Foreign domestic workers face discrimination, protection challenges during illness
According to government statistics as of 2022, there are more than 338,000 foreign domestic workers (FDWs) in Hong Kong, which accounts for almost five per cent of Hong Kong’s population. Nearly 10 per cent of households in Hong Kong depend on FDWs for housekeeping and to look after their family members. As such, FDWs are more than just employees; they are the backbone of many households.
However, despite the significant role they play in our society, FDWs face a myriad of challenges. This article explores the legal and social challenges they must navigate.
The Employment Ordinance (EO) prohibits termination of employment when an employee is in receipt of sickness allowance, and the EO applies to FDWs. An employer who unlawfully dismisses an employee under these circumstances is subject to prosecution and, upon conviction, may be ordered to re-engage the employee or pay legally required termination payments to the employee. The employer may further be liable to a fine of up to HK$150,000.
However, a recent case highlights the inadequacy of the EO in affording protection to FDWs.
Joan Sarmiento Guting was an FDW. She was diagnosed with cancer and other serious illnesses. During her employment, her employer allegedly deprived her of sufficient food, mistreated her in other ways, and then fired her after she was discharged from hospital. Joan returned to the Philippines but unfortunately died after returning home.
The employer is currently being sued in the District Court and asked to pay compensation of over HK$580,000 - but on the ground of disability discrimination, not for breach of the EO. Joan had previously tried to sue her employer for unlawful and unreasonable dismissal under the EO in the Labour Tribunal, but her case was adjourned as she was unable to give evidence due to her medical condition.
While the outcome of this case remains to be seen at this writing, it illustrates the helplessness of FDWs when they are ill. They can be subject to brutal decisions made by their employer and, while FDWs may pursue a claim for disability discrimination (which in Joan’s case is being brought by her friend posthumously), FDWs are often reluctant to take any action due to the potential costs involved in doing so and in fear of retaliation. As such, FDWs are often forced to face adversities alone.
Not all cases are grim. For example, in the case of Norma Del Mundo Favorito, her employer covered the medical expenses for her cancer treatment and arranged for her husband to visit her in Hong Kong. However, Norma’s case is perhaps an exception rather than the norm.
Labour unions and advocates for FDWs have called for stronger protection against the dismissal of seriously ill FDWs, but no significant developments have been made yet. To a great degree, there first needs to be a shift in the way society views FDWs, in that they need to be seen as not just employees but individuals with dignity and deserving the same respect as any other member of society.
The Disability Discrimination Ordinance (DDO) prohibits an employer from treating an employee unfavourably on the ground of disability, and the DDO applies to FDWs. As discussed above, FDWs who face unfavourable treatment due to their illness may bring a claim for disability discrimination, but they may be reluctant to do so. Thus, the protection offered by the DDO is rather limited in practice.
Disability discrimination is not the only form of discrimination faced by FDWs. FDWs often also face unfavourable treatment due to their ethnicity. To this end, while the Race Discrimination Ordinance (RDO) prohibits an employer from treating an employee unfavourably on the ground of their race, for similar reasons discussed in the context of the DDO, the protection offered by the RDO is also limited in practice.
In addition, FDWs also face discrimination on other grounds which are not currently protected by legislation, such as their social-economic background. They also face stereotypes and social stigmas, such as being seen as “second-class citizens” or “uneducated.” This makes it even harder for FDWs to seek recourse for any unfavourable treatment they encounter.
Employers who engage FDWs in Hong Kong are required to provide minimum benefits. Some of the minimum benefits are the same for all employees, such as the entitlement to one rest day in every seven days, annual leave, and statutory holidays.
However, there are some minimum benefits which are unique to FDWs. For example, FDWs are entitled to a minimum allowable wage, which is currently set at HK$4,870 per month. Also, FDWs must work and reside at the employer’s place of residence for free with reasonable privacy. These two benefits, in particular, often pose great challenges for employers and FDWs.
While the minimum allowable wage aims to protect FDWs from exploitation and forestall excessively low wages, it is still well below the statutory minimum wage (currently set at HK$40 per hour) which does not apply to them. The added challenge for many FDWs is that they often rely on their minimum allowable wage to financially support their family in their hometown as well. As a result, many FDWs have resorted to borrowing money and this can cause tension in the relationship with their employer.
The requirement that FDWs need to reside with the employer is also with good intention. It aims to secure a place of residence for FDWs and alleviate the burden of having to pay rent. However, Hong Kong is known for its high density of living. In practice, it can be quite challenging for employers to allocate space with reasonable privacy and when all members of the household live in a small space, this increases the chances of tension and arguments.
These issues again demonstrate the gap between the intention of the law and realities faced by FDWs.
As highlighted above, Hong Kong has in place laws that provide protection to employees, and they apply to FDWs, yet the reality is that the law often falls short of protecting FDWs.
To bridge this gap, the government's role in proactively enforcing the law is pivotal to ensuring that the rights of employees are protected. This is particularly the case for FDWs, as they are often reluctant to whistle-blow on their employer’s misconduct. The law itself could also be strengthened to provide specific protection to FDWs.
Education plays an important role as well. Employers need to be more aware of their obligations under the law and the consequences of non-compliance. On the other hand, FDWs need to be more aware of their rights under the law and be assured that they can report violations without fear of retaliation. Providing more accessible channels for FDWs to report violations should also encourage them to speak up about any employer misconduct.
Further, promoting a culture of respect and appreciation for FDWs is essential to fostering a harmonious employer-employee relationship and, overall, a more inclusive and equitable community. This may be facilitated by sharing more stories of FDWs with members of the public. Every FDW has their own unique story for coming to Hong Kong to work and, through a better understanding of their journey, the families that engage them and society as a whole could learn to better appreciate the contributions of FDWs. This could minimise conflict and tensions, and employers may be more willing to provide support beyond the minimum requirements of the law to the FDWs that work for them.
There is no doubt that FDWs play an important role in Hong Kong. Respect and appreciation for their contributions needs to be cultivated at all levels of society, from the government to the families that engage them. While legal enforcement and reform play an essential role in protecting the rights of FDWs, education is also important to increase public awareness of the rights and obligations of employers and FDWs. Hong Kong needs to do more to better support and protect its invisible workforce.
Gladys Ching is a managing associate specialising in employment law at Lewis Silkin in Hong Kong.
