Hong Kong enters into the third year of COVID and continues battles with the Fifth Wave, the city’s most serious outbreak to date.

Vaccine Pass

On 24 February 2022, the Government implemented the “vaccine pass”.

Under the vaccine pass arrangement, save for those exempted, only vaccinated persons are allowed to enter the majority of the premises such as shopping malls, department stores, supermarkets, wet markets, beauty parlours, hair salons and more.

Proposed amendments to the Employment Ordinance

The Government first announced on 8 February 2022 that it will be amending the Employment Ordinance (Cap. 57) (“EO”) to deal with issues arising from the anti-epidemic measures.

On 22 February 2022, the Chief Executive announced that the Government will implement a compulsory universal testing scheme in March, under which all citizens must undergo three rounds of COVID-19 tests. The Chief Executive also mentioned that in the process of fighting the epidemic, there will inevitably be some disputes between employers and employees, and the Government will soon amend the Employment Ordinance to implement the following three measures:

1. The definition of “sickness day” will be amended to the effect that if employees are unable to go to work due to quarantine, they are deemed to be on sick leave and employers shall pay sickness allowances in accordance with the EO.
2. If an employer dismisses an employee because he cannot go to work due to compulsory quarantine, it is an unreasonable dismissal.
3. If an employee does not have a sufficient medical reason and indicates that he will not receive vaccination, and the place where he works requires a vaccine pass and he cannot go to work as a result, it is not unreasonable for the employer to dismiss the employee in this situation.
   

Questions relating to the proposed amendments have been raised since they were first announced. Employers and employees want to know when the Chief Executive said “quarantine”, does that only cover mandatory lockdowns and compulsory home quarantine? How about those who have to undergo compulsory testing (as a result of their presence at places with confirmed COVID-19 cases)? How about those employees who have to undergo compulsory quarantine when they return to Hong Kong from overseas trips? Are they covered? And there are many more questions alike that employers and employees want answers.

The Government has yet to release the details of the proposed amendments. We will discuss the proposed amendments when they are available.

In the meantime, one of the most frequently asked questions is: Can employers dismiss unvaccinated employees who cannot go to work as a result of vaccine pass?

Can employers dismiss unvaccinated employees who

cannot go to work as a result of the vaccine pass arrangement?

The topic, “Can employers dismiss unvaccinated employees who cannot go to work as a result of the vaccine pass arrangement?”, is closely related to “Can employers dismiss unvaccinated employees?”, which we examined in the January 2022 edition of our employment newsletter.

Although the Government had already announced that the dismissal for non-compliance with the vaccine pass arrangement will no longer be treated as unreasonable, that said, this issue remains relevant in the meantime before the proposed amendments are passed into law, and we have yet to see their scope of the new law.

Current law: Unreasonable dismissal under the EO

Generally speaking, employers are entitled to terminate an employment by giving notice or payment in lieu of notice in accordance with the employment contract and sections 6 (Termination of contract by notice) or 7 (Termination of contract by payment in lieu of notice) of the EO.

Unreasonable dismissal will become relevant if an employee has been employed under a continuous contract for not less than 24 months and is dismissed by the employer other than for a valid reason specified in the EO. In other words, if the employee concerned has not been employed under a continuous contract for 2 years, unreasonable dismissal will not be an issue. Valid reasons recognized by the EO include:

1. the conduct of the employee;
2. the capability or qualification to perform work;
3. redundancy or other genuine operational requirements of the business;
4. statutory requirements; or
5. other substantial reasons. 

Where an employee raises a claim of unreasonable dismissal, the employer is presumed to have terminated the employee with an intention to extinguish or reduce a right, benefit or protection that the employee has under the EO. It is then up to the employer to show a valid reason. In other words, the employer has the burden of proving he has a statutory valid reason.

Generally speaking, it may be easier for employers with “client facing” businesses (such as airlines, F&B and hospitality) to show that they have a statutory reason, say, “capability to perform work”, “other genuine operational requirements of the business” or “other substantial reasons”.                                                                                                                                                                                   

What about summary dismissal?

An employer may summarily dismiss an employee without notice or payment in lieu of notice if the employee, in relation to his employment:

1. wilfully disobeys a lawful and reasonable order;
2. misconducts himself;
3. is guilty of fraud or dishonesty; or
4. is habitually neglectful in his duties;

or on any other ground on which the employer would be entitled to terminate the contract without notice at common law.

Say, for example, an employee is unvaccinated and his employer is aware of it. The employer insists the employee to turn up to work on time. As he is unvaccinated, the employee does not have a vaccine pass and is unable to go to work as a result. In that situation, can the employer summarily dismiss the employee on the basis that he “wilfully disobeys a lawful and reasonable order”? Or at common law on the basis that the employee has committed a fundamental breach of the contract of employment? Whilst the answer will depend on the facts and circumstances, employers should be mindful that summary dismissal is a serious disciplinary action, and it is not a decision to be made hastily. The employer has the burden to prove that the act or acts complained of are of a sufficiently serious nature to justify a summary dismissal, and he is at risks of wrongful dismissal claims by the employee if he fails to prove the summary dismissal is valid.

Takeaway

Broadly speaking, if the employer has genuine operational requirements or other substantial reasons, it would not be difficult for him to justify the dismissal of an unvaccinated employee who cannot go to work as a result of vaccine pass as reasonable (i.e. he has a statutory valid reason to do so under the EO).

Whilst the Government had announced that in order to address potential conflicts between employers and employees over anti-epidemic measures, it will amend the EO so that the dismissal for non-compliance with the vaccine pass arrangement will no longer be treated as unreasonable; we have yet to see the scope of the amendments.

There are no hard and fast rules when it comes to determining whether dismissal is lawful because an employee is not vaccinated; it is a sensitive and controversial topic. Employers should be mindful that dismissing an employee without notice may attract claims from the employee concerned and the consequences can be serious. Employers should avoid making hasty and uninformed decisions. If in doubt, one should obtain specific legal advice on the particular context of the case.

The writer will be giving a free CPD accredited webinar entitled “COVID-19 Fifth Wave from an Employment Law Perspective: Vaccine Pass, Mandatory Lockdowns, Compulsory Quarantine, Testing and More” on Friday,  11 March 2022 at 1 p.m. to 2 p.m. to discuss various practical issues arising from COVID-19 Fifth Wave. You are most welcome to join.