The status quo in Hong Kong
There is currently no specific statutory legislation offering protection from retaliation for whistleblowers in the workplace in Hong Kong. This is in contrast to the well-established regimes of jurisdictions like the US or the UK where workers are afforded specific protection from retaliation, as well as the potential for financial awards (in the US) if they blow the whistle. Protections are not far reaching, and not purpose-designed to deal with whistleblowing in this era of heightened scrutiny over corporate behaviour. However, there is limited protection extended to workers who raise concerns in the public interest — in certain circumstances.
For instance, under the Employment Ordinance (Cap 57), employers are prohibited from dismissing an employee if they have given evidence under the Factories and Industrial Undertaking Ordinance(Cap 59), or if the employee has given evidence concerning the enforcement of the Employment Ordinance or in cooperation with any investigation of an employer. This could cover a wide range of scenarios, including disclosures regarding failure to comply with factory standards, failure to provide staff with requisite protections or entitlements under the ordinance.
Protection is afforded to individuals who speak out against acts of discrimination in the workplace or who assist such investigations. The discrimination ordinances (including the Race Discrimination Ordinance, Sex Discrimination Ordinance, Family Status Discrimination Ordinance and Disability Discrimination Ordinance) also protect individuals from discrimination by way of victimisation.
Victimisation can arise where an individual is treated less favourably because they have, or are suspected of having, given information or evidence in connection with proceedings against the discriminator under one of the discrimination ordinances.
Employees are also protected from allegations of breach of confidentiality if they disclose information when making a whistleblowing complaint if:
● it is in the public interest to make the complaint;
● the disclosure is made according to official directives, such as a court order, or under the directive of a statutory inspector or the Independent Commission Against Corruption (ICAC);
● the disclosure is made in accordance with a law (which includes disclosure of suspected money laundering and other offences, under the Organised and Serious Crimes Ordinance, the Drug Trafficking (Recovery of Proceeds) Ordinance, and the United Nations (Anti-Terrorism Measures) Ordinance; and disclosure of corruption and bribery); and
● the disclosure is made in accordance with foreign legislation which has effect in Hong Kong, such as the US Foreign Corrupt Practices Act and the UK Bribery Act.
What should employers do?
Whistleblowing is crucial for businesses when uncovering and deterring illicit activities. It increases accountability and reduces corruption and mismanagement.
While protection for whistleblowers is limited to piecemeal rights under different laws, it is good practice for employers to have a whistleblowing or complaint reporting policy.
The employer should also provide assurance that if employees make a report based on a reasonable belief held in good faith regarding any fraud, misconduct or wrongdoing in the public interest, they will not be penalised for making the report — even if it is later discovered that their belief is incorrect. This is essential to ensure that employees are not discouraged from voicing legitimate concerns due to the fear of retaliation and stigmatisation.
Some companies may choose to set up a telephonic or electronic reporting hotline, which allows employees to report their concerns confidentially and anonymously. Tight controls are essential to ensuring compliance with local laws, including data privacy and electronic communications, so legal advice should be sought before taking these measures.
It is essential that any complaints are investigated appropriately, and training should be provided to staff to raise awareness of the employer’s position.
The impact of any complaint reporting policy will also be influenced by different cultural and legal approaches to whistleblowing across the globe. For instance, employees in Hong Kong tend to be reluctant to make formal complaints as they worry that they will be viewed as a troublemaker and that the disclosure will have a negative impact on their career.
The preferred approach involves resolving problems privately, without raising a formal complaint. Employers should therefore localise any complaint reporting practices, so that they achieve effective results.
Why should employers take this seriously?
Early detection of any serious misconduct helps companies prevent or mitigate reputation damage, loss of shareholder confidence, substantial financial liabilities at an early stage. This enables companies to respond and deal with any wrongdoing promptly and appropriately. Employers should therefore consider implementing a robust complaint reporting process to maintain integrity and promote good business and risk management and good corporate governance.
This article appeared in the Classified Post print edition as Is Hong Kong doing enough for whistleblowers?
