Since June 2019, Hong Kong has faced ongoing protest action. These protests were initially directed at the enactment of the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill, but their scope has subsequently expanded. Some of the protest action has involved violence against people and property.
These protests have caused considerable disruption to commercial activity in Hong Kong. Hong Kong has also become highly polarised – some businesses have come under political pressure, while others have been targeted directly by protestors. This situation has created serious challenges for employers trying to manage and protect their employees. As protests continue, employers must understand what they can and cannot do.
A fundamental question for employers is whether they can restrict the ability of their employees to involve themselves in political activities or express their political views.
The right to freedom of speech is protected by Article 27 of the Basic Law and Article 16 of the Bill of Rights. Employers should therefore respect their employees' right to freedom of speech.
However, this freedom is not unqualified. During working hours, employees can be lawfully directed to observe certain rules of conduct which will limit their right to say and do what they wish. Employees who do not observe these rules may face disciplinary action or (in the case of serious misconduct) summary dismissal. However, employers should be cautious about imposing blanket bans on (for instance) the expression of political beliefs, as dismissal on that basis could be met with a claim for unlawful dismissal.
While employees can generally conduct themselves freely outside of their contracted working hours, employees who say or do something that would (or might reasonably) bring their employer into disrepute will normally be in breach of the express terms of their employment and their implied duties. In such cases, the employer can potentially take action.
Employers should adopt a realistic approach when assessing their employees' conduct outside working hours and not react in a knee-jerk fashion. Employers should consider whether their reputation or business has actually suffered any damage as a result of their employee's actions. It is also normally necessary for an employer to be identifiable by an employee before the employee's actions can reasonably be said to have brought the employer's reputation into disrepute. Employers should consider issuing written policy reminders and formal warnings, if possible, before moving to termination; summary dismissal is appropriate only for serious misconduct.
Even if an employee is arrested for engaging in criminal activity, it may be more appropriate to subject them to internal disciplinary action (including suspension, if applicable) rather than dismissing them. The mere fact that an employee has been charged or convicted of a criminal offence does not necessarily warrant summary dismissal. Again, employers should consider whether the arrest (and any subsequent conviction) has caused actual damage to their reputation or business and affected the employee's ability to do their job.
Another major concern for employers is whether they can use information gathered from social media as a basis for internal disciplinary action against an employee. In principle, there is no reason why an employer cannot rely on social media postings as evidence of misconduct. Employers should nevertheless be cautious about evidence taken from social media given the potential for disinformation to be spread via such platforms.
Employers should review their employment handbook and policies to ensure that they have clear guidelines on employee use of social media. It is also recommended that employers remind their employees about these policies and that their actions on social media may have consequences for their employer (and may thus affect their employment).
In addition to business disruption, the ongoing protests have greatly disrupted commuting and have on occasion put employees at risk of physical harm. The Labour Department has issued notices urging employers to release employees from work where necessary to enable them to return home safely. Employers must therefore exercise considerable flexibility with working arrangements to ensure that their employees can travel safely, both when commuting and during working hours. This means that employees must monitor the situation constantly and issue the appropriate warnings to their employees. This may mean permitting employees to start late, leave early or work from home where practical. As the situation can change rapidly, employers must have multiple contingency plans.
As it remains uncertain how long this action will continue, employers may need to consider longer-term arrangements to protect their businesses. For example, asking employees to take unpaid leave, moving employees to a part-time arrangement, relocating employees to less-affected parts of Hong Kong (or even overseas, if possible) and requesting employees to work from home. Inevitably, businesses which are suffering financially will need to consider downsizing their workforce. All of these options have potential legal implications and employers should ensure that they comply with the relevant employment laws; otherwise, they may find themselves facing claims.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.