Julia Gorham, Partner, and David Smail, Associate, DLA Piper
As Hong Kong becomes a place of increasing diversity and plurality, employers are often left with a headache trying to balance the competing needs and interests of all staff members in the run up to Christmas.
Whilst this time of year is widely regarded as one of celebration, some non-Christians object to the overwhelming attention paid to Christmas and the competition it provides to their own celebrations. This is, after all, a special time of year for people of religion and no religion alike, with celebrations taking place around the world for Bodhi Day, Hanukkah, Diwali and the Winter Solstice (among others), with Chinese Lunar New Year following closely behind.
Although Hong Kong has in place legislation prohibiting discrimination on the grounds of sex, marital status, pregnancy, race, disability and family status (which can be relevant in terms of requests for time off work), there is currently none in respect of religion. Indeed, the Equal Opportunities Commission's ("EOC") non-binding Code of Practice makes clear that religion in itself is not "race" and a group of people defined by reference to religion is not a racial group under the Race Discrimination Ordinance ("RDO"). This is notwithstanding Art. 32 of the Basic Law which, together with Art. 25, safeguards the right of all Hong Kong citizens to freedom of religion without discrimination. The EOC has to date not given any indication that it is in a hurry to recommend change.
However, the RDO will apply where a particular requirement or condition has an impact on a people’s religious practices which indirectly discriminate against certain racial groups. For example, the introduction of a blanket ban on beards for health and safety reasons in a food packaging factory would indirectly discriminate ethnic groups such as Sikhs who by their custom have to maintain a beard when compared to other racial groups.
If a claimant employee is successful, a court may order an employer to redress any loss or damage suffered as a result of any discriminatory conduct. If the conduct is serious, the court may order the employer to pay punitive or exemplary damages to the employee.
Employees are also often likely to want to take longer periods of leave to spend with their families over this period, particularly at Chinese New Year. Many feel the pressure of this time, both financially and in terms of the need to take time off work when many will have nearly exhausted their annual leave entitlements. Balancing requests for time off is crucial to retaining a motivated workforce, and adopting a fair way to assess requests is key to diffusing and defending subsequent disputes.
Often people with children are prioritised in these requests and it is important not to assume that time off is less important for those without children, who may still need to visit parents or other relatives. Find a way to share who takes leave at which times of the year and make sure the same people do not always have first choice when it comes to selection of dates.
Employers should be equally sensitive to those who have simply not had the time to take annual leave and need to carry forward some of their entitlement into the new year. In these cases, employers must strike a balance between strict enforcement of a "use it or lose it" policy (which should only apply to contractual and not statutory leave entitlement) and recognising an employee's contribution to the business.
Issues to Consider
In order to promote an appropriate work-life balance and mitigate the risks of claims of discrimination, employers should consider the following:
- Leave/flexible working requests. Employers should be careful in how they handle requests for annual leave, unpaid leave and/or flexible working over the festive period. Have in place a policy which seeks to treat any request for time off work objectively and consistently, and ensure it is implemented accordingly. Where there is a genuine need to decline a request for operational reasons, make sure the decision is clearly communicated to the employee and recorded. Share out who can take which periods of leave off each year.
- Office closing. Closing the office for extended periods either side of the allocated public holidays may leave non-Christians feeling disadvantaged, since some may have to take holiday to participate in their own religious festivals. Employers should be clear as to the reasons why it is necessary, which might include cost savings where the majority of staff will want to take holiday and costs can be saved by closing down completely.
- Be inclusive. Many employers are adopting the use of seasonal staff celebrations and decorations rather than religious-focused ones in order to promote a culture of inclusivity. The traditional "Christmas lunch" is increasingly being held as an "annual" or "spring" dinner, and focuses on the celebration of team morale as opposed to the religiosity of the underlying event (many offering a variety of cuisines to cater for all needs). That said, there is no need to become over politically-correct and stop celebrating Christmas in your workplace if it works for your staff – many non-Christians also like to celebrate the Christmas story and related festivities.
- Carry over policy. This can be a good time to remind employees of the business' policy on forfeiture of untaken leave. Any such policy should be restricted to forfeiture of contractual and not statutory leave (which is prohibited), and care should be taken to ensure it is not enforced in such a way as to demotivate valued workers.
Keep all records. To avoid potential disputes, it is recommended that all records relating to leave requests and arrangements are retained – this will be useful in defending any potential discrimination claims and in illustrating that a clearly set out objective application criteria have been applied in any decision to refuse a given request.