29 May, 2018
Hong Kong courts have not yet considered whether individuals who provide their services on an on-demand basis are employees, independent contractors or a hybrid form of worker.
If these individuals were to be classified as employees, they would be entitled to a host of statutory rights. In determining an individual's employment status, the Hong Kong courts examine all features of the parties' relationship and traditionally focus on factors including whether the company provides work equipment, whether the company has an obligation to provide work, whether the individual is obliged to work and whether the individual bears financial risk.
Unfortunately, a decision on the classification of these individuals seems less likely in the wake of the criminal conviction of a few Uber drivers in March 2017.
This decision, which effectively outlaws the service, will discourage future claims as it is unclear if courts will process an individual's claim if such individual is not lawfully employed in Hong Kong.
While no definitive court decision is currently available, we have seen increasing challenge from these individuals regarding their employment status.
Hong Kong employers managing a more diverse and less directly controlled workforce should be alert to new legal developments and in particular, whether the Hong Kong courts will follow the UK Uber decision and classify these individuals as workers, or the Australian approach that no employment relationship exists.
Stephanie Wong, Bird & Bird
stephanie.wong@twobirds.com
