This summary of age discrimination law in Hong Kong has been prepared by Lewis Silkin Hong Kong https://www.lewissilkin.com/EIR/International/Asia-Pacific-Region.

OVERVIEW

There are no laws in Hong Kong specifically prohibiting age discrimination. This means that employees may not base a claim of alleged discriminatory conduct solely on the basis of age. In previous years, suggestions have been made to introduce legislation on age discrimination in employment, but none have come to fruition so far. At present, there are no active plans to enact any laws to prohibit age discrimination.  This is despite the results of a study carried out by the Equal Opportunities Commission (EOC) (an independent publicly funded body empowered to conduct investigations and conciliation with regards to discrimination issues and to promote equality) being published in 2017 which showed that 70% of respondents considered it to be important to introduce legislation to eliminate age discrimination.

Some guidance is offered by the government in the Practical Guidelines for Employers on Eliminating Age Discrimination in Employment (the “Guidelines”), which were initially published by the Labour Department in 1999 and then updated in 2006. The Guidelines set out recommended best practices for preventing age discrimination in the workplace; however, they were created solely for the purpose of educating the public and employers, and have no legal effect.

WHO’S COVERED

As discussed above, there are currently no prohibitions on discriminating solely on the basis of age. 

If legislation were to be enacted in the future, we would expect it to mirror the other anti-discrimination ordinances (such as the Sex Discrimination Ordinance (Cap. 480), Disability Discrimination Ordinance (Cap. 487), Family Status Discrimination Ordinance (Cap. 527) and Race Discrimination Ordinance (Cap. 602)). 

The existing anti-discrimination ordinances variously prohibit discrimination in areas including employment, education, the provision of goods, services and/or facilities, disposal and/or management of premises, eligibility to vote for and to be elected or appointed to advisory bodies, participation in clubs and sporting activities and activities of the government. All anti-discrimination ordinances save for the Family Status Discrimination Ordinance renders harassment between “workplace participants” at a common workplace unlawful, even where there is no employment or employment-like relationship between them. A “workplace participant” covers persons working in the same workplace, being an employer, an employee, a contract worker, a principle, a commission agent, a partner, an intern and a volunteer.  

WHAT ENFORCEMENT/ REMEDIES EXIST

Since there is currently no legislation prohibiting age discrimination, there are no avenues for employees to seek any remedy in relation to discriminatory conduct which occurs solely on the basis of age.

Claimants have therefore sought to rely on recognised grounds of discrimination to pursue their claims, which include discrimination on the grounds of disability, sex, family status and race. For example, in the Court of Appeal case of Helen Tsang v Cathay Pacific Airways Ltd (2002) 2 HKLRD 677, the claimant successfully challenged the employer for applying a different retirement age to male and female flight attendants (which was at the time 55 years old for males, and 40 years old for females). Disability discrimination may also be a possible ground of claim for employees, for example, where they are forced to retire due to ill health.

To pursue a claim based on one of the already recognised grounds of discrimination, the claimant may lodge a complaint with the EOC or commence court proceedings directly. The EOC will hold one or more conciliation meetings with the parties, the content of which are confidential. The court has broad powers to award remedies if unlawful discrimination is found to have occurred, including making an order that the employer cease the discriminatory conduct and/or reinstate or promote the employee as well as making awards of compensatory and punitive damages.

MOST COMMON CLAIMS AND TRICKIEST ISSUES FOR EMPLOYERS

As there is currently no legislation prohibiting age discrimination in Hong Kong, an employee will not be able to bring a discrimination claim in the absence of evidence of discrimination on another ground e.g. on the basis of sex or disability.

RETIREMENT AGE

There is no mandatory retirement age in Hong Kong for private-sector employees.

Other than in relation to the civil service, employers and employees may reach an agreement as to a suitable retirement age for the employee. If a retirement age is imposed, it is usual for this to be set at 60, but this may differ between industries.

It is also worth noting that contributions under Hong Kong’s Mandatory Provident Fund Scheme are required to be made to employees up to and including the age of 64.

INTERESTING CASES

1. The Government does not yet appear ready to establish a framework to protect against age discrimination. After increasing the mandatory retirement age of civil servants in 2015, it has since allowed further extension of the retirement age by providing the option of allowing civil servants to stay on for a further 12 months, up to a maximum of 5 years in total, subject to the approval of the head of the government department. However, applicants to such extensions to the retirement age are denied prospects of promotion.

2. In the 2016 case of FWD Life Insurance v Cheng Wing Yiu Dumas [2016] HKCFI 1129, the court considered the effect of a clause in an employment contract which set a “deemed” retirement age for the purpose of determining an employee’s entitlement to payment under its long service bonus plan. Under the long service bonus plan, employees would only be eligible to payment if their employment was terminated because of death or retirement. The Court held that the Claimant, who had resigned from his post, but only after he had already reached the deemed retirement age agreed in his employment contract, should be entitled long service bonus. In effect, the clause operated as a mandatory retirement clause, and the Claimant was entitled to all moneys payable upon retirement under the plan.