By Kathryn Weaver, Firm: Lewis Silkin LLP
This interview with Kathryn Weaver of Lewis Silkin Hong Kong, initially published in the Asia Business Law Journal on 10 September 2019 explains some key considerations for employers in Hong Kong during the protests.
What are your responsibilities as an employer if your workers attend a protest rally? What if they are injured somehow on their way to work? Are you liable? We asked an expert on Hong Kong employment law, Lewis Silkin Hong Kong’s managing partner Kathryn Weaver, about all the angles you need to have covered during this summer of unrest.
Asia Business Law Journal
Can you outline some of the key responsibilities that Hong Kong employers need to consider during the current unrest and protests?
There’s a number of considerations for employers during this period of unrest. The first one should be in relation to employee safety. Employers in Hong Kong have an obligation to ensure a safe workplace for their employees, and that means coming into and exiting the building as well.
Where there is any kind of protest that might turn volatile, employers should be thinking about what arrangements they would have in place to ensure the safety of their employees. That could mean asking them to work from home, if that’s a possibility, or asking them not to come in.
If that’s not a possibility, which is the case with some industries such as F&B, retail and hospitality, where it’s very difficult for those individuals to work from home, you might ask them just not to come in. If they’re already in the workplace you need to make sure they have the possibility to leave as quickly as possible to ensure they get home and they’re safe.
So, businesses should have in place a business contingency plan that they then implement in these circumstances. If they don’t, for whatever reason, and an employee is injured, even if that’s on the way into work or exiting work, then that individual could bring a claim against the employer, and there could be compensation that needs to be paid in these circumstances. That’s the first thing to think about, employee safety, which I think is paramount in a lot of employers’ minds.
The second thing to think about is what do employers do where employees want to take time off to protest or to strike? Now this has been happening in a variety of ways. Employees have been applying for annual leave to go on the protest or to strike, and if they’ve done that in accordance with the employer’s rules, in good time, and they’ve been granted the leave; then the employees can do whatever they want during their time off, as long as their actions don’t do anything that will bring the company into disrepute, or would affect the employee’s ability to carry out their duties going forward.
These kinds of activities might be illegal assembly, rioting, criminal damage, assaulting a police officer or misusing personal data of those people participating in the protests themselves, or the police officers. If they do those things, the employer could take action against that individual, even if they’ve taken time off to do the strike or protest, or whatever the activity is. So, there could be disciplinary consequences for that.
Other situations are where employees take sick leave to go on strike. That may have happened on a recent Monday [5 August], when we had the citywide strike. When it comes to sick leave, employees should only use it if they’re genuinely sick or injured. If they’re using it to get short notice time off to strike or to protest, then that would be a misuse of the company policy and the employer would be entitled therefore to take action against that individual, which could be disciplinary action up to, possibly, dismissal.
Now, some employees just simply didn’t turn up to work during the citywide strike, believing they had a constitutional right to strike. This is somewhat more complicated because under article 27 of the Basic Law, there is a part which says there is a right to form trade unions and to strike. And some people saw this as a constitutional right just to strike no matter what, an unfettered right.
That’s not the case unfortunately; under the Employment Ordinance there is some protection for individuals that are trade union members or officers, where they take part in trade union activities, and they do so in accordance with the rules under the Employment Ordinance.
They have to have consent from their employer to take part in these activities during working hours. And when it comes to the definition of striking, this is quite clearly defined in the Trade Union Ordinance, and it’s to do with when there’s a dispute that the employees want to settle with the employer [employees want to bring a dispute against their employer].
If that’s not the case, if it’s just a strike for political purposes, which was the case recently, then that is not protected under the Employment Ordinance at all. So those individuals that went off and took the time off believing they were striking and were protected, were not, unless they were trade union members and they were taking part in a trade union dispute. They could face disciplinary consequences as well.
There were some employers that just simply gave the day off to their employees if they wanted to take part in protests or strikes. And in that situation, if it’s consented to, then there shouldn’t be a problem.
What happens if an employee is arrested during any of the protests or strikes?
We would recommend that you don’t, as an employer, take a knee-jerk reaction to this, and simply dismiss them. There is investigation to be done, and there’s a very high threshold when it comes to summarily dismissing an employee in Hong Kong. You’ve got to work out what the allegation is, investigate it properly, and then decide whether you think they actually did the act, and whether it constitutes misconduct under your rules.
If it doesn’t constitute misconduct, then you don’t have the right necessarily to dismiss them.
What are some other issues faced by employers in Hong Kong at the moment, for example, impact on revenues, or bringing in external employees?
The retail sector has been hit pretty hard. They have been reporting single to double-digit reductions in their revenue. And if that continues, then they might need to think about a reduction in staff. You might start to see some redundancies happening in the workplace when it comes to sectors such as F&B, retail and hospitality.
There hasn’t been, we don’t think, an immediate impact on recruitment necessarily. Speaking to law firms and professional services firms, they are still recruiting, they’re still growing.
But what we’re actually hearing is that candidates, those people who are considering a move … thinking about coming in [to Hong Kong], they’re the ones that are taking quite a cautious approach now and thinking, ‘Is it the right time to be moving roles? Is the role that I’m looking at going to be there in the next few months if this continues, if we continue to have the impact of the protests on the economy’.
And those people that were considering moving over to Asia from the UK, Australia or the US, are now, anecdotally we hear, thinking about Singapore as an alternative option rather than coming to Hong Kong.
Can Hong Kong’s civil service target its employees who have protested?
That’s an interesting question. And there has been some divergence of views on this. The civil service rules say that anyone that works within the civil service has to remain politically neutral and loyally serve the chief executive.
That’s been interpreted by some as that they shouldn’t be participating in any kinds of rallies or protests, but there’s equally some information on the civil service website saying that people are allowed to have their political opinion as long as they do so in their own free time.
It’s thought that if you’re participating in a protest on your day off, and you’re doing so as a resident of Hong Kong, that should not necessarily impact your ability to carry out your role as a civil servant. That said, obviously, the message from the government, from the civil service, has been to ensure that these civil servants don’t come out and make any political messages.
They’ve said that it will be seriously treated if they [the civil servants] are seen to be participating in these rallies and taking a political position, because that may impact on perceptions of their ability to carry out their roles impartially and properly.
You can find the original article here.