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Don’t get caught out by new discrimination laws

Published on Saturday, 04 Jun 2016

The Situation

Employers need to keep up-to-date with looming changes to Hong Kong’s discrimination laws. These laws typically have implications for the employment relationship in Hong Kong and are often a legal cornerstone for companies in this jurisdiction.

As any small business owner will tell you, oftentimes it is the little changes that can cause the most upheaval in the running of a company – regardless of size, location or sector.

This is commonly felt in the world of human resources, where seemingly small changes in circumstance can lead to substantial changes in the options available to an employer, and the consequences for stepping over the line of what is lawful.

The Equal Opportunities Commission (EOC), an independent statutory body responsible for promoting equality and eliminating discrimination in Hong Kong, launched a discrimination law review three years ago to review all anti-discrimination legislation in the market.

In March 2016, after consulting more than 125,000 individuals and organisations in a citywide public consultation, the EOC released its recommendations for future amendments to Hong Kong’s discrimination laws.

The EOC made nearly two dozen “higher priority” recommendations. Some of those, if implemented, will have an impact on the way employers interact with their staff and the protections staff enjoy.


The Cases

In many cases, the recommendations  from the EOC focus on introducing explicit rights for people who are at risk of discrimination.

For instance, they include the suggestion that women should be granted a statutory right to return to their previous role after taking maternity leave – or, if the position no longer exists, to a suitable alternative position under similar terms and conditions. This is a right that exists in many jurisdictions but does not formally exist in Hong Kong at the moment.

Another recommendation is that the Disability Discrimination Ordinance be amended to introduce a duty to make reasonable accommodation for persons with disabilities in all fields – including employment. This could have significant implications for the existing occupational health and safety accommodations that companies make for employees with a disability.

Under the recommendations, it is also suggested that the Race Discrimination Ordinance be amended to include protection from direct discrimination and harassment by perception or imputation. In everyday terms, this means that people are protected from racism if they are perceived to be of a certain race, even if that presumption is inaccurate.

It is not just the types of discrimination that stand to be modernised, but also the reach of the law itself. For instance, under the EOC recommendations, employers will have a much greater responsibility to protect their employees from discrimination by third parties during the course of their ordinary work. By way of example, depending on how such a proposal is implemented, this could mean that employers who fail to protect their staff from inappropriate customers are in violation of the law.

Employer behaviour could potentially be subject to wider scrutiny under the amendments proposed by the EOC. Those recommendations suggest amending the legislation to protect people against being treated less favourably because of a certain characteristic – even if they themselves do not have the protected characteristic. For instance, if an employee is being treated unfairly because of a disability that their spouse has, this may qualify under the recommended amendments as discriminatory.


The Impact

If these changes are adopted at large, employers will no doubt have to re-evaluate existing policies that protect against discrimination and harassment in the workplace. When changes of this nature make their way through a jurisdiction, it is often carelessness, rather than malice, that leads to legal difficulties.

The reality is that there are already commercial incentives for companies to be as inclusive as possible. These include the great scope of talent available across gender, race and level of physical and mental ability, not to mention a fickle marketplace that will often punish those companies caught transgressing laws and policies.

For the most part, the proposed amendments will largely bring Hong Kong in line with other global financial centres in terms of discrimination protection. They may well also make Hong Kong a more enticing place for the best employees in the region and around the world.

Companies who want to compete need to keep updated on legal proposals as they develop, and ensure their HR and legal functions are prepared to adapt internal rules and procedures quickly and effectively.

This article appeared in the Classified Post print edition as Don’t get caught out by new discrimination laws.

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