作者:李卓贤

对雇员的活动的限制

雇主经常会尝试对雇员施加离职后的限制（英文简称为“PTR”），以限制雇员在离职后的活动，目的是保护雇主的业务。雇主施加的限制包括禁止雇员：

•    加入竞争对手
•    从公司猎去其他雇员
•    招揽客户或顾客
•    与客户或供应商联系

这些离职后的限制是否可执行，是雇主，考虑加入竞争对手的雇员，考虑猎去其他雇员的竞争对手以及希望对刚离职的雇员执行限制的雇主普遍都会提出的问题。

离职后限制的可执行性

足以构成限制生计的离职后限制表面上是无效和无法执行的。法院只会在可以证明此类限制是为了合理地保护雇主的合法权益，而且范围不超过合理必要范围的情况下，才会执行此类限制。

法院强调的，是纵使有关限制可执行性的原则已经行之有效，但仍需按照每个案件的实情应用。因此，可以参考先例对有关限制可执行性的指导，但并不能确定限制是否合理。法院将考虑雇用关系的性质，雇员在雇主中的角色以及试图施加限制的时间以及该限制适用的地理区域。

离职后限制被视为不合理的后果

如果离职后限制被认为不合理，将会被法院废除并且不会被执行，除非可以在不改变条款性质的前提下将违规部分切断。法院不能替代执行一个较宽松并且本质上是合理的限制，或重写有缺陷的条款令它具有可执行性。

草议离职后限制

雇主应确保草议离职后限制时，设法减轻其面临挑战或不能被执行的风险。草议离职后限制时应牢记以下几点:

•    证明离职后限制是合理和可执行的责任在于寻求依靠离职后限制的一方。
•    任何歧义或不确定性都有风险，会被受到离职后限制的执行所影响的一方挑战其可执行性的。
•    离职后限制中使用的语言要对应离职雇员的特定职位，资历和影响力，以及离职雇员的联系网络和离职雇员保留的机密信息及知识的「保质期」。
•    任何对离职雇员要求的花园休假时间，可能会缩短离职后限制被认为是合理的时间。
•    离职后限制持续的时间和应用的地理范围应该清晰，准确和合理。
•    在草议离职后限制时，还应牢记寻求依靠离职后限制的一方有责任提出足够的证据证明可以获得临时禁令禁止雇员违反此类离职后限制。

去年英国最高法院的一宗案件为限制性条款提供的一些有用指导亦可能在香港适用。在Tillman v Egon Zehnder [2019] UKSC 32此案中，雇员的论据是其雇主Egon Zehnder试图对她执行过于宽泛且严格的反竞争条款。法院认为，条款中有部分构成了对生计的不合理限制，并予以废除，但法院同时承认条款其余部分的限制是公平的。法院在判词中确认，可以将限制性条款中的违规部分切断而保留其余部分。此外，法院亦警告雇主不应草拟过分宽泛的限制性条款，这表明如果法院认为合约「需要他人受到不公平的负担来清理」，则这些雇主可能会面临额外费用上的处罚。

机密信息

雇主通常在草议一份雇用合约时会试图保护其机密信息，以防止离职雇员不正当地使用机密信息。此类规定一般没有时间限制，而此类限制亦一般被认为是保护雇主对机密信息中所有的权利的合法规定。

有关离职后限制

如果想了解更多有关离职后限制，机密信息和其他雇佣法有关的事宜，请随时与高李严律师事务所联系。

Prelude
With the worldwide economy being hit hard with the COVID-19 pandemic, employers, irrespective of the scale of the business, have been forced to reduce costs to survive this economic ice age. With the diminished demand for labour force due to the stagnant economy, it is always tempting for employers to start cutting costs by downsizing the labour force or making alternative working arrangements with their employees (including requesting the employees to take no pay leave or to have a pay cut). Employers should, however, beware of constructive dismissal in the course of implementing such downsizing plan or alternative working arrangements; otherwise the additional costs incurred thereof might outweigh the costs saved by these costs-cutting measures. 

Constructive dismissal – General legal position
Subject to the factual matrix of each particular case, common circumstances which give rise to a claim for constructive dismissal include but not limited to unilateral variation of the contract of employment (for example, reduction in wages or substantial reduction in working hours), failure to pay wages, failure to provide reasonable amount of work, failure to pay statutory entitlements and discriminatory conduct at workplace etc.
In the event of constructive dismissal, an employee may terminate his employment contract without notice or payment in lieu of notice. In such case, although the employee is the party who terminates the employment contract, such dismissal is referred to as a “constructive dismissal” because the laws construe the employee’s termination of employment as a de facto dismissal by his employer. That being said, such finding might be rebutted by acts of the employee pointing to the otherwise.

Unilateral variation of the terms of employment
The relevant general legal position in Hong Kong is that an employer may not unilaterally vary the terms of employment (including imposing a substantial reduction in working hours (thus a reduction in pay) and requesting its employees to take on no pay leave), unless the relevant employment contract contains an express provision allowing the employer to do so. In the absence of any express provision to that effect, any unilateral variation of the terms of employment can therefore amount to constructive dismissal. This allows the employee to terminate their employment contracts without the need to give notice or payment in lieu of notice to the employer, and to bring common law claims for damages against the employer for any loss suffered by them as a result of the constructive dismissal. Damages which can be recovered by the employees might include:- (a) the amount which the employees would have earned has their employment been terminated with proper notice (including any outstanding wages, payment in lieu of notice, end of year payment, annual leave pay, holiday pay, bonus payment and other benefits and other payments due under the employment contract); (b) damages for breach of implied term of trust and confidence which the Court may assess the same by considering the potential loss of salary and contractual benefits on the employees’ part caused by the constructive dismissal; and (c) the legal costs of the claims.

In addition, section 32A(1)(b) of the Employment Ordinance (Cap. 57 of the laws of Hong Kong) (“EO”) confers upon an employee who has been employed under a continuous contract the right to claim remedies for “unreasonable dismissal” in the circumstances where his employer unilaterally varies the terms of his employment contract by the reason that his employer intends to extinguish or reduce any statutory right or benefit conferred upon such employee by the EO. 

Section 32A(3) of the EO further presumes that “the variation of the terms of the contract of employment by the employer as referred to in that subsection [i.e. section 32A(1)(b) of the EO] shall, unless a valid reason is shown for that variation within the meaning of section 32K, be taken to be a variation of the terms of the contract of employment by the employer by reason that the employer intends to extinguish or reduce any right, benefit or protection conferred or to be conferred upon the employee by this Ordinance [i.e. the EO]”.

Given that section 32K(c) of the EO specifically sets out that a dismissal, or the variation of an  employment contract, may be regarded as valid in the circumstances where the same is resulting from the redundancy of the employee or other genuine operational requirements of the business of the employer, it is therefore arguable that the COVID-19 pandemic triggers the application of section 32K and protects the employer from the statutory claim of “unreasonable dismissal”.

Notwithstanding the foregoing, the provisions under section 32K of the EO may only protect employers from the statutory claim of “unreasonable dismissal”. The general legal position remains that employers may not unilaterally vary the terms of employment on their employees in Hong Kong, unless the relevant employment contracts contain an express provision to allow the employers to do so. 

Requesting for voluntary resignation by the employees
It is commonly seen that an employer would ask an employee to resign “voluntarily” for face saving or in return for a favourable reference letter; otherwise the employment would still be terminated by the employer by way of dismissal.

 If an employer gives notice to an employee requiring him to resign, or giving him the option to resign or be dismissed, and subsequently the employee tenders his resignation, the Court is likely to characterize such termination as constructive dismissal rather than a resignation. That being said, the situation could be quite different in circumstances where an employer wishes to give an employee the genuine option of being able to resign rather than being dismissed by way of summary dismissal. 

Discriminatory conduct at workplace
Under the anti-discrimination laws in Hong Kong, an employer is prohibited from treating an employee less favourably in relation to employment on the grounds of an employee’s sex, disability, family status, or race. An employee may treat himself as constructively dismissed if he is subjected to discrimination or victimization conduct by his employer under the Sex Discrimination Ordinance (Cap. 480 of the laws of Hong Kong), the Disability Discrimination Ordinance (Cap. 487 of the laws of Hong Kong), the Race Discrimination Ordinance (Cap. 602 of the laws of Hong Kong), or the Family Status Discrimination Ordinance (Cap. 527 of the laws of Hong Kong), if it can be shown that the conduct complained about is initiated, encouraged or tolerated by the employer.

It is not unusual for an employer to consider (subject to the employee’s consent, if the circumstances may require):- (a) requesting some or all employees to take no pay leave; (b) requesting some or all employees to lower their working hours thus the salary on a pro-rata basis; or (c) implementing lay-off, in order to manage its costs in the time of COVID-19 pandemic. However, when implementing any of these costs-cutting measures, an employer is prohibited from selecting the employees pertaining on the employees’ sex, disability, family status, or race; otherwise, that could amount to constructive dismissal. 

How can OLN helps?
As can be seen, the downsizing of labour force by an employer in the time of the COVID-19 pandemic could easily give rise to constructive dismissal. We have practical experience in helping an employer with the implementation of temporary employment measures during the time of the COVID-19 pandemic and the review relevant documentation to ensure the same complies with the employment law regime in Hong Kong and to protect the employer from any potential claims. 

On the other hand, we also assist, from time to time, an employee on the review of the employment measures implemented by employers and advise the employee to take appropriate legal actions against the employer if any of the employment measures are in contravention of the employment laws.

If you have any question regarding the topic discussed or other employment issues, please contact our senior associate Mr. Victor Ng at victor.ng@oln-law.com or our associate Ms. Barbara Kwong at barbara.kwong@oln-law.com for further assistance.

Shall you be interested to download this article as a brochure, please click on the following link: Constructive dismissal in a nutshell in the time of COVID-19 pandemic

Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.