What might my employee do if they allege that they have been discriminated against in the workplace?

If your employee alleges that they have been discriminated against in the workplace, the first thing that they may do is to check whether the company’s policy has protected them from the discriminatory act. Then, they may make a complaint to the individual responsible for the discriminatory act. They may also lodge a complaint to the management team of your company or seek help from their labour union or staff association if the complaint is job-related.

What might your employee do if they do not receive any positive reply?

After making a complaint to the discriminator or to the management team of your company, if your employee does not receive any positive reply, they may initiate a complaint with the Equal Opportunities Commission. An alternative option to this is to commence a case at the District Court.

If your employee has been discriminated against or treated badly due to acting as a witness or providing information for a colleague or friend who has lodged a complaint, they may also make a complaint of “victimisation” to the management team of your company or to the Equal Opportunities Commission.

Once you are aware that an allegation has been made by your employee regarding workplace discrimination, it is best to make a record as soon as possible regarding the complaint. This will ensure that you do not forget about the details and that everything is properly and thoroughly recorded.

Lodging a complaint with the Equal Opportunities Commission

If your employee wishes to lodge a complaint with the Equal Opportunities Commission, they can complete the online complaint form, by sending a fax at 2106 2324, or by posting to or attending in person at 16/F, 41 Heung Yip Road, Wong Chuk Hang, Hong Kong. There is a time limit to lodging a complaint with the Commission – within 12 months from the date of the incident.

In your employee’s complaint, the following information must be provided:

• Details and dates of the discriminatory acts
• Your employee’s personal information (i.e. their name and contact information): Some additional information about themselves may also be necessary, such as the nature of their disability (for a disability discrimination complaint), their sex or state of pregnancy (for a sex discrimination complaint), their race (for a race discrimination complaint), or their marital status and number of children (for a family status discrimination complaint).
• The name and contact information of the discriminator or respondent: The discriminator or respondent can be a person or a company.
• All the information that supports their claim
• All the details of any emotional disturbance or detriment that they have suffered due to the discriminatory acts
• All the information related to any witness(es): These may include the witnesses’ names and contact information and what they have witnessed.

After the Equal Opportunities Commission has received your employee’s complaint, it will investigate their complaint and decide whether it has substantial grounds. If the complaint has substantial grounds, the Commission may proceed the case to conciliation or decide to begin legal proceedings. However, if the complaint does not have substantial grounds, the Commission will discontinue the case.

Commencing legal proceedings

However, if your employee does not wish to lodge a complaint with the Equal Opportunities Commission, they may initiate legal proceedings at the Labour Tribunal or the District Court. There is also a time limit to do so – within 24 months from the date of the incident. The Labour Tribunal offers an informal, quick and inexpensive way to settle monetary disputes between employers and employees. However, the Labour Tribunal only deals with cases with claims exceeding HK$8,000. Moreover, parties are not allowed to have any legal representation, so they must conduct the cases by themselves. Hence, if your employee wishes to have legal representation, they may commence a legal proceeding at the District Court instead.

Key takeaways

• If your employee alleges that they have been discriminated against in the workplace, you may make a complaint against you or your company.
• There are at least four ways to make a complaint:

1. Complaining to the individual responsible for the discriminatory act or conduct;
2. Complaining to the management team of your company;
3. Complaining to the Equal Opportunities Commission; or
4. Taking legal proceedings to the Labour Tribunal or the District Court.

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