By Allison Lee

Hong Kong, 8 February 2022: The latest round of school closures in Hong Kong in response to the Omicron-driven fifth wave of coronavirus infections will have produced sighs of exasperation from affected families.

This is the third academic year in a row that has been badly disrupted by the pandemic. The negative impact on students’ learning and health, both physical and mental, has been well documented by my colleague Colin Cohen. Numerous studies on the effects of prolonged online learning show children and young adults are falling behind in their studies, suffering from reduced social interaction and, in some cases, gaining weight due to a lack of outdoor activity.

But parents, as well, are bearing the brunt as they strive to juggle work commitments with childcare responsibilities. This burden is exacerbated among low-income and single-parent families, especially those who have neither the financial means nor the space to employ a domestic helper.

As a result of rising divorce rates, the number of single parents in Hong Kong increased from 61,431 in 2001 to 73,428 in 2016, according to the most recently available figures from the Census and Statistics Department. Single mothers outnumbered single fathers by more than three to one.

The same report showed the median monthly income of working single mothers was HK$12,000, some HK$3,500 less than that of their male counterparts. Relatively more single mothers were engaged in part-time jobs – about a quarter of them worked for less than 35 hours a week – and more than a third were employed in service or sales jobs. Such citizens are particularly vulnerable to the economic hardships brought on by the pandemic.

Against this background, the Equal Opportunities Commission (EOC) recently published a paper highlighting that only 17% of employers implemented family-friendly employment policies. In a survey of employees, 15% of job applicants alleged being discriminated against on the ground of family status; 22% felt they were discriminated against during pregnancy, maternity leave, and/or within the first year of returning to work after giving birth; and 20% of working mothers said they encountered difficulties in applying for leave to take care of children.

Such individuals should be aware that they are offered protection under the Family Status Discrimination Ordinance (Cap. 527), which makes it unlawful to discriminate against a person on the ground of family status – that is, being responsible for the care of an immediate family member. The FSDO, which was implemented in 1997, covers employment as well as education and various other aspects of day-to-day life.

There are two kinds of discrimination, these being direct and indirect. The former occurs when a person is treated less favourably than someone else on the ground of family status. Say, for example, a female employee is transferred to a more menial role after giving birth because her employer thinks she will not be able to travel as part of her work. If the employer does not apply this same condition to a man with an infant, it could amount to direct discrimination.

The latter occurs when a condition or requirement is applied to everyone but, in practice, adversely affects persons who have family status. For example, supposing a company insists all employees must be available to work overtime, but an individual cannot meet this requirement because of family commitments and is dismissed. If the company cannot justify why every employee must meet that condition, it could be a case of indirect discrimination.

Employers should consider the needs of employees with family status. This includes: adopting consistent selection criteria in recruitment, promotion, transfer, training, dismissal or redundancy; avoiding stereotypical assumptions about the suitability of people with or without family status for a particular job; making allowance for employees with regard to mobility, shift work and overtime; and treating part-time employees fairly as regards pay, pension, training and promotion.

The EOC has published a Code of Practice designed to help employers, employees and other concerned parties understand their responsibilities under the FSDO. It provides guidance on the procedures and systems that can help prevent discrimination and deal with unlawful acts in employment.

There are several options available to citizens who feel they are a victim of discrimination. These include discussing the issue with their employer’s management, seeking help from a staff organisation or union, initiating civil proceedings in the courts or lodging a complaint with the EOC.

In the latter instance, the EOC will investigate and, if satisfied the employee has a valid argument, will assign a case officer to handle the matter. While adhering to the principles of impartiality and confidentiality, the EOC adopts a “victim-centric” approach which seeks to recognise the needs of complainants while managing their expectations.

Here at Boase Cohen & Collins, we have a team of legal professionals with considerable experience in Family Law, Employment Law and related issues. We are ready to assist anyone who feels they may have been unfairly treated as a consequence of their family status.

A Senior Associate with BC&C, Allison Lee is experienced in matrimonial and family matters, having worked with clients on applications for divorce, separation, financial disputes, asset division, maintenance and child’s custody and care arrangements. She also has experience in general civil litigation, including employment issues. She can be contacted at allison@boasecohencollins.com.