EMPLOYMENT: Level Playing Field | Asian Legal Business

Singapore is set to introduce a new anti-discrimination law at work later this year, and while employers welcome the changes, advocates say more needs to be done in terms of building skills to ensure compliance.

In August last year, Singapore’s Ministry of Manpower announced the acceptance of the final set of recommendations from the Tripartite Committee on Justice in the Workplace (Tripartite Committee) on the Justice in the Workplace (WFL) Legislation.

The WFL, which is scheduled to be adopted in the second half of 2024, outlines the measures that employers in the country must follow to prevent discrimination in employment decisions at all stages of employment, to establish processes for the resolution of complaints in the country of employment and to ensure fair outcomes for victims of workplace discrimination and to prohibit retaliation against those who report cases of workplace discrimination.

There are five protected characteristics under the WFL on which employers cannot discriminate: age, nationality, sex, marital status, pregnancy status, caring responsibilities, race, religion, language and disability and mental health conditions.

Employers are prohibited from referencing protected characteristics in job advertisements, recruitment, during employment (eg, promotion, performance evaluation, training selection) and termination stages of employment (eg, termination).

The law also requires employers to establish grievance procedures. This includes protecting the confidentiality of the complainant, building the infrastructure for mandatory mediation and taking claims for adjudication before Employment Claims Tribunals (ECTs) as a last resort.

Small firms with fewer than 25 employees will be excluded from the WFL to begin with, but this will be reviewed in five years. This approach recognizes that smaller firms may not have the expertise and resources to fully implement legal requirements at first, says Wong Pei-Ling, employment partner at CNPLaw.

Exemptions are also available to a narrow group of religious organizations that may make employment decisions based on religious considerations.

The law also allows employers to consider a protected characteristic in employment decisions if it is a genuine and reasonable job requirement. For example, Wong explains, language teachers must be proficient in the language they are teaching, and the employer may state language knowledge as a job requirement in advertisements. However, the employer must state the job requirement (eg speaking Tamil) rather than the protected characteristic that is not a job requirement (eg Indian teacher).

This ensures that the job advertisement avoids the perception of discrimination and enables employers to reach the widest pool of qualified candidates, the Tripartite Committees final report states.

It is important to note that many of these regulations are already in place under the Tripartite Guidelines on Fair Employment Practices (TGFEP), which will not cease to be in place once the WFL is enacted.

The proposed WFL is not intended to replace the TGFEP, but to complement it. The existing TGFEP continues to apply and employers are expected to continue to monitor them, says Toh Wei Yi, employment partner at Harry Elias Partnership.

BUILDING COMPLIANCE

For the requirements in the proposed WFL, which are already included in the Tripartite Guidelines, many employers in Singapore are already aware of and comply with these requirements.

However, there are some new areas in the proposed WFL which employers will need to consider in order to be able to comply with the legislation, particularly where what is to be applied is not spelled out. explicitly, says Toh.

Employers may need to consider how their decisions made even at the employment stage (eg when a promotion is given) are properly documented and can withstand scrutiny in the event of a challenge by an employee, explains Toh.

In general, larger and multinational companies are more prepared to comply with the proposed WFL, as they already have procedures in place which appear to be largely sufficient to comply with many aspects of the proposed WFL.

It is expected that smaller companies may have to do more to bridge the gap between their current practices and the proposed legislative requirements, adds Toh.

Leaders of trade associations and chambers representing small and medium-sized enterprises asked for more time to build their corporate human resources capabilities and establish appropriate grievance procedures, the Tripartite Committees’ final report noted.

Wong at CNPLaw explains that employers can start by reviewing their policies and practices in two key areas: ensuring fair recruitment practices and building clear procedures for handling complaints.

Fair recruitment practices include ensuring that the listed selection criteria are linked to the job requirements, ensuring that all staff involved in writing the job advertisement (including staff outside your HR team) are aware of the need to adhere to the TGFEP and have a comprehensive verification. process in place to check for words or phrases that could be perceived as discriminatory before posting it online, she says.

Building a grievance mechanism includes establishing an appropriate investigation and documentation process, informing employees of the firm’s grievance handling procedures, communicating the outcome of the investigation to the affected employee; and protecting the confidentiality of the identity of persons reporting discrimination and harassment in the workplace, where possible, Wong adds.

Employers can begin by drafting or improving their internal policies addressing appropriate workplace behavior. Employers may seek to improve their record-keeping processes to determine what is the most efficient, yet sufficient, method of documenting employment decisions (at all stages of employment).

– Toh Wei Yi, Harry Elias Partnership

Toh at Harry Elias adds that creating an internal policy on discrimination and building documentation for all employment decisions is also a crucial aspect that employers can start working on right away.

Employers can begin by drafting or improving their internal policies addressing appropriate workplace behavior. Employers may seek to improve their record-keeping processes to determine what is the most efficient, yet sufficient, method of documenting employment decisions (at all stages of employment), she says.

EMPLOYERS’ CONCERNS

As employers try to build capacity to comply with the WFL, some are concerned that the law could spur frivolous lawsuits from disgruntled employees.

The main concern we’ve heard from employers is the potential for frivolous and unfounded complaints of discrimination from disgruntled employees, which the employer will then have to spend considerable time and effort to deal with, explains Toh.

Wong explains that companies are also seeking more clarity on the definition of discrimination and the evidence needed to make such claims.

There is a common view that eliminating discrimination in the workplace requires a change in mentality that cannot be legislated, she adds.

Wong also notes that while a small number of employers suggested that indirect discrimination be covered under the WFL, most are quite content with its exclusion from the WFL by the Tripartite Committee.

Indirect discrimination usually involves an apparently neutral company practice that has the effect of placing persons with a particular protected characteristic at a disadvantage.

Its exemption is likely to be welcomed by employers generally as the ban on indirect discrimination in the WFL would impose too broad legal obligations on employers, resulting in uncertainty for both employers and employees, the final report noted.

This concern can be addressed by introducing a proportionality requirement, notes Wong. For example, section 19 of the UK Equality Act 2010 prohibits indirect discrimination unless the employer can show that it is a proportionate means of achieving a legitimate aim. Therefore, it remains to be seen whether Singapore will eventually align with other jurisdictions to include a ban on indirect discrimination, says Wong.

This can also increase the cost of employment as employers may tend to adopt protective employment practices, which can then limit flexibility in employment, she says.

Some employers were also concerned with not including sexual orientation, gender identity and criminal history (SGC) as protected characteristics under the WFL, adds Wong.

Wong explains that the exclusion of these characteristics from WFL protection is because the Tripartite Committee found that complaints of discrimination based on sexual orientation, gender identity and criminal history accounted for less than 5 percent of the total number of complaints received by TAFEP and the Ministry . of the workforce from 2018 to 2022.

This was a factor in the Tripartite Committees’ decision not to include SGC characteristics as protected characteristics under the WFL as the objective was to keep the WFL narrow in scope to protect against more common and well-known forms of discrimination, Wong explains.

While SCH characteristics remain protected under the TGFEP, these may be included in the WFL in the future, along with discrimination based on flexible work arrangements, says Toh.

There may be an extension of anti-discrimination protection in SGC features that is already present in other countries, she notes. Recently, the Report on the Tripartite Working Group on Tripartite Guidelines for Flexible Work Arrangement Requests was published. It is possible that future workplace discrimination law could be developed to explicitly prohibit discrimination based on an employee-requested employment agreement.