Hong Kong: Developments to look out for in 2016

Two important Ordinances came into effect at the turn of the year, while two EOC reports suggest that discrimination law reform is likely to be on the agenda for 2016:

• On 1 January 2016, the Contracts (Rights of Third Parties) Ordinance came into effect. For contracts of employment, the Ordinance does not enable enforcement by third parties (eg, members of a corporate group) of an employee's obligations but, unless excluded, it can be used by third parties (eg, family members of an employee upon whom the contract confers a benefit) to enforce the employer's obligations.
  • Employers will generally seek to exclude the operation of the Ordinance in all employment contracts. We recommend that contract templates are reviewed and amended as appropriate to include language to exclude or modify the application of this Ordinance. Further details can be found here (see item 4) and here.

• The Competition Ordinance came into effect on 14 December 2015, prohibiting (among other things) the exchange of competitively sensitive information (including, for example, in relation to salaries and benefits) between competitors. As a result, many employers are now looking to use third party benchmarking services and, when doing so, should ensure that the data provided is aggregated data, consolidated from a number of sources (eg, at least five), so that it is sufficiently anonymised and cannot be traced back to a specific employer.
  • Employers should ensure that HR personnel and recruiters are made aware of the risks outlined. For further information on the impact of the Competition Ordinance on your business, please contact Mark Jephcott, Head of Competition - Asia.

• In January 2016, the EOC released two reports on discrimination on the grounds of sexual orientation, gender identity and intersex status, and separately on age discrimination in employment. The EOC reported widespread public support for legislative protection against discrimination for members of the LGBTI community, and called for the government to undertake public consultation as soon as possible to ascertain the appropriate scope and content of that legislation. The EOC also reported substantial support for legislation protecting workers from age discrimination, noting that a majority of respondents did not support a mandatory retirement age.
  • Employers should monitor these developments and review internal policies and procedures as appropriate.