Hong Kong is continuing to see large scale protests, involving people from all walks of life. We have also seen major companies, such as Cathay Pacific, coming under pressure to discipline employees who have expressed support for or who have been involved in the protests. Hong Kong employers are therefore having to face, probably for the first time, employment law issues which have major public relations and political implications.
Are demonstrations or protests legal?
The right to protest is explicitly protected by Article 27 of the Basic Law. This provides that, “Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.” Therefore, as long as the protests are peaceful and lawful (i.e. in compliance with the requirements of the Public Order Ordinance (Cap. 245)), participation in protests or demonstrations per se is not illegal. However, participation in a protest or demonstration that is considered an "unauthorised assembly" under the Public Order Ordinance is illegal and is a criminal offence.
Do employers have to allow employees to participate in protests?
While the right to protest is a constitutional right, private sector employers do not owe their employees any duty or obligation to permit them to participate in such demonstrations or protests during normal working hours. That means the employee must make proper arrangements for their absence from work. This would be the same if the employee had to be away from work for personal reasons. An employee cannot invoke his or her constitutional right to require the employer to make exceptions to the usual company policy or to depart from the usual practice of how the business is run.
What must employers bear in mind?
If an employee fails to attend work, and that failure is a result of the employee's decision to participate in demonstrations or protests, the employer is entitled to treat the employee in the same manner as an employee that is absent from work without a legitimate excuse. The same would apply to an employee who is arrested and is prevented from attending work.
Employers must bear in mind that Section 11(1)(c) of the Employment Ordinance (Cap. 57) gives only limited circumstances under which an employee may be summarily dismissed, and these do not include being arrested or being charged with a public order offence not involving the employer.
Clearly, given the nature and scope of the recent protests, employers may need to consider broader, non-legal, issues with respect to employees who are involved in anti-government protests, or who have been arrested or charged with public order offences. These include the human resources, public relations and customer relations aspects. Economic considerations, especially for those companies with significant investment in mainland China, will also add a further dimension to those considerations. There are no easy or quick answers to these questions.
Should employers provide flexible working arrangements during this period?
Under circumstances where disruption to road or rail transport occurs or is expected to occur, or where there is likely to be danger to employees while traveling to or from work, or while at work, employers have a positive duty to ensure the safety of their employees, as stipulated in the Occupational Safety and Health Ordinance (Cap.509). Employers should consider making appropriate flexible working arrangements (e.g. different time for arrival at or departure from the office or working from home) . Employers should also closely monitor the situation and adjust arrangements accordingly.