作者:李卓賢

對僱員的活動的限制

僱主經常會嘗試對僱員施加離職後的限制（英文簡稱為“PTR”），以限制僱員在離職後的活動，目的是保護僱主的業務。僱主施加的限制包括禁止僱員:

•    加入競爭對手
•    從公司獵去其他僱員
•    招攬客戶或顧客
•    與客戶或供應商聯繫

這些離職後的限制是否可執行，是僱主、考慮加入競爭對手的僱員、考慮獵去其他員工的競爭對手以及希望對剛離職的僱員執行限制的僱主普遍都會提出的問題。

離職後限制的可執行性
足以構成限制生計的離職後限制表面上是無效和無法執行的。法院只會在可以證明此類限制是為了合理地保護僱主的合法權益，而且範圍不超出合理必要範圍的情況下，才會執行此類限制。

法院強調的，是縱使有關限制可執行性的原則已經行之有效，但仍然需按照每個案件的實情應用。因此，可以參考先例對有關限制可執行性的指導，但並不能確定限制是否合理。法院將考慮僱傭關係的性質，僱員在僱主中的角色以及尋求施加限制的時間以及該限制適用的地理區域。

離職後限制被視為不合理的後果

如果離職後限制被視為不合理，將會被法庭廢除並且不會被執行，除非可以在不改變條款性質的前提下將違規部分切斷。法院不能替代執行一個較寬鬆並且本質是合理的限制，或重寫有缺陷的條款以使其具有可執行性。

草議離職後限制

僱主應確保草議離職後限制時，設法減輕其面臨挑戰或不能被執行的風險。草議離職後限制時應牢記以下幾點:

•    證明離職後限制是合理和可執行的責任在於尋求依靠離職後限制的一方。
•    任何歧義或不確定性都有風險，會被受到離職後限制的執行所影響的一方挑戰其可執行性的。
•    離職後限制中使用的語言要對應離職員工的特定職位，資歷和影響力，以及離職員工的聯繫網絡和離職員工保留的機密信息及知識的「保質期」。
•    任何對離職員工要求的花園休假時間，可能會縮短離職後限制被認為是合理的時間。
•    離職後限制持續的時間和應用的地理範圍應該清晰，準確和合理。
•    在草議離職後限制時，還應牢記尋求依靠離職後限制的一方有責任提出足夠的證據證明可以獲得臨時禁令禁止僱員違反此類離職後限制。

去年英國最高法院的一宗案件為限制性條款提供的一些有用指導亦可能在香港適用。在Tillman v Egon Zehnder [2019] UKSC 32此案中，僱員的論據是其僱主Egon Zehnder試圖對她執行過於寬泛且嚴格的反競爭條款。法院認為，條款中有部分構成了對生計的不合理限制，並予以廢除，但法院同時承認條款其餘部分的限制是公平的。法院在判詞中確認，可以將限制性條款中的違規部分切斷而保留其餘部分。此外，法院亦警告僱主不應草擬過分寬泛的限制性條款，這表明如果法院認為合約「需要他人受到不公平的負擔來清理」，則這些雇主可能會面臨額外費用上的處罰。

機密信息

僱主通常在草議一份僱傭合約時會試圖保護其機密信息，以防止離職員工不正當地使用機密信息。此類規定一般沒有時間限制，而此類限制亦一般被認為是保護僱主對機密信息中所有的權利的合法規定。

有關離職後限制

如欲了解更多有關離職後限制，機密信息和其他僱傭法有關的事宜，請隨時與高李嚴律師事務所聯繫。

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.