By Hong Tran and Jennifer Tam, partners at Mayer Brown
Note: This article was first published on Mayer Brown’s website on 16 October 2020.
Many employers in Hong Kong have had to implement work-from-home (WFH) arrangements for their employees. The sudden shift to remote working has brought about operational challenges, for example, comprehensive IT and digital platforms may be required to enable the work to be performed remotely. Businesses that rely on cross-functional collaboration have experienced real challenges and have had to adapt rapidly.
This rapid and wholesale shift has given employers the opportunity to see the possibility and potential of implementing more permanent WFH arrangements. While the debate still rages about the benefits of maintaining a more permanent WFH arrangement (and possibly cost savings on real estate), some employers are looking at bringing employees back to the office.
However, what if your employee does not want to return to the office? What can an employer do in these circumstances?
There are a number of legal considerations.
#1. Safety first
Before requiring employees to return to the office, it must be safe for them to do so. Under the Occupational Safety and Health Ordinance (Cap. 509) every employer must, so far as reasonably practicable, ensure the safety and health at work of all its employees. Under the Employment Ordinance (Cap. 57), an employee may terminate their employment without notice if they reasonably fear physical danger by disease which was not contemplated by their contract of employment.
So, it would not be a lawful and reasonable direction of the employer to require an employee to return to the office if it was unsafe to do so whether because of COVID-19 or any other reason. The employer should carry out (or update) their risk assessment and consider whether it has taken all reasonably practicable steps to ensure the workplace health and safety of its employees.
Those steps may include providing appropriate hand-washing facilities, frequent cleaning of common facilities (such as lifts, doors, railings and restrooms), having staggered starting or finishing work hours, and lunch breaks to avoid peak hours and provision of appropriate protective equipment, such as masks, gloves and sanitising products.
#2. Does an employee have the right to WFH?
An employee does not have a statutory right to work from home, so any right to work from home would be granted under the contract of employment, which would be exceptional.
#3. Comply with the contract and policies
Both the employer and employee will need to comply with the contract of employment and contractual policies. If the contract of employment provides for the place of work as being at the office, the employee has a contractual obligation to work in the office and the employer (subject to the comments above) may direct the employee to return to work in the office. If the employee refuses, it is a breach of contract and the employer may then consider taking disciplinary action. However, if the employer has a contractual disciplinary policy or procedure, then it must comply with that policy or procedure before taking any disciplinary action.
Where an employee is resisting returning to the office, as an initial step the employer should engage with the employee to find out the reasons why. The employer should consider the legal issues mentioned above and take steps to mitigate those risks. Where the employer can safely direct the employee to return to the office, it can do so and where appropriate take disciplinary action.
Employers should also take into account non-legal matters such as employee relations, employer branding, and talent attraction and retention considerations. This time will pass but any adverse publicity from the employer's actions may affect the attraction and retention of employees.