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Prepare for flexibility - it's where the law may be heading

Published on Friday, 30 May 2014
Kathleen Healy
Laura Chapman

The Background

As anyone who works in Hong Kong will tell you, the average working day in our city for many people is longer than in other parts of the world. As a result, employers are increasingly having to consider flexible working arrangements in order to lure and retain the best talent. This is especially the case for workers who are used to more flexible arrangements which are commonplace in other jurisdictions.

The next generation of staff is also actively seeking greater flexibility. Studies suggest Generation Y and millennials are increasingly insisting on a better work-life balance, far more so than their predecessors. But within what sort of legal framework do employers work?

The answer is more complicated than it would seem. Unlike many other jurisdictions, Hong Kong staff have no legal right to seek part-time employment or other flexible working arrangements. Neither the Hong Kong Employment Ordinance, nor Hong Kong's common law, have provisions for flexible working options. However, flexible employment options are protected in various other ways.

Discrimination laws do not permit practices disproportionately and prejudicially affecting people on the basis of race, gender, pregnancy, disability, marital or family status. This can be a minefield for employers who are facing flexible working requests for the first time.

Staff denied access to flexible working arrangements, in particular circumstances, can be found to have been discriminated against. The most obvious example is when an employee who has recently started a family is denied access to flexible working terms directly related to family obligations.

A strict reading of the Employment Ordinance could lure employers into thinking that they are on solid legal ground, when they are anything but.

The Policy Creation

As is often the case in management matters, preparation beforehand is the best way to mitigate risks. The first time an employer is asked to consider flexible working arrangements should not be the first time they have done so. In this case, preparation should almost always result in the establishment of a clearly thought-out policy that is readily accessible to staff at all levels.

Creating a flexible work policy has several benefits. It will start a conversation in management over the benefits of flexible working arrangements, and the challenges of incorporating such a policy in a business. It is far easier to consider the commercial case for and against an employment policy before it is discussed in the context of one employee's request for a change in how many hours they work.

Secondly, the establishment and distribution of a policy gives staff a fair understanding of what they can expect. As well as giving a sense of "added benefits", it can often pre-emptively head off unreasonable requests, with employers forced to say "no" less often.

Finally, a clearly laid-out policy gives management the confidence to make decisions on a case-by-case basis. If the originating policy is designed in compliance with employment and discrimination laws, employers have a much easier time making decisions about each individual.

The Conclusion

In our experience, employers who are proactive in taking on these issues are the ones that best avoid problems later. While there is no case law in this area yet, it is one that has been well-litigated in other jurisdictions and it is only a matter of time before Hong Kong sees its own court cases emerge in this space.

Companies that embrace flexible working arrangements in the right way can access a group of skilled potential staff who are often undervalued. As the nature of work changes, and workforces become increasingly specialised and globalised, there is often a strong commercial case to be made for part-time staff or groups of staff with staggered hours of operation.

When used carefully and deliberately, flexible working hours can be a cost-effective means of boosting productivity and staff retention, with the added benefit of being on the right side of where employment law may be heading.

Kathleen Healy is a partner in Freshfield’s expanding Employment, Pensions and Benefits practice in Asia and specialises in advising on Asia-Pacific employment and HR projects. Laura Chapman is a senior associate in Freshfield’s Employment, Pensions and Benefits team based in Hong Kong. She has a broad range of experience advising employers on both contentious and non-contentious employee matters throughout the Asia-Pacific region.

The information contained in this article should not be relied on as legal advice and should not be regarded as a substitute for detailed advice in individual cases. If advice concerning individual problems or other expert assistance is required, the service of a competent professional adviser should be sought.

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