2 January 2014
Do employees have a right to family friendly work?
There is no provision under the Employment Ordinance (EO) or at common law granting employees in Hong Kong the right to work flexibly. However, any employer who simply ignores a request to work flexibly or dismisses such request out of hand is putting itself at risk. Read on for the reasons why.
Why should an employer be careful when a request for flexible working is made?
The various discrimination ordinances in Hong Kong all operate to make unlawful any practice which disproportionately prejudices one category of persons with a particular "protected attribute" when compared with a category of persons with a different "protected attribute".
For example, the Sex Discrimination Ordinance provides that a female employee can bring a claim for indirect sex discrimination if that employee can show that any condition or requirement imposed by an employer has a greater adverse impact on women than men.
The discrimination ordinances in Hong Kong cover:
- marital status
- family status
Therefore, where an employer has a simple policy of never permitting flexible working and an employee can show that:
- such policy has a disproportionate effect on a particular group of persons with one of the protected attributes set out above (e.g., women or married persons or persons with a disability), and
- the application of such policy operates to the employee's detriment
then, unless the employer is able to "justify" such policy, the employee will have a claim for indirect discrimination under the appropriate discrimination ordinance. It is not easy to "justify" a refusal to allow part time or flexible working, especially for large employers with substantial resources.
Any claim for discrimination can be made very easily by an employee by a simple letter to the Equal Opportunities Commission. This will always result in pain for the employer. It is therefore best avoided.
The next Bitesize will consider specific situations where a refusal to permit flexible working had led to problems.
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