 and the proposal was presented to the LegCo Panel on Manpower only in December 2015. Now that the debate among various stakeholders has ended, we expect the new amendments will be enacted in the near future.
What this means for employers: it will become more expensive to avoid taking back an employee whose claim is successful, but employers will not be forced to do so.
2. Same-sex marriage (for civil servants) recognised under Hong Kong law
On 28 April 2017, the Court of First Instance made a landmark decision in the case of Leung Chun Kwong v Secretary for the Civil Service and Commissioner of Inland Revenue [2017] HKEC 854. Mr Leung, a civil servant, applied for judicial review of two separate government decisions denying health and tax benefits to his spouse, whom he married in New Zealand in April 2014. (New Zealand recognises same-sex marriage, whereas Hong Kong does not.) Following a petition filed by 27,000 individuals, 80 civil groups and five lawmakers, the Department of Justice has appealed the ruling, and we will keep readers updated as this case develops.
Health benefit decision: discriminatory and unconstitutional
Pursuant to the Civil Service Regulations (“CSRs”), government medical and dental benefits are extended to “family”, which includes a “spouse”. Although "spouse" is not defined under the CSR, the Secretary for the Civil Service considered that because Mr Leung’s same-sex marriage is not legally recognised under the Marriage Ordinance, his spouse was not entitled to the benefits set out in the CSRs.
The court held that it was not unlawful for the Secretary to accord the same spousal benefits to homosexual couples who are legally married under foreign law and that it is difficult to see how denial of “spousal’ benefits to homosexual couples who are legally married under foreign laws would strengthen the integrity of the institution of marriage in Hong Kong. As a result, the court found that differential treatment by the Secretary was not justifiable.
Tax benefit decision: acceptable treatment
Mr Leung challenged the Commissioner of Inland Revenue’s decision to deny his right to elect for joint assessment when filing his tax returns. The Commissioner reasoned that although the Inland Revenue Ordinance (“IRO”) does not expressly exclude same-sex marriage, the relevant provisions provide that only "husband and wife" are eligible for joint assessment. Therefore, Mr Leung and his partner cannot be eligible. The court ruled that as a matter of construction of the IRO, the Commissioner’s decision that Mr Leung’s same-sex marriage is not a marriage for the purpose of the IRO, was correct.
Implications
"Marriage" is defined under Hong Kong’s Marriage Ordinance as a "formal ceremony recognized by the law as involving the voluntary union for life of one man and one woman to the exclusion of all others".
There are many rights conferred on spouses in Hong Kong legislation. However, the definition of “spouse” is neither clear nor uniform across these laws and regulations. The Employment Ordinance (“EO”), for instance, provides that "spouse" means “the person to whom the employee is lawfully married”. It is uncertain from this definition whether “lawfully married” includes marriages recognised under foreign law but not Hong Kong law.
The court emphasized in its judgment that granting benefits to same-sex marriage partners would not constitute indirect legalisation of same-sex marriage and whether to recognise same-sex marriage as legally valid marriage is a matter of social policy and a decision for the legislature, not for the court. This is a wake-up call for the Government to review current legislation to ensure that there is equal treatment for heterosexual and homosexual married couples and definitions are standardised across all legislation.
Employers who want to demonstrate their support of equal employment opportunities irrespective of sexual orientation can pledge to adopt the Equal Opportunity Commission’s Code of Practice against Discrimination in Employment on the Ground of Sexual Orientation. This Code is not legally binding and simply proposes good practices in the workplace. In particular, employers are recommended to apply consistent selection and assessment criteria for job applicants and promotions without giving consideration or making reference to sexual orientation; guard against making assumptions on abilities of candidates of particular sexual orientation; implement policy to prohibit discrimination, harassment and vilification at work; and establish internal grievance procedures in dealing with complaints concerning discrimination, harassment or vilification on the ground of sexual orientation. As of today, more than 150 organisations have already voluntarily signed up for the Code.
3. Discrimination law review
On 20 March 2017, the LegCo Panel delivered its initial assessment of the Discrimination Law Review (“DLR”) submitted one year ago by the Equal Opportunities Commission (“EOC”).
Although the EOC is funded by the Hong Kong Government, it acts as an independent advocate for the improvement of protection against discrimination and promotion of equality in Hong Kong. The four existing anti-discrimination ordinances will be reviewed and potentially revised as a result of recommendations made by the EOC. The anti-discrimination ordinances are the Sex Discrimination Ordinance ("SDO"); Family Status Discrimination Ordinance ("FSDO"); Disability Discrimination Ordinance ("DDO"); and Race Discrimination Ordinance ("RDO").
The 2016 DLR report contained 73 recommendations split into two parts, with Part 1 being easier to implement and Part 2 having an impact across multiple domains and policy areas. The more controversial Part 2 issues are likely to require further research and consultation in advance of any legislative reforms.
Initial assessment
In the LegCo meeting, the Panel identified nine issues from the high priority Part 1 list as being capable of reaching consensus with the stakeholders and society. They are:
- introducing provisions in the in the FSDO and SDO to prohibit direct and indirect discrimination on grounds of breastfeeding in areas such as employment;
- replacing the definition of “near relative” in the RDO with “associate” which has a wider scope that includes carers and those co-habiting on a genuine domestic basis (i.e. de factomarriage partners), and those in a business, sporting or recreational relationship with the person. This would align protections under the RDO with the protections under the DDO;
- amending the RDO to protect against discrimination and harassment by perception or imputation that a person is of a particular racial group;
- expanding the scope of protection from sexual, disability and racial harassment in the workplace;
- expanding the scope of protection from sexual, disability and racial harassment between tenants/sub-tenants occupying the same premises;
- amending the RDO and DDO to provide protection to service providers from racial and disability harassment by service users;
- expanding protection under point 6 to cover harassment taking place outside of Hong Kong on Hong Kong registered aircraft and ships;
- providing protection from sexual, racial and disability harassment by management of clubs; and
- repealing provisions under the SDO, FSDO and RDO which require proof of intention to discriminate to obtain damages for indirect discrimination claims (to align with the DDO).
Comment
An update on the anti-discrimination legislation is welcome in order to bring protections into line with legal systems of other developed economies and to ensure consistency across the legislation in Hong Kong.
However, many stakeholders have criticised the initial assessment as not going far enough to protect individual rights, arguing that it demonstrates LegCo is simply “cherry picking” those matters which are easiest to address rather than tackling the real issues. During public consultation stage prior to the publication of the DLR report, a number of significant changes to current law were debated, all of which are notably absent from the initial assessment. Such issues included new prohibitions on discrimination based upon nationality, citizenship and residency under the RDO, updating the definition of “disability”, and outlawing discrimination against the LGBTI community based on sexual orientation, gender identity and transgender status. Indeed, earlier in March, the EOC issued a formal statement directly to the Hong Kong Government with support from 75 major organisations calling for consultation and legislation to protect the local LGBTI community.
The LegCo Panel confirmed that its focus on more straightforward recommendations would allow it to act more quickly in bringing about change. There is, as yet, no available timetable for consideration of the lower priority Part 2 recommendations.
4. Minimum wage increases
With effect from 1 May 2017, the Statutory Minimum Wage rate will increase from HK$32.5 per hour to HK$34.5 per hour and the monetary cap requiring employers to keep records of the total number of hours worked for the employees is adjusted from $13,300 per month to $14,100 per month.
Jennifer Van Dale, Partner, Eversheds
jennifervandale@eversheds.com
