11 December 2013
Family Friendly Practices and the Employment Ordinance
Are employees who work flexibly covered by the provisions of the Employment Ordinance (EO)?
Not all employees have the same entitlements under the EO. Basically an employee needs to satisfy the "418" rule before he or she becomes entitled to the vast majority of payments under the EO.
This "418" rule is satisfied where an employee works at least 18 hours a week ("week" means a week ending with Saturday) for four consecutive weeks.
When is an hour an hour "worked"?
Where an employee is at work then that time will be an hour "worked". That is the easy part.
However, paragraph 3 of Schedule 1 of the EO provides for certain circumstances where an hour not worked will still be deemed to be an hour worked. This includes where an employee is "absent from work in circumstances such that, by law, mutual arrangement or the custom of the trade, business or undertaking, he is regarded as continuing in the employment of his employer for any purpose….then….that hour shall count as an hour in which he has worked".
So, it is quite possible that an employee employed under a family friendly flexible work arrangement which appears not to satisfy the "418" rule (due to, say, the employee taking every second week "off") could nonetheless be entitled to full benefits under the EO.
There have been several cases over the years where employers have sought to take steps to break continuous employment and the impacted employees have complained. All of these cases relate to circumstances where the employees work more than 18 hours a week for a number of months and then the employer seeks to impose a "break" (by means of a termination and subsequent re-engagement).
The courts have been aggressive in taking steps to ensure that "sham" arrangements for breaking continuity of employment fail. To this end, the courts have adopted the concept of a 'global contract' to maintain continuity of employment where there is a gap between one contract and another. Such a global contract will be held to exist where there is a "mutuality of obligation" in the intervening period between contracts.
The court will look at all the circumstances to determine if the "break" period is sufficient to stop the "continuous" employment. Each case will be determined on its own facts (and we will be looking at this in more detail in the next Family Friendly Bitesize).
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