Published on 5 September 2017
The anti-discrimination ordinances, which consist of the Sex Discrimination Ordinance (SDO), the Disability Discrimination Ordinance (DDO), the Family Status Discrimination Ordinance (FSDO) and the Race Discrimination Ordinance (RDO), were implemented by the Equal Opportunities Commission (EOC) in Hong Kong some years ago. The EOC is a statutory body funded by the Government of Hong Kong SAR, responsible for implementing ordinances to eliminate discrimination, harassment (and related victimisation) or vilification based on the grounds of sex, pregnancy, marital status, disability, family status and race. The ordinances apply to the contexts of employment, education, provision of goods, services and facilities, as well as government services.
Since the implementation of the ordinances, Hong Kong employers and employees have become more knowledgeable about their obligations and rights under the ordinances. Certain employers have taken appropriate action to set down anti-discrimination policy and internal grievance procedures, and do their best to provide their employees with a working environment free from discrimination and harassment. However, there are still certain employers who do not take any action to ensure compliance with the requirements of the anti-discrimination ordinances, in order to reduce the potential liability of employers for acts of their employees.
The table below outlines the unlawful acts related to the four anti-discrimination ordinances on certain grounds in employment, under which employers may be held vicariously liable for the unlawful discriminatory acts of an employee:
All four anti-discrimination ordinances prohibit direct and indirect discrimination (notes 2 and 3), harassment (note 4) or vilification (note 5) in certain areas including employment and also prohibit victimisation (note 6).
What actions should an employer take to reduce the potential risk of being held vicariously liable for the unlawful discriminatory acts of an employee? The following actions should be considered by an employer:
A. Implementation of written anti-discrimination policy
- Prevention of discrimination throughout the entire employment cycle, including recruitment and job application, as well as in various terms of employment and prospects offered to all employees (including full-time, part-time, permanent, temporary and casual employees, and those working inside and outside the workplace and Hong Kong).
- Setting up of written anti-discrimination policy that covers matters in accordance with Codes of Practice on Employment under the SDO, DDO, FSDO and RDO.
B. Enforcement of anti-discrimination policy in a transparent and consistent manner
- Launch of the anti-discrimination policy by serving notice to all employees and requesting employees to acknowledge their understanding of the policy.
- Stressing to all employees that the company will have “zero tolerance” of any discriminatory or harassing behaviours from any of its employees.
- Provision of training to all employees focusing on individual rights and responsibilities and to create and maintain a safe working environment free from discrimination or harassment for everyone.
- Setting up of grievance procedures for the handling of complaints (such as setting different strategies in dealing with complaints by using informal processes and formal investigation).
- Setting up of strategies to enhance equal employment opportunities (such as establishment of a fair HR strategy to reward employees in consideration of the company’s hierarchical structure, career prospects and promotions for employees, decisions on discretionary benefits, proper appraisal reporting system, etc) so as to avoid any unlawful discriminatory issues.
C. Provision of training for employees nominated as key contacts for handling of complaints of unlawful discrimination from employees
- Conducting specialised training for those employees (eg managerial staff or above) nominated as key contacts for dealing with complaints of unlawful discrimination, to equip them with knowledge and strategies to respond to such complaints immediately.
- Addressing complaints based on four key principles: timely responses; professional and serious manners; confidentiality and fairness; and adherence to the internal policy and grievance procedure with documentation of all interviews held and evidence obtained.
- Stopping the inappropriate behaviour conducted by employees once noticed, before it escalates to a complaint.
- Nominated employees acting as role models to influence and change the workplace culture.
- Creation of an environment in which discrimination or harassment is less likely to occur.
What should employers be aware of with regard to compensation after successful prosecution under the anti-discrimination ordinances?
- An aggrieved employee may lodge a complaint with the EOC or lodge personal proceedings directly with the District Court.
- The EOC is obligated to investigate complaints lodged with it and the EOC can write to the employer for provision of information related to the complaint. Failure to comply without reasonable excuse is an offence and is liable for a fine up to a maximum amount of HK$25,000.
- The EOC is empowered to effect a settlement of complaints by way of conciliation. If conciliation has failed, the EOC would offer legal assistance to persons who have lodged complaints with the EOC and court proceedings would commence.
- Employers should be aware that a successful applicant in court proceedings may be awarded damages. In the context of employment, there is no limit to the amount of damages, as compensatory damages will be assessed by reference to injury to feelings and loss of earnings and benefits caused by the acts of discrimination. In some recent cases, the award for injury of feelings ranged from HK$30,000 to HK$200,000, depending on the court’s decision upon review of the degree and the duration of the injury suffered by the plaintiff. The overall damages received by a plaintiff inclusive of compensation for injury of feelings, loss of income and punitive damages could reach over HK$1 million. Such costs could be very significant.
- It is expected that claims under anti-discrimination ordinances will increase significantly over the coming years.
For those employers who have not taken the above-mentioned actions to minimise the risk of being held vicariously liable for any acts of discrimination committed by an employee, it is imperative for them to invest in the required costs and resources to develop policies and practices as soon as possible. This document aims to demonstrate appropriate steps where reasonably practicable to prevent such behaviours from happening so that the potential aforementioned liability could be reduced. Alternatively, employers may consider engaging professionals to set up the relevant policies and practices so as to expedite the processes on their behalf.
Notes
- To be eligible for exceptions, the employer must show that GOQ applies as exceptions to the particular job can only be done by a particular sex/race, for essential reasons.
- Direct discrimination happens where an employer treats a person with a prohibited attribute less favourably than another person without that attribute, under the same or similar circumstances.
- Indirect discrimination happens where a requirement or condition is imposed on all employees equally but it has a disproportionate impact on a person or group of persons with a prohibited attribute.
- Harassment refers to unwelcome conduct where a person, individually or together with others, engages in conduct towards another person in circumstances where a reasonable person would have anticipated that the other person would be offended, humiliated or intimidated. It also includes creation of a sexually hostile or intimidating environment for another person (ie sexual harassment, racial harassment).
- Victimisation happens where a person is treated less favourably than others, based on the fact that the person has brought proceedings or given evidence or information in any proceedings brought under the anti-discrimination ordinances.
- Vilification happens where a person does any act in public to incite hatred towards, serious contempt for, or severe ridicule of a person or persons of a particular racial group or disability.