2 February 2020
Last year was full of the unexpected. In this bulletin, our Hong Kong employment team reflects on some key themes that emerged last year and considers how these will keep Hong Kong employers busy in the year ahead.
Health and safety
As the global pandemic continues, worker health and safety will continue to dictate working arrangements. As well as continuing to manage risk with remote working arrangements, employers will be forced to assess risk mitigation measures such as rapid testing and vaccinations and determine whether these fall within the limits of lawful and reasonable directions to their employees and can be mandated. Employers will also want to revisit their broader safety governance in light of the proposed move to tie penalties for safety offences to revenue and, for publicly listed companies, the (still relatively new) safety reporting requirements. If you missed our recent webinar Greater China: New horizons for workplace health and safety, you may access the recording here.
Mental Health
In recent years, we’ve seen a gradual increase in mental health issues impacting workplaces and Hr processes in Hong Kong. The events of last year have accelerated this. A survey conducted by City Mental Health Alliance Hong Kong released in September 2020 found that 1 in 4 employees in Hong Kong reported experiencing mental health problems within the previous 12 months. There is limited precedent in Hong Kong, but if this issue becomes more prevalent, Hong Kong may follow other jurisdictions in finding employers liable for employees who develop mental and psychiatric illnesses in the course of their employment. Given the existing protections against disability discrimination in employment, this will become an increasingly tough area for employers to navigate.
Employee Activism
We tipped the rise of employee activism in our Future of Work report in late 2019. Last year, the boundaries between workplaces and living spaces blurred, and more discussions on environmental, political and social issues spilled into the workplace prompted by COVID-19, geopolitics and global anti-racism protests, and the corporate response. We expect worker activism to continue to increase, both through traditional channels as well as informal channels such as online petitions, social media campaigns, whistleblowing and leaked information, designed to amplify the voices of workers and increasing pressure on employers. While fostering constructive dialogue with workers will be critical, employers must also be ready to respond to employee conduct that harms their organisations.
More #metoo
Three years on from the #metoo movement, we continue to see an increase in workplace harassment complaints in Asia. In Hong Kong, the Equal Opportunities Commission has stepped up work on this issue and last year set up a New Sexual Harassment Unit to deal with harassment enquiries. This year we may also start to see actions under changes that came into effect in June 2020 providing welcome and more robust protections against sexual, racial and disability harassment in “common workplaces”. These changes include parties beyond employees, such as customers, clients, third-party contract workers, agents, interns, volunteers and others in a co-working space. We also anticipate financial regulators will take more interest in the management and reporting of non-financial misconduct, including sexual harassment or bullying, as they continue to implement measures such as Mandatory Reference Checks to prevent the Rolling Bad Apples phenomenon. Employers should be taking proactive measures to prevent harassment in the workplace through comprehensive policies and training, ensuring they have robust grievance and whistleblowing mechanisms, and robust investigation and disciplinary processes to ensure appropriate sanctions for offenders.
Employee disputes
With many sectors severely hit by the pandemic, we anticipate an uptick in disputes as employers look to make their operations leaner or more productive. As exiting employees face a tighter job market, they may be more inclined to dispute the lawfulness of their termination or the amounts they receive. Conversely, employers may be more willing to seek to claw back bonuses they feel were paid to undeserving employees or employee who breached express or implied duties (such as duties of fidelity or to exercise reasonable care and skill. Other businesses, including many tech and financial services companies, saw growth despite the pandemic and increased demand for skilled employees in their industry. For such companies, the need to ward off raids by competitors and theft of trade secrets by soon to be ex-employees becomes paramount. Key personnel contracts must be reviewed and updated to reflect business change and employers will need to move quickly to head off threats as they arise. Revisit our Greater China webinar for practical tips when managing employment cases in Mainland China and Hong Kong.
With a busy year ahead, legal and HR teams will need to ensure they are across newly implemented changes and compliance frameworks are up to date. They will also need to work closely with the business to ensure they are tuned into workforce sentiment any any particular cases that may develop to present unique challenges. Proactive, early management will be the key to minimising legal risk and business disruption.
For further information, please contact:
Giselle Yuen, Herbert Smith Freehills
