Singapore Employment Update February 2023

On 13 February 2023, the Tripartite Committee on Workplace Fairness (“Committee”) released an interim report on their recommendations for the proposed workplace fairness legislation (“Recommendations”). Amongst other things, the proposed legislation complements the Tripartite Guidelines on Fair Employment Practices (“Guidelines”) and enshrines them in law. To this effect, the Committee sets out 20 recommendations categorised under four key thrusts.

These Recommendations are significant and impactful. They will create very real consequences as to how employers operate vis-à-vis their employees. They spell out employer obligations as well as expand on the types of employee redress.

We highlight the most salient aspects of each of the four key thrusts below and the practical impact they have on you as follows. The Recommendations are open for consultation. We do highly recommend that feedback be provided and would be happy to assist with this.

1.First, “workplace discrimination” will be statutorily tied to the following characteristics: (i) age; (ii) nationality; (iii) sex, marital status, pregnancy status, caregiving responsibilities; (iv) race, religion, language; and (v) disability and mental health conditions (“Protected Characteristics”). We note as follows:

1.While these Protected Characteristics are the most common and familiar forms of workplace discrimination in Singapore through the years, the recent public attention on the decriminalization of Section 377A and growing concern on mental health issues bring these to the fore and cannot be ignored. On the former, TAFEP recently issued the “Enhanced Tripartite Guidelines on Exercising Sensitivity for a Harmonious Workplace”, which set out guidelines on being sensitive to employees’ diverse beliefs and values. There are clearly fresh issues here that employers must work through. Do ensure that this is done.

2.Separately, note that the Protected Characteristics list is not exhaustive. The Committee recommended retaining the Guidelines to work in concert with the legislation noting that the Guidelines currently set out broad and overarching principles of fair and merit-based employment. Additionally, TAFEP has previously indicated that workplace discrimination can arise from attributes not cited as examples in the Guidelines. Hence, employers must not limit their compliance measures to the Protected Characteristics.

2.Second, the Recommendations expressly state that the protection will apply at all stages of employment, i.e. pre-employment (e.g. recruitment), in-employment (e.g. promotion, performance appraisal, training), and end-employment (e.g. dismissal). This is not different from what the Guidelines currently say. Yet, we have observed that employers tend to focus on the pre- and end-employment stages. Given the Recommendations’ emphasis at all stages as it becomes law, please relook every stage of the employment process with a new lens, including in-employment activities especially if these had not been properly reviewed yet. Note it is not the documentation per se, but the process and how you manage which is important; the soft tell-tail signs are the ones that could trigger an issue. It is critical to ensure that there is due process, whether this pertains to hiring and firing, or selecting whom to promote or send for training.

3.Third, employers will be prohibited from retaliating against employees who report cases of workplace discrimination and harassment. The legislation will specify which actions are considered retaliatory. These include wrongful dismissal, unreasonable denial of re-employment, harassment, and more generally, any act to single out the individual for unjust treatment.  One common pitfall is that anybody in your company can potentially single out the individual in such manner. Hence the sources of potential risks are varied. Our view is that this new requirement, whilst to be welcomed and if one thinks about it is not practically new, given that it will be stated as law, will have serious repercussions if not carefully dealt with. It is hence important for businesses to put in place anonymity policies or codes of conduct to manage such risks in a practical way. Awareness creation and training will be critical.

2.Key thrust B: Provisions to support business/organisational needs and national objectives

1.The Recommendations provide certain exemptions to allow for specific business/organisational needs and national objectives to be met. This includes:

1.Genuine and reasonable job requirement. Employers are allowed to consider a Protected Characteristic in employment decisions if that characteristic is a genuine and reasonable job requirement. This raises more questions that it resolves; yet with the right caveats put in place, arguably it can aid businesses as to why they would hire a certain individual as opposed to another, be it on gender, language and more.

2.Small firms with fewer than 25 employees. For a start, such firms will be exempted from the legislation, although they will still be subject to the Guidelines. There is a view to tighten this exemption in five years.

3.Religious organisations. Religious organisations can make employment decisions based on religion and religious requirements for any job role. This exemption does not apply to religion-affiliated entities that have a secular purpose/function or serve the general public (e.g., religion-affiliated charities, hospitals, schools, etc.). This is  welcomed exemption given our work in advising such organizations, with the clarity making it easier.

4.Hiring persons with disabilities and seniors. Employers are allowed to favour persons with disabilities and seniors (≥ 55 years) over other groups in hiring decisions, even if there are other equally or more qualified candidates. Such candidates must still meet baseline job requirements, and in-employment decisions such as promotion must still be based on merit. This exemption has its heart in the right place, although one wonders how effectively it will be utilized.

2.We highlight that these exemptions apply in only very limited situations. Further, even if an exemption to the legislation is applicable, the Guidelines may potentially still apply. What this means is that employers will need to ensure proper understanding of the rules, what is mandated, what is guidelines and how strictly the latter will be pushed, as it puts its employment plans in place.

3.Key thrust C: Processes for resolution of grievances and disputes while preserving workplace harmony

1.First, under the Recommendations, all employers are to implement a proper grievance handling process and protect the identity of employees who report workplace discrimination. The requirement for due process being in place is arguably already contained within the Employment Act. However, the fact of expressly including it into the new laws, and to mandate the protection of the identity of the individuals is the right approach, and is an obvious reflection of an intention to protect employees. Hence, businesses must ensure these policies are in place. The question is how in-depth they need to be. The Recommendations encourage adopting the Tripartite Standard on Grievance Handling. We recommend using this as a base at least. Our experience in handling such matters where no laws were in place teaches that that this cannot be a paper exercise and must be tailored to the business with depth being necessary. Depending on how (un)workable the policies are, they can potentially breach employer obligations under the new legislation.

2.Second, under the Recommendations, all workplace discrimination claims must undergo mandatory mediation at the Tripartite Alliance for Dispute Management (“TADM”), with adjudication at the Employment Claims Tribunal as a last resort. This is clearly a low-cost solution for aggrieved employees. Practically speaking, this will encourage more complaints, as we have already seen even without the new laws. This all means that it is important to arrest issues before employees take this into the formal resolution process, which will take away some control from the employer.

4.Key thrust D: Ensuring fair outcomes through redress for victims of workplace discrimination and more appropriate penalties for breaches

1.First, the Recommendations considered appropriate redress for aggrieved employees. The available options differ based on severity of the breach, as follows:

1.For less severe breaches (involving mediation at TADM), these include educating employers to correct errant practices, and having parties explore non-monetary remedies such as reinstating an employment offer, providing an apology, or reconsidering the employee for another job.

2.For more severe breaches (involving claims brought to the ECT), these include monetary compensation and reinstatement for end-of-employment claims.

2.We highlight that the examples set out at (a) likely illustrate what have been the employees’ very real concerns and wants on the ground (e.g. having an offer reinstated or receiving an apology). Practically speaking, it is hence no solution for employers to keep silent when retracting a job offer or otherwise dealing with any employee allegation. Employees who refuse to be “stone-walled” can initiate this process to obtain these forms of redress. We have as a matter of course seen this occur over the years in our practice, even where employees did not have such rights. This means that current modes of dealing with such issues must most certainly be reviewed.

3.Second, the Recommendations considered appropriate enforcement action against errant employers. The enforcement action would also differ based on the severity of the breach, as follows:

1.For low severity breaches, MOM may issue corrective orders requiring businesses to correct their processes and educate errant decision-makers. This already occurs without the new laws in place.

2.For moderate severity breaches (involving repeated breaches of the legislation), MOM may impose administrative penalties. This is new.

3.For high severity breaches (involving clear intention to discriminate in a systematic manner), MOM may bring an action against the errant employer/decision-maker, where the courts may impose civil penalties. This is new.

 4.Given how calibrated the framework is, it seems that MOM has assessed the breadth and depth of complaints and cases and has every intention to prosecute. While MOM may ease employers into the new framework and provide a transition period, time is short and this cannot be taken for granted.

In recent years, you would have noticed that developments to employment law have become more nuanced, and stricter against employers. Yet there is sometimes chatter that the Guidelines, being non-statutory, had no teeth. The reality was different as we have seen numerous matters where complaints are raised against employers. The Recommendations, which codify the expectations of employers into law, will clearly strengthen things and provide even more impetus for complaints. With a more vocal workforce today, we expect more civil actions to take place. We expect prosecution as well. Employers must hence ensure that they do not treat this development as business-as-usual.

The Recommendations are currently undergoing a one-month public consultation period. Thereafter, a bill is expected to be proposed in Parliament in 2024. What is critical is for a careful review to be undertaken and for each business to consider the implications internally. As appropriate, responses should be provided to the consultation currently on-going

While the Recommendations will likely kick into force next year, we encourage employers to look into this with priority and plan ahead of 2024. The significant publicity of this change to employers and employees alike can potentially attract attention to any present issues.

By Kala Anandarajah, RAJAH & TANN LLP, Singapore, a Transatlantic Law International Affiliated Firm. 

For further information or for any assistance please contact singapore@transatlanticlaw.com

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