Absence from work: Rights and responsibilities of HR during protests, strikes

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Following the protests in Hong Kong over the contentious extradition law, what are some of the issues/responsibilities HR faces around employees taking a day of sick leave to attend the protest? By Kathryn Weaver, partner and head, Lewis Silkin Hong Kong

Sick leave should only be used where an employee is genuinely ill or injured, not where they require time off to participate in a protest. An employee has no entitlement to take sick leave for reasons other than poor health or injury and should an employee be found to have taken sick leave for other reasons, such as attending a protest, an employer would be entitled to take disciplinary action against them (which could include dismissal, where appropriate).

Is HR legally obliged to grant a day’s leave for an employee who officially requests one day of annual leave for a protest-related event, or is it discretionary?

An employer is entitled to refuse annual leave requests and to determine with the employee when annual leave is to be taken. However, this should be balanced against potentially preventing employees from exercising their freedom of expression, assembly, procession and demonstration, which are constitutionally protected rights under Article 27 of the Basic Law.

Refusing a request for annual leave (where the request has been made in good time, following the company’s proper processes) on the basis that the employee wishes to participate in a protest would likely be considered by the employee as a curtailment of their constitutional rights.

If an employee has applied for and been granted annual leave in accordance with the company’s annual leave process, they are entitled to use their time off however they wish, provided that their actions during the leave do not negatively impact on the employer’s reputation or their ability to carry out their role.

What about if an organisation’s office is in the firing line near the centre of a potentially volatile protest. Is there an obligation by HR/the employer to say to staff “don’t come in”?

Employers in Hong Kong have a duty to maintain a safe work environment for their employees. As part of that duty, employers are required to provide and maintain safe access to and exit from the workplace. If the workplace is near an upcoming protest which is anticipated to be volatile, employers have a duty to make appropriate arrangements to ensure the safety of their employees.

Such arrangements could be to allow employees to work from home (which should be communicated to employees in good time) or if the employees are already at work, to release employees to ensure they can make their way home as early as possible.

If an employer has not kept abreast of developments in relation to the protests and has failed to put in place appropriate alternative work arrangements leading to the injury of an employee at the workplace or while entering or exiting the workplace, then the employer may be liable to pay compensation to the employee for the injuries sustained.

One interesting aspect of sick leave in Hong Kong is that an employee can take stress-related sick leave for a maximum of 120 days. What recourse does HR have if it wants to terminate such an employee?

Employees employed under a continuous employment contract can accumulate statutory sick leave at the rate of two days for each completed month of employment during the first 12 months of service, and four days for each completed month thereafter. Statutory sick leave can be accumulated throughout the employment period but is subject to a maximum of 120 days.

An employee should produce medical certificates covering the nature of the sickness/injury and the number of days which the employee is unfit for work. If an employee takes leave without providing a medical certificate, such leave would be considered to be unauthorised leave, and disciplinary measures may be imposed by the employer.

However, provided the employee has accumulated a sufficient number of sick leave days and the leave is supported by a medical certificate issued by a registered medical practitioner, the employee will be entitled to take sick leave for poor health (whether that poor health is related to stress or not) or injury and an employer is prohibited from terminating the employee’s employment, except in cases of summary dismissal due to the employee’s serious misconduct.

The employer may only terminate the employee’s employment once he/she returns to work after statutory sick leave; however, an employee who is terminated immediately on their return to work may claim that he/she was discriminated against for his/her disability (which is widely defined and would include stress-related ill health).

Is it possible that an employee can take 120 days stress-related leave, return to work for a day and then take another 120 days of stress leave? What options are open to HR in such a scenario?

As mentioned above, an employee will be entitled to take sick leave for poor health (whether that poor health is related to stress or not) or injury as long as he/she has accumulated a sufficient number of sick leave days – and the leave is supported by a medical certificate.

Given that sick leave accrues at the rate of four days for each completed month (after the first year of employment), it is not possible to accrue another 120 days during the period of time that the employee is exhausting his/her first 120 day sick leave entitlement, but the employee could accumulate up to 16 more days of sick leave entitlement during that time.  The employee would not be able to commence this further period of sick leave though until they have returned to work for one day.