In June last year, the Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 was passed which made a number of changes to Hong Kong’s anti-discrimination laws. For full details of the changes, you can refer to our previous article here.
One of the key changes was the introduction of breastfeeding as a protected characteristic for the purposes of workplace discrimination law which would come into effect on 19 June 2021. Although this was the change that made the headlines, before now little was known about what it would mean for employers in practice. To assist employers, the Equal Opportunities Commission has recently published a set of practical guidance (see here for the full text) which sets out recommended practices for employers to adopt in the promotion of equality and the prevention of breastfeeding discrimination in the workplace. We have set out below a summary of the key recommendations.
Although the Guidance is technically non-binding, employers are generally expected to comply with guidance and codes of practice issued by the EOC and failure to comply with them will usually be taken into account by the courts in the event of a dispute. We therefore recommend that employers familiarize themselves with these practices while bearing in mind that they are not one-size-fit-all checklists. Each business will be unique in its own way and employers should consider their particular circumstances including the size and structure of their organisations when adopting suitable practices.
Develop and implement a breastfeeding policy
The Guidance makes clear it is good practice for an employer to develop and implement a written policy on breastfeeding. The policy should set out:
- the employer’s position on supporting breastfeeding employees;
- that any discrimination against breastfeeding employees by other employees and contract workers will not be tolerated, and appropriate action will be taken if such instances arise;
- a simple procedure for making and processing a request to breastfeed or express milk;
- the facilities to be made available for employees to breastfeed or express milk;
- how requests for changes in working conditions (e.g. breaks to breastfeed or express milk) will be considered and what types of adjustments may be considered and made; and
- the position of the employer on how changes in working conditions will or will not affect the employees’ pay or related benefits, such as bonuses (e.g. changing from full-time to part-time employment temporarily).
The policy can be updated as part of an employer’s existing pregnancy/maternity policy or discrimination policy. The policy should ideally be prepared in consultation with all staff members in order that they have an opportunity to provide their views. Once it has been agreed, the policy should be disseminated to all management and other staff members with an explanation of the policy. Training should also be provided to all the staff members who are responsible for implementing the policy.
As a general reminder, employers must take all reasonably practicable steps to prevent discrimination in the workplace otherwise they may be vicariously liable for the discriminatory acts conducted by their employees. Having in place a clear and robust written policy which is communicated to all employees (including management), as well as providing sufficient training, helps an employer demonstrate they have taken such steps in the event of a dispute.
Make facilities available for breastfeeding or make alternative arrangements
Employers should ensure that they make available suitable facilities for breastfeeding employees or to prepare appropriate alternative measures if they do not.
The extent to which an employer can do this will depend on the size and nature of the business. Ideally, employers should consider having private rooms made available for baby-care and breastfeeding. If the employer does not have such space available, alternative arrangements should be considered such as making available a multi-purpose room for employees (which can also be used for staff feeling ill), temporarily adapting an existing room for breastfeeding and allowing employees to visit nearby facilities that are suitable. Otherwise, employees may be permitted to return home if they work nearby. In any case, the EOC makes clear that toilets and bathrooms are not considered suitable facilities under any circumstances.
When preparing a room for breastfeeding purposes, employers should as far as possible make available in the room a chair with a backrest, a table for placing any necessary equipment, access to a power socket, hygiene facilities such as soap and a sink with running water, and a refrigerator (an employee-shared refrigerator may also be used).
Consider requests for changes to working conditions
A breastfeeding employee may request accommodations such as lactation breaks, flexible working arrangements, changes to their working conditions or temporary changes to their role. The EOC has said it is important that employers treat employees making such requests with compassion and flexibility. When considering these accommodations, it is important that employers engage in discussions with employees and ensure that they arrive at a consensus in writing as to whether these accommodations will have any impact on salary or other entitlements and the proposed tenure of such accommodations.
(a) Lactation breaks
When considering whether to afford lactation breaks to employees, employers should consider the reasonableness of the request bearing in mind all the relevant circumstances particular to them including the employer’s business nature, its headcount and the employee’s role. Employers should also consider the length of such lactation breaks.
Generally speaking, the EOC appears to endorse the Department of Health’s Guidance (see here) which states that employers should provide two 30-minute lactation breaks or one hour in total for one 8-hour working day within one year of delivery. Provided the breaks fall within these parameters, they should also be treated as paid working hours with no effect on an employee’s salary or bonus.
(b) Flexible working arrangements
Flexible working arrangements such as staggered work times, work from home policies or A/B team rotations have become the new norm as a result of COVID-19. It is important for employers to note that such working arrangements may also assist breastfeeding employees. Where such working arrangements do not impact the number of hours worked by the employee there should also be no impact to the relevant employee’s salary.
(c) Changes to working conditions
Changes to working conditions such as switching from full-time to part-time work, or switching from night to day shifts may also be appropriate considerations for employers as these can prevent potential health issues for a breastfeeding employee and their child and to preserve the employee’s ability to breastfeed.
Depending on the particular changes and the circumstances particular to the employment situation, it may be appropriate to agree with the employee adjustments to their salary. Where an employee is switching work from full-time to a part-time basis, an adjustment in salary commensurate with the reduction in hours may be agreed between the parties. On the other hand, if an employee is switching work from day shifts to night shifts or some other form of change in work hour patterns, adjustments in salary may not be as straightforward and will further depend on the circumstances of the employment. If the salary for employees working on day-shifts and night-shifts are the same and an employee is working the same number of hours but merely switching from a day-time to night-time basis, this would generally not justify an adjustment in the relevant employee’s salary.
(d) Alternative roles
Some employees work roles that inherently involve health risks to breastfeeding employees or their child. In such circumstances, it may be necessary to consider employee requests to temporarily transfer to alternative roles within the organization. If employers do allow a temporary transfer, they should, to the extent possible offer such role on similar (if not the same) terms and conditions. This is key to avoiding potential claims for indirect discrimination.
Takeaways for employers
Although the amendments to the Sex Discrimination Ordinance will not come into effect until June, employers should start taking steps now to ensure they are in compliance with the changes. The EOC’s Guidance is timely and gives a number of clear recommendations and best practice suggestions which employers should now start to implement. In particular, employers should:
- Review their existing equal opportunities and maternity leave policies and assess whether these need to be updated to reflect the new changes. Note that even if the existing policy currently extends to breastfeeding, the EOC’s Guidance goes further and recommends that it should also set out details of the facilities that will be made available, as well as the procedure for making/handling requests for breaks and any changes to working conditions.
- Consider what facilities will be made available for breastfeeding employees. Where existing areas will be used, HR and Operations teams should work closely together to ensure they comply with the EOC’s recommendations and what modifications need to be made (if any).
- Consider the level of lactation breaks that will be provided. As noted, where the breaks taken fall within the parameters set by the Department of Health, these should generally be paid with no impact on salary or bonus.
- Develop a communication plan for disseminating the policy to employees and managers.
- Deliver training to employees and managers. This would be a good opportunity to refresh and revive existing discrimination and equal opportunities training programmes.
- Develop a strategy and process for responding to requests for changes to working conditions. While the actual response to such requests will vary on a case-by-case basis and employers may prefer to wait to assess the extent of such requests, they should at least have in place a clear process for doing so.