Hong Kong employment law 2020 review

Overview of major changes made by the Government on employment law

Major changes that have become effective in 2020 include:

• With effect from 19 June 2020, harassment in the workplace and racial discrimination by imputation and against “associates” (including family and relatives) were prohibited.
• With effect from 11 December 2020, maternity leave under the Employment Ordinance (Cap. 57) (“EO”) was increased from 10 to 14 weeks. 
• On 24 July 2020, the Mandatory Provident Fund Schemes Ordinance (Cap. 485) was amended to empower the Mandatory Provident Fund Schemes Authority to establish a subsidiary to operate an electronic system to help cut administration fees of MPF schemes and save more costs for employees.

Employers’ duties and Government’s support during the COVID-19 pandemic

Statutory and common law duties

The COVID-19 pandemic has struck an unprecedented blow to Hong Kong’s public health and economy. Working from home and social distancing have become the new normal since March last year. Some reports have suggested that the pandemic will continue until Q3 or Q4 of 2021. Employers need to bear in mind they are under both a statutory duty and a common law duty to ensure their employees’ safety and health at work. 

The Occupational Safety and Health Ordinance (Cap. 509) (“OSHO”) provides that employers are under a statutory duty to, in so far as reasonably practicable, ensure the safety and health at work of all their employees. This includes a duty to provide and maintain a work environment that is safe and without risks to their employees’ health. 

Employers are also under a common law duty to act reasonably in all the circumstances in providing a safe place of work for all their employees.

To discharge their duties, employers should adopt, where appropriate and reasonably practicable, measures and arrangements specified in the guidelines and announcements made by the relevant government departments and authorities. Employers are encouraged to be flexible with work arrangement and social distancing. If an employee has contracted COVID-19 at work, it is not necessarily a breach of duty on the part of the employer but it depends on whether the employer has done what is reasonably practicable in discharging its statutory and common law duties.

Know more about Hong Kong employers’ duties in handling COVID-19 here

Employment Support Scheme (“ESS”)

In May and June 2020, the Government launched a HK$137.5 billion Anti-epidemic Fund to alleviate the financial burdens of individuals and businesses. The ESS is a financial support provided to employers to retain employees who may otherwise be made redundant amid the COVID-19 pandemic. An important feature of the ESS was that employers were required to undertake that they would maintain the number of employees during the subsidy period and would spend all the government wage subsidies on paying wages to their employees. 

To ensure that the subsidies were spent properly by the employers, if the Government considered that an employer engaged in conduct which directly or indirectly violated the objective of retaining employment under the ESS, or was contrary to public interest during the subsidy periods, the Government might reject the employer’s application or require the employer to return the subsidies received (in full or in part) within a specified period.

Know more about the first tranche of the ESS here and the second tranche of the ESS here

Exclusive jurisdiction of the Labour Tribunal

The Labour Tribunal offers a quick, informal and inexpensive way of settling monetary disputes between employers and employees. However, in the recent case of Lee Yiu Hong v Well-in Hotel Supplies Company Limited 2020 HKCFI 2760, the Court of First Instance (“CFI”) reiterated that claims in tort, including mixed claims founded in both contract and tort, fall outside the exclusive jurisdiction of the Labour Tribunal.

Facts

The employee…