Final recommendations on Singapore workplace discrimination legislation accepted by the Singapore Government

Overview

In February 2023, the Tripartite Committee on Workplace Fairness (Tripartite Committee) released its interim report with 20 recommendations (Interim Report) for the proposed Workplace Fairness Legislation (WFL). The WFL will, when passed, represent Singapore’s first legislative framework for resolving discrimination complaints in the workplace.  For more background, please refer to our previous alert here.

Since then, the Tripartite Committee has reviewed and taken into account feedback received from various stakeholders on the Interim Report, and has addressed them in its final report with 22 recommendations (Final Report) for the WFL.

On 4 August 2023, the Ministry of Manpower (MOM) announced that the Singapore Government has now accepted the recommendations in the Final Report, which are to be implemented in 2024. The WFL will be a significant milestone in Singapore employment law as the Final Report accords substantially greater protection to employees. The WFL will complement and not replace the existing Tripartite Guidelines on Fair Employment Practices (TGFEP), which will continue to provide overarching principles of workplace fairness for employers. However, the WFL will provide employees, for the first time, a direct legal remedy beyond a wrongful dismissal claim against employers for discriminatory practices.

The Final Report includes 22 recommendations which are neatly categorised under four key themes. We have set out some of the key recommendations and our comments below:

Strengthening protection against workplace discrimination

Having received feedback that there should be a clear definition of discrimination, the Tripartite Committee has proposed enshrining the definition of discrimination in legislation. This new recommendation is a welcome addition that was not included in the Interim Report and would benefit both employers and employees. Discrimination will be statutorily defined as making an adverse employment decision because of any of the following protected characteristics:

• Age;
• Nationality;
• Sex, marital status, pregnancy status (including breastfeeding and women who express a desire to bear children) and caregiving responsibilities;
• Race, religion, language; and 
• Disability and mental health conditions.

As we highlighted in our previous alert, the decision to omit sexual orientation as a protected characteristic will be viewed as a missed opportunity given the recent repeal of section 377A of the Penal Code (which had previously criminalised homosexual activity between males). The Final Report also provides illustrations as to what could amount to discrimination in relation to the protected characteristics and serves as useful guidance for employers.

Interestingly, the Tripartite Committee made a considered decision to exclude indirect discrimination from statutory protection and to focus only on direct discrimination, as protecting indirect discrimination would impose very wide legal obligations on employers and lead to considerable uncertainty for both employers and employees. This is also something of a missed opportunity. While prohibiting direct discrimination is essential for greater employee protection, indirect discrimination arguably has greater societal impact and is equally worthy of recognition. The legal principles underpinning indirect discrimination claims are also well established in other jurisdictions (particularly the UK Equality Act which the Tripartite Committee considered as part of its review), and so it is not clear why such claims would be particularly onerous or complex to adjudicate.

Broadly, the other recommendations published in the Interim Report under this theme were maintained in the Final Report. Such recommendations include that employment decisions relating to all stages of employment will be covered. However, the provision of employee benefits will not be covered (eg it is not discriminatory for female employees to have greater parental leave benefits). Job advertisements that indicate a preference for a protected characteristic will be prohibited.

Notably, to protect those who report cases of workplace discrimination or harassment, retaliation by employers will be prohibited. Employers should take note of the types of retaliatory actions that would constitute a breach when legislated, which the Tripartite Committee thinks should include:

• Wrongful dismissal;
• Unreasonable denial of re-employment;
• Unauthorised salary deduction;
• Deprivation of contractual benefits;
• Harassment; and
• Any other act done or to victimise the individual who made the report.

Finally, the requirement to advertise new roles on MyCareersFuture before hiring an Employment Pass or S Pass holder (unless exempted) will become a legislative requirement instead of being a requirement under the Fair Consideration Framework.

Provisions to support business / organisational needs and national objectives

In recognition of practical business or organisational needs and other national objectives, provisions  will be made for employers to consider a protected characteristic in employment decisions if it is a genuine and reasonable job requirement. To begin with, small employers with fewer than 25 employees will be exempted from the WFL, and this exception will be reviewed in five years. The Tripartite Committee has indicated that support will be extended to small employers in their journey to increase capabilities, such as by providing new training resources for companies and human resource personnel to incorporate their own in-house corporate training for their business leaders and line managers, as well as briefings, clinics and webinars, including those catered specifically to small and medium enterprises (SMEs), to build understanding of the TGFEP and upcoming legislative requirements, as well as to share best practices.  

Recommendations were also made to support employers with hiring persons with disabilities or seniors (55 years of age and above) to promote and facilitate employment opportunities for vulnerable groups. Employers will also continue to be able to express a preference for hiring Singapore citizens and permanent residents over foreign candidates.

The Tripartite Committee has also made a new recommendation to issue a Tripartite Advisory on providing reasonable accommodations to persons with disabilities. This is a legal principle that exists in other jurisdictions with discrimination laws (e.g. the UK). Reasonable accommodations would include adjustments to the work environment that make it possible for employees with disabilities to perform their jobs, such as installing ramps for employees needing wheelchairs. More importantly, the Tripartite Committee states that such accommodations are reasonable when they help persons with disability perform essential job functions, do not impose undue burden to the employer, and do not change the fundamental nature of the business. That said, as the reasonable accommodation requirement will be handled by way of a Tripartite Advisory, it will not have legally binding effect per se.

Processes for resolving grievances and disputes while preserving workplace harmony

Broadly, all the recommendations published in the Interim Report under this theme were maintained in the Final Report.

The Tripartite Committee recommends requiring employers to implement grievance handling processes, which would include informing employees of such processes and protecting the confidentiality of whistle-blowers who report workplace discrimination and harassment, where possible.

The Tripartite Alliance for Fair and Progressive Employment Practices (TAFEP) will continue to serve as the first port of call outside the employer for workers who experience discrimination. The Tripartite Committee elaborates that prima facie evidence should be provided by the claimant to support the claim that the discrimination has occurred: by clearly citing the incident(s) that led them to believe that they suffered an adverse employment outcome because of a protected characteristic, and the cited incident(s) should show how the consideration of the protected characteristic led to the adverse employment outcome. The Final Report’s emphasis on this being supported by written or oral evidence, would help to minimise frivolous claims by claimants.

Compulsory mediation will be required for workplace discrimination claims at the Tripartite Alliance for Dispute Management (TADM) first, with adjudication at the Employment Claims Tribunal (ECT) as a last resort. Unions will continue to play a constructive role in dispute resolution for workplace fairness by supporting their members in the claims process.

Ensuring fair outcomes through redress for victims of workplace discrimination, and appropriate penalties for breaches

Broadly, all the recommendations published in the Interim Report under this theme were maintained in the Final Report.

At TADM mediation, the focus should be on educating employers on correct practices and mending the employment relationship where practicable, and not primarily monetary compensation. Monetary compensation of up to S$ 5,000 can be provided for pre-employment claims. For in-employment and end-employment claims, monetary compensation of up to S$ 20,000 for non-union members and S$ 30,000 for union-assisted claims can be provided. The ECT is empowered to strike out frivolous or vexatious claims, and / or award costs against such claimants.

Where the claim involves a suspected serious breach of the WFL, the Singapore Government will be allowed to concurrently investigate with a view to taking enforcement action. Employers should take note of the range of penalties that can be imposed against employers and / or culpable persons, depending on the severity of the breach. The Final Report provides some illustrations as regards the recommended enforcement levers which correspond to the increasing severity of the breach. To illustrate, where an employer posts a job advertisement and it indicates a preference for females in a sales role, the MOM may assess the employer to have breached the legislation by posting a discriminatory job advertisement. A low severity penalty in the form of a Corrective Order may be issued by the MOM for the employer to review its hiring processes and attend corrective workshops where the employer is a first-time offender. At the other end of the spectrum, where an employer intentionally promotes employees of a certain nationality despite having candidates of other nationalities who performed better, and where the employer also dismissed an employee after the employee had filed a discrimination complaint against the employer, high penalties would be imposed on the employer. This would include seeking civil penalties against the employer and decision-maker(s) in the courts and a curtailment of the employer’s work pass privileges.

For any enquiries on what these updates will mean to your business, please contact David Smail.

DLA Piper is restricted for regulatory reasons from practising local law in Singapore. This article is not intended to constitute the general dispensation of advice on Singapore law.