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COVID-19: Legal considerations around racism and work from home

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 by Catherine Leung, legal director, Lewis Silkin

Can discrimination claims arise out of travel bans or the way in which Chinese people are treated in the workplace?

With regard to travel bans, many companies in Hong Kong have already restricted non-essential business travel for employees in response to the coronavirus outbreak. Some companies have banned all business travel altogether. This is unlikely to give rise to discrimination claims, as the purpose of limiting travel is for health and safety reasons.

An increasing number of countries have also issued a ban on travellers who had recently been to China, and some commercial airlines have reduced or cancelled their flights to China.

While it would be difficult to restrict an employee from personal travel to China, employees should be encouraged to defer their flights to China (or any other areas that are highly affected) until the coronavirus situation subsides. Currently, employees who have recently travelled to China are required by law to be quarantined for a period of 14 days in Hong Kong.

The coronavirus seems to be spreading quickly and the frequency of xenophobic incidents appears to be keeping pace with the virus spread. People of Asian descent around the world have been sharing their experiences of xenophobic incidents on social media following the outbreak of the coronavirus. In Hong Kong, the Race Discrimination Ordinance (“RDO”) prohibits discrimination and harassment on the basis of a person’s race.

Racial harassment occurs when the harasser engages in unwelcome conduct (oral or in writing) on the ground of race where a reasonable person would have anticipated that such person would be offended, humiliated or intimidated, or if such act renders a hostile or intimidating work environment.

It is therefore unlawful to treat Chinese people unfavourably on the basis of their race in the workplace (the law prohibiting race discrimination actually extends to more than just in the workplace and includes, for example, the provision of goods, facilities, services and premises).

Employers can also be vicariously liable – as any act done by an employee in the course of employment shall be treated for the purpose of the RDO as an act done by the employer regardless of whether it was done with the employer’s knowledge or approval.

It is therefore important for the employer to have in place an equal opportunities policy. Employers should remind employees of this policy to ensure they understand and are aware of these requirements and to closely observe the situation to ensure that the policy is working in practice.

There was a case recently, where six Hang Seng Bank trainee managers were caught flouting a work-from-home directive by going out hiking and posting their activities on social media. What legal recourse does their employer have to discipline them?

This incident has hit the headlines as a perfect example of what employees should not do when working from home! I understand from the newspaper that Hang Seng bank has issued a warning letter to each of the employees, which is one of the legal recourses available to the bank.

Other legal recourses include treating any period of non-working as unpaid, and although in this situation an employer has a right to terminate the employment with notice (or payment in lieu), this may be considered harsh in the circumstances. For completeness, I do not think this situation would be sufficiently serious to justify summary dismissal.

Would the employers’ right to discipline the staff be compromised if it could be proven that the employer did not give the staff sufficient guidance during the work-from-home duration?  

No, as the clue is in the title (working from home)! While it would be beneficial to have a policy in place, an employer’s right to discipline employees is not compromised for the lack of sufficient guidance in this instance.

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