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Any Hong Kong company terminating an employee with a diagnosed mental health issue – such as anxiety or depression – will likely be required to pay compensation to that individual, under the Disability Discrimination Ordinance.
Compensation in such cases are typically in the region of US$50,000 (HK$392,000), but can run as high as US$6.5 million if the employee has been wrongfully terminated due to a mental health condition.
This was the key takeaway for HR at an event hosted by law firm Lewis Silkin in Hong Kong on 16 October at the Grand Hyatt – Mental health in the workplace across APAC: The law and practical implication for employers.
However, for such a case of wrongful termination to occur, several provisos must be in place. The first is that the employee’s diagnosis of anxiety or depression must be known by the employer prior to termination.
The second is that the diagnosis must be made by a psychiatrist (who is medically qualified), not by a psychiatrist or therapist (who is not).
A third point is that a diagnosis of stress is deemed insufficient to trigger a case of wrongful termination against an employee, under the Disability Discrimination Ordinance – although admittedly, the area between stress and anxiety can be a grey one.
The bottom line here is the best approach for companies in Hong Kong is to take care of the mental health of their employees.
Other key findings from the event were that 89% of attendees said they felt mental health issues are on the rise in their organisation. While a third said their workplace does not have a mental health strategy or programme in place.
“There is still a cultural stigma in Hong Kong, but looking at the recent cases which have been coming across my desk, employees have slowly become more vocal as we are seeing an increasing trend of claims for disability discrimination related to mental illness brought by employees,” commented Catherine Leung, Legal Director, Lewis Silkin Hong Kong.
In Hong Kong, a recent study by Oliver Wyman, in partnership with the City Mental Health Alliance Hong Kong, revealed that one in three professionals have poor mental health, with the majority saying their employers do not have the resources to support them, and over a third saying they do not feel comfortable discussing their mental health at work.
“The topic of mental health in Hong Kong still remains shrouded in stigma and taboo, with few companies addressing the critical aspect of employee wellbeing in their organisation and that’s got to change,” said Kathryn Weaver, partner and Head of Lewis Silkin Hong Kong.
“The first step to reducing stigma around mental health is to increase the conversation and that is the purpose of bringing people together here today.”