Code Of Practice On Employment Under The Family Status Discrimination Ordinance
Hong Kong has become successful due to its fair, open and competitive society. Equality of opportunities in employment ensures that all suitable people compete equally and effectively on the basis of their abilities, aptitude and knowledge. This is an important element in sustaining Hong Kong's success.
Legislation on family status discrimination was introduced in Hong Kong not only to ensure equality of opportunities in certain area, but to reflect the growing needs of the Hong Kong community in:
- upholding civil rights - Hong Kong has made significant advances in protecting individual rights and respecting human dignity. The elimination of discrimination on the ground of family status in employment signifies a progressive society and contributes to the development of civil rights for people in Hong Kong.
- maintaining social harmony - Hong Kong prides itself on its low level of social conflict. Its economic success is a result of people being interested in fighting competitors in the market place rather than fighting other groups in society. Social harmony in Hong Kong can be maintained through the use of fair and open practices in social areas including employment.
- ensuring better use of skills and resources - By tapping into the largest pool of available talent, Hong Kong employers can enhance the quality of their staff and thereby improve their competitive edge. Creating this pool means including all skilled and talented people regardless of their family status. This present a challenge to all of us - to accept and value differences, and to dispense with stereotypical assumptions concerning people with family status. Employers are encouraged to recast the conventional notion of 'suitability' and focus on the 'ability' of a person rather than the family status.
- achieving organizational success - Organizations which incorporate equality of opportunities into their organizational strategy will be improved by seeking to develop the abilities of all employees. There is indeed a close link that exists between affording equal opportunities in organizations and good employment practice. In some cases an initial cost may be incurred in implementing equal opportunities policies, but this will be more than compensated for by better employment relationships and better use of human resources.
This Code of Practice on Employment is offered to assist employers and employees in understanding the requirements of the Family Status Discrimination Ordinance. In the long term, the Equal Opportunities Commission hopes to create, with the support of the community, an environment where there is no barrier to equal opportunities and no discrimination.
1. Purpose of the Code
|1.1||This Code of Practice (the Code) is issued by the Equal Opportunities Commission (EOC) in accordance with the Family Status Discrimination Ordinance (FSDO). 1 The FSDO aims to eliminate discrimination on the ground of family status and stipulates protection for persons with family status. Family status means the status of having responsibility for the care of an immediate family member. 2|
|1.2||The FSDO gives protection to employees who have responsibility for the care of an immediate family member to engage in employment without being subjected to discrimination.|
|1.3||The Code is designed to help employees, their colleagues, employers and other concerned parties to understand their responsibilities under the FSDO. The EOC believes that it is very important for employers, employees and the general public to be aware of the principles prohibiting discrimination on the ground of family status and victimisation in employment.|
|1.4||Used in conjunction with the Codes of Practice on Employment issued by the EOC under the Sex Discrimination Ordinance (SDO) and the Disability Discrimination Ordinance (DDO), this Code provides guidance on the procedures and systems that can help prevent discrimination and to deal with unlawful acts in employment.|
2. Application of the Code
|2.1||The Code applies to employment in Hong Kong in any establishment, 3 unless the employee does his or her work wholly or mainly outside Hong Kong.4|
|2.2||The Code applies to employment relationships in both the public and private sectors, the employment of contract workers, selection of partners in partnerships, 5 memberships in workers' or employers' organisations, the conferral of professional or trade authorisations or qualifications, employment-related training, the provision of services by employment agencies and the appointment of commission agents.|
|2.3||Employers are encouraged to follow the guidelines and the recommended good practices in this Code, unless there are justifiable grounds for not doing so. In all cases, reference should be made to the provisions of the FSDO.|
|2.4||The Code has to deal in general terms with discrimination on the ground of family status. In adopting the Code, employers may take into consideration the size and structure of their organisations. Small businesses may require simplified procedures but should nevertheless ensure that their practices comply with the FSDO and the spirit of the Code.|
|2.5||In addition to the Code, the EOC will, from time to time, issue guidelines on good management practices to assist organisations in implementing the recommendations set out in this Code.|
|3.1||Family status in relation to a person means that person has responsibility for the care of an immediate family member. An immediate family member is a person who is related by blood, marriage, adoption or affinity. 6 The types of blood relationships covered by this definition may include mother, father, brother, sister, son, daughter, grandmother, grandfather, grandchild, aunt, uncle, cousin, nephew and niece. Relationship of marriage is that of husband and wife who are lawfully married. Relationships of affinity are those created by marriage, and these may include, for instance, mother-in-law and father-in-law.|
|3.2||The definition of family status refers to the status of having responsibility for the care of a particular person who is an immediate family member, and the operative factor is whether there exists a specific relationship of being usually responsible for the care of such a person. For example, if a man has an aunt who has been living with him and his wife for years, then he has established family status in relation to his aunt as he has assumed the responsibility for her care. However, if that man has a sick sister who lives in her own home with her husband and children, there does not appear to be a relationship of responsibility for the care of the sister, then he might not have established family status in such circumstances.|
For practical purposes, listed below are the definitions of discrimination (direct and indirect) and victimisation that apply throughout this document.
The implications of the FSDO in employment
4. General liability
|4.1||According to the FSDO, an act done by a person in the course of his or her employment may render both that person and his or her employer liable. Similarly, an act done by a person as agent for another may render both the agent and principal liable. Employers are legally responsible for the actions of their employees, done in the course of their employment, whether or not these were done with the employer's knowledge or approval. The liability of employees and employers, agents and principals as described in this section shall not apply for the purpose of criminal proceedings.10|
|4.2||A failure on the part of a person to observe any of the recommendations contained in this Code does not automatically render him or her liable to any proceedings. However, in any legal proceedings under the FSDO, this Code shall be admissible in evidence and, if any provision of this Code appears to the court to be relevant to any questions arising in the proceedings, it shall be taken into account in determining that question.11|
|4.3||When the EOC investigates a complaint of discrimination or conducts a formal investigation, the EOC will also take compliance of this Code into account.|
|4.4||It is also unlawful to instruct, induce, threaten or knowingly aid others to commit unlawful acts under the FSDO.12|
|4.5||This Code may be used as a guide for employers as to what steps it is reasonably practicable for them to take to prevent their employees from committing unlawful acts. Where the Code offers specific guidelines to employers and they follow such guidelines, the fact they did so will assist a court to determine that they have taken all reasonable steps practicable.13|
5. Discrimination in employment on the ground of family status
Under the FSDO, it is unlawful to discriminate in employment on the ground of family status. This includes the following situations:
|5.2||Acting upon stereotypical assumptions based on family status could lead to discrimination. Do not, for example, assume that persons with family status would not commit to their work. If they are thereby refused employment on this ground, it would be unlawful.|
As family status is a ground of discrimination, employers should not directly or indirectly discriminate against persons who have the responsibility for the care of an immediate family member. However, under the FSDO, 14restriction of employment in the following situations is exempted :
|5.4||An employer who wishes to claim the exemption referred to in paragraph 5.3 has the onus to demonstrate, after making reasonable enquiries, that there is a significant likelihood of collusion and that the collusion would result in damage to the employer's business.|
|5.5||Restrictions of employment may include refusing to offer a job, or stipulating restrictive terms in a job offered or restrictive conditions on existing employment.|
|5.6||What is considered to be damage to the business of the employer will depend on the nature of the business and the individual facts in each case.|
6. Discrimination in employment by way of victimisation
Under the FSDO, it is unlawful to discriminate in employment by way of victimisation. Victimisation in employment occurs if a person treats another person less favourably because the person being victimised or any other person has done or intended to do the following: 15
|6.2||Victimisation in employment also covers the situations listed under paragraph 5.1 of this Code.|
7. Positive Action17
|7.1||The FSDO allows for positive action whereby an act targeting persons with family status would not be unlawful if it is reasonably intended to ensure that these persons have equal opportunities in employment, or to provide them with goods, access to services, facilities, opportunities, grants, benefits or programmes to meet their special needs in relation to employment.|
8. Partnership, membership in workers' and employers' organisations and employment agencies
|8.1||The principles underlying this Code should be applied, where applicable, in the selection of partners in partnerships, admission to membership in workers' and employers' organisations, provision of services by employment agencies, and selection and treatment of contract workers and commission agents.|
Practical guidelines for employers
9. Eliminating discrimination in employment
|9.1||The primary responsibility of each employer is to ensure that there is no discrimination at work on the ground of family status. The FSDO makes it unlawful to discriminate on such ground.|
|9.2||This section describes good management practices which will help to eliminate discrimination. It recommends the use of consistent selection criteria for recruitment, promotion, transfer, training, dismissal and redundancy as well as terms and conditions of employment. These criteria and terms and conditions should be made known to all employees and job applicants upon request. Without this consistency, decisions can be subjective and leave the way open for discrimination to occur.|
Developing a set of consistent selection criteria for all aspects of employment is one of the most important steps in eliminating discrimination in the workplace. This can be done by reference to the duties and responsibilities that would need to be carried out in the job. The application of consistent selection criteria is good management practice as it helps organisations to:
Save for a few exceptions, such criteria should not make reference to family status. They should be specifically related to the job, such as:
In line with good management practice, it is recommended that employers:
10. Guidelines for recruitment
|10.1||Employers should make all recruitment decisions on the basis of consistent selection criteria. In this way, each individual can be assessed according to his or her capabilities to carry out a given job and will not be judged by irrelevant considerations.|
|10.2||Do not assume that only persons without family status are able to do certain kinds of work. For example, employees with small children to care for can work late shifts just as easily as those without small children to care for.|
|10.3||Employers should ensure that family status is not used as a ground for determining who should be offered employment. This applies no matter whether recruiting by advertisement, through employment agencies or through career offices in educational establishments.|
|10.4||In addition, employees handling applications and conducting interviews should be trained to avoid acts of discrimination.|
Employers should ensure that the contents of advertisements are based on consistent selection criteria.18 In line with good management practice, it is recommended that employers:
In line with good management practice, it is recommended that employers:
In line with good management practice, it is recommended that employers:
An interviewer who seeks evidence of skills and abilities and who relies on facts rather than generalised hunches will be less likely to be biased. In line with good management practice, it is recommended that employers:
|10.9||It is a good practice to record, immediately after the interview, the assessment that each interviewer has formed on the applicant's ability to match the consistent selection criteria. This will not only ensure a logical assessment of the applicant's strengths and weaknesses but will also serve as a valuable explanation and defence against any unfounded suggestion of family status bias.|
|10.10||Employers should draw a distinction between pre-employment and post-hiring enquiries, as there are some questions that could give rise to allegations under the FSDO if asked before the applicant has been hired. It is therefore recommended that an employer should not ask questions which might subsequently give rise to any such allegation. (See paragraph 10.7.1 for example of pre-employment questions that should be avoided.)|
|10.11||As an example, it could be valid after hiring to request information regarding the spouse and number of children for medical benefits or educational allowances, or people to notify in case of emergency.|
|10.12||Where recruitment is done through employment agencies, employment services provided by the Labour Department, and educational establishments or non-government organisations, the employer should advise them that they should comply with the FSDO and follow the recommendations in this Code as far as practicable.|
|10.13||Where appropriate, employers should specify that vacancies are open to persons regardless of family status when notifying employment agencies or employment services. This is especially important when a job has traditionally been viewed as one done by a person without family status.|
11. Guidelines for terms and conditions of employment, benefits, facilities and services
|11.1||Under the FSDO, it is unlawful to discriminate on the ground of family status in the terms and conditions of employment or access to benefits, facilities or services. This applies both to existing contracts and new ones. Benefits may be in the form of fringe benefits, commissions, bonuses, allowances, pensions, health insurance plans, annual leave, merit and performance pay, or any other benefits available to employees generally.|
|11.2||In addition to ensuring that persons with family status are not treated less favourably than persons without family status, employers may also consider taking a more flexible approach to certain conditions of employment 22 such as flexible working hours.|
12. Guidelines for promotion, transfer and training
It is unlawful for employers to discriminate on the ground of family status in the way they give opportunities for promotion, transfer or training. In line with good management practice, it is recommended that employers:
13. Guidelines for dismissals, redundancies and unfavourable treatment of employees
It is unlawful to discriminate on the ground of family status by dismissing the employee or subjecting him or her to any other detriment. In line with good management practice, it is recommended that employers:
14. Guidelines for grievance procedures
In line with good management practice, it is recommended that employers:
|14.2||It is not victimisation if an employee is treated less favourably as a result of an allegation which is false and not made in good faith.26|
Equal employment opportunities policies
15. Formulating a policy to eliminate discrimination on the grounds of family status
|15.1||A policy that promotes equality of opportunities for all will ensure the effective use of human resources in the best interests of both the organisation and its employees. It is a commitment by an employer to the development of his or her staff.|
|15.2||The organisation should also use employment procedures and practices which do not discriminate on the ground of family status and which provide equal opportunities for all employees. The details of the policy will vary according to the size of the organisation.|
|15.3||To demonstrate a commitment to the equal opportunities policy, it is recommended that the responsibility for the policy should be held by a member of senior management.|
16. Implementing the policy
To ensure that the policy is fully effective, it is recommended that employers:
17. Monitoring the policy
|17.1||It is recommended that the policy be monitored regularly to ensure that it is working in practice. To this end, consideration could be given to setting up a joint committee consisting of management and employee representatives.|
|17.2||In a small firm with a simple structure it may be quite adequate to assess the deployment and pay scales of employees from personal knowledge.|
|17.3||In a large and complex organisation a more formal analysis may be useful. This may need to be introduced in stages as resources permit. Any formal analysis should be regularly updated and reviewed to enable any necessary action to be taken.|
Sensible monitoring will show, for example, whether persons with family status:
|17.5||The employers should review information obtained from monitoring to ascertain whether or not the pattern of employment and deployment indicates any unlawful discrimination.|
The employee's role
18 The employee's responsiblities
|18.1||While the employer has the main responsibility for eliminating discrimination and providing equal opportunities, employees at all levels, especially when they are acting as agents of their employer, have responsibilities too.|
|18.2||Employees may be personally liable for acts committed by them in the course of their employment. They should therefore observe the requirements of the FSDO and follow the recommendations of this Code where applicable.|
19. Eliminating discrimination
|19.1||Employees can be proactive in helping to eliminate discrimination on the ground of family status by becoming familiar with the subject, so that they do not inadvertently discriminate against someone or inadvertently aid their employer to do so.|
|19.2||Whenever appropriate, employees could also encourage their employer to formulate policies against discrimination and to implement preventive measures.|
|19.3||Employees are encouraged to be supportive of friends or colleagues who intend, in good faith, to lodge a complaint about discrimination, or have lodged such complaint.|
1 ... See Section 47 of the FSDO.
2 ... See section 2 of the FSDO.
3 ... Currently the provision of the FSDO and the Code which deal with discrimination in employment (other than victimisation) only apply to organisations with over five Employees. Three years after the enactment of the FSDO on 26 June 1997, they should apply to all organisations.
4 ... See section 10 of the FSDO.
5 ... See section 11(1) of the FSDO. The provision relating to appointment to partnerships is limited to firms consisting of not less than six partners.
6 ... See section 2 of the FSDO for definitions of family status and immediate family member.
7 ... See section 5(a) of the FSDO.
8 ... See section 5(a) of the FSDO.
9 ... See section 6 of the FSDO.
10 ... See Section 34 of the FSDO.
11 ... See section 47(2) of the FSDO and section 69(14) of the SDO.
12 ... See section 32, 33 & 35 of the FSDO.
13 ... See section 34(3) of the FSDO.
14 ... See section 8(4) of the FSDO.
15 ... See Section 6 of the FSDO.
16 ... See section 6(2) of the FSDO.
17 ... See Section 36 of the FSDO.
18 ... It is unlawful under section 31 of the FSDO to publish or cause to be published an advertisement which is discriminatory.
19 ... See section 36 of the FSDO.
20 ... See later section on "Post-hiring enquiries" in the Code.
21 ... See Section 62(4)(c) and 64 of the FSDO.
22 ... Section 36 of the FSDO provides for special measures.
23 ... Section 39 of the FSDO allows employers to discriminate in favour of persons with family status where it reasonably appears that training is needed because such persons have been discharging domestic or family responsibities to the exclusion of regular full-time employment.
24 ... See Section 62(4)(c) and 64 of the FSDO.
25 ... See Section 62(4)(c) and 64 of the FSDO.
26 ... See Section 6(2) of the FSDO.