This summary of age discrimination law in Hong Kong has been prepared by Vivien Chan & Co: www.vcclawservices.com

Overview

There are no age discrimination laws in Hong Kong, although the government has issued some non-binding guidelines.  The Labour Department issued the Practical Guidelines for Employers on Eliminating Age Discrimination in Employment in 1999 and updated the same in 2006 (the “Guidelines”).  However, the Guidelines are only voluntary in nature and do not have any legal effect. 

In view of changes within the society and trends of legislating against age discrimination in neighbour jurisdictions, there have been ongoing discussions in society about legislating against age discrimination in the employment context.  Community or non-governmental organisations took an active role in this area.  Surveys were conducted and reports were produced to promote for the legislation.  More recently, the government seems to be more aware of the problems with age discrimination and started to take a lead in the discussion. For instance, the Equal Opportunities Commission, the statutory discrimination watchdog, commissioned a research study titled “Exploratory Study on Age Discrimination in Employment” in 2014, and the research report is expected to be available in late 2015.

Who’s covered?

Recent discussions on age discrimination in society are mainly for a workplace setting.  Under the Employment Ordinance, “employees” means those engaged under a contract of employment, including the employees of companies and civil servants, but not independent contractors who are not engaged under contracts of employment. 

What enforcement/remedies exist?

In Hong Kong, there are four major laws against discrimination, namely Sex Discrimination Ordinance (Cap. 480), Disability Discrimination Ordinance (Cap. 487), Family Status Discrimination Ordinance (Cap. 527) and Race Discrimination Ordinance (Cap. 602). As stated above, there are no laws against age discrimination (and no plans currently to enact any).

That said, there are ways in which people can still bring age-related claims within existing laws. Possible recourse against age discrimination in the workplace is available through claiming against sex discrimination  where a different age requirement is applied to men and women when they apply for a job, obtain benefits under employment, retire or are being terminated of employment, etc. as discussed in the case Helen Tsang v Cathay Pacific Airways Limited [2002] 2 HKLRD 677 which concerns a female flight attendant challenging the differential treatment in retirement ages of male and female employees.

There are no criminal sanctions to the employer under discrimination legislation.  An employee who is a victim of discrimination can lodge a complaint to the Equal Opportunities Commission (an independent body publicly funded by the Government which investigates into complaints under the anti-discrimination ordinances, encourages the settlement of the matter through conciliation, and promotes equality in the society through public education or other forms), contact the police and/or lodge a lawsuit.

What claims are most common and what are trickiest issues for employers?

Due to the lack of law against age discrimination, age discrimination claims cannot stand alone unless the discrimination also constitutes a valid cause of action for the employee. 

Retirement ages

There is currently no mandatory retirement age in Hong Kong.  Employees and employers are free to mutually agree on a suitable retirement age, as with other terms and conditions of employment.  Employers are also entitled to recruit or continue to employ elderly people.  Generally, the usual retirement age is 60, but different industries may have different standards on retirement age.

Interesting cases

The government recently introduced a new policy of extending the service of new entry civil servants by setting their retirement age at 65 instead of the original 60.  In the meantime, existing civil servants may apply for extension of retirement age aligning with the new entrants, but subject to management approval.  Some civil servants unions have already expressed their view that existing civil servants are being discriminated against because of age.  While existing civil servants cannot initiate any legal action solely based on age discrimination, there remains a possibility that the government decision may be challenged in judicial review.