Everyone will be aware of the mass civilian protests that have been going on in Hong Kong since early June. Most businesses have continued to operate as normally as possible, with some taking steps to minimise business disruption.
The safety of employees is, of course, a key concern of employers during the protests, and prudent employers have been assessing whether their contingency plans are sufficient for the current state of affairs.
Various important questions have also emerged for many employers - how to respond when an employee decides he or she would like to continue to protest during usual working hours, what actions to take if an employee is arrested due to his or her participation or is shown to be acting in a potentially unlawful manner on social media, and how to handle workplace tensions arising from differing political views?
Safety of Employees
Under the Occupational Safety and Health Ordinance, employers have a duty to provide and maintain a safe work environment. This includes ensuring safe access to and exit from workplaces and whenever an employee is carrying out their duties outside of the office including on the way to meet a client or for those with "on-the-road" working duties.
Employers should have in place a contingency plan for potential business disruptions caused by protests. The plan should set out the reasonable and practical work arrangements giving consideration to the circumstances faced by individual employees, for example, flexible working arrangements or working from home for employees that have difficulty accessing the workplace wherever that may be. A clear communication plan between the employer and the employees is essential. The employer should keep abreast of developments and alert employees immediately of upcoming protests and the appropriate work arrangements.
Time off to protest?
Employers will need to consider what to do in the event an employee either asks for time off or simply does not attend work. Clearly, if a number of employees have the same intention, an organisation could suffer operational difficulties with financial and other consequences.
The Legal Context
Article 27 of Hong Kong's Basic Law states: "Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike."
The Employment Ordinance also states an employer is not entitled to dismiss employees without notice or a payment in lieu of notice because they take part in a strike. In addition, it mandates that an employee's continuous employment is intact if the individual is absent from work for the whole or part of any hour because of a strike, as long as the strike is legal.
While arguments can be made to the contrary, the Hong Kong definition of a strike appears to focus on it being a dispute adopted as a means of compelling an employer to accept or not accept terms of conditions affecting employment.
Broad protests of the type seen in recent weeks are clearly not targeted at any one employer. They appear to fall into a different category, beyond the usual principles of an industrial dispute - although the legal principle has not been tested fully in Hong Kong.
Therefore, from a legal standpoint, an employee's absence seems likely to be the same whether the absence is for the purposes of being involved in the protests or for some entirely unrelated personal activity. However, any prudent employer will always take into account all the relevant circumstances. The context and potential publicity surrounding any decision will always be a key factor.
At a basic level, if the absence has not been agreed with the employer and is therefore unauthorised, there is no obligation for the employer to pay the employee. The normal contractual position is that an employee is paid for performing services. In addition, simply failing to turn up for work and not notifying an employer is likely to amount to a breach of the employee's employment contract and subject to appropriate disciplinary action including potential dismissal.
The Employee's Responsibility
Employers need to carefully consider their strategy and then communicate clearly to staff what is expected of them in sometimes unexpected situations.
Employees are entitled to spend their time outside of work as they choose. However, it is important to remember that even "off-duty" activities may be relevant to an employer if that employee's conduct out of work has an impact on the reputation of his or her employer.
Any absence from work should be approved in the usual way and unapproved absence is likely to result in deductions from an employee's wages and potential disciplinary action.
Employees are, of course, entitled to take their annual leave or other approved absence, so long as they comply with the relevant company processes and procedures.
Contingency planning often takes second place to the immediate needs of business. However, investing time in communicating clear expectations of employee behaviour in a given situation can avoid complicated issues when the unexpected does occur.
Arrests and Social Media
The police are reported to have made numerous arrests for unlawful assembly (nearly 50 persons for the protests in Sheung Wan alone on 28 July). With social media being a primary source of news for the protests, various media have been circulated which appeared to depict protestors engaging in potentially unlawful conduct. What should employers do if their employees are seen to be engaging in unlawful conduct or are arrested?
As participation in protests is a personal activity, this is always a tricky issue. It would be wise for employers to base any decisions, including disciplinary action and dismissal, pursuant to normal protocols applicable to outside work events, for example where the employee's conduct casts doubt on his/her ability to perform job duties (e.g. dishonesty or causing physical harm to others) or the reputation of the employer is potentially tarnished by the conduct of the individual albeit outside of the workplace. Given that social media posts and arrests alone are rarely conclusive of criminality; it is prudent for employers to thoroughly investigate the incidents before making any decisions.
The extradition law and mass protests have been a source of intense debate not only between the government and citizens, but also amongst the people themselves.
Employees have the freedom to discuss their political views, and some political chit-chat by the water cooler is generally harmless. With that being said, employers have the responsibility to ensure a comfortable work environment, and may have to step in if the discussions create animosity or involve bullying.