In a previous case review Entitlement to employees' compensation, we reviewed an employees’ compensation case, Chan Ho Yuen v Multi Circuit Board (China) Limited, where two employees were injured while travelling back to the China/Hong Kong border after attending an annual dinner organised by their employer in Shenzhen. Instead of returning to Hong Kong immediately after the dinner on the transport provided by the employer, they went to a karaoke parlour for approximately two and a half hours. After leaving the karaoke parlour, the car driven by one of the employees was involved in an accident on the way to the border.
At trial, the court held that the accident did not arise "in the course of employment" and dismissed the employees’ claims. It found that the visit to the karaoke parlour was purely a private matter and the employees chose not to take the transport provided by the employer. They did not inform the employer as to how and when they would travel back to Hong Kong and therefore, they had deprived the employer of any control over the safety of the return journey.
The employees appealed and the Court of Appeal overturned the first instance decision. It held that the employees did have implied permission from their employer to travel back to Hong Kong in their colleague’s car as the employer had not prohibited them from arranging their own transport from the annual dinner to the border. The detour to the karaoke parlour did not operate to take the return journey out of the course of employment because it was only a temporary interruption of two and a half hours to a journey undertaken in the course of employment. The resumed journey was on precisely the same route that the employees’ car would have taken if it had gone straight from the annual dinner to the border without making the detour to the karaoke parlour. Accordingly, once the detour was over, the return journey continued and their course of employment resumed.
This case highlights the difficulties faced by employers and their insurers when dealing with cross-border employment and work-related travel in the Mainland and elsewhere. Such travel is becoming increasingly common among Hong Kong employees and will no doubt lead to further litigation on the issue of when an accident arises out of and in the course of employment.