The Situation
In Hong Kong, although many families employ migrant domestic workers to assist at home, some employees – most commonly, women – prefer, or feel pressure, to leave the workforce to attend to their families. It is within this context that a growing number of Hong Kong employers are exploring whether they can accommodate part-time work arrangements in order to attract and retain talent. There are several issues an employer may wish to consider, or be aware of, when implementing part-time work issues that we will look at below.

The Issues
The first matter to address is whether an employer is obliged to say “yes” if asked by an employee whether a part-time arrangement can be made. Hong Kong law does not currently recognise a right to work part-time. In the absence of any discrimination concerns – for example, on the basis of a person’s status of having responsibility for the care of an immediate family member – an employer may legally refuse to agree to an employee’s request for a part-time (or flexible) work arrangement.

Where such an arrangement is entered into, the employee’s existing terms of employment, including those relating to pay and leave entitlements, may need to be varied to reflect the individual’s new work pattern. This does not always have to be a simple case of calculating entitlements on a pro rata basis, as it is lawful to pay an employee less when that individual’s contractual hours of work are reduced.

For an employee working a five-day week, a typical starting point would be to reduce wages by one-fifth for each additional day off in the week. When adjusting pay, an employer should ensure that the agreed remuneration meets the current minimum wage rate of HK$30 per hour. The risk of falling below this is likely to be more acute if the employee is paid partly or mostly by commission.

Depending on the employee’s level of pay, the reduced remuneration may also have an impact on the size of monthly MPF mandatory contributions and whether the employer is obliged to keep a record of the individual’s working hours.

Sometimes, an employer will require a part-time employee to be flexible about working on his or her day off, for example by logging in remotely or by coming into the office for a meeting if business needs require. It is important to consider how such additional work will be remunerated – if at all. Examples include days off in lieu or a small uplift in base salary in return for agreed flexibility.

Many employers would expect that if an employee is working fewer hours, he or she should receive a commensurate reduction in benefit entitlements, including holidays and sick leave. It is acceptable for the parties to agree to reduce the employee’s entitlements, so long as the reduced entitlements do not fall below the minimum level provided by the Employment Ordinance.

An employee who will continue to work at least 18 hours a week during the part-time arrangement will still be entitled to the full suite of minimum leave entitlements under the Employment Ordinance. This includes seven to 14 days’ annual leave (depending on length of service), statutory holidays, and the accrual of up to 120 days of paid sick leave. Accordingly, it will not be permissible to adjust entitlements on a pro rata basis to below this level.

Conversely, an employee whose hours are reduced to below 18 hours a week will fall outside the scope of much of the Employment Ordinance and the employer will have greater flexibility to agree reduced entitlements.

The Conclusion
If Hong Kong employers wish to attract and retain talent, they may increasingly find themselves having to deal with requests for part-time or flexible work arrangements. Where employers are willing to consider and, where possible, accommodate such arrangements, it may be worthwhile making this known to employees, such as by introducing a flexible working policy in the staff handbook. This helps to ensure that employees are aware of this possibility when seeking to strike the difficult balance between their responsibility for the care of a child or other family member against their desire to remain in the workforce.

Fiona Loughrey has headed Simmons & Simmons’ award-winning China employment group since 1999. Sarah Berkeley has extensive experience in advising on employment and discrimination issues, and has worked at the firm since 2001.

The information contained in this article should not be relied on as legal advice and should not be regarded as a substitute for detailed advice in individual cases. If advice concerning individual problems or other expert assistance is required, the service of a competent professional adviser should be sought.