What’s New in Employment Law?

The first half of 2020 has seen several employment law-related changes in Hong Kong, despite the city being hit by three waves of Covid-19 infections and working life changing as we know it. This round-up covers updates regarding the Employment Support Scheme (“ESS”), anti-discrimination laws and maternity leave benefits.

Applications for Second Tranche of ESS Now Closed

Applications for the first tranche of the ESS, which provides government subsidies to employers to help pay for wages and reduce redundancies during the Covid-19 pandemic, closed on 14 June 2020. At 11 August 2020, the ESS Secretariat had paid out approximately HK$43.2 billion in wage subsidies, covering nearly 150,000 employers.

Applications for the second tranche of wage subsidies (to be used for the period 1 September to 30 November 2020) opened on 31 August and closed on 13 September 2020. At close, the Government had received over 180,000 applications for the second tranche. This is around the number of employers who successfully applied for the first tranche, though employers need not have applied and been successful for the first tranche in order to apply for the second.

If an employer, who has been successful with their application for the wage subsidy under both the first and second tranche, has breached its undertakings (e.g. by making redundancies and/or not spending the entire subsidy amount on paying wages), the government will claw back the unspent balance of the subsidy and/or require the employer to pay a penalty, which may be deducted from the second tranche of subsidies or collected separately after the second tranche is disbursed.

Changes to Anti-Discrimination Laws

On 19 June 2020, the Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020 (“Ordinance”) was gazetted. Key employment-related amendments brought in by this Ordinance, which amended existing anti-discrimination legislation with immediate effect, are as follows:

(a) The Sex Discrimination Ordinance will be amended such that discrimination on the ground of “breastfeeding” will be unlawful. Unlike the other amendments mentioned below, these provisions on breastfeeding discrimination will come into effect on 19 June 2021.

(b) The Race Discrimination Ordinance (“RDO”) is amended such that discrimination of an employee based on the race of his/her “associate” (meaning spouse, domestic partner, relative, carer and/or persons with whom he/she is in a business, sporting or recreational relationship) will be prohibited. The use of the term “associate” replaces the previous term “near relative”.

The RDO also now provides protection from racial discrimination/harassment by imputation, meaning that a person may be held liable if he/she discriminates against or harasses another person who is imputed to be of a particular race (even if that person is not of that particular race).

(c) The scope of protection from sexual, racial and disability harassment is expanded to include situations where the perpetrator and victim are “workplace participants” working in a common workplace. “Workplace participant” includes interns and volunteers. Employers may now be vicariously liable for any unlawful acts of harassment committed by any workplace participant they engage, unless they establish that they took reasonably practicable steps to prevent the perpetrator from committing the unlawful act.

Companies should ensure that appropriate amendments to their anti-discrimination policies are implemented and that adequate training is provided to staff.

Enhancement to Maternity Leave Benefits

The Legislative Council passed the Employment (Amendment) Bill 2019 (“Bill”) on 9 July 2020. Key changes which will be brought in under this Bill are as follows:

(a) Statutory maternity leave entitlement for employees under a continuous employment contract for no less than 40 weeks and who satisfy the requisite notification requirements, will increase from 10 weeks to 14 weeks. The calculation of maternity leave pay will remain unchanged but (1) a cap of HK$80,000 per employee will be imposed for the additional 4 weeks’ leave and (2) employers may seek reimbursement from the government for these additional 4 weeks.

(b) The definition of “miscarriage” will be revised such that employees who suffer a miscarriage at or after 24 weeks of pregnancy may be eligible for statutory maternity leave. Currently, only those employees who suffer a miscarriage at or after 28 weeks may be eligible for maternity leave.

(c) A certificate of attendance at a pregnancy-related medical examination (issued by a recognised professional) will be acceptable proof regarding an employee’s entitlement to sickness allowance.

(d) Entitlement to statutory paternity leave will remain unchanged but the period in which paternity leave can be taken will be extended. Currently, employees may take leave from 4 weeks before the expected date of delivery until 10 weeks after the actual date of delivery. This will extend to 14 weeks to align with the extended period of maternity leave.

Companies should be aware of these proposed changes (expected to be effective towards the end of 2020) and be ready to update their internal policies.

– Kathryn Weaver, Partner, Lewis Silkin
– Katy Lee, Legal Assistant, Lewis Silkin

Jurisdictions: 

Partner and Head of Lewis Silkin Hong Kong

Legal Assistant, Lewis Silkin