As Adam Hugill, partner of Hong Kong firm Hugill & Ip, enters his 15th year working in Hong Kong we discuss with him his experience as an employment lawyer in United Kingdom and Hong Kong, what challenges he has faced over the past 15 years including the last 4 years since establishing Hugill & Ip and the importance of corporate social responsibility and giving back to society.

You’ve been an employment lawyer since the very beginning of your career, first in London and now in Hong Kong.  What attracted you to employment law and how did you get started?

I trained at West-End London firm Davenport Lyons (which has now been subsumed into Ince). At the time, I was 22 years old and straight out of law school. My sole focus was getting a job in London. This was the age of tabloid newspapers.  The internet was still in its infancy, and no-one had ever heard the words ‘social media’.  With tabloids being king, I was particularly attracted to defamation which I perceived as being one of the most glamorous areas of law.  Davenport Lyons was one of the top-rated firms in London and I was ecstatic when I received an offer for a training contract – especially since I thought my interview went terribly.

The interview panel consisted of the Managing Partner and another partner that I later discovered was the Head of Employment (remember the internet wasn’t really a thing and, compared to today, it was difficult to research the firm).  I was asked about my preferred practice areas.  During the course of expressing my enthusiasm for media and defamation (while also hedging my bets saying I was very open and keen to learn all areas of the law) for some reason I said “I’m happy to do anything, just not employment”!  The reply from the panel was “you do know I’m the head of employment”.  I don’t recall what I said in reply, but recall being mortified thinking I had sunk any chance of a training contract.

My first seat was in the family department which was on the same floor as the employment team. The employment team as full of big personalities and, while sitting amongst it all, I came to understand the work that they were doing, especially the contentious work in the Employment Tribunal.  It was very fast moving, the cases were interesting – some were downright bonkers – and where acting for the employer or employee all of them involved an individual human story.  After I couple of weeks watching the employment team, I was sure that I wanted to do my next seat in employment.  It also didn’t hurt that the employment team were among the most sociable in the whole firm!

Having completed as seat in employment and qualifying, I was certain that employment law was the area for me, while retaining something of a hankering for family law. I think it is the personal stories and helping individuals at such difficult times in their lives that interested me the most.

I practised in London for six years before an opportunity came up for me to move to Hong Kong.  As with pretty much everyone I met, my intention was to work in Hong Kong for a year and head back to London.  Rather stupidly I said this during my first interview with a large local firm and was met with the response from the Managing Partner that hiring me would be a waste of time.  I was told during the first three months I’d be clueless and during the last three months I’d do nothing. There would be no point in hiring me if all I could give was six useful months. Taking this on board, when interviewing with the next firm, Oldham Li & Nie, I adapted my answer to say that I was 100% committed to doing at least two years.  It seemed to do the trick.

What similarities and differences did you notice when you moved to Hong Kong?

When planning to move to Hong Kong I called many legal recruiters.  I remember that the response that I got back was that there was no employment law in Hong Kong and I would have to do something else.  This was quite disheartening.  Via some contact or another I was put in touch with the head of employment at two international firms who were super helpful and restored some of my faith.

Before arriving, I bought various legal books and read the Employment Ordinance.  I am not sure how much anyone can get from reading an Ordinance from cover the cover without any context or particular question that needs to be answered, but I did it and thought that it all seems very familiar and much like the UK Employment Rights Act which I was very familiar with.  There was, however, one thing that I failed to appreciate.  The most important provision in the Employment Rights Act is protection from ‘unfair dismissal’.  Hong Kong’s Employment Ordinance contains what, at least superficially, seem like similar protections against ‘unreasonable dismissal’.  The potentially fair / reasonable grounds for dismissal are the same. 

In the UK unfair dismissal can have pretty serve consequences and employees that have been unfairly dismissed can claim, among other things, compensation up to around HK$1 million.  The protection provided by the Employment Ordinance is, however, far more limited. 

Unreasonable dismissal does not equal unfair dismissal and, in most cases, even if an employee is terminated without a good reason, there isn’t any recourse or compensation.  The effect of this means that, in the context of an employer making redundancies, there isn’t the requirement for consultation, matrix scoring or identifying suitable alternative employment.  In the context of performance / disciplinary action there isn’t the requirement for follow a performance improvement plan or issue disciplinary warning letters before dismissal.

I often find myself saying to employees that have been terminated ‘out-of-the-blue’ in circumstances that they consider to be unfair and where they have not received any prior warning or indication (especially those who have previously worked overseas), that there is no such thing as fairness in Hong Kong employment law.  On the other hand, when I am advising employers headquartered overseas (especially those in Europe) on workforce reduction or performance / disciplinary action against a particular employee, I am often met with the response that Hong Kong is refreshing straightforward and I would not believe the months of process and procedure that would need to be following in their home jurisdiction to achieve the same result.

What are the key developments you have seen to employment law in Hong Kong?

In the UK employment law changed and develops very quickly.  There are endless judgments being handed down by the Employment Tribunal, Employment Appeals Tribunal and higher appeal courts.  During my time in the UK it also felt that there were countless directives being issued by Europe.  In addition, the regime could also change quite drastically when there was a change of Government.

In Hong Kong the pace it much slower.  The Employment Ordinance was introduced in 1968 and, although it has been amended about 100 times, there has not been major to seriously consequential amendments in the past 20 or even 30 years.  There still remains very little protection from termination.  This being said, there have been some fairly recent improvements to introduce family-friendly practices, including the introduction of paid paternity leave in 2015, initially for only three days then increased to 5 days in 2019.  The right to paid maternity leave was increased from 10 weeks to 14 weeks at the end of 2020.

In 2008 Hong Kong enacted the Race Discrimination Ordinance, which complimented the then existing Ordinances preventing discrimination on the grounds of Sex, Disability and Family Status.  In 2010 the Minimum Wage Ordinance was introduced.

While these are positive changes, progress is very slow and in terms of protection, family friendly practices and anti-discrimination legislation, Hong Kong is a long way behind the more progressive jurisdictions in Asia and the rest of the world generally and it often feels that it is playing catch up with very small steps in a piecemeal way.

I don’t foresee things changing greatly in the near future.  The Hong Kong Government has been considering and debating the introduction of laws regarding standard working hours for more than a decade without progress.  The abolition of the MPF set-off mechanism (which essentially means that on termination, employees essentially pay their own statutory severance from the contributions that have been made to their pension scheme during their employment) has been discussed since 2015 by the last two Chief Executives, with Carrie Lam saying in 2016 that the unpopular arrangement was a priority of the Government.

Can you share some highlights of the commitments Hugill & Ip makes in terms of pro-bono service and corporate social responsibility?

One of the reasons my business partner and I decided to establish Hugill & Ip was to get more involved with the community, in particular on causes we feel passionate about and that closely relate to our core areas of expertise.  In terms of pro-bono cases related to employment law, we are generally called on to help out with workplace discrimination, sexual harassment, immigration or employment termination issues: many of the individuals we represent are from society strata who generally cannot afford the stress and the cost of having to fight for their rights.  We firmly believe that everyone deserves a voice.

Moreover, our commitment to CSR seeks to spread legal awareness within the community – for example, we often see ourselves involved in training social workers – and sometimes sees us teaming up with NGOs or other organisations for fundraisers.  Most recently, we have been running the #PathGuardiansHK campaign in support of PathFinders, a charity which works to protect vulnerable children whose mothers are migrant domestic workers.

Just a few days ago, we sat down to celebrate Labour Day with PathFinders’ CEO Catherine Gurtin and Bloomberg’s Head of D&I Alisha Fernando.  We talked about the incredible challenges that migrant domestic workers face in Hong Kong in terms of employment protections and rights, while providing a tremendous contribution to our society.  This includes giving many Hong Kong women the opportunity to participate in the workforce due to the help they get with raising their family.

While the existing legal framework still presents hurdles and needs improvements, it is refreshing to see how the government and many businesses have started to understand the importance of family-friendly policies.  One of the best examples is Bloomberg, which not only offers terrific parental leave benefits to its employees, but also understands the benefits of getting the team working with that specific employee involved in the process.  Such benefits not only positively spread into talent attraction and retention, but also give a leading example, encouraging other businesses to follow suit and set aside resources, and perhaps creating a new mindset which certainly contributes to a better working environment and society.

Posted by Asia Law Portal

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