Asia employment law bulletin 2021
Developments in the light of COVID-19
After a year of political upheaval in 2019, Hong Kong faced yet another challenging year with the outbreak of the pandemic. Employers in Hong Kong have had to grapple with a variety of challenges, including having to quickly implement remote working arrangements to ensure the health and safety of their employees.
Although the challenges were not unique to Hong Kong, certain issues were compounded here. Most Hong Kong homes tend to be very compact, which means that working from home may not be a feasible option for some employees, particularly where they live with other family members.
Further, the health and safety legislations in Hong Kong have not caught up with the modern ways of working, which means that it’s not always easy for employers to understand and access their liabilities towards the health and safety of their employees where they are working remotely.
Mitigating the risks of remote working
In Hong Kong, there are three sources of liabilities when it comes to providing a safe working environment for employees, namely:
- a common law duty of care;
- a statutory duty under the Occupational Safety and Health Ordinance (the OSHO); and
- under the Employees’ Compensation Ordinance (the ECO).
Under common law, employers have a duty to care to employees and to provide a safe place of work and this duty likely continues to apply even when employees are working from home. An employer could be liable for negligence or breach of an implied duty in an employment contract to provide a safe working environment if it fails to take reasonable care to ensure that the employees are safe.
The OSHO also requires employers to (amongst other things) ensure as far as reasonably practicable the health and safety all employees at work, but the legislation has not caught up with the modern ways of working. As a result, it is not entirely clear how an employer can satisfy the overarching requirement to provide a safe working environment for employees when the workplace has evolved to include an employee’s home or even a coffee shop down the street, all of which are venues which the employer has no control over. As an example, the OSHO requires an employer to carry out a health and safety assessment of the working environment; otherwise it may be liable for a fine.
As with the OSHO, the ECO does not consider the implications of employees working from home. The general position is that if a personal injury by accident “arises out of and in the course of employment”, the employer will be liable to pay compensation in accordance with the ECO, even if the employee may have committed acts of negligence leading to the accident. Under case law, an accident “arises in the course of employment” if it is in discharge of the employee’s duties or is reasonably incidental to the employee’s employment. In other words, if the employee slips and falls when running to pick to a work call at home because the floor was wet, this could be deemed a work injury. To put things into perspective, however, an employee travelling to the airport for a work trip who suffers an injury on the way will also have a claim under the ECO because it arises out of or in the course of employment. These risks have always existed and will continue to exist regardless of whether we move towards more flexible working.
Until the law is updated to reflect the realities of modern day working, allowing employees to work flexibly or agilely will come with inherent risks which Hong Kong employers will need to take into consideration.
Practically speaking, there are things that employers can do to mitigate (but not completely eliminate) those risks. This includes having a flexible working policy in place so that it is clear that those who wish to take advantage of the policy need to be satisfied that their home is an appropriate venue for work. Other steps which an employer can take to demonstrate that it has taken reasonably practicable steps, include:
- providing training to employees by occupational therapists (for example) on tips for setting up a home office;
- a pack of information which includes best practices on maintaining health and safety at home (covering things like having a good light source, taking breaks regularly, etc.);
- regular check-ins with employees to ensure that any issues with working from home are fed back to management.
Vaccination of employees
Currently, the Hong Kong government’s vaccination programs are expected to be rolled out from February 2021 but limited information is available. Employers that are looking to implement vaccination policies in workplaces will likely have to carefully strike a balance between their obligations under the OSHO and common law to ensure the health and safety of their employees at work and potentially other competing legal issues that such participation by employees may potentially bring.
Freshfields 2020 whistleblowing survey
We continued our survey that started in 2014 to gather the views of respondents across 13 industries in the UK, US, France, Germany and Hong Kong to assess their attitudes towards whistleblowing and to examine how this has changed over time. This survey has taken place in 2014, 2017 and 2020.
The Hong Kong chapter of the survey reflects the answers from 500 middle and senior managers within large companies in Hong Kong. For more details please see this link. Amongst other encouraging statistics revealed by the 2020 report, one observation is that managers in Hong Kong are the most involved in whistleblowing - a stark comparison to the US. Please see our blog exploring why we think this is the case: “Whistleblowing in the spotlight: why are managers in Hong Kong more likely to blow the whistle?” It is hoped that this trend will continue into 2021 and the disruptions to the way we work due to the COVID-19 pandemic will not have a detrimental impact on the health of whistleblowing in Hong Kong.