Podcast S4E6 | Employment: Anti-discrimination & the EOC

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TRANSCRIPT

Tune in for Series 4 of The HIP Talks podcast: a series of discussions on legal issues hosted by Hugill & Ip Solicitors – an independent boutique law firm in Hong Kong providing bespoke legal services and exceptional client service to individuals, families, entrepreneurs and businesses, locally and internationally. Clients have diverse issues: some require immediate attention and speedy outcomes; others require the building of a long-term partnership between solicitor and client. In all situations and for all clients, Hugill & Ip provides clear practical advice to help achieve the best results. The firm has achieved outstanding recognitions in the most recent editions of the major legal directories, as well as remarkable results in the areas of Dispute Resolution, Corporate & Commercial, Trusts & Estates, Family, Employment & Business Immigration and Data Privacy.

Tiffany Leung  00:53
Hi, I’m Tiffany Leung, Associate at Hugill & Ip and I’m with the dispute resolution department. Hong Kong has become successful due to its fair, open and competitive society. That said, it is most unfortunate that discrimination against a person on the grounds of sex, marital status, pregnancy, disability, family status and race may still exist in the workplace. So today we have Adam Hugill of Hugill & Ip to discuss with us about the anti-discrimination laws implemented and the role of the Equal Opportunities Commission and its procedures in filing a complaint. Good morning, Adam.

Adam Hugill  01:30
Good morning, Tiffany.

Tiffany Leung  01:31
To start off please tell us a bit more about the anti-discrimination laws in Hong Kong.

Adam Hugill  01:36
Hong Kong has four anti-discrimination laws. There’s the Sex Discrimination Ordinance, and the Disability Discrimination Ordinance which are about 20 years old. Then there’s the Family Status Ordinance, which was implemented a few years afterwards. And then probably about 10 years ago, maybe 15 years ago now, the Race Discrimination Ordinance was implemented. The purpose of the ordinances is to make discrimination unlawful. The grounds, which they protect against are sexual harassment, sex discrimination, breastfeeding, harassment of vilification on the grounds of disability and race, also harassment and discrimination on the grounds of family status.

Adam Hugill  02:10
The EOC is an independent statutory body. It’s funded by the government, but it’s separate from the government. It’s responsible for enforcing Hong Kong’s anti-discrimination laws. The main functions of the EOC are to try and eliminate discrimination on the grounds that we’ve mentioned which is sex, marital status, pregnancy, disability, and race. Eradication of discrimination due to breastfeeding was recently added to the EOC’s remit in the last couple of years. The EOC also seeks to eliminate sexual harassment, and all other forms of harassment predicated on the grounds of disability, race, breastfeeding, etc. The EOC also has additional functions to promote equal opportunities between men and women, disabled people and race more widely within society. The EEOC will investigate complaints issued by members of the public – often employees and that’s the context that we’re speaking about today. The EOC also undertakes self-initiated investigations, develops issues and codes of practice – usually again for employers – reviews the workings of the anti-discrimination on a periodical basis and proposes amendments to the government. The EOC also conducts research on issues relating to discrimination and equal opportunities with the purpose of educating the public more widely.

Tiffany Leung  03:18
Now, you say that one of the roles of the EOC is to investigate and conciliate complaints – including those filed by the employees. Can you explain further what this involves?

Adam Hugill  03:27
The EOC will investigate complaints filed by members of the public for alleged breaches of the discrimination ordinances, and it tries to encourage settlements through conciliation. The EOC is impartial, but that doesn’t mean that it’s neutral or disengaged from the process. The EOC is actually very proactive in investigating complaints. They will advise on the law and the application of the lot of the complaints, they will gather information, they’ll give both parties an opportunity to be heard. And once they finish gathering information and the evidence, they’ll give reasons of their findings to the parties, and sometimes issue recommendations, as we say the majority of the complaints issued by the EOC arise from employment. The recent statistics for 2021 show that 80% of all sex discrimination and family status discrimination complaints that were made to the EOC arose from employment. About half of all disability discrimination complaints arose from employment. The outlier is race discrimination complaints, were only about 1/3 of the complaints that were made related to employment. The majority of race discrimination complaints relate to discrimination in the provision of goods and services. Going back to the sex discrimination complaints, approximately half of them relate to pregnancy, and the other half relate to sexual harassment.

Tiffany Leung  04:38
This is why the EOC has to come in place. So please tell us what process does the EOC follow when handling complaints?

Adam Hugill  04:45
While the EOC does have the ability to investigate independently, for the most part, all of the complaints that it would investigate and handle have been made by members of the public. In order to make a complaint a member of the public must lodge a complaint in writing to the EOC. There are a number of ways in which this can be done and EOC is very user friendly. It can be sent by fax, by email, through an online portal, or it can be made in person at the EOC’s office. If somebody has difficulty putting their complaint in writing, the EOC officers will meet with the individual to assist them in collecting their thoughts and putting the complaint together. One of the important things to remember when making complaints to the EOC is timing. Now, under all of the discrimination ordinances, there is a two-year limitation period to bring a complaint. However, the EOC requires that complaints that are made to it are made within one year of the act of discrimination taking place. It must also be remembered the discriminatory acts can be single one-off acts, or they can be ongoing acts of discrimination. Where it’s part of an ongoing chain of discriminatory acts, the one-year limitation period or the one year clock for the purpose of the EOC would start running from when the last act happened.

Adam Hugill  05:49
When making a complaint, the EOC requires certain information to be provided. Most of it is very standard and exactly what you’d expect: names, Hong Kong ID card numbers, details of the employer, dates and details of when the act took place, the facts, are there any witnesses, whether any witness statements can be provided, and the names and contact details for anybody at the EOC can reach out to gather further information. In addition, the EOC will try and seek an indication from the complainant as to what remedies they’re looking for – whether it’s financial loss, apology training, or something else from the employer.

Tiffany Leung  06:29
That sounds like a very straightforward and user-friendly process. What happens when once a complaint has been filed?

Adam Hugill  06:36
The EOC won’t accept complaints simply because they’ve been filed, there is a bit of an audit process that takes place. And so, the first part of the audit process is the EOC assesses whether the complaint falls within the jurisdiction of the anti-discrimination ordinances. Now they receive 20 odd thousands of complaints per year. But about 1,000-1,200 of those complaints actually move on to be investigated, because the majority fall outside of their jurisdiction. Once the complaint has been accepted, a case officer will be allocated to it. And that case officer tends to see the complaint from start to finish. They tend to be very contactable by email and telephone. And again, very user friendly. The case officer will ultimately decide how the complaint will be investigated and taken forward. They might seek further information or clarification of facts, they might invite the parties to attend what we call early conciliation, where the parties would come together. Now that doesn’t have to be done in person it can be done via telephone relay, it can be done by separate rooms, it can be done even in correspondence to see whether the parties can agree on certain facts and agree on compensation before the investigation takes place. If early conciliation doesn’t work, the EOC will proceed to investigate the matter.

Adam Hugill  07:49
In this regard, they will ask a number of questions and most of the information that you provide to the EOC, the EOC will then provide to the employer to get the employer side of the story. They will also seek witness evidence or statements from witnesses who can support what said. Any witness that provides a statement in support for complaint must be aware that that statement will be passed to the employer so that they can answer it. In the employment context, witnesses are often fellow employees, and so they’re reluctant to speak up because often they’re speaking up either against their manager or possibly even against their employer. Witnesses should, however, be aware that they themselves are protected from discrimination via victimization, as a result of agreeing to be a witness for a complainant. It is both parties’, the employer and the employee in this context, responsibility to be in close contact with the case officer and advise the case officer if facts or situations change. In addition to choosing whether to accept a case, the EOC officer also has a wide ability to discontinue a case or an investigation in certain situations. They can do this if they’re satisfied that the complainant hasn’t been cooperative, or if it transpires that the complaint that has been made falls out of the jurisdiction of the EOC. The EOC may also be more subjective. If it’s of the opinion that the aggrieved act does not desire or merit investigation, they can also conclude the investigation. They’re also very willing to conclude investigations where the fact patterns are obvious that the complainant is being frivolous or vexatious or the complaint is just entirely lacking in substance. The EOC will however, inform the complainant of the reasons why it has discontinued an investigation at the time that it does so.

Tiffany Leung  09:32
Is the EOC investigation confidential?

Adam Hugill  09:35
The majority of the information or documentation that’s provided to the EOC by the complainant will be passed to the employer. And so the employer has an opportunity to answer the same and similarly anything that the employer provides the EOC will most likely be provided to the employee so that they have an opportunity to answer. This being said, the intention is that the documentation that passes between the parties within the context of an EOC investigation is itself kept confidential, and it shouldn’t really be revealed outside of the investigation or to unrelated parties. One of the questions that we always ask when conciliation or investigations are unsuccessful is whether the materials used during the course of the EOC investigation may be used in subsequent court proceedings. And the answer is that they can. And so, this isn’t the same as mediation, where everything that said during mediation is confidential and off the record, documentation, statements, etc, that past backwards and forwards will often find themselves a part of the court bundle. if the matter does proceed to court.

Tiffany Leung  10:35
Then what does conciliation involve?

Adam Hugill  10:37
Conciliation is the quick and simple handling of a complaint. It’s the EOC has the view that it’s to the advantage of both sides that a speedy resolution can be arrived at which both parties agree to. Quite often the EOC will invite the parties to engage in early conciliation. Early conciliation is conciliation that takes place before an investigation of all of the facts takes place. Conciliation can take many forms. I’ve been involved in conciliation, which takes place at the EOC’s offices in person and is much more similar to mediation, where the officer of the EOC will relay between rooms to try and close the issues, work out if a resolution can be reached, etc. I’ve also engaged in mediation via zoom and telephone where essentially the mediator takes the same role as they would in person, but it’s done virtually. This was very prevalent during COVID and also where a complainant is overseas. And then sometimes conciliation just happens by way of exchange of correspondence. In that context, that correspondence is usually without prejudice. If conciliation is successful, then the parties will enter into a binding agreement and usually that will bring an end to the matter. If conciliation at this stage is not successful. An investigation will take place and after the investigation takes place, the EOC will issue some findings. They tend not to be entirely black or white, but they tend to indicate whether the EOC believes that there is a complaint to answer or not. At that stage, the EOC will often invite the parties to attend further conciliation to see if matters can be resolved before the EOC concludes its investigation.

Tiffany Leung  10:38
Is the conciliation process or outcome confidential?

Adam Hugill  12:12
The conciliation process is confidential. And so just to clarify what I said earlier, the investigation and documents submitted in the course of the investigation may be disclosed in subsequent court proceedings, but the exchange between the parties during conciliation is much more like mediation and that would be confidential. Whether the outcome of the conciliation is confidential or not very much depends on what the parties agree. Most employers would insist on confidentiality provisions as part of a settlement agreement. That being said, employees often look for references or apology letters or something similar, and they may not be confidential.

Tiffany Leung  12:49
So, what happens if a conciliation is unsuccessful?

Adam Hugill  12:52
The powers of the EOC are only to investigate and conciliate. The EOC is not a judge and so it can’t make a binding finding. What would happen if the conciliation process isn’t successful is that the complainant would need to go to the District Court and issue court proceedings. This being said, there isn’t actually a requirement for the parties to go through EOC investigations and they could issue court proceedings directly. However, it doesn’t really make much sense to do that, given the risk, time, effort associated with court proceedings when the matter could be resolved through EOC conciliation. As I mentioned earlier, court proceedings must be issued within two years of the discriminatory act taking place. One of the things to remember with this is that there’s a stop the clock rule in all of the anti-discrimination ordinances. What that means is the two-year limitation period is paused for the period that the complaint is accepted by the EOC until the complaint investigation has been completed. Now, typically, the pause lasts not more than one year, and in order to issue proceedings outside of the two-year period, so taking advantage of the stop the clock rule, you would need a certificate from the EOC confirming when the EOC accepted the investigation and when the EOC concluded their investigation. If everything goes horribly wrong in terms of limitation, then the court does have a general power to extend the limitation period. But that’s an incredibly high threshold to overcome. And it’s very similar to trying to extend limitation as you would in any other civil proceedings.

Tiffany Leung  14:20
There must be costs involved in commencing action in the District Court. What are these costs? And can these be covered by legal assistance from the EOC?

Adam Hugill  14:27
The District Court process is somewhat truncated and simplified. That being said, it’s still a court process. It’s still very complicated. Employers almost certainly will be represented by solicitors and probably counsel and for both parties to have equality of arms, employees would also want to be represented by solicitors and counsel in court. Obviously, there’s a significant expense to this. The general rule under all of the discrimination ordinances are that each party will bear their own costs, win or lose. That’s a deviation from the normal civil procedure rules were the winning party receives the costs from the losing party. This being said, the court does have a very wide power to vary the “each party bears their own costs” rule and may make costs follow the event. Therefore, anybody commencing proceedings in the District Court is at risk of having to pay the other side’s costs. To help mitigate that risk, the Equal Opportunities Commission can provide legal assistance to complainants. They will usually only do this once they’ve investigated the case and found the case to have very strong merits. I think last year of the 14 or 15 cases that were issued in the District Court, the Equal Opportunities Commission supported about six of them. If the Equal Opportunities Commission refuses to provide legal assistance for one reason or another, then Legal Aid is still available to the parties.

Tiffany Leung  15:49
Thank you, Adam for giving us an insight into discrimination law and the workings of the Equal Opportunities Commission. Hopefully this podcast will allow Hong Kong employers and employees to become more aware of their rights and obligations under the anti-discrimination ordinances. Thank you.

Adam Hugill  16:05
Thank you.

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This podcast is for informational purposes only. Its contents do not constitute legal or professional advice.