The holiday season is soon approaching and excitement is bubbling with many in Hong Kong planning to travel and celebrate with loved ones. Many employers are putting in place logistical arrangements and coordinating work cover over the holidays which involve putting employees on standby to work if needed – read on for our discussion about a recent Hong Kong Court of Appeal decision which confirmed that even if an employee on standby does not end up having to perform any work on a standby day, they must still be granted proper rest days or days off in accordance with law and contract.
Background
In Breton Jean v 香港麗翔公務航空有限公司 (HK Bellawings.Jet Limited) [2022] HKCA 1736, the Hong Kong Court of Appeal considered whether the days on which an employee was placed on standby duty (but not actually called in to work), could be considered to be “days off”.
Mr Jean (“Employee”) was employed by HK Bellawings.Jet (“Employer”) as a pilot. Under the employment contract which was governed by Hong Kong law (“Employment Contract”), the Employee had no regular working hours. He was required to work on demand and would also be put on standby, during which he would be “on call” and must respond to the Employer’s call within one hour and perform any necessary duties within a reasonable period of time.
In an Operation Manual, which was incorporated as part of the Employment Contract, it was stated specifically that any standby duty constituted the Employee’s “duty period”. It also provided that the Employee will be entitled to one day off every seven days, as well as three days off every 14 days and eight days off every 28 days.
When the Employee was summarily dismissed by the Employer, the Employee claimed (among other things) that the Employer owed him 135 days off and that he should receive payment in lieu for those days. The Employer disagreed and contended that the Employee had already taken his days off, on days where he was put on standby but had not been called to work. The first instance District Court judge agreed with the Employee, and the Employer appealed.
Standby days are not days off
The Court of Appeal upheld the ruling of the District Court, and found that it was clear that the Employee was not having a “day off” when being put on standby under the Employment Contract – regardless of whether he was actually called upon to report for duty. The Court of Appeal gave the main reasons below:
- the Employee was required to perform standby duty whenever the Employer considered it to be necessary. When on standby duty, the Employee had to be mentally ready to report to the Employer. He was not allowed to drink alcohol while on standby, and had to remain accessible and perform duties as and when required;
- the Operation Manual provided that any period of time that the Employee spent on standby duty would form part of his “duty period”. As a matter of ordinary language, the Employee should not be regarded as being on a day off if he was on duty; and
- based on the factual circumstances of this case, the parties had intended the concept of a day off to be the same as a “rest day” under the Employment Ordinance (Cap. 57) (“EO”), so that the parties’ contractual rights and obligations are aligned with the statutory ones. A day that the Employee spent on standby could not constitute a “rest day” under the EO.
Key takeaways
Under the EO, employees employed under a continuous contract are entitled to at least one rest day every week – that is, a full 24-hour day during which employees do not have to work. Employers should grant all employees at least one day off each week for rest, and that means they must not be on standby on the day off. Further, if a statutory holiday (for example Christmas Day or the coming first day of January, which are both Sundays) happens to fall on a rest day, employees are entitled to take the holiday on the following working day.
Additionally, if employers intend to grant extra days off to employees than what is statutorily required (which are in addition to the employees’ annual leave entitlements), employers can impose additional rules in respect of the extra days off, and draw a distinction from the statutory rest days, to prevent those extra days off from falling within the statutory rest day regime.
For further information, please contact:
Ben Harris, Herbert Smith Freehills
ben.harris@hsf.com
