Think twice before asking your employees to remain on call 24/7 on a statutory rest day
Working hours in Hong Kong are notoriously long and demanding. It may therefore come as no surprise that Hong Kong was recently ranked 45th out of a list of 50 cities in work-life balance and was ranked overall as the top overworked city[1]. With modern technology enabling employees to have access to work resources remotely, some employers nowadays could expect their employees to remain contactable 24/7 should the necessity arise. In fact, a survey published by Randstand in 2020 indicated that as much as 64 per cent of respondents in Hong Kong had employers who expected them to respond to work-related matters after office hours[2].
However, employers should tread carefully when it comes to requiring their employees to remain contactable on their rest days as such constraints will actually disqualify such days from being a statutory rest day under the Employment Ordinance (Cap. 57) (“EO”).
Such was the case in Breton Jean v HK Bellawings Jet Ltd (香港丽翔公务航空有限公司 ) [2021] HKCU 318 where the plaintiff, a pilot, claimed that he had been required by his employer to remain on flight duty or standby duty at all times outside of his annual leave. In particular, the defendant employer’s Operations Manual had specified that all crew members would have to be contactable by phone within one hour unless they were on scheduled leave and they would have to be ready to perform their job duties within a reasonable period. The Operations Manual also prohibited crew members from consuming alcohol of any nature within 12 hours to reporting time.
Meanwhile, the defendant employer sought to argue that (1) being contactable by phone did not equate to being on standby duty (although the plaintiff’s employment contract had described standby duty as being accessible by phone within one hour and being ready to perform his/her job duties within a reasonable period of time), and (2) that there had been an unwritten mutual understanding that any of the employee’s non-flight days would be considered as rest days.
The District Court however found that there was no evidence to support such an unwritten mutual understanding and was of the view that an employee on his statutory rest day should be entitled to abstain from working. The District Court therefore found in favour of the plaintiff employee and ordered the defendant employer to pay rest day pay as their Operations Manual had essentially required the plaintiff to be on standby duty at all times and had subject him to constraints such as being contactable by phone and not being allowed to consume alcohol.
Takeaways
Under the EO, an employee employed under a continuous contract is entitled to not less than one rest day for every period of 7 days. Notably, “rest day” is defined under Section 2 of the EO as “a continuous period of not less than 24 hours during which an employee is entitled under Part IV to abstain from working for his employer”. A failure by an employer to grant their employee the minimum statutory amounts to an offence under the EO.
As demonstrated through the above case, employers should not put any constraints on their employees during their statutory rest days as this could disqualify such days from being a statutory rest day. As most clerical employees are given rest days for both Saturday and Sunday, to prevent any ambiguities, employers are also recommended to designate clearly in the employment contract which day is the statutory rest day. Lastly, employers are reminded that if a statutory holiday falls on the statutory rest day, employers should also ensure that the employees are given an additional rest day to compensate.
If you want to learn more about statutory rest days and other statutory rights of employers and employees, please feel free to contact us at info@jcco-hk.com.
[1] Kisi, 2020 Work-Life Balance Index, https://www.getkisi.com/work-life-balance-2020#table
[2] https://www.randstad.com.hk/hr-trends/workforce-trends/3-in-4-mature-workers-work-after-office-hours/
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