This months newsletter covers topics including paternity leave and the discrimination law review.

Paternity leave

Hong Kong has recently considered the creation of a right to statutory paternity leave, not before time many would say.  The initial Government's proposal was 3 days paid paternity leave at 80% of an employee's average daily wages.  However, when the matter came before the Bills Committee of the Legislative Council in July 2014, an amendment was proposed to increase the number of days to 7 days and the payment to full pay.  It is to be noted that the rate of pay proposal is at odds with the existing statutory maternity benefit which provides only 80% of an employee's average daily wages.  But with the proposal and a lack of time to deal with many pending bills the whole issue was shelved.  We shall wait to see if statutory paternity pay and if so on what basis will eventually be passed by the Legislative Council when the consideration of the bill continues during the current session.

Implications for employers

Hong Kong lags well behind most developed jurisdictions in relation to statutory maternity and other similar benefits provided to employees.  However, the amendment proposal for significantly greater paternity leave than originally proposed by the Government suggests that attitudes may be changing.  Employers may wish to review their maternity and paternity policies in advance of the introduction of statutory paternity leave.  Employers should also start to design communications to explain the new procedures to employees.

Discrimination law review

On 8 July 2014, a 3-month public consultation was launched to review the current anti-discrimination legislation in Hong Kong.  This is the first time the Equal Opportunities Commission has conducted a comprehensive review of the existing discrimination laws since they came into force (the oldest one in 1996). 

The discrimination law review focuses on refinements to the existing protected characteristics (namely, sex, pregnancy, marital status, disability, family status and race under four pieces of legislation) and does not contemplate introducing new protected characteristics (such as age).  Some of the proposals relevant to employment covered in the exercise are:

  • Simplifying the four discrimination laws by combining them into a single ordinance and updating the law to reflect current attitudes;
  • Extending the scope of the race characteristic to cover a person's nationality, citizenship and Hong Kong residency as protected grounds; and
  • Introducing an express duty to provide reasonable accommodation for persons with disabilities.

For details, please refer to the dedicated website of the discrimination law review:

Implications for employers

The discrimination law review is a timely reminder to employers of the significance of the anti-discrimination laws and need to keep them continually in mind at all stages of the employment cycle (hiring, retaining and terminating).  Employers are well advised to maintain a regular training programme to ensure staff are aware of and adhere to the law as handling discrimination complaints can be extremely time consuming and also costly.

Privacy Commissioner Condemned 48 Blind Recruitment Advertisements for Unfair Collection of Job Applicants' Personal Data

The Privacy Commissioner has issued an investigation report on anonymous recruitment advertisements ("blind ads"), namely those advertisements which collect personal data without disclosing details of the supposed employer or providing contact details (other than email addresses) of the advertiser for verification.  The Commissioner found that organisations which placed blind ads were in breach of Data Protection Principle ("DPP") 1(2) and issued enforcement notices against them.  DPP1(2) provides that "personal data shall be collected by means which are lawful and fair in the circumstances of the case".  The Commissioner specifically pointed out that ignorance of the law does not exonerate the organisations from their obligations under the Personal Data (Privacy) Ordinance.  The Commissioner also took into account the disparity in the bargaining power between an employer and a job seeker and commented that a blind ad would likely still attract an ordinary job seeker to provide his full CV.

The press release issued by the Privacy Commissioner's Office dated 29 May 2014 provides more information. 

Implications for employers

If an employer does not wish to disclose its identity in a recruitment advertisement, it should consider providing at least a contact name and telephone number to receive enquiries from potential applicants; the Privacy Commissioner has stated that this is permitted.  Of course, it may also consider engaging a recruitment agency to act on its behalf.