The Issues
Recent events surrounding the Occupy movement in Hong Kong have been extensively reported around the world. Most businesses have continued to operate as normally as possible, with some taking steps to minimise business disruption. Some of these have included allowing staff the opportunity to work flexible hours and from home to avoid any practical difficulties.
One important question that has emerged for many employers is how to respond when an employee decides they would like to continue to protest during times they should be working.
Employers will need to consider what to do in the event an employee either asks for time off or simply does not attend work. Clearly, if a number of employees have the same intention, an organisation could suffer operational difficulties with financial and other consequences.
The Legal Context
Article 27 of Hong Kong's Basic Law states: "Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike."
The Employment Ordinance also states an employer is not entitled to dismiss employees without notice or a payment in lieu of notice because they take part in a strike. In addition, it mandates that an employee's continuous employment is intact if the individual is absent from work for the whole or part of any hour because of a strike, as long as the strike is legal.
While arguments can be made to the contrary, the Hong Kong definition of a strike appears to focus on it being a dispute adopted as a means of compelling an employer to accept or not accept terms of conditions affecting employment.
Broad protests of the type seen in recent weeks are clearly not targeted at any one employer. They appear to fall into a different category, beyond the usual principles of an industrial dispute - although the legal principle has not been tested fully in Hong Kong.
Therefore, from a legal standpoint, an employee's absence may well be the same whether the absence is for the purposes of being involved in Occupy Central or for some entirely unrelated personal activity. However, any prudent employer will always take into account all the relevant circumstances. The context and potential publicity surrounding any decision will always be a key factor.
At a basic level, if the absence has not been agreed with the employer and is therefore unauthorised, there is no obligation for the employer to pay the employee. The normal contractual position is that an employee is paid for performing services. In addition, simply failing to turn up for work and not notifying an employer is likely to amount to a breach of the employee's employment contract and subject to appropriate disciplinary action.
The Employee's Responsibility
Employers need to carefully consider their strategy and then communicate clearly to staff what is expected of them in sometimes unexpected situations.
Employees are entitled to spend their time outside of work as they choose. However, it is important to remember that even "off-duty" activities may be relevant to an employer if that employee's conduct out of work has an impact on the reputation of his or her employer.
Any absence from work should be approved in the usual way and unapproved absence is likely to result in deductions from an employee's wages and potential disciplinary action.
Employees are, of course, entitled to take their annual leave or other approved absence, so long as they comply with the relevant company processes and procedures.
The Safeguard
Contingency planning often takes second place to the immediate needs of business. However, investing time in communicating clear expectations of employee behaviour in a given situation can avoid complicated issues when the unexpected does occur.
Pattie Walsh is a partner and head of DLA Piper’s Asia-Pacific employment pensions and benefits practice, and has a particular focus on multi-jurisdictional employment work. DLA Piper is a global law firm with 4,200 lawyers located in more than 30 countries throughout the Americas, Asia-Pacific, Europe and the Middle East
