Singapore’s New Workplace Fairness Law – Key Considerations

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Introduction

On 4 August 2023, Singapore Government accepted the final policy recommendations of the #TripartiteCommitteeonWorkplaceFairness (“Committee”) on a new legislative framework to enhance workplace fairness. This new legislative framework is proposed to be named as the #WorkplaceFairnessLegislation (“WFL”)[1].

Until recently, the #TripartiteAllianceforFairandProgressiveEmploymentPractices (“TAFEP”) oversaw the adoption of fair employment practices. To achieve this objective, TAFEP had published the #TripartiteGuidelinesonFairEmploymentPractices (“Guidelines”)[2].

When enacted, the WFL is intended to complement, not replace, the existing Guidelines.

This article will cover some of the key considerations and essential elements of the WFL and their implications, both for employers and employees in Singapore.

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WFL – An Overview

WFL seeks to prohibit workplace discrimination based on five characteristics:

(a)????????nationality;

(b)????????age;

(c)????????sex, marital status, pregnancy status and caregiving responsibilities;

(d)????????race, religion and language; and

(e)????????disability and mental health conditions.

Making an adverse employment decision based of any of these traits can be seen as discriminatory under the proposed legislation.

The framework covers all stages of employment, from hiring to termination. At the hiring stage, employers cannot indicate partiality for “protected characteristics” in job advertisements. Upon receiving a complaint, employers are required to:

(a)????????conduct inquiries;

(b)????????document the process; and

(c)????????communicate the outcome to the aggrieved employee, whose confidentiality must also be assured.

The proposed legislation in intended to prohibit retaliation against staff – such as dismissals, salary deductions or harassment – who report workplace discrimination.

Employers that refuse to correct blatant prejudices may be publicly named by Singapore’s #MinistryofManpower (MOM).

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Current Regulatory Regime

At present, there are no binding laws or legislation that tackle workplace discrimination / discriminatory practices in Singapore. What Singapore has at present, are the Guidelines, which set out the principles of fair employment and recommend good employment practices.

While the Guidelines are more on the lines of recommendations and are not legally binding per se, employers are still expected to observe the same and the MOM can take action against errant employers who breach the Guidelines.

Having said that, the Guidelines do prescribe a recourse for the victims of workplace discrimination in Singapore. There are two main measures of recourse that victims of workplace discrimination can employ:

1.??????????Report the discrimination to one’s employer

A victim of workplace discrimination may report such discrimination to their employer or the human resources department of their company. However, this is usually only an option if the victim works for a company with a dedicated human resource department, and the discrimination is isolated against the victim directly i.e. is not a company-wide policy but a policy discriminating only against that individual (for instance, a refusal to hire the individual based on their age or gender).

There may, however, be instances when an employer implements a policy that appears to be neutral but has an adverse impact on a particular group of people based on their characteristics, for instance, a company may require all jobseekers applying for a finance role to take and pass a numeracy test as numeracy is a relevant skill. Even though the company may not have intended to discriminate against older workers and has a reasonable basis for the numeracy test, older workers may find the test requirement to be a form of indirect discrimination if they generally perform poorer on such tests than younger workers.

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2. ????????File a complaint with the authorities

A victim of workplace discrimination may also choose to file a complaint with one of four authorities: #TripartiteAllianceforDisputeManagement (TADM), TAFEP, MOM, or the police. These organisations can investigate the complaint and take appropriate action.

TADM can assist in the resolution of one’s complaint either by arranging for a mediation session with the assistance of a TADM mediator, or by providing advisory services on how to move forward with the complaint. TAFEP is empowered to report discriminatory practices that do not adhere to the Guidelines to MOM for further investigations.

MOM investigates complaints relating to employment infringements – violations of the Employment Act – and cover areas like an employee’s salary, leave entitlements, public holidays entitlements, or working hours and rest days. MOM can take certain actions against the offending employer, including revoking work pass privileges of employers who are found to have engaged in discriminatory practices, which can prevent such employer(s) from hiring foreign workers in the future.

Additionally, for serious cases of workplace harassment, victims can also directly approach the police and apply for a protection order under the Protection from Harassment Act.

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Analysis Of the Proposed Legislative Framework

With the advent of the WFL, workplace discrimination will seemingly have a more holistic definition in legal terms as being a practice where an individual or group of individuals is treated unfairly or unequally at the workplace because of specific “protected characteristics” – such as age, nationality, set, marital status, pregnancy status, caregiving responsibilities, race, religion, language, disability, or mental health conditions.

The WFL is also intended to provide protection against discrimination in respect of the protected characteristics for all stages of employment. This would include:

(a)????????pre-employment / recruitment stage – where the WFL shall prohibit employers from using words and/or phrases that indicate a preference based on any protected characteristic in job advertisements, that has no apparent connection with the job requirements);

(b)????????during employment – where the WFL shall require employers to put in place adequate grievance-handling processes so that affected employees can try to resolve disputes within the organisation in the first instance. These processes include having in place a proper inquiry and documentation process, communicating the outcome of the inquiry to the employee, and protecting the confidentiality of the identity of persons who report workplace discrimination and harassment; and

(c)????????at the end of employment (e.g. at the time of termination, dismissal or resignation etc.)

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Employers should take note of the types of retaliatory actions that would constitute a breach when legislated, which may include:

(a) ???????wrongful dismissal;

(b) ???????unreasonable denial of re-employment;

(c) ???????unauthorised salary deduction;

(d) ???????deprivation of contractual benefits;

(e) ???????harassment; and/or

(f) ????????any other act done or to victimise the individual who made the report.

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In the event of an incident of workplace discrimination, the WFL proposes a more appropriate redress for victims of workplace discrimination and more appropriate enforcement action against errant employers. These include:

(a)????????Requiring victims to undergo compulsory mediation at TADM, where it is still practicable to do so to preserve the employment relationship. The mediation process also allows for a wider range of monetary and non-monetary remedies (e.g. having the employer reinstate an employment offer or even providing an apology).

(b)????????If the workplace discrimination claim cannot be resolved at mediation, victims of any form of workplace discrimination prescribed under the WFL may proceed to seek recourse through the ECT. In order to adjudicate such complaints, ECT shall be empowered to award compensation of up to S$5,000 for pre-employment claims and up to S$20,000 for non-union members or S$30,000 for union-assisted claims for claims during one’s employment or at the end of one’s employment.

(c)????????Enacting a set of enforcement provisions that will apply to the company and/or the person responsible for the discriminatory decision. These penalties can be adjusted according to the severity of the breach and may include issuance of Corrective Orders by MOM, requiring companies to review their hiring processes or individual employees to attend corrective workshops. For breaches of high severity, the MOM can bring legal action against the company and/or the person responsible, and seek larger financial penalties to be imposed in addition to being publicly named by the MOM.

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In recognition of practical business or organisational needs and other national objectives, WFL envisages a carve out for employers to consider a protected characteristic in employment decisions. These exceptions are:

(a)????????decisions made for practical business needs i.e. if the decision is based on genuine and reasonable job requirements; and

(b)????????actions that support the national objectives;

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Further, the WFL also prescribes an exemption for firms with fewer than 25 workers, and religious organisations – who, while being exempt under the WFL, will still remain subject to the Guidelines.

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However, employees are not the only ones who get stronger safeguards under the WFL. To counter frivolous claims, the Committee has proposed that the #EmploymentClaimsTribunal (ECT) be empowered to strike them out. This would potentially involve claimants who insist on going through the claims process with little or no proof of any wrongdoing.

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Concluding Words

?The proposed new legislative framework is a step in the right direction, especially considering the spotlight on various ESG-related issues that are currently in the news all over the world. The element of ‘governance’ under ESG is usually the most subtle and discreet and this new legislation, not only highlights the significance of governance-related issues within organisations, but empowers the employees to ensure they are not discriminated against.

Having said that, however, in my humble opinion, the framework has missed out on certain points, the addition of which, would not only have made a deeper impact on the regulatory environment in Singapore, but could have become an #idol for other countries to emulate.

For instance, the decision to omit sexual orientation as a “protected characteristic”. ?Considering the recent repeal of section 377A of the Singapore Penal Code – which had previously criminalised homosexual activity between males – the omission of sexual orientation as a protected characteristic may not exactly bode well for the government and can be considered as a missed opportunity for Singapore to be viewed as an inclusive and all-embracing economy.

Another notable omission is the concept of “indirect discrimination”, which has specifically been excluded from the scope of the WFL, presumably to avoid imposing wider and uncertain legal obligations on employers, that can potentially cause the employment relationship to become overly litigious. This, however, seems like another missed opportunity as the legal principles underpinning indirect discrimination claims are well established in some of the other matured jurisdictions (for instance, the UK Equality Act), and so it is not clear why such claims have been considered as being particularly onerous or complex to adjudicate.

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[1] Available online at https://www.mom.gov.sg/newsroom/press-releases/2023/0804-government-accepts-tripartite-committee-final-recommendations-for-wfl

[2] Available online at https://www.mom.gov.sg/-/media/mom/documents/press-releases/2007/03052007/tafep-guidelines---annex-a.pdf