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On 16 June, some estimates suggest almost 2 million people marched in support of calls for the Hong Kong government to withdraw its controversial Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill (the Extradition Bill). The Extradition Bill would, if passed, create a mechanism for the transfer of fugitives from Hong Kong to Taiwan, Mainland China and Macau, which are not covered under existing laws.
Since then, both the frequency of the protests and the potential for violence appear to have escalated.
This has prompted many businesses to voice concerns regarding the impact of the protests on their business operations and Hong Kong's ability to maintain its reputation as a leading international business centre.
Employees are at the front and centre of these concerns, and there is no doubt the recent political climate is creating unique business risks for HR professionals and senior leadership in Hong Kong/Asia.
1. A Right to Protest/Strike?
For those staff who express a desire take part in the protests, do they have a "right" to do so? Or can an employer prohibit staff from taking part?
The rights to freedom of association and peaceful assembly are enshrined in Article 27 of the Basic Law and Article 17 of the Hong Kong Bill of Rights respectively. However, these rights and duties are only capable of being enforced against the Government and other public bodies, not against private companies.
There is limited protection under the Employment Ordinance, which prohibits an employer from dismissing an employee summarily (i.e. without notice or payment in lieu) on the ground they have taken part in a strike. Employees are also entitled to take part in a strike without breaking continuity of their service provided the strike is lawful. However, "strike" is defined under the Trade Unions Ordinance as any action taken "in consequence of a dispute, done as a means of compelling their employer…to accept or not to accept terms or conditions of or affecting employment". This is a fairly narrow definition and seems unlikely to be successfully relied upon by an employee with respect to the current public protests, which have so far been directed towards the Hong Kong government as opposed to employers.
There would therefore appear to be nothing expressly prohibiting an employer from instructing its staff not to participate in the protests, and that if an employee were to refuse this instruction they could be subject to disciplinary action being taken (up to and including dismissal). However, employers should also be mindful of the reputational risks associated with implementing a blanket policy that prohibits staff from engaging in any acts of public protest per se. There is currently a high degree of public sentiment in favour of the protests (or at least some elements of it) and there is a longstanding tradition of taking part in public protests in Hong Kong.
2. Activities Outside Employment
At what point do the duties owed by an employee to their employer end, and an employee's rights to privacy begin? Employers have always been concerned with this question as they are vicariously liable for the wrongful acts and omissions committed by their employees when they are acting in the course of their employment (subject to certain defences/exceptions). Understanding when an employee is acting "in the course of their employment" or purely in their personal capacity is at the heart of many questions surrounding an employer's liability.
Unfortunately the question has always been notoriously difficult to answer. If a staff member harasses another colleague at a work-organised drinks event, is this acting outside their employment? Similarly, if a staff member causes criminal damage at a protest involving mainly colleagues from the same company/team, can we safely say they are acting outside their employment? The lines are blurred.
The problem has also been exacerbated with the rise of social media and the fact that identifying an individual (and who they work for) is now a matter of a few clicks on Google/LinkedIn.
The recent Extradition Bill protests have brought this issue into the spotlight, particularly in instances where staff are suspected or found to have engaged in any criminal activity or caused physical damage (to property or to other people).
Whilst it would be impossible to completely restrict the ability of staff to hold and express political opinions outside of work, business also have to be mindful of their public image and the duties they owe to various stakeholders - who may not be sympathetic to any particular viewpoint. Employees may not always consider this broader impact.
Knee-jerk reactions should, however, be avoided. Where the company considers that an employee has (in the course of protesting) done something that has brought the company into disrepute, it should still consider whether the business has actually suffered any damage as a result. Where the employee is suspected or found to have engaged in criminal activity, the company should still consider whether the criminal activity would have an impact on the employee's ability to carry out their employment duties. Companies should also review the terms of their Code of Conduct and disciplinary policy, and ensure that any disciplinary action is taken in accordance with these - typically after having carried out an investigation. In particular, summary dismissal should be viewed as a measure of last resort and only taken in extreme circumstances and after having sought legal advice.
3. Impact on Other Staff
The impact on those who do not wish to take part also needs to be taken into account and is arguably an ever greater concern. The Extradition Bill protests have become increasingly violent in recent weeks, and the violence has at times extended to "passers-by" or those not wishing to take part but who are simply trying to get home.
It is important to remember that employers have a duty to maintain a safe and healthy working environment. This includes ensuring safe access to and exit from workplaces, and can extend offsite where an employee is required to carry out their work outside the office premises.
Our experience so far is that most companies are allowing staff to work from home who live in or near the areas which have experienced the most disruption on days when strikes or protests are known to be occurring - generally in the New Territories, towards the Mainland China border. Other staff may request to work from home and these applications may be approved on a case-by-case basis e.g. if the employee has family members/dependents who live in such areas, the employee's commute is likely to be affected by resultant public transport delays on specific days.
Companies should therefore ensure they have in place sufficient flexible working arrangements to allow staff to do this to the maximum extent feasible.
4. Striking a Balance
Overall, our experience is that companies (particularly multinationals) appear to be taking a hybrid line by reminding staff that while they respect/value diversity of opinion and appreciate that some staff may hold strong viewpoints, it is important that the company is not seen to be getting involved in the political controversies of the many countries around the world in which they operate.
Companies are also reminding staff that while they are generally able to conduct themselves freely outside of their contracted working hours, they should refrain from doing anything that would (or might reasonably) bring the company into disrepute (in the same manner as any other offsite conduct) and that to do so would give grounds for potential disciplinary proceedings.
We continue to monitor closely the situation on the ground. Our Hong Kong Employment team can assist in preparing staff communications and/or developing company policies as appropriate. Please contact Helen Colquhoun for further details.