Occupational safety and anti-discrimination law in Hong Kong

Workplace safety legal requirements apply to all types of employment in Hong Kong including the white-collar sectors. Similarly, employers and employees in all industries have to comply with anti-discrimination although some forms of discrimination are not very obvious in certain situations.

In this article, we would suggest practical ways to comply with the relevant stipulations in the workplace.

Non-tolerance for discrimination and sexual harassment

While Hong Kong is a hub for international finance and trade, it is largely a homogenous society. More than 90 percent of Hong Kong’s population are ethnically Chinese [1]. The percentage of female population is 54.2 percent compared to 45.8 percent male population [2]. Records available from 2020 [3] showed that around 7.1 percent of Hong Kong’s population had one or more of the following disabilities: restriction in body movement, visual impairment, auditory impairment, communication difficulty, mental illness/mood disorder, autism, learning difficulties and attention deficit/hyperactivity disorder. Certain types of disabilities may not be very obvious to commoners, but are covered by anti-discrimination laws in Hong Kong applicable to workplaces or otherwise.

Hong Kong prohibits discrimination on the grounds of sex, pregnancy, breastfeeding, marital status, disability, family status and race. The law also protects employees from sexual harassment. Not only the employer must take steps to prevent discrimination and sexual harassment, an employee’s breach of the relevant legal stipulations will result in liabilities on both the employee and the employer. It is because the employer may be vicariously liable for an employee’s action that breaches any anti-discrimination law, unless the employer can show that they have taken reasonably practicable steps to prevent the employee from doing such acts.

Anti-discrimination law carries certain limited exceptions such as:

• It is permissible for a race to be specified in the context of recruitment where the job involves the provision of services to a particular racial group, and the provision of these services can most effectively be provided by a member of that racial group or require familiarity with the language, culture, and customs of, and a sensitivity to the needs of, that racial group.
• It is permissible for a gender to be specified where a job is to be performed outside Hong Kong and local laws or customs dictate that the particular job cannot be performed by the opposite gender.
• It is not discriminatory to not offer a job to a person with a disability where, because of such disability, the person is unable to carry out the inherent requirements of the role unless services or facilities are provided but the provision of such services or facilities would impose unjustifiable hardship on the employer.
  

Moreover, protection under these laws extends to workplaces where there is no employment relationship such as volunteers and interns. Racial and disability harassment of service providers by customers is also forbidden. Victims of discrimination may lodge a complaint with Equal Opportunities Commission (EOC) and/or commence proceedings against the employer in court. The EOC, being a statutory body, has the power to investigate the complaint, issue a report on its findings, and encourage the parties to settle the complaint by way of conciliation. The EOC is also empowered to offer legal assistance to persons who have lodged complaints with it.

Employers in Hong Kong are strongly encouraged to provide education and training to their employees on the city’s anti-discrimination laws, to ensure that the entire workforce will uphold appropriate workplace ethics and understand the adverse consequences of discriminatory behaviors. Moreover, employers should clearly set out and apply policies which encourage equal opportunities and prevent any form of discrimination and harassment in the workplace. In the event of any non-compliant incident, the employer must react timely and property to deal with the situation and also take measure to prevent similar future occurrence.