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Legal Update

The Race Discrimination Ordinance - Consultation on the Code of Practice

2 January 2009
Mayer Brown JSM Legal Update
Summary

Subsequent to the publication of the draft Code of Practice on the Race Discrimination Legislation, the Equal Opportunities Commission has been undertaking a number of public and private sessions to consider such Code.  We set out below certain of the most common questions raised and the EOC's response.

Full Update

Timing

Q. When will the RDO come into force?

A.  The Administration is talking about bringing the law into effect in April 2009.  However, this date may need to change.

Employer's Vicarious Liability

Q. We engage contractors to do the cleaning in our offices. Are we liable if the contractor  discriminates against its staff whom they send to our offices?

A. Unlikely, unless the employer can be seen to have impliedly authorised the contractor's discriminatory act. For instance, if the employer has prior knowledge of the discriminatory acts and does not raise any objections. In such case, the contractor might be regarded as being the agent of the employer and having an implied authority to discriminate.

Q. We engage two contractors (A and B). Are we liable if the workers sent over to us by A discriminate against those of B?

A. Theoretically the employer will not be liable unless the employer is found to be the principal of the workers.

Expatriate Employees

Q. Can we offer a package that is better than our local employees of the same grade in order to recruit an expatriate employee who is currently working in Hong Kong for a competitor?

A. This could be risky after the RDO comes into force. In order for the exemption in S.13 of the RDO to apply a person must be recruited outside Hong Kong.

Q. We operate an exchange programme pursuant to which employees are seconded to offices in different parts of the world. Can we pay hardship allowance to the expatriate secondees to Hong Kong? Is that race discrimination?

A. If a hardship allowance is payable to all employees who take part in this exchange programme, then this unlikely to be race discrimination. In this situation, the employer does not treat the local employees less favourably than the expatriate employees, as local employees will also receive a hardship allowance if they take part in the programme.

Q. Can we offer free Mandarin or Cantonese language courses to our expatriate employees but not to our local employees? Is that race discrimination?  /div>

A. This may amount to indirect discrimination (as a lower percentage of ethnically Chinese employees will be offered this benefit).  Can the employer "justify" just offering the courses to expatriates?

Publication of Materials

Q. Job advertisement - Do we have to publish an advertisement in both Chinese or English  when we are recruiting?

A. Unless the employer can "justify" only using one language (eg because the applicant must be able to read that language) failure to publish in both languages could be risky.

Q. Staff circular and notices - Do we have the obligation to translate all the circulars and notices into English or even other languages (if we hire employees who are from more than one racial groups)?

A. As above. There will be a particular risk if a sizeable number of the employees cannot read the language of the announcements. An employer might have a responsibility to translate the circulars and notices into other languages that would suit the employees' needs.

Recruitment

Q. Can we make the ability to read our staff handbook in Chinese a pre-condition to the  joining of our company?

A. This may constitute indirect race discrimination under the RDO.  As such the employer would need to justify this condition.
 
Q. Can we arrange interview only on a Saturday morning to avoid disruption to our daily  practice?

A. This might be unlawful race discrimination as certain ethnic groups (eg Jews)  are prohibited from working on a Saturday. The employer might consider arranging for an interview on an alternative day to avoid breaching the RDO.

Q. Is it unlawful under the RDO to recruit a native English speaker to take up the position as  our General Manager?

A. This might amount to indirect race discrimination under the RDO. The proportion of, say, Chinese who can comply with this requirement may be considerably smaller than the proportion of non-Chinese persons. If there is no justifiable reason for imposing this requirement, the employer will be liable for unlawful race discrimination under the RDO.

For further information, please contact:

Duncan Abate ( duncan.abate@mayerbrownjsm.com )
Hong Tran (
hong.tran@mayerbrownjsm.com )
Anita Lam (
anita.lam@mayerbrownjsm.com )
Jennifer Tam (
jennifer.tam@mayerbrownjsm.com )
Sylvia Keung (
sylvia.keung@mayerbrownjsm.com )
Gabriel Cheung (
gabriel.cheung@mayerbrownjsm.com )

Learn more about our Hong Kong office and Employment & Benefits 

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