Boosting Mental Wellness

Mental health concerns in the workplace are becoming increasingly common and have been further exacerbated by the uncertainties associated with COVID-19. However, Hong Kong still lacks a holistic and comprehensive legal framework to address mental health issues in a work context. This article summarises briefly the relevant law and goes on to introduce practical initiatives employers can take to promote mental wellness.

Hong Kong’s Legal Framework

Occupational Safety and Health Ordinance (Cap. 509) (“OSHO”)

Under the OSHO, employers have a statutory obligation to ensure the health and safety of all employees as far as reasonably practicable. However, in the absence of any specific obligation relating to mental health, this remains on the periphery of occupational health and safety programmes.

Common Law Duty

Employers are also under a common law duty to take reasonable care and may be held liable for negligence upon failure to do so. However, there is yet to be a case in Hong Kong where an employee has successfully claimed compensation for psychiatric injury caused by work-related conditions. That said, in some jurisdictions employees have been awarded damages for their employer’s breach of care relating to stress and depression, as seen, for example, in Barber v Somerset County Council, [2004] UKHL 13.

Employees’ Compensation Ordinance (Cap. 282) (“ECO”)

The ECO provides incredibly limited support when it comes to mental health. To be eligible for compensation, an employee is required to have suffered “injury by accident” arising out of and in the course of employment and the “accident” must be an identifiable event or events and not a ‘continuous process’. Furthermore, psychiatric injury is not included in the list of illnesses which are deemed to be accidents. Therefore, claimants must prove that the mental illness is a consequence of an accident in order to be successful.

Sick Leave and Sickness Allowance

The Employment Ordinance (Cap. 57) (“EO”) prohibits employers from terminating an employment contract (except for summary dismissal) when an employee is on statutory sick leave (including psychiatric illness).

Anti-Discrimination Laws

The Disability Discrimination Ordinance (Cap. 487) (“DDO”) renders the following unlawful: discrimination; harassment; vilification; and victimisation on the ground of disability (mental illness included). Under the DDO, if an employee can perform the inherent requirements of a job, employers are prohibited from terminating employment on the ground of disability.

Practical Initiatives for Employers to Promote Mental Wellness

Empathetic Leadership

Recent studies have indicated that an empathetic approach to leadership is an effective means of boosting both the morale and productivity of employees. Therefore, it seems not only appropriate, but mutually beneficial that leaders in the workplace are empathetic in their approach to recognising and solving mental health issues and promoting policies and initiatives towards inclusivity and de-stigmatisation of mental health issues.

New Initiatives

There is no one way of dealing with the issue of mental wellbeing in the workplace. However, with the corporate landscape beginning to prioritise tackling the issue of mental health, companies are tailoring employee assistance programmes to the specific needs of their employees:

In-house Psychologist: In-house psychologists with whom employees can confidentially discuss mental health issues have become a successful and frequently used method of dealing with the intricate and personal nature of mental wellbeing.

Relaxation Spaces: Some businesses are providing spaces at work, such as quiet rooms, for employees to rest, relax and de-stress.

Training Courses: First aid courses that are aimed at identifying and effectively dealing with mental health concerns have become increasingly used by companies for their staff.

Medical Insurance: Employers have also looked to the medical insurance packages they provide to see whether they offer support for their employees to obtain professional assistance when suffering from mental health issues.

Work from Home (“WFH”) and Flexible Working

With the impact of COVID-19, WFH arrangements have become increasingly familiar for employees. However, there are unique difficulties posed by working from home that employers must be aware of:

Isolation and Engagement: During the COVID-19 Pandemic, the value of connectivity and team spirit found in an office environment has often been underestimated. As a result, isolation and lack of human connectivity have become more prevalent among employees. Proactive organisations who have recognised this have made arrangements which accommodate flexibility of timing, location, in-person collaboration, and used online recreational activities and courses in order to maintain a sense of community and connectivity between co-workers.

Inability to Disconnect: While on a WFH arrangement, many have reported that the line between an employee’s work and their personal life has become blurred, and with the international nature of the modern working environment, many employees have found WFH arrangements difficult. To counteract this, some companies have implemented measures to create a clear divide between home and work, such as limiting the time when employees may receive/send emails.

Technology: Providing employees with laptops, software, and IT support allows employees to work flexibly and comfortably, while promoting efficiency and functionality. However, employers have also recognised the strain caused by excessive screen time and “zoom fatigue” and have introduced creative means to combat this, such as “no meeting days”.

Encouraging Employees to Take Annual Leave

Unpredictable travel rules and restrictions have resulted in employees taking annual leave less frequently. To promote employees’ wellbeing, companies have considered policies allowing employees to travel and work from quarantine upon their return, to alleviate “cabin fever” developed from not leaving Hong Kong.

Attracting New Hires

Statistics suggest that jobseekers increasingly do significant online research on potential new employers. When weighing up offers between rival companies, potential hires are placing particular importance on factors such as a company’s values, flexibility of working arrangements, and the amount of annual leave offered. Employers should consider posting employee stories on their websites as a means of attracting and engaging talent.

Conclusion

Due to the COVID-19 pandemic and the lack of clear obligations for employers under Hong Kong law, mental wellness is both more challenging and more important than ever. Employers need to acknowledge the prospect of their employees burning out or being otherwise affected and prepare accordingly. In doing so, companies will not only help their employees but, they may also achieve considerable benefits in communication, engagement, productivity and retention within their existing workforce, while also promoting themselves and appealing to the next generation of employees.

Jurisdictions

Registered Foreign Lawyer, Gall Solicitors

Matthew joined Gall’s Employment practice as an England and Wales qualified Registered Foreign Lawyer in January 2021 and is an experienced employment lawyer specialising in employment matters. He is known in the market for advising multi-national companies on the full range of employment issues relating to hiring and separating, employment contracts, handbooks and policies, international secondments, transactions and restructurings, labour unions, stock options and incentive schemes, social insurance and welfare schemes, employee fraud, and restrictive covenants.

Matthew also advises employees and individuals on a wide variety of employer-facing issues, including contracts and terms, conduct issues, whistleblowing and separations. He also handles contentious matters such as labour disputes, investigations, director and executive liability, and sexual harassment issues.

Ranked as a “Leading Individual” in Legal 500 Asia Pacific and recognised by Chambers Asia Pacific since 2011, Matthew has been based in Asia for over 20 years and is a regular speaker and panellist at conferences across the region. He received a BA (Hons) in French and German from Oxford University, an MA from SOAS, and a CPE and Diploma in Legal Practice from the College of Law, York, UK.

Matthew was admitted as a solicitor of England and Wales in 1998 and is a native English speaker. He speaks advanced French and German and is conversational in Mandarin.

Associate, Gall

Kritika joined the firm in July 2019 and has previous experience in civil and commercial litigation.

Kritika handles matters in the employment practice as well as the commercial litigation practice.

She was awarded the University Gold Medal for B.A.LLB (Hons.) at the National University of Juridical Sciences, Kolkata, a premier law school in India. She also holds a Bachelor of Civil Law (BCL) degree from the University of Oxford (2018).

She is admitted as a Solicitor in Hong Kong (2021) and qualified as an Advocate in India (2015).