Occupational Safety and Anti-discrimination Law in Hong Kong

By Rossana Chu, Jacky Chan:   

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.

Health and safety in the workplace

There are stringent occupational health and safety obligations under the Occupational Safety and Health Ordinance of Hong Kong. Under this ordinance, every relevant person (not only employer and employee) has a role to play in creating a safe and healthy workplace.

Employers should contribute to safety in their workplaces and health of their employees by:

• providing and maintaining plant and work systems that do not endanger safety or health
• making arrangements for ensuring safety and health in connection with the use, handling, storage or transport of plant or substances
• providing all necessary information, instruction, training, and supervision for ensuring safety and health
• providing and maintaining safe access to and egress from the workplaces
• providing and maintaining a safe and healthy work environment

If the workplace is located on premises that are not under the employer’s control, the occupier of the premises must ensure that such premises, the means of access to and egress from the premises, as well as plant or substances kept at the premises, are safe and without risks to health.

Employees should take care of health and safety at the workplace by using the plant, equipment and work systems in a safe manner and following working rules stipulated by their employers and required by law.

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…  READ FULL ARTICLE

Note: This material has been prepared for general information purposes only and is not intended to be relied upon as professional advice for any cases. Should you need further information or legal advice, please contact us.

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[1] https://www.gov.hk/en/about/abouthk/facts.htm

[2] https://statisticstimes.com/demographics/country/hong-kong-demographics.php#:~:text=The%20Sex%20Ratio%20in%20Hong,million%20more%20females%20than%20males.

[3] https://www.info.gov.hk/gia/general/202112/17/P2021121700355.htm

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