According to recent studies, one in six Hongkongers suffers from a diagnosable mental health illness. Hard work is notoriously associated with Hong Kong’s workforce – with people working an average of 50.1 hours per week. Long working hours coupled with a fast-paced business environment and cramped living conditions have resulted in increased levels of stress, anxiety and depression. The continuing COVID-19 situation has only exacerbated this phenomenon and has no doubt contributed to the deterioration of employee mental wellbeing.
There are no clear cut mandatory requirements placed on employers in Hong Kong to safeguard employee mental health specifically. However, there are a number of areas within the existing legal framework that may arise in practice and which employers should consider.
Health and Safety
Employers have a legal duty of care to their employees to provide a safe place of work so far as is reasonably practicable. In principle, this duty extends to safeguarding an employees’ mental safety as well as their physical safety.
An employer may face both civil (i.e. as a personal injury negligence claim) and criminal (i.e. as a breach of the Occupational Safety and Health Ordinance) liability for a breach of this duty if they have failed to take reasonable steps to safeguard their employees’ mental safety. The standard of care in such claims is whether a reasonable employer, having regard to all the circumstances, including the individual circumstances of the employee in question, would have been able to foresee the injury that arose from the breach of the duty of care.
Employee claims against employers for mental wellbeing are generally unusual in Hong Kong because making such claims is often demanding on employees in terms of both time and financial cost. There is also widespread stigma attached to mental ill health in Hong Kong which may deter employees from making such claims. However, this trend may change if employee mental health continues to make its way further up the corporate agenda.
Disability Discrimination
Under the Disability Discrimination Ordinance, employers have an obligation not to discriminate against or harass employees and other workers on the grounds of their disability. In Hong Kong, “disability” is very broadly defined and can include a variety of mental health issues.
The legal protections against disability discrimination are broad enough that an employer may be found liable for discrimination even if an employee has not directly notified the employer of their particular disability, for example in situations where the disability is very obvious. It is not enough for employers to simply say they were unaware that the employee was suffering from a mental health condition.
Employers can also be held vicariously liable for any discriminatory acts or harassment committed by their employees in the course of their employment, even if the acts were carried out without the employer’s knowledge or approval. However, it is a defence if the employer can show that it took all reasonably practicable steps to prevent the act from taking place to begin with. It is therefore important for employers to have a number of preventative measures in place such as implementing an effective equal opportunities policy, making it readily available, routinely enforcing it and providing workplace training on discrimination related issues.
If an employee has been the subject of discrimination or harassment (including mental health related), they can bring a complaint to the Equal Opportunities Commission and/or the District Court. The remedies for such claims vary depending on the circumstances but can include monetary damages for injury to feelings.
Unlike mental health personal injury claims, mental health related discrimination claims are more common. This is due in part to the relative ease and low cost of bringing such claims in the EOC compared to the timely and expensive civil courts.
Employees’ Compensation
Employees may make claims for compensation against their employer under the Employees’ Compensation Ordinance (ECO). The ECO provides a statutory no-fault framework for injuries or death resulting from an accident arising out of and in the course of employment, or where an employee is incapacitated due to a specified “occupational disease” (as defined in the ECO) due to the nature of any employment. In order to cover the cost of such claims for compensation, employers are required to take out mandatory insurance at specified levels of coverage.
Mental illness does not currently feature in the list of specified “occupational diseases” under the ECO. However, mental health related claims may still be made under the ECO if such claims are considered personal injuries by “accident” arising in the course of employment. While mental health related claims are not the primary purpose of the ECO, they are not per se excluded. The ECO is intended to apply to all personal injuries by way of “accidents” but not those arising from a “continuous process” (suggesting for example that continuous work stress and mental health issues that develop over time are not “accidents” within the meaning of the ECO). There have also been cases, for example, where employees have brought compensation claims after witnessing the suicide of a colleague. A 2018 decision held that the alleged bullying was merely ordinary professional behaviour and the emotional harm suffered was accordingly unlikely to constitute an “accident”.
Employee Benefits
The Employment Ordinance is the statutory basis for an employee’s mandatory employment benefits and entitlements in Hong Kong including statutory holidays, annual leave, sickness allowance, paternity leave and maternity leave.
Currently there is no specific benefit or entitlement provided in relation to mental health. If an employee is sick and unable to work due to their mental health, they are expected to take sickness allowance in accordance with the Employment Ordinance. However, in order to qualify for statutory sickness allowance, the employee must first be able to show they have accumulated a sufficient number of “sickness days” and be off sick for at least 4 consecutive days before they are eligible to claim sickness allowance. This may be more difficult to satisfy in the case of mental health related illness, which can be sporadic and unpredictable.
The statutory position may be enhanced by the employer’s sick leave policy. While there has certainly been a growing recognition of mental health issues in Hong Kong and Asia more widely, employers are generally not extending this to cover, for example, “Mental Health Days” i.e. days on which the employee can take time off from work to attend to their wellbeing or simply recharge their batteries. Any enhanced policies are generally in the form of more generous sick leave policies, which may for example pay sickness allowance from the first day of absence rather than after the fourth consecutive day – or pay on the basis of full salary than 80% of an employee’s daily average wages.
Having said that, some multinational employers are beginning to implement mental health related initiatives outside of the benefits space including:
- appointing mental health “champions”;
- providing mindfulness/meditation training;
- updating workplace training and empowering colleagues to better identify and address mental health issues;
- revisiting Employee Assistance Programmes and assessing whether they are fit for purpose; and
- identifying insurance providers who cover psychological ailments (preferably for both impatient and outpatient services)
As can be seen, there are a number of legal issues employers should consider in relation to mental health and there can be liability if steps are not taken to safeguard employee wellbeing. It is important for employers to start considering these risks and the steps they may want to take in order to promote good mental health practices.
