Proposed workplace discrimination laws: Bosses cite concerns on definition, implementation; HR experts say power balance still with employers

SINGAPORE — Employers have raised concerns such as the need for a precise definition of workplace discrimination in response to proposed laws to crack down on firms engaging in this practice unveiled on Monday (Feb 13).

They also called for more safeguards to protect employers against possible abuse of such laws such as having a third party present during the interview process, or the use of recording devices.

However, human resource (HR) experts said that the unequal power dynamic between employer and employee may discourage workers from seeking redress, as it may spell an end to their employment should they fail to prove their case.

If the proposed Workplace Fairness Legislation is accepted and enshrined into law, a new mediation process could legally compel errant employers to issue a formal apology to their employee with compensation of up to S$30,000.

Employers may also be required to reconsider the employee for another job, or have the employee go for another interview under a different interview panel.

EMPLOYERS HOPE FOR MORE PRECISE DEFINITION OF DISCRIMINATION

While employers broadly agree with the need for more workplace fairness and support the new laws, they raised some concerns over how they will be implemented. 

Mr Adam Piperdy, founder of events company Unearthed Productions, said that while he believes that the laws will be helpful to his company, he hopes that in due time, there will be a more precise definition of what discrimination entails. 

The proposed legislation will cover areas of discrimination such as age, nationality, sex, marital status, pregnancy status, race, religion and language, as well as disability and mental health conditions. 

Mr Piperdy said that small- and medium-sized enterprises (SMEs) such as his, which has a total of 25 workers, often do not have the resources to hire an established HR team. 

“A lot of SMEs like ourselves are left to figure out on our own what is right and what is not,” he said. 

“Instead of just the laws alone, will there be training and maybe some framework for HR and SME bosses to follow?” 

For example, he asked if it is appropriate to ask an employee their religion, in the event that food preference needs to be accounted for in the line of work.

Likewise, Mr Piperdy questioned if a pregnant employee could be asked about their pregnancy status so that plans could be made around the woman's due date. 

“A framework on what to ask, when to ask in a way that is not deemed as discriminatory will help me,” he said. 

Under the proposed legislation, small companies with fewer than 25 employees will be exempted from the legislation for the first five years to give them time to adjust to the changes.

Mr Samuel Yik, managing director of casual Chinese restaurant Dian Xiao Er, whose firm employs about 400 workers, said that the new legislation may mean that employers will have to be more guarded when engaging potential hires. 

“When you talk about hiring… you cannot just have one-to-one interviews, you need another person there,” he said. “You may need to set up recordings (for) every interview.” 

“Maybe the consumer may need to bear a bit of the cost,” he said.

He added that he was glad that there were safeguards against frivolous or vexatious claims by employees, where the Employment Claims Tribunal can award costs of up to S$5,000 to be paid by the worker to the company for such claims. 

He said that this safeguard would ensure that the new legislation is not easily exploited by employees to make unsubstantiated claims to waste company resources in disproving them. 

POWER IMBALANCE BETWEEN EMPLOYER AND EMPLOYEE CANNOT BE IGNORED: HR EXPERTS

HR experts say that in most cases involving such disputes, the power balance is tilted in the favour of the employer, and so there is a tendency for the employee to sweep such complaints under the rug for fear of further repercussions. 

Ms Carmen Wee, founder of HR advisory firm Carmen Wee & Associates, said that once an employee brings a case up to the authorities, the relationship between both parties will already be damaged. 

“There’s no way that anybody can take action on their employer, if they’re looking to be hired in the first place,” she said.

“It’s still better than not having any legislation, however it depends on how it’s going to be used, and how the ruling on the first few cases are going to be demonstrated.” 

Experts added that the inclusion of non-monetary remedies is also beneficial, especially to employees of larger companies. 

Mr Adrian Choo, career coach and founder of Career Agility International, said that some employees might feel that to large companies, a fine alone may not deter discriminatory behaviour given their wealth of resources. 

He added that it should be made mandatory for the apology letter to the employee be made public. 

“Having to make a public apology could bring negative PR (public relation) and might be a more effective deterrent than monetary punishments,” he said. 

Agreeing, Mr Aslam Sardar, chief executive officer at the Institute for Human Resource Professionals, said that a non-monetary compensation in the form of an apology could also go a long way if executed earnestly. 

“Ultimately, it’s about respect and reasonableness,” he said. 

“If the non-monetary remedy such as an apology is given sincerely, I don’t see why it would be rejected.” 

On the other hand, the penalty for the workers who make frivolous claims was a point of contention among the experts.  

Mr Choo said: “Allegations of discrimination can be hard to prove directly, and with the possibility of being made to pay up to S$5,000 for 'frivolous claims', some will wonder how many would dare to step forward.” 

However, Mr Aslam said that the provision will also encourage greater responsibility by workers, who intend to complain, to “take pause and think carefully”. 

“What is important is there must be greater understanding of what is or is not considered vexatious and frivolous,” he added. 

Ultimately, Singapore is a small nation that is dependent on its human resources, so having this legislation will be a good step in the long run, said Mr Kurt Wee, president of the Association of Small and Medium Enterprises. 

He said that while smaller companies with fewer than 25 employees do not need to abide by the rules for the first five years, they should look to implement fair workplace practices as soon as possible. 

“In a country where you don’t have natural resources, your human capital is the resource, you need to make sure that they are at the most optimum performance state,” he said. 

“This is not just about a coming of age, this is actually about employee performance.”