by Jade Tang
Since June 2019, there have been an ongoing series of demonstrations and protests in Hong Kong (the “Protests”) against the enactment of the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill (the “Extradition Bill”). The Extradition Bill, if enacted, would allow local authorities to detain and extradite criminal fugitives who are wanted in territories with which Hong Kong does not currently have extradition agreements, including Taiwan and mainland China.
The Protests have dragged Hongkongers with different political views into tensions, which occur in families and workplace and between friends.
Over the months, there were reported and repeated news on respective employer’s decisions to terminate employees, allegedly based on the supportive messages or acts of those employees in the Protests.
These included pilots and flight attendants hired by a Hong Kong airline; producers and artists of TV broadcasting company; in-house lawyer of an investment bank and so on. There was also a complaint against a trainee solicitor which almost affected his admission as a solicitor of Hong Kong.
Are employers entitled to terminate employment due to employees’ political views on social media or involvement in social activities like the Protests?
The right to freedom of speech or expression is enshrined in Article 27 of the Basic Law and Article 16 of the Bill of Rights. However, these rights are not absolute. Any statement of speech damaging to national sovereignty, national security and territorial integrity is a violation of the constitutional and legal bases for the Basic Law.
Under common law, an employment contract can be terminated by reason of frustration, such as imprisonment of an employee, which renders the performance of the contract impossible.
Separately, under the Employment Ordinance, either the employer or the employee can unilaterally terminate an employment contract without providing a reason of such.
It is therefore not unlawful for an employer to terminate an employment contract of its employee if the employee was involved in an illegal act and got sanctioned, or in the other cases, to simply serve notice of termination or make payment in lieu of such notice without providing a reason for the termination.
In reality, employers facing employees of different political views or getting involved in vigorous social activities, whether or not these affect the proper performance of their work duties, can simply give notice of termination or make a payment in lieu of notice to terminate their employment contracts.
Guidance to employers
Considering the potential ongoing series of Protests, it is high time for employers to revisit their in-house policies to ensure that they have clear guidelines on employees’ personal conduct which may affect the proper performance of work duties, inter alias, including the use of social media (whether personal or corporate account), internal and external communications, and employees’ involvement in social activities.
Employers should be aware that on setting out their policies and guidelines, respect on the personal life, privacy and rights of freedom of speech of employees should be observed. There should also be policies to ensure that no discrimination acts due to the differences in political views between staff members, like bullying and verbal assaults, would occur in the workplace or if does occur, can be properly dealt with.
If it has come to a situation where an employer needs to consider termination of employment due to the employee having been involved in any illegal act or his/her involvement in any social events has deterred the proper performance of his/her work duties, the employer has to consider the proper grounds of termination or whether one should be given at all.
It is notable that Hongkongers are becoming more sensitive to the political position of corporate entities regarding the Protests. Employers should consider the reputation risks in taking any action against employees being involved in the Protests or alike, among all other considerations.
Guidance to employees
Recent instances of companies taking disciplinary actions against employees also serve as a reminder that the use of social media comes with responsibilities. Offensive statements, personal attacks or distasteful comments should generally be avoided as a matter of respect for others.
While balancing basic human rights and respect of personal life, employees should also recognize that enjoyment of technology in this age also brings intrusion upon personal privacy to some degree.
Employees may argue that acts done in private should not be regulated by their employers, it should be recognized that certain personal conduct of employees would bring about damage to the employer’s reputation and lead to operational disrupt.
We could recall that the Civil Aviation Administration of China requested Hong Kong airlines to provide lists of crew members involved in the Protests and would ban flights having those crew members from landing in the PRC or passing through the PRC airspace. This left the employers with no choice but to terminate the employees in concern since the employees could no longer perform their duties properly.
If you are, as an employee, facing discrimination in the workplace or even termination due to your involvement in any social or political activity or expression of political views, you are advised to seek independent legal advice.
If you, whether an employer or employee, have any question regarding the topic discussed or on other employment issues, please contact one of the members of our Employment Practice Group.