By Kathryn Weaver and Iris Chin, Firm:: Lewis Silkin Hong Kong
Can an employee in Hong Kong be dismissed for social media posts that create a ‘negative impression’ during his or her probationary period and are there classes of employee who are protected from dismissal in these circumstances? This article provides guidance for employers.
Hong Kong’s Civil Service Bureau recently issued an internal memo, which was leaked to the press, that said department heads should dismiss employees on probation if they have been charged on suspicion of taking part in ‘unlawful public activities targeting specific or general policies, and/or decisions of the government’ (e.g. unlawful protests).
The Civil Service Bureau were quick to clarify that this memo was not related to the recently enacted National Security Law. On 18 August 2020, Hong Kong’s Chief Executive warned new civil service recruits that they should be careful with any comments they make on social media and the internet as they could risk being dismissed if their comments create a ‘negative impression’.
These recent events lead us to consider certain key employment law questions, such as: in what circumstances can employees serving their probation period be dismissed; are certain classes of employee (e.g. those who are pregnant or on sick leave) protected from being dismissed during their probation period; are employers entitled to dismiss employees based on what they post on social media; and are there any data privacy concerns surrounding the monitoring of employee’s use of social media? We intend to explore these questions from a private sector, rather than public/civil service, perspective.
Dismissal during probation
Under the Employment Ordinance (‘EO’), an employer and employee are entitled to terminate the employment contract without notice during the first month of the probationary period, irrespective of what the employment contract might state to the contrary. After the first month and until the end of the probationary period, the parties must give not less than seven days’ notice of termination (and longer if the employment contract so specifies). An employer is not obliged to provide any reason for dismissing an employee during probation, but should be mindful of any potential discrimination complaints or claims that may arise due to the manner and/or circumstances in which an employee is dismissed.
Employees who have 24 months or more of continuous service with the same employer have greater protection and are entitled to bring unreasonable dismissal claims in the Labour Tribunal if they believe they have been dismissed by their employer for a reason that is not included in the five statutory valid reasons for dismissal set out in s32K of the EO (which include redundancy, conduct and capability).
What about pregnant employees: can they also be dismissed during their probation period?
The short answer is yes, they can, if they are dismissed during the first 12 weeks of the probationary period and the reason for the dismissal is not because they are pregnant. This goes against the general rule that it is unlawful to dismiss an employee who is pregnant or on statutory maternity leave (unless they are summarily dismissed in accordance with s.9 of the EO) and that doing so attracts civil and criminal penalties.
What about employees on sick leave: can they also be dismissed during their probation period?
Maybe. Employees under the EO can accumulate two paid sickness days for every completed month of service during their first year of employment, and four paid sickness days for every completed month of service thereafter, up to a maximum of 120 days. This is the case irrespective of whether the employee is on probation. It is unlawful to dismiss an employee who is on statutory sick leave (unless they are summarily dismissed in accordance with s9 of the EO). So, if a new recruit took sick leave during her first month of employment, the employer would be permitted to dismiss her because she would not have accumulated any statutory sickness days by then. The employer would also be entitled to dismiss her during the subsequent months of the probation period once she had used up all her accumulated statutory sickness days.
Dismissal for posting on social media
As long as it is not for a discriminatory reason, and bearing in mind the rules regarding protected employees, an employer could dismiss an employee during their probation period for comments they have made on social media, and the employee would have little recourse. If the employer wanted to summarily dismiss an employee during probation rather than dismiss them with notice, then s9 of the EO would still have to be adhered to; this sets out the statutory reasons permitted for summary dismissal. If the employee has two or more years of service, then the question arises as to whether dismissal for posting on social media would constitute a valid reason under s32K of the EO.
Article 27 of the Basic Law grants Hong Kong residents freedom of speech. Although this is not an unfettered right, under normal circumstances, employees could expect that their freedom of speech exercised in their personal capacity would not be interfered with by their employers. If they are expressing their personal views or opinions on their personal social media pages without bringing their employer into disrepute, breaching the duty of confidentiality owed to the employer or affecting their ability to perform their duties, it is highly unlikely that this would amount to misconduct under s32K of the EO, and termination of their employment would unlikely be valid. Conversely, if an employee makes inappropriate comments on a company social media page or on their own personal social media page where they have linked their profile or comment to their employer, then the employer may have a stronger basis for dismissing the employee validly for misconduct. Employers should consider each case in turn to assess whether the employee has breached the express or implied terms of his/her contract or any contractual company policy by posting on social media and, if they have, what the appropriate sanction should be in the circumstances.
Monitoring social media
Employers should note that whilst the Personal Data (Privacy) Ordinance (‘PDPO’) does not prohibit an employer from monitoring employees’ social media postings, they must ensure that the data protection principles set out in the PDPO and the Monitoring Guideline issued by the Privacy Commissioner are complied with when doing so, particularly, the 3 ‘A’s (Assessment, Alternative, Accountability) and 3 ‘C’s (Clarity, Communication, Control) in the Guideline. Employers should also clearly document and communicate their approach to monitoring.
The comments made by Hong Kong’s Chief Executive about the risk of new recruits being potentially dismissed as a result of creating a negative impression on social media were only intended to relate to the Civil Service. However, they raise interesting questions more generally for employers in the private sector, who should pause and consider the points below.
1. Check that the probation clause in your template employment contract complies with the EO.
2. Remember that some employees on probation may be protected from dismissal and that there is no minimum service requirement for bringing a discrimination claim.
3. Put a social media policy in place or review your current one to check that it clearly covers what is expected of employees inside and outside of work when it comes to social media posts, sets out the risks associated with posting political or adverse comments on social media and explains the potential sanctions that could be imposed for breaches of the social media policy.
4. Consider each allegation against an employee involving social media postings on a case-by-case basis.
5. Have a clear employee monitoring policy in place which follows the Privacy Commissioner’s Monitoring Guideline and include in your Personal Information Collection Statement whether you intend to use employee personal data through monitoring for any purpose.
6. Carry out employee monitoring in an overt rather than covert manner.