A Walk on the Wild Side: What We Are Hearing from Hong Kong

8/16/19

In the wake of the continuing protests, the Hong Kong Stock Exchange index has lost 10% of its value over the last month.  The Hang Seng index (affected by much more than just Hong Kong) has fallen 16% since its April high this year.


Given this and the global media coverage of events in Hong Kong, Amy Lau (who leads HR Policy Association's global ally APERG) reached out to member companies to discuss the impact the protests were having on their operations.  At the end of July companies reported little or no impact on their operations.  The main findings are:
  • Just one company was impacted by the demonstrations because their office was three train stops away from Central, a government and business center within Hong Kong City, where the protesters gathered. The company responded by allowing any affected employees to work from home. Sales meetings were also rescheduled.

  • For those not directly impacted, this was because their offices were outside the affected area. However, some businesses still allowed more flexibility for daily commuting of employees.  Others noted increased tension among employees relating to the general perception of the future political/economic outlook.

  • When asked whether they believed the political uncertainty would make them set up new business continuity plans or to reconsider investments—the answer was no.

  • All the companies were monitoring the situation carefully for any change or escalation.
After the strike on the 5th of August, more geographically diverse protests, and the closure of Hong Kong International Airport this week, Amy went back to APERG members.   She found the story to be much the same from a practical point of view, but with tensions at work escalating in proportion to the deteriorating climate.  More companies had employees work away from the office largely due to the fact that protests have taken place outside of the Central area.  Office chatter and sentiment is dominated by the media news and companies are largely taking a reassuring stance on the future of their operations in Hong Kong.

Last week, DLA Piper attorneys based in Hong Kong released a client advisory note on dealing with employment-related issues arising from the protests.  They offer “purist” legal advice but temper it with the need for a “common sense”-based approach.  The summary below is my paraphrasing of their advice.

The right to strike     
Do employees have a "right" to strike or can an employer prohibit staff from taking part?
 
There is limited protection under the Employment Ordinance, which prohibits an employer from dismissing an employee summarily (i.e. without notice or payment in lieu) on the ground they have taken part in a strike.  Employees are also entitled to take part in a strike without breaking continuity of their service provided the strike is lawful.  However, "strike" is defined under the Trade Unions Ordinance as any action taken "in consequence of a dispute, done as a means of compelling their employer…to accept or not to accept terms or conditions of or affecting employment."  This is a fairly narrow definition and seems unlikely to be successfully relied upon by an employee with respect to the current public protests, which have so far been directed towards the Hong Kong government as opposed to employers.
 
So, there is nothing expressly prohibiting an employer from instructing its staff not to participate in the protests, and stating that if an employee were to refuse this instruction they could be subject to disciplinary action (up to and including dismissal).  That said, employers should be mindful of the reputational risks associated with implementing a blanket policy that prohibits staff from engaging in any acts of public protest.  There is currently a high degree of public sentiment in favor of the protests (or at least some elements of it) and there is a longstanding tradition of taking part in public protests in Hong Kong.
 
Employee acts bringing the company name into disrepute
If a staff member causes criminal damage at a protest involving mainly colleagues from the same company/team, can we safely say they are acting outside their employment? If a staff member is identified as an individual who has caused criminal damage during a protest and the employer is identified in reporting, does this endanger his or her employment?
 
It is neither possible nor desirable to completely restrict the ability of staff to hold and express political opinions outside of work.  That said, businesses also have to be mindful of their public image and the duties they owe to various stakeholders—some of whom may not be sympathetic to a particular viewpoint and make that clear to the company.  Knee-jerk reactions should be avoided.  Where the company considers that an employee has (in the course of protesting) done something that has brought the company into disrepute, it should still consider whether the business has actually suffered any damage as a result—i.e., whether the criminal activity would have an impact on the employee's ability to carry out their employment duties.  Jumping, perhaps under pressure, to a summary dismissal decision should be viewed as a measure of last resort, only taken in extreme circumstances and after having sought legal advice.
 
Do staff have to come to work and pass through areas of protest?
The impact of the protests on those who do not wish to take part is a major concern.  The Extradition Bill protests have become increasingly violent in recent weeks, and the violence has at times extended to "passers-by" or those not wishing to take part but who are simply trying to get home.
 
Hong Kong employers have a duty to maintain a safe and healthy working environment.  This includes ensuring safe access to and exit from workplaces, and can extend offsite where an employee is required to carry out their work outside the office premises.
To date, most companies are allowing staff who live in or near the areas which have experienced the most disruption to work from home on days when strikes or protests are known to be occurring. Other staff may also request to work from home and these applications should be looked at on a case-by-case basis—e.g., if the employee has family members/dependents who live in such areas, the employee's commute is likely to be affected by resultant public transport delays on specific days.
Companies should ensure they have in place sufficient flexible working arrangements to allow staff to do this to the maximum extent feasible. 
 
Disagreements at work
Companies generally, and in particular multinationals, take a hybrid line by reminding staff that while they respect/value diversity of opinion and appreciate that some staff may hold strong viewpoints, it is important that the company is not seen to be getting involved in the political controversies of the many countries around the world in which they operate.  They also remind staff that while they are generally able to conduct themselves freely outside of their contracted working hours, they should refrain from doing anything that would (or might reasonably) damage company reputation.
 
People are worried about their current safety and the future of their jobs and their country—reassurance that business will still be there when the protests are over will go a long way.