There has been much commentary (and confusion) in the news and on social media about employees’ absences from work due to and/or in support of the protests. This short article sets out the basic legal principles in respect of protests that are occurring in Hong Kong.
Absences from work
Whilst the right for employees to strike is enshrined in both Article 27 of the Basic Law (which provides that Hong Kong residents have the freedom to strike) and s.9(2) of the Employment Ordinance (which prohibits an employer from summarily terminating an employee who takes part in strike action), it is doubtful that absences from work in protest of the controversial extradition bill falls within the legal definition of a strike. This because, pursuant to the Trade Unions Ordinance, a strike is defined as “the cessation of work by a body of persons employed acting in combination… to continue to work for an employer in consequence of a dispute, done as a means of compelling their employer … to accept or not to accept terms or conditions of or affecting employment”. It therefore stands to reason that if an employee doesn’t turn up to work because he or she is protesting about something which bears no relation to the terms and conditions of his or her employment, it is unlikely that the employee will have any statutory protections against any consequential action.
In such circumstances, an employer may determine that such absence from work amounts to unauthorised leave and depending on the terms of the employee’s employment contract, the employee may subject to disciplinary action. This may include suspension, pay deduction, written warning and, in the case of repeated or sustained misconduct, dismissal.
What if employees are having difficulty getting to work due to roadblocks and/or disputed train service?
Employers have a duty to provide and maintain a safe working environment for its employees. This duty isn’t just limited to the actual office premises, it also includes access to and egress from the premises.
Employers should consider whether to implement flexible working arrangements such as allowing employees to work from home, if as a result of the strikes, it is difficult or dangerous for its employees to attend work. It is sensible to have contingency plans in place to minimise the disruption caused as a result of the protests.
Most importantly, employers should ensure that they clearly communicate to their employees as to what is and isn’t expected from them during the protests and institute appropriate work arrangements for those affected.
Employees should be reminded that employers do have a right to request that the employee demonstrate that his or her commute is likely to be impacted by the disruptions before authorising any absences.
What if an employee is arrested for their role in the protests?
This will depend on the terms of the employee’ employment contract. Increasingly, employment contracts contain a clause that if an employee is arrested, the employer has a right to summarily dismiss the employee. If however, the employment contract is silent on these issues, unless the employee’s arrest causes damage to the employer’s reputation and/or it affects the employee’s ability to do his or her job (for e.g. if bail is denied or restrictions are placed on an employee’s travel), it is difficult to see how the employer may lawfully take any disciplinary action against the employee.
Employers should be reminded that suspension pursuant to s.11 of the Employment Ordinance is unlikely to be justified in these circumstances. This is because the statutory power to suspend is confined only to criminal proceedings against the employee arising out of or connected with his employment.
Protesting at work
Employers should remind employees of their expectations on conduct and the consequences of any disruption at work. These expectations are usually found in the employee contract and/or handbook. In case of any misconduct by the employee, the employers should ensure that it carefully follows any contractual investigation and/or disciplinary procedure it has in place in order to mitigate against an allegation that it has acted in breach of conduct.
Where contracts and/or handbooks do not cover such conduct, it may be prudent for employers to issue a policy to cover such scenarios in the future, explaining what is and isn’t acceptable conduct and what sanctions the employer may impose for breach of the policy. Employers should take care that the policy imposed is consistent to and/or compliments any existing rights or protections that the employees currently enjoy. Whilst it would be impossible to exhaustively include all conduct which would be considered unacceptable, the employer should give some examples of conduct which it deems unacceptable in the workplace (for e.g. using foul or abusive language to describe a political party or politician or wearing clothes with political messages).