3 June 2021
Like many jurisdictions, Hong Kong has various statutory measures in place to protect injured workers. It can be complex in understanding the scope of various protections and what employers can and cannot do when managing the employment of an ill or injured employee. This Safety Snapshot highlights the key protections and provides practical tips for employers when managing ill or injured employees.
Relevant laws
Various protections are provided to ill or injured employees, and the key sources of these are found in the following legislation:
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Employment Ordinance (EO)
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Employees’ Compensation Ordinance (ECO)
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Disability Discrimination Ordinance (DDO)
When managing ill or injured employees, employers also need to consider their obligations under the Occupational Safety and Health Ordinance (OSHO) and the Personal Data (Privacy) Ordinance (PDPO), as well as under the relevant contractual employment terms and policies.
Protection against termination during paid statutory sick leave
Under the EO, it is unlawful for an employer to dismiss an employee who is on sick leave where a statutory sickness allowance is payable (except in the case of a summary dismissal). The protection against termination will not apply during periods of unpaid sick leave or where the employer is providing paid sick leave in excess of the statutory sickness allowance.
If an employee is dismissed in breach of this protection, in addition to certain payments in respect of the sick leave, they may bring a claim for unlawful termination under the EO to seek compensation or reinstatement. The employer may also be liable for a fine of up to HK$100,000. It is also unlawful under the ECO for an employer to dismiss an employee who is entitled to compensation under the ordinance until the relevant claim has been determined, unless consent of the Commissioner for Labour to the dismissal has been obtained.
There are various complexities in determining when a statutory sickness allowance is payable and thus when the above protection applies. For instance, many employers grant paid sick leave for absences of three days or less, although they may not necessarily be able to deduct such paid sick days from the balance of the employee’s statutory sickness allowance. It will therefore be critical to carefully manage and record all sick leave taken by employees, to avoid accidentally falling foul of the protections against termination under the EO.
Protection against discrimination due to an illness or injury
In addition to the protections against termination described above, if the reason for a termination was the employee’s illness or injury, they may be able to bring a claim of unlawful discrimination under the DDO.
The DDO provides that it is unlawful for an employer to directly or indirectly discriminate against an employee by reason of their disability. The term “disability” is broadly defined to include the total or partial loss of a person’s bodily or mental functions. To succeed in a discrimination claim, the ill or injured employee is only required to prove that their disability was one of the reasons for the discriminatory treatment (i.e. the dismissal), as opposed to the only reason for such treatment.
Where an ill or injured employee is dismissed, it may not constitute unlawful discrimination where, as a result of the employee’s disability, the employee is unable to carry out the “inherent requirements” of their particular job or where, in order to carry out those requirements, the employee would require services or facilities (not required by persons without a disability) the provision of which would impose an unjustifiable hardship on the employer (i.e. the employer must consider whether reasonable accommodations can be made).
The inherent requirements of a job will vary, but may include the ability to perform essential tasks productively and to the required standard, to work effectively in a team or to work safely. When considering if the inherent requirements exception is applicable, employers must take into account factors such as the employee’s training, qualifications, experience and performance. To make this assessment it will generally be necessary to obtain a clear, current and reliable medical opinion on any limits to the employee’s capacity to perform the requirements of their role in light of their medical condition. In considering if the provision of reasonable accommodations will cause unjustifiable hardship to the employer, all relevant circumstances must be considered, which may include the nature of the employee’s disability, the benefit or detriment from providing or not providing the accommodations, and the cost of the accommodations.
What should employers do in light of the protections to injured workers?
Our key tips for employers are:
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Actively manage sick leave – ensure all absences due to illness or injury are accurately recorded and that the requirements set out under the EO and any company policies are met, including ensuring that the employee promptly notifies absences and provides valid medical certificates setting out all required information.
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Understand impact of the employee’s medical condition on capacity – when considering adjustments to the employee’s role or the viability of their ongoing employment, it will generally be necessary for an employee to attend a medical consultation, and for the employer to obtain a report and assessment of the employee’s ability to perform the particular role.
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Consider whether adjustments to role are appropriate – prior to any decisions regarding dismissal, and when an employee is returning to work after an extended absence due to illness or injury (to be discussed in an upcoming Safety Snapshot), the employer must assess the capacity of the employee to perform their role. This should be based on medical advice (as mentioned above) and should include consideration of what adjustments to the role can reasonably be made to accommodate the employee’s illness or injury.
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Be clear on the reason for termination – where an employer is contemplating termination of employment, they must be clear on the reason for such termination. This may not be straightforward where the employee’s performance or conduct is a reason for the termination but such performance or conduct is directly impacted by a medical condition.
Even with careful management, given the overlay of various laws, it may be appropriate to seek legal advice on the risks of a particular case.
In case you missed them, check out our previous Safety Snapshots on Working from Home, Accident Notification Obligations, Directors and Officers Liability, Occupier’s Liability and Vaccinations.
For further information, please contact:
Tess Lumsdaine, Partner, Herbert Smith Freehills
Tess.Lumsdaine@hsf.com
