Hong Kong employment legislation only protects employees (and therefore differentiates employees from independent contractors and self-employed individuals). It does not distinguish between full-time and part-time employees. All employees (except for those expressly excluded by statute), irrespective of their designation, are entitled to basic protections under Hong Kong’s labor laws. 

An employee who has been employed continuously by the same employer for four weeks or more, with at least 18 hours worked in each week is regarded as being employed under a “continuous contract.” Employees who are employed under a continuous contract are entitled to further benefits. In this regard, an amendment bill is expected to be introduced this year to revise the definition of what constitutes a "continuous contract", so that provided an employee has worked an aggregate of 68 hours (or more) over four weeks continuously, the employee will fall under such categorization for the purposes of determining his/her benefits.

Please see the response to “Are part-time employees afforded the same rights as full-time employees?” for further details.

Yes, employment contracts can be fixed-term or indefinite, and the parties are free to agree on the duration of the employment contract.

In the absence of any express agreement to the contrary, every contract of employment which is a continuous contract (see the response to “What are the different categories of employment status (for example, employee, worker, self-employed individuals, etc)?” above regarding what a continuous contract is)  is deemed to be a contract for one month and renewable from month to month.

The basic conditions that must be communicated to an employee are the number of wages (including the rate of wages, overtime rate, and any allowance, whether calculated by piece, job, hour, day, week, or otherwise) and wage period, the amount of end-of-year payment or the proportional entitlement and payment period (if applicable), and the length of notice required for terminating the contract. 

There is no requirement in Hong Kong for a contract of employment to be in writing. However, upon written request before the commencement of employment, the employer is required to give written particulars to the employee of the aforementioned conditions of employment.

Where the contract is in writing, the employer must provide a copy of it to the employee immediately after it is signed or immediately after the procedure to validate the contract is completed where such procedure is required. 

All employees are entitled to basic protections under the labor legislation of Hong Kong, including:

• termination of employment
• wage payment protection
• restriction on deductions from wages except for statutorily permissible grounds
• statutory holidays
• maternity protection (prohibition of assignment of heavy, hazardous, or harmful work)
• employment protection against unreasonable and unlawful dismissal
• provision of information on conditions of service by employers
• protection against anti-union discrimination
• minimum wage protection.

Further, the Mandatory Provident Fund Scheme Ordinance provides that for any employee of age 18 or over to below 65 who is employed under a written or verbal employment contract for a period not less than 60 days irrespective of whether he is employed full-time or part-time and irrespective of his weekly working hours and whether he is employed under a continuous contract, the employer must enroll such employee in a Mandatory Provident Fund (“MPF”) scheme and make mandatory contributions. However, such a 60-day rule does not apply to “casual employees” under the MPF System, being short-term employees employed on a day-to-day basis or for a fixed period of fewer than 60 days in the catering or the construction industry so that even if a “casual employee” is employed only for one day, his employer must still enroll him in an MPF scheme and make contributions.

Employees employed under a continuous contract are further entitled to the following rights and benefits in addition to the basic entitlements mentioned above:

• rest days
• pay for statutory holidays
• annual leave with pay
• sickness allowance
• maternity protection (maternity leave, payment for maternity leave, protection of a pregnant employee against termination of employment)
• paternity leave
• severance payment
• long service payment
• employment protection, etc.

As a matter of the contract, the assignment of employment contracts is possible as long as there is employee consent (including if there is an express assignment clause in the employment contract).

If a business is being transferred, the period of employment in the business at the time of transfer will count as a period of employment with the transferee, so that the transfer will not break the continuity of the period of employment.
 

Employees do not generally have the right to object to the sale of their company’s business. The Employment Ordinance otherwise provides that where there is a transfer of employment upon the sale of a business, an employee who refuses an offer of re-employment will not be entitled to severance pay if the offer constitutes suitable employment (in terms of position, duties, location, etc.); the re-employment is no less favorable to the employee; the renewal or re-engagement would take effect on or before the relevant date, and the employee's refusal of the offer is unreasonable.

There is no legislation regulating the automatic transfer of employment upon the transfer of an undertaking or a change in the ownership of a business (in contrast to a sale of shares). As the employing entity changes in a business transfer, the consent of employees to be transferred to the new employer must be obtained, by virtue of them being dismissed by the business transferor and re-engaged by the business transferee. The notice requirements should be followed, and if an employee unreasonably refuses to sign a new employment contract with the new employer on terms substantially similar to his original employment contract, the employee will lose his entitlement to severance and long-service payments. Otherwise, the law expressly provides that, on the transfer of a business, an employee's continuity of employment is not broken.

The basic principle is that any variation to an employment contract requires the mutual agreement of both parties unless there is an express term in the contract enabling one party to unilaterally vary the contract. If there is no contractual term allowing the employer to unilaterally vary the employment contract, the affected employee’s consent to the proposed variation must be obtained. Failure to do so may result in a breach of contract by the employer, and may also give rise to various claims by the employee such as constructive dismissal, a claim of unreasonable variation, and/or an unreasonable dismissal claim under the Employment Ordinance.

The Employment Ordinance grants employees remedies against their employer (pursuant to an unreasonable variation or dismissal claim) if the employee is employed under a continuous contract and the employer, without his consent and, in the absence of an express term in his employment contract which so permits, varies the terms of his employment contract because the employer intends to extinguish or reduce any right, benefit or protection conferred or to be conferred upon the employee by the Employment Ordinance. A variation is deemed to be made with such intention unless the employer shows a “valid reason” for such variation. A “valid reason” for variation of terms of an employment contract includes redundancy or other genuine operational requirements of the employer’s business, and any substantial reason which, in the opinion of the court of the Labour Tribunal, is sufficient to warrant the variation of the terms.

The Labor Tribunal, upon the affected employee filing a claim, can award an order of reinstatement or re-engagement, or an award of terminal payments.

An order for reinstatement is an order requiring the employer to treat the employee in all respects as if there had been no variation in the terms of the employment contract. An order for re-engagement is an order requiring the employer to re-engage the employee in employment on terms comparable to his original terms of employment or in other suitable employment. An order for reinstatement or re-engagement will only be made if both the employer and the employee agree to it.

If no order for reinstatement or re-engagement is made, the Labor Tribunal may make an award of terminal payments to be payable by the employer to the employee as it considers fair and appropriate.
Terminal payments mean 1) the statutory entitlements under the Employment Ordinance which the employee is entitled to but has not yet been paid upon dismissal; 2) the entitlements the employee might reasonably be expected to be entitled to under the Employment Ordinance had he been allowed to continue his employment; and 3) any other payments due to the employee under his contract of employment.

An employee may be awarded terminal payments even if he has not attained the qualifying length of service required for the entitlements. In such a case, the terminal payments shall be calculated according to his actual length of service.

Hong Kong is not an employment-at-will jurisdiction. A contract of employment may be terminated by the employer (or the employee) by giving the other party due notice or payment in lieu of notice. 

1. In case the employee has any probationary period, the contract may be terminated: 

• by either party at any time during the first month of the probationary period without notice or payment in lieu of notice (notwithstanding the length of notice provided for in the contract);
• by either party at any time during the remaining probationary period by giving to the other party  the agreed notice period (if there is agreement) provided that such agreed period is not less than seven days, or not less than seven days (if there is no agreement), or payment in lieu of the required notice; and
• by either party at any time after the probationary period by giving to the other party the agreed notice period (if there is agreement) provided that such agreed period is not less than seven days or not less than one month (if there is no agreement) or payment in lieu of the required notice. 

2. In case the employment does not have any probationary period, the contract may be terminated by either party if: 

• the contract makes provision for the notice period required to terminate the contract, the length of notice shall be the agreed period provided such agreed period is not less than seven days or payment in lieu of the required notice; and
• the contract does not make provision for the notice period required to terminate the contract, the length of notice shall be not less than one month or payment in lieu of the required notice. 

In case of an employment contract that is not a continuous contract, the notice period shall be the period agreed between the employer and employee.

Notwithstanding the above, an employer may terminate a contract of employment without notice or payment in lieu (i.e. summary dismissal): 

1. if an employee, in relation to his employment:

• wilfully disobeys a lawful and reasonable order;
• misconducts himself, such conduct being inconsistent with the due and faithful discharge of his duties;
• is guilty of fraud or dishonesty; or
• is habitually neglectful in his duties; or 

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

It should also be noted that for an employee who has been employed under a continuous contract for a period of at least 24 months and who is dismissed other than for a “valid reason” under the Employment Ordinance, such an employee may file a claim with the Labour Tribunal for remedies against his employer. The five valid reasons for dismissal or variation of the terms of the employment contract are:

• the conduct of the employee;
• the capability or qualifications of the employee for performing his work;
• redundancy or other genuine operational requirements of the business;
• statutory requirements (i.e. it would be contrary to the law to allow an employee to continue to work in his original position or to continue with the original terms in his employment contract); or
• other reason of substance, which, in the opinion of the court or the Labour Tribunal, was sufficient cause to warrant the dismissal of the employee or the variation of the terms of that contract of employment.

Although there is no specific requirement to state the reason(s) for an employee's dismissal at the time of termination (either in writing or otherwise), the employer will be required by the Employment Ordinance to provide a valid reason if the employee makes a claim to the Labour Tribunal of unreasonable dismissal.
 

The remedies for unreasonable dismissal have been discussed in the response to “In what circumstances can employers unilaterally change the terms of employment, and what remedies (if any) are afforded to an employee?” above.

Separately, the Employment Ordinance stipulates that the dismissal of the following employees is unlawful:

• pregnant employees;
• employees on paid sick leave;
• employees who exercise their rights to join and participate in the activities of a trade union;
• employees giving evidence/information in proceedings brought under the Employment Ordinance; and
• employees suffering from work-related injury who could be compensated under the Employees' Compensation Ordinance and who are yet to enter into an agreement with the employer for the employee's compensation or before the issue of a certificate of assessment.

In case of unlawful termination, the employee will be entitled to claim an award of compensation of up to HK$150,000 from the Labour Tribunal. 

In addition, the dismissal (and other less favorable treatment) of an employee on the grounds of sex, marital status, pregnancy, breastfeeding status, family status, race, or disability will generally trigger liability under the relevant discrimination ordinances, which may result in the employee lodging complaints with the Equal Opportunities Commission or bringing their cases to the District Court.

Hong Kong lags on whistleblower protection in comparison with other member countries of the Organisation for Economic Cooperation and Development ("OECD"). The common law does not provide much protection for whistleblowers except in certain circumstances. For instance, an employee may have a defense to a claim for breach of confidentiality if the disclosure of such information is in the public interest.

In terms of legislation, there is currently no single comprehensive whistleblowing legislation to protect whistleblowers in Hong Kong. There are, however, piecemeal provisions in various ordinances that provide protection to specific whistleblowers for the reporting of specific offenses. These are listed below:

• Employment Ordinance
  • An employer cannot terminate employment by reason of the employee giving evidence in proceedings or inquiry for the enforcement of the Employment Ordinance, or in any proceedings or inquiry in relation to safety at work.
  • Employers in breach will be liable to a fine as well as paying compensation to the victimized employee.
• Sex Discrimination Ordinance, Disability Discrimination Ordinance, Family Status Discrimination Ordinance, and Race Discrimination Ordinance  (collectively “Discrimination Ordinances”)
• Under the Discrimination Ordinances, it is unlawful for a person (discriminator) to discriminate against another person (person victimized) on the ground that the person victimized has brought proceedings against the discriminator or given evidence or information in connection with proceedings brought by others against the discriminator. The Court has the power to order the discriminator to employ, re-employ or promote the person victimized, or to pay him/her compensation or damages. 
• Drug Trafficking (Recovery of Proceeds) Ordinance (“DTRPO”), Organized and Serious Crimes Ordinance (“OSCO”), United Nations (Anti-Terrorism Measures) Ordinance (“UNATMO”)
  • A whistleblower who makes a disclosure of suspected proceeds of drug trafficking, money laundering or crimes to an authorized officer under the DTRPO, OSCO, and UNATMO, will not be regarded as in breach of any restriction against disclosure of information imposed by contract or by any enactment, rule of conduct or other provision, or render the whistleblower liable in damages for any loss arising out of the disclosure.
  • Under the DTRPO and the OSCO, witnesses in any civil or criminal proceedings are not required to reveal the identity of the person making the disclosure.
• Prevention of Bribery Ordinance (“POBO”)
  • Under the POBO, the name and address of an informer have to be kept confidential and any documents that may lead to the disclosure of the informer’s identity have to be redacted prior to disclosure in civil or criminal proceedings.
  • The Independent Commission Against Corruption ("ICAC") informers are entitled to witness protection under the Witness Protection Ordinance, including protection for personal safety or well-being.
• Securities and Futures Ordinance
  • A whistleblower will be protected against any civil liability whether arising in contract, tort, defamation, equity, or otherwise for reporting any financial irregularities or non-compliance with any financial resources rules which occurred in the company.
• Competition Ordinance
  • Under the Leniency Policy for undertakings engaged in cartel conduct, immunity from fines is granted to the first undertaking which enters into a leniency agreement with the Competition Commission (“CC”). The CC may consider a lower level of enforcement action for undertakings that do not qualify for leniency but cooperate with the CC.
  • The CC is under a general obligation to preserve the confidentiality of any confidential information provided to it. Under the Leniency Policy, the CC will use its best endeavors to appropriately protect its records of the leniency application process, including the leniency agreement.
  • An employer is prohibited from terminating or threatening to terminate the employment, discriminating in any way, intimidating or harassing, or causing any injury, loss, or damage to an employee who provides material to the CC in connection with the CC’s functions or gives or agrees to give evidence in any proceedings brought by the CC.

The Personal Data (Privacy) Ordinance (“PDPO”) contains six data protection principles (“DPPs”) which act as the cornerstone in protecting the privacy of individuals in relation to their personal data. Employers will have to comply with the PDPO as soon as they collect any of their employees’ (including prospective employees’) personal data.

For information to qualify as “personal data” within the definition given in the PDPO, the information must be represented in a recorded form relating directly or indirectly to a living individual and from which it is practicable to ascertain directly or indirectly the identity of the individual. Otherwise, it falls outside the ambit of the PDPO.

The DPPs can be summarised as follows:

• The manner for collecting personal data must be lawful and must be for a purpose directly related to a bona fide function or activity of the employer.
• All practical steps must be taken to ensure that personal data is accurate and that it is not kept longer than is necessary for its intended purpose or use.
• Personal data shall not without the express consent of the data subject be used for any purpose other than that for which it was collected at the time, or for a purpose directly related thereto.
• All practical steps shall be taken to ensure that personal data held by the employer is protected against unauthorized or accidental access, processing, loss, use, or erasure.
• An employer shall generally make available its policy and practices, the kind of personal data that it holds, and the main purposes for which it holds such data.
• An employee shall be entitled to access personal data for which he or she is the subject.  

If an employer is in breach of the PDPO, the Privacy Commissioner can issue an Enforcement Notice directing the employer to remedy the breach and, if appropriate, prevent any recurrence of the contravention. If the employer breaches the Enforcement Notice, it will be liable to a fine of HK$50,000 (on first conviction) or HK$100,000 (on a subsequent conviction) and imprisonment for two years.

The Sex Discrimination Ordinance, Disability Discrimination Ordinance, Family Status Discrimination Ordinance, and Race Discrimination Ordinance make any discrimination in the workplace (including in the hiring process) by reason of a person’s gender, marital status, pregnancy, breastfeeding status, disability, race, or family status unlawful. These Discrimination Ordinances also make other forms of discrimination including victimization, sexual harassment, racial harassment and vilification and disability harassment and vilification unlawful. Discrimination on the basis of trade union membership also is protected under provisions contained in the Employment Ordinance. It should be noted that, currently, there is no legislative prohibition of discrimination on the ground of age and sexual orientation in Hong Kong but the Labour Department of Hong Kong has issued practical guidelines for employers on eliminating age discrimination in employment, and the Hong Kong Government has also issued a Code of Practice against Discrimination in Employment on the Ground of Sexual Orientation. Although these guidelines are not backed up by legislation, they set forth the best practices, and employers and employment agencies are encouraged to follow them on a voluntary basis.

Each of the Discrimination Ordinances provides that it is unlawful for an employer to discriminate against a job applicant/an employee on any of the relevant prohibited grounds in any of the following ways:

• in the arrangements the employer makes for determining who should be offered employment;
• in the terms of employment offered to the job applicant/employee; 
• by refusing or deliberately omitting to offer employment to the job applicant; 
• in the way access to opportunities for promotion, transfer or training, or to other benefits, facilities or services, are given to an employee, or by deliberately omitting access to them; or
• by dismissal, or subjecting the employee to any other detriment.

Furthermore, each of the Discrimination Ordinances provides that it is unlawful to publish or cause to be published an advertisement that indicates (or might reasonably be understood to indicate) an intention to discriminate on the grounds of race, sex, marital status, pregnancy, disability, or family status. Employers, therefore, should not advertise job vacancies suggesting that applicants must be of a particular gender or marital status, or not pregnant, for example, unless the discrimination would not be unlawful under the applicable Ordinance. For example, under the Disability Discrimination Ordinance, it would not be unlawful for an employer to refuse to employ an applicant on the grounds of his or her disability if being a person without a disability is a "genuine occupational requirement” or where the applicant's disability would prevent him or her from performing the "inherent requirements" of the position – although, the employer should not just assume and need to consider if there could be a reasonable accommodation.

In regard to trade union membership, the Employment Ordinance provides that it is an offense for employers to make an offer of employment conditional upon the applicant relinquishing his or her union membership, not becoming a member of a trade union, or not associating with persons for the purpose of forming a trade union.
Employers are (vicariously) liable for any act of unlawful harassment (and discrimination) by an employee committed in the course of his or her employment unless the employer can show that it took all reasonably practicable steps to prevent the unlawful act. Whereas there is no statutory definition of bullying, it may fall within the definition of harassment.

Sexual harassment in the workplace is specifically prohibited by the Sex Discrimination Ordinance. Sexual harassment occurs where: 

• The harasser makes a sexual advance or request for sexual favors or engages in other conduct of a sexual nature towards the victim in circumstances where the victim does not welcome such conduct and in circumstances, where the harasser should reasonably have anticipated that the victim would be offended, humiliated, or intimidated.
• The harasser alone or together with other persons engages in conduct of a sexual nature that creates a sexually hostile or intimidating work atmosphere for the victim. Even seemingly innocuous sexual conversations that are not addressed to a single employee may result in instances of sexual harassment. 

Employees can commence a proceeding under the discrimination ordinances in Hong Kong either by lodging a complaint with the Equal Opportunities Commission (“EOC”) and/or by originating a process in the District Court. Prior conciliation by the EOC is not a prerequisite to lodging a proceeding in the District Court.

Damages upon finding a breach of the relevant discrimination ordinance are calculated by reference to tortious, rather than contractual, principles. This means that a court would aim to restore the employee to the same position as if the discriminatory event had not occurred and, therefore, treat the employee as having remained in employment up to and for a period beyond the date of the judgment. In addition, if the employee cannot find comparable employment, he or she may be entitled to recover damages with respect to his or her loss of future earnings from the employer. Finally, the court may award damages for injury to feelings. Thus, damages awarded under the discrimination ordinances can be substantial.

Vacation:

An employee employed under a continuous contract is entitled to not less than one rest day in every period of seven days. A rest day is defined as a continuous period of not less than 24 hours during which an employee is entitled to abstain from working for his employer. However, an employee aged 18 or above may work voluntarily on a rest day. Whether the rest day is paid or not is to be agreed upon by employers and employees.

An employee, irrespective of his length of service, is entitled to all gazetted statutory holidays on specified days per calendar year (there are currently 14 statutory holidays, and this number is being gradually increased so as to reach 17 days by 2030). If for some reason, the employer is unable to grant leave on the specified days, it may grant an alternative holiday on another day (which is not a statutory or substituted holiday). That alternative holiday must be granted within 60 days immediately preceding or following the statutory holiday, and the employer must notify the employer of the alternative holiday not less than 48 hours prior to that day. An employee having been employed under a continuous contract for not less than three months immediately preceding a statutory holiday is entitled to the holiday pay. Holiday pay should be paid to the employee not later than the day on which he is next paid his wages after that statutory holiday. The daily rate of holiday pay is a sum equivalent to the average daily wages earned by an employee in the 12-month period preceding the following specified dates. If an employee is employed for less than 12 months, the calculation shall be based on a shorter period.

Employees are entitled to a minimum of seven to 14 days of statutory paid annual leave after each completed 12 months of continuous employment, calculated on the basis of length of service. Employees with at least one year, but fewer than three years, of service, are entitled to seven days of statutory annual leave. Thereafter, employees are entitled to one additional day of leave for each additional year of service, up to a maximum of 14 days if they have at least nine years of service. The daily rate of annual leave pay is a sum equivalent to the average daily wages earned by an employee in the 12-month period preceding the following specified dates. If an employee is employed for less than 12 months, the calculation shall be based on a shorter period.

Medical leave:

An employee employed under a continuous contract is entitled to sickness allowance if the following conditions are fulfilled:

• the sick leave taken is not less than four consecutive days (unless for any day off taken by a female employee for her pregnancy check-ups, post-confinement medical treatment, or miscarriage, any such day on which she is absent shall be counted as a sickness day and, subject to the following conditions, be paid sickness allowance); 
• the sick leave is supported by an appropriate medical certificate; and 
• the employee has accumulated a sufficient number of paid sickness days (see below). 

An employee shall not be entitled to sickness allowance under the following circumstances: 

• the employee, without reasonable excuse, refuses treatment by a company doctor of a medical scheme recognized by the Director of Health or disregards the advice of the doctor. (If the recognized scheme of medical treatment operated by an employer does not cover treatment from a certain medical discipline, the employee may choose to receive treatment from any registered medical practitioner, registered Chinese medicine practitioner, or registered dentist under that particular discipline); 
• the sickness day falls on a statutory holiday on which the employee is entitled to holiday pay; or
• compensation is payable under the Employees' Compensation Ordinance. 

The daily rate of sickness allowance is a sum equivalent to four-fifths of the average daily wages earned by an employee in the 12-month period preceding the following specified dates. If an employee is employed for less than 12 months, the calculation shall be based on a shorter period.

An employee can accumulate paid sickness days after having been employed under a continuous contract. Paid sickness days are accumulated at the rate of two paid sickness days for each completed month of the employee's employment during the first 12 months, and four paid sickness days for each completed month of employment thereafter. Paid sickness days can be accumulated throughout the whole employment period, but shall not exceed 120 days at any one time.

Parental leave:

A female employee employed under a continuous contract immediately before the commencement of her maternity leave and having given notice of pregnancy and her intention to take maternity leave to the employer is entitled to the following periods of leave: 

• a continuous period of 14 weeks of maternity leave; 
• if confinement occurs later than the expected date of confinement, a further period equal to the number of days from the day after the expected date of confinement to the actual date of confinement; 
• an additional period of leave for not more than four weeks on the grounds of illness or disability due to the pregnancy or confinement. 

With the agreement of her employer, a pregnant employee may decide to commence her maternity leave from two to four weeks before the expected date of confinement.

An employee is eligible for 14 weeks of maternity leave pay if: 

• she has been employed under a continuous contract for not less than 40 weeks immediately before the commencement of scheduled maternity leave; 
• she has given notice of pregnancy and her intention to take maternity leave to her employer after the pregnancy has been confirmed. For example, the presentation of a medical certificate confirming her pregnancy to the employer; and 
• she has produced a medical certificate specifying the expected date of confinement if so required by her employer. 

The daily rate of maternity leave pay is a sum equivalent to four-fifths of the average daily wages earned by an employee in the 12-month period preceding the first day of the maternity leave. If an employee is employed for less than 12 months, the calculation shall be based on the shorter period. Whereas this formula is maintained with respect to the entire duration of the 14 weeks of maternity leave, during the last 4 weeks of statutory maternity leave, the statutory maternity leave pay to which an employee is entitled is subject to a cap of HK$80,000. It should be made clear, however, that an employer is not prohibited from paying an amount higher than the cap under the contract of employment. On this note, the Hong Kong Government would fund the maternity leave pay for the last 4 weeks of statutory maternity leave, and employers who have paid out the maternity leave pay to employees for this 4-week period may seek reimbursement from the Government by way of an administrative scheme, subject to the cap of $80,000 per employee.

A male employee is entitled to 5 days’ paternity leave for each confinement of his spouse/partner if he:

• is the father of a new-born child or a father-to-be; 
• has been employed under a continuous contract; 
• has given the required notification to the employer; and
• if  so required by his employer, has provided his employer with a written statement signed by him stating: 
  • the name of the child’s mother; 
  • the expected/actual date of delivery of the child; and 
  • that he is the child’s father.

Paternity leave is granted with pay if:

• the employee has been employed under a continuous contract for not less than 40 weeks immediately before the day of paternity leave; and 
• he has provided the birth certificate of the child (or for a child born overseas and the relevant authority does not issue birth certificates or other authorized documentation) to his employer within the following period (whichever period expires first): 
  • 12 months after the first day of paternity leave taken; or 
  • If he ceases to be employed, within 6 months after cessation of employment. 

The employee may take paternity leave at any time during the period from 4 weeks before the expected date of delivery of the child to 14 weeks beginning on the actual date of delivery of the child. The employee may take all 5 days of paternity leave in one go or on separate days. 

The statutory rate of paternity leave pay is four-fifths of the average daily wage of the employee in the past 12 months (or if the employee has been employed for less than 12 months, the shorter period) immediately preceding the day of paternity leave (or if the employee takes more than one day of paternity leave consecutively, the first day of paternity leave).

For the avoidance of doubt, there is no adoption or surrogacy leave in Hong Kong.

Post-termination restrictive covenants are prima facie unenforceable at law. However, Hong Kong courts will enforce a post-termination restrictive covenant if the employer can prove that it is reasonable between the parties and in the public interest. A restraint may be reasonable between the parties if it protects the legitimate business interests of the employer (which are generally limited to trade secrets and confidential information; trade connections; and stability of the workforce).

Whether the extent of restraint will be considered reasonable is entirely fact-dependent and up to the final decision of the courts. However, provided that the employer has strong reasons and legitimate business interests to protect, a period of up to 6 months (for non-competes) and 12 months (for non-solicitations and non-dealings) after the cessation of employment, with a geographical scope limited to that where the employee had dealings with 12 months immediately preceding the cessation of his employment, and an activity scope limited to the kind of activities the employee carried out for the employer should minimize the risk that the restraint will be too wide and unenforceable.

No, employees can only be dismissed under one of the valid reasons outlined in the response to “Is your jurisdiction an employment-at-will jurisdiction? What are the employer’s termination rights?” above.

Considerations for restrictive covenants are discussed in the response to “Are restrictive covenants recognized and, if so, what are reasonable restrictions as to geography, duration and scope of activity?” above.

Yes, employers in all industries must enroll their regular employees (i.e. all employees who are at least 18 but under 65 years of age and have been employed for a continuous period of 60 days or more) in an MPF scheme within the first 60 days of employment, unless the employee falls within one of the prescribed exemptions. Employers in the construction industry or catering industry should enroll their casual employees in an MPF scheme within the first 10 days of employment, regardless of the length of the employment period. Casual employees are those who are at least 18 but under 65 years of age and who are employed in either of the two industries on a day-to-day basis or for a fixed period of fewer than 60 days.

Employees and employers who are covered by the MPF System are each required to make regular mandatory contributions calculated at 5 percent of the employee’s relevant income to an MPF scheme, subject to the minimum and maximum relevant income levels. For a monthly-paid employee, the minimum and maximum relevant income levels are $7,100 and $30,000 respectively.

Separately, employers, employees, and self-employed persons are free to make voluntary contributions on top of their mandatory contributions.

In addition to the benefits referred to above in the response to “Are part-time employees afforded the same rights as full-time employees?”, an employee can claim compensation under the Employees' Compensation Ordinance and at common law for work injuries. Therefore, employers are obliged to be in possession of a valid insurance policy to cover their liabilities both under such Ordinance and common law. 

Yes. Although there is no statutory retirement age in Hong Kong, the MPF System is only compulsory up to the age of 65. Employment contracts are therefore free to specify a retirement age. 

MPF is not compulsory for employees above the age of 65. The employer’s responsibility to maintain an insurance policy under the Employees’ Compensation Ordinance does not otherwise depend on the age of his employees. There are no other compulsory employee benefits.

With regards to the COVID-19 vaccine in particular, in June 2023, the provisions stating that the termination of an employee for non-compliance with a valid COVID-19 vaccination request from their employer is not considered an unfair dismissal, have been repealed.

Otherwise, employees have a duty under common law to obey the “lawful and reasonable” orders of their employers, while employers have a statutory obligation to ensure “so far as is reasonably practicable” the health and safety of their employees at the workplace. The crux is therefore whether it is reasonable for an employer to require its employees to be vaccinated. If the employees in question are not required to have substantial and close interaction with clients/other employees (e.g. such as would be the case in retail or food and beverage), it is arguable that requiring employees to be vaccinated is beyond what is reasonable.

Although it is unlikely reasonable to require employees to be vaccinated where the employees do not have substantial and close contact with clients/other employees, there is nothing stopping an employer from encouraging employees to be vaccinated. However, in such instances, employers must ensure that employees who refuse to be vaccinated are not treated less favorably than those who are willing to be vaccinated, as there may be a risk of breach of the Disability Discrimination Ordinance (which prohibits discrimination, amongst others, on the ground of the presence in the body of organisms causing, or capable of causing, illness or disease). Termination of an employee’s employment because of his/her refusal to be vaccinated may therefore be unreasonable.

Employees have a duty under common law to obey the “lawful and reasonable” orders of their employers, while employers have a statutory obligation to ensure “so far as is reasonably practicable” the health and safety of their employees at the workplace.

As long as the employer has dispensed of its statutory obligation to ensure a reasonably safe workplace, a requirement for employees to return to the office should constitute a lawful and reasonable order.
If an employee consistently refuses to return to the office despite the employer’s lawful and reasonable orders, such a situation may even warrant summary dismissal.