How to prevent discrimination in the Workplace: practical advice for Hong Kong employers

Introduction

Hong Kong law prohibits discrimination in the workplace.  Unless an exemption applies, it is unlawful to directly or indirectly discriminate on the grounds of sex, marital status, pregnancy, breastfeeding, disability, family status and race (each a "protected characteristic").

Direct discrimination occurs when a person is treated less favourably than another person because of a protected characteristic. Indirect discrimination occurs when a condition or requirement, which is not justifiable, is applied to everyone but in practice adversely affects persons who possess that protected characteristic.

Discrimination is prohibited during various stages of the employment relationship. This includes prior to the commencement of employment i.e. during recruitment (including the advertisement of vacancies), as well as during the currency of employment (typically, we see complaints raised in relation to terms of employment, opportunities for promotion, transfers, training, provision of benefits, facilities or services, renewal of contracts, disciplinary action, and dismissal). 

There are steps that an employer can take to prevent discrimination in the workplace, and it certainly pays to do so.  Where discrimination/harassment behaviour is ignored or unresolved, it directly affects employee morale, productivity and the employer's reputation.  

Moreover, employers in Hong Kong are vicariously liable for the actions of their employees, whether or not such actions were done with the employers' knowledge or approval. This means that where an employee commits an unlawful act under the discrimination ordinances, both the employer and the employee would be liable for such actions.  An employer may be able to defend itself against such claims if it can establish that it took such steps as were reasonably practicable to prevent the offending employee from committing the unlawful act.  

This article looks into ways which an employer can prevent discrimination in the workplace and mitigate against claims of discrimination and vicarious liability. 

Understand Hong Kong's discrimination law

First and foremost, employers should familiarize themselves with Hong Kong's discrimination ordinances.  This will educate employers on the kind of behavior that constitute or may constitute discrimination in the workplace so that they are able to detect suspected discrimination before they escalate to complaints and can respond readily, appropriately and confidently when complaints are made.  

Employers should also ensure that employees are aware and understand Hong Kong's discrimination laws and regularly educate employees so that everyone contributes to creating a discrimination-free workplace environment. 

Through education and training, employees will understand what constitutes appropriate workplace behavior, what to do in the event of discrimination incidents, and the potential consequences of unlawful discriminatory behavior. 

Generally speaking, employers should arrange anti-discriminatory talks and training programs focusing on individual rights and responsibilities on a regular basis for all employees.  Employers may further arrange for managerial level employees to attend specialised training for their soft skills so that they know how to handle these sensitive situations.

Formulate a written policy that details rules and procedures

Employers should formulate and implement an equal opportunities policy and an anti-sexual harassment policy which emphasize zero tolerance for any form of discrimination or harassment in the workplace and promote diversity, inclusiveness and equality of opportunity for all.  Employers should put provide copies of these policies to every employee upon their joining or when these policies are launched internally and require that employees acknowledge their understanding of the policies. 

These policies should act as a set of practical guidelines for employers and employees to follow and to help them understand the type of conduct that constitutes or may constitute discrimination, the ways to avoid such conduct and the consequences of breaching the guidelines in order to achieve a discrimination-free workplace environment collectively.

These policies may include:

• Reduce unconscious bias in the hiring process by adopting uniform selection criteria catered to each job opening based on experience, skills and suitability instead of individual perceptions, which can be used as an objective tool to select the most suitable candidate for a position, for example, the selection criteria should avoid asking applicants for their photos at the early stages of recruitment to avoid unconscious bias that may be formed from photos, such as, race or facial marks;
• Adopt a standardized interview process by asking candidates the same set of open-ended questions that focus on determining one's suitability for a position and avoid asking questions framed in a way that may be perceived as collecting personal information about one's race, marriage status, health condition, family mental history, disability, etc.;
• Avoid mandating pre-employment health checks unless the examination is necessary to determine whether an applicant can fulfil the inherent requirements of the position or whether an applicant has any transmittable disease falling within Schedule 1 of the Prevention and Control of Disease Ordinance (Cap. 599), such as tuberculosis, AIDS, dengue fever, COVID-19, so as to ensure the health and safety of other employees in the workplace; 
• Accommodate job applicants' specific needs where possible during recruitment, for example, provide an accessible place for a wheelchair bound applicant to attend an interview;
• Where possible, the interview processes should overseen by a selection panel consisting of three to four persons of both male and female from different departments; 
• Create a set of clear and uniform selection criteria when deciding on employee promotion, training, transfer, job evaluation, dismissal and layoff and maintain proper records of fact-based evaluations to avoid future complaints of discrimination;
• Inform employees of the key personnel for handling discrimination concerns and complaints so they know the appropriate personnel to approach if and when these unfortunate incidents occur, which in turn ensures that these incidents are resolved promptly and effectively; and
• Set out detailed grievance procedures for handling discrimination complaints, such as the different strategies for dealing with complaints by informal processes and formal investigations. 

Employers should ensure that they regularly review and update these policies so that they are compliant with the latest legal requirements.

Establish a process for resolving discrimination complaints

Employers should establish a detailed process to handle and resolve complaints.  This ensures that those in charge of handling complaints have clear guidelines and can follow the standard procedures at each step of the handling process.  The process should emphasize an objective and consistent approach to investigations so that all complainants and complainees are treated fairly.    

The earlier an employer learns of an employee's complaint, the better.  An employer can only fix an issue if it is made aware of it.  Finding out about complaints earlier may give the employer a fighting chance of resolving it, addressing it and even if it doesn't – might give the employer a defence to a lawsuit.

Where an employer receives a complaint, it should avoid taking any action that could be perceived as retaliatory to the complainant.  Employers should refrain from terminating an employee for raising a complaint.  If an employer were to do so, regardless of how illegitimate the complaint may be, by firing an employee, the employer may give the employee legitimate grounds to sue the company for their dismissal.

Obtain legal advice

Employers are encouraged to obtain legal advice to ensure that their anti-discrimination policies are compliant with Hong Kong's discrimination laws.  Moreover, whenever in doubt of how to handle discrimination complaints, employers should promptly seek legal advice to avoid being accused of failing to take reasonable steps to handle them. The earlier legal advice is sought, the better.  This will enable strategies to be considered and formed at the beginning.  More often than not, it is better to get things right at the first time of asking than to try to tidy up any mistakes.

Conclusion

Creating a safe and harmonious working environment increases employee productivity, decreases turnover rates, and encourages collaboration and cooperation amongst employees, which in turn goes to benefiting employers in the end.  As such, it is vital that employers start with preventing discrimination/harassment by having in place necessary policies as well as providing appropriate training to employees of all rankings.  Even in the unfortunate event of such incidents occurring in the workplace, employers will still have a set of guidelines to resolve the matter effectively and efficiently.  Where matters escalate, employers should seek legal advice without delay and prepare for any defence in earnest.

Our team at RPC are widely recognized as leading employment lawyers in Hong Kong. We are of the few specialist employment law practices in Hong Kong and we act for both employers and employees on contentious and non-contentious matters.

Please do not hesitate to contact our Partner and Head of the Employment Practice in Hong Kong, Andrea Randall (andrea.randall@rpc.com.hk / +852 2216 7208) for any queries regarding the issues raised in this article or any employment law related queries you may have. 

All material contained in this article is provided for general information purposes only and should not be construed as legal, accounting, financial or tax advice, or as opinion to any person or specific case. RPC accepts no responsibility for any loss or damage arising directly or indirectly from action taken, or not taken, which may arise from reliance on information contained in this article. You are urged to seek legal advice concerning your own situation and any specific legal question that you may have.