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Global employment briefing: Hong Kong, January 2018

  • Hong Kong
  • Employment law

31-01-2018

We have summarized below recent developments in employment law in Hong Kong. For more detailed information, please read our briefing.

Increased paternity leave and the prospect of extending maternity leave

In October 2017, Chief Executive Carrie Lam announced that the Labour Advisory Board and lawmakers will be consulted on extending statutory paternity leave from three to five days. If this is enacted, the entitlement of employees in the private sector will be aligned with those in the civil service. The proposal will be presented and consulted on during 2018.

Chief Executive Carrie Lam also hopes to change statutory maternity leave from 10 to 14 weeks. The authorities will launch a study in the near future, and the Labour and Welfare Secretary thinks that it is almost “certain” that this change will be implemented as 14 weeks of maternity leave is the time period advised by the International Labour Organisation. It is expected to take a year for the Government to consult the various sectors before putting forward a proposal.

Foreign same-sex marriages recognised for visas

In late September 2017, the Court of Appeal held in a landmark case that same-sex couples who are married in other foreign jurisdictions are eligible to apply for spousal dependant visas in Hong Kong.

The Court also confirmed that its ruling does not have any legal effect on the definition of marriage under Hong Kong’s Marriage Ordinance. It emphasized that institution of marriage under Basic Law remains intact.

This case came shortly after another landmark case for LGBT rights in the Hong Kong courts (see our article on Leung Chun Kwong v Secretary for the Civil Service and Commissioner of Inland Revenue [2017] HKEC 854 here). We suspect that many more claims will emerge to recognise rights of same-sex couples.

Draft modern slavery bill introduced in Hong Kong

Hong Kong legislator Dennis Kwok and others have introduced a new bill on modern slavery (the “Draft Bill”) to the Legislative Council in August 2017.

The Draft Bill intends to amend the Crimes Ordinance in Hong Kong to define and criminalise internationally recognised offence of trafficking and impose reporting obligations on corporations. Please refer to our full briefing for a list of the proposed new offences. The Draft Bill also imposes a reporting obligation on businesses whose turnover exceeds a threshold amount. The business is required to publish a statement providing detailed plans on its prevention of slavery and human trafficking in the workplace or declare that it does not have such plans. The statements must be approved by the board of directors, signed by a director and published on its website. There is no timetable for the Draft Bill yet. However, it raises awareness in the community, and Hong Kong is one step closer to international standards.

Proposal to abolish MPF off-setting mechanism

Chief Executive Carrie Lam emphasized in her 2017 policy address that the offsetting of severance payments or long-service payments with Mandatory Provident Fund (“MPF”) (i.e. pension) contributions will be abolished. The Government is willing to increase its subsidies to employers to assist them in the event the offsetting is removed.

The MPF is a scheme set up by the government to help generate retirement savings for the elderly. All employed individuals must partake in a mandatory subscription where both employers and employees collectively make monthly contributions through private MPF providers. Under current legislations, employers are entitled to use the benefits attributable to their contributions to offset an employee’s statutory severance or long service payments. This has been the subject of complaints from unions for many years.

The Government is expected to provide details on the final arrangements this year, and employers should factor the cost associated with this change in their future financial plan.

New bands for injury to feelings

The “Vento” bands originated from Vento v Chief Constable of West Yorkshire Police (No. 2) [2002], where the UK Court of Appeal identified three broad bands of compensation for injury to feelings relating to unlawful discrimination of protected characteristics such as sex and race, as opposed to compensation for psychiatric or personal injury. Hong Kong follows the “Vento” guidelines when assessing damages for injury to feelings.

The Presidents of the Employment Tribunal in England & Wales and Scotland have issued a joint Presidential Guidance to uprate the three “Vento” bands as follows:

  • lower band of £800 to £8,400 for less serious cases;
  • middle band of £8,400 to £25,200 for cases that do not merit an award in the upper band;
  • upper band of £25,200 to £42,000 for most serious cases; and
  • most exceptional cases capable of exceeding £42,000

As in the UK, Hong Kong courts must regard the guidance, but are not required to be bound by it.

For more information contact

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