Hong Kong needs to better address age discrimination in the workplace
Lina Vyas says general policies to extend the working lives of older employees are woefully lacking in Hong Kong despite its greying demographic, and real change can only come with age discrimination legislation
The ageing of populations is an unparallelled global occurrence, generating concern about labour and skills shortages in many countries. One way to address these concerns is to extend the working lives of older people through appropriate retirement, retention and recruitment policies.
Hong Kong only has a mandatory retirement age for the civil service, but most other sectors take this as a valid reference in establishing their retirement-age policies.
Since 2015, the government has taken active measures to extend civil servants’ retirement age.
This includes extending the retirement age of new recruits to 65 (60 for the disciplined services) primarily against the backdrop of an ageing population. For existing employees, the status quo remained until very recently, that is, compulsory retirement at 60 for general civil servants, and 55 for the disciplined services.
Recently, the government has made provisions to allow them to stay on beyond the retirement age, subject to approval by heads of department, for a further 12 months, up to a maximum of five years in total. The new mechanism is long overdue and has just been announced, despite an earlier Legislative Council paper stating that implementation would be finalised within the first quarter of 2016.
The new policy comes in response to calls from staff unions to extend the retirement age, and is in line with global trends. One major shortfall of the mechanism, however, is that it gives the line manager immense power and control over the fate of applicants. Moreover, those applying for an extension are denied the prospects of promotion.
Longer and secure working lives lead to greater opportunities for “active ageing”. Conversely, job insecurity and low-status, poorly paid positions can be damaging to the health and well-being of older workers.
Shouldn’t all employees have the right to enjoy this extension equally? Shouldn’t the retirement age of all serving civil servants be extended, instead of putting in place an ambiguous mechanism? Is the treatment of civil servants in such cases an example of age discrimination? Have the decision-makers taken adequate legal advice? These are just a few of the questions that need to be addressed.
A survey by the Equal Opportunities Commission last year found up to 70 per cent of employees across age groups and educational levels agreed on the need for legislation on age discrimination. Also, more than 60 per cent of the working respondents did not think there should be a mandatory retirement age.
In 2015, before he became EOC chair, Alfred Chan Cheung-ming recommended a review of age discrimination cases and legislation from local and regional jurisdictions, and stronger measures to prevent workplace ageism.
Unlike many other common law jurisdictions, including the UK, Hong Kong has no specific age discrimination legislation; the government merely has non-binding guidelines for employers and staff.
Article 22 of the Hong Kong Bill of Rights Ordinance says: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (emphasis added).”
Moreover, the Labour Department published a set of guidelines for employers on eliminating age discrimination, but there is still no age discrimination legislation.
Are members of the disciplined services already subject to different treatment, given the lower retirement age? They have been offered a chance to apply for an extension of 120 days since March last year. Yet statistics indicate a strong desire to serve longer than the general compulsory retirement age of 55. Police staff unions have voiced the need to increase this to 60, to be on a par with their civilian counterparts.
The UK Equality Act, which came into force in 2010, prohibits discrimination on many grounds, including age, among comparable employees, unless fully justified. Age was considered within the range of “protected characteristics” similar to gender, sexual orientation, race, and disability.
Whether there is unlawful discrimination against these “protected characteristics” very often depends on whether an employer can show its action was a “proportionate means of achieving a legitimate aim”. Any justification defence for seeking to retire an employee at a set age should therefore be based on an objective and structured approach.
In Hong Kong, the new policy on extending civil servants’ retirement age, which appears to be dominated by managerial and organisational needs, is very shallow and ambiguous. It lacks due consideration of the important legal principal relating to equality of treatment.
And while existing civil servants cannot initiate legal action owing to the absence of an age discrimination ordinance, the government decision for this policy, particularly the equality issues embedded in the existing ordinance, would appear vulnerable to judicial challenges, in the same vein as the landmark case on civil service benefits for those in a same-sex marriage.
Dr Lina Vyas is an assistant professor and programme leader of the Master of Public Policy and Governance Programme in the Department of Asian and Policy Studies at the Education University of Hong Kong