At a glance
- Employers have been waiting to receive further details about the Singapore Government's proposal to introduce workplace discrimination legislation. The committee has now issued a long-awaited interim report which contains a series of recommendations for the proposed legislation.
- The Interim Report includes 20 recommendations which are neatly categorised under four key themes. We have set out some of the key recommendations and our comments below.
As announced in 2021, the Singapore Government will be enshrining into law some or all of the principles currently contained in the Tripartite Guidelines on Fair Employment Practices (TGFEP). For more background, please refer to our previous alert here.
Back in July 2021, a Tripartite Committee on Workplace Fairness (Committee), constituted by the Ministry of Manpower, National Trades Union Congress, and the Singapore National Employers Federation, was convened to review the workplace fairness framework in Singapore.
The committee has now issued an Interim report setting out some key recommendations. The Interim Report is a welcome development in providing employers with a clearer vision of what the legislation is likely to cover once passed. However, there are still aspects which remain unclear and there will likely be a sense of there having been a missed opportunity in terms of the scope of some protections.
Strengthening protections against workplace discrimination
The Committee recommends prohibiting discrimination in respect of the following characteristics: age, nationality, sex, marital status, pregnancy status, caregiving responsibilities, race, religion, language, disability and mental health conditions.
Most of these characteristics are already protected under the TGFEP, either expressly or by implication. It is interesting that mental health has been specifically called out, which would make Singapore one of the first countries to do so. Notably, however, there is no mention of sexual orientation, which some were expecting following the recent repeal of section 377A of the Penal Code (which had previously criminalised homosexual activity between males) – this will likely be perceived as a missed opportunity.
In terms of scope, the Committee recommends protections should be made to cover all stages of employment as is currently the case under the TGFEP. This includes recruitment (which the Committee commented is the stage which produces the highest number of complaints), promotion, performance appraisals, training selection and dismissal. For instance, use of words in job advertisements that indicate a preference for a protected characteristic should be prohibited.
Another interesting feature is the recommendation to extend the scope of the TGFEP to apply to non-employees. For example, the Committee recommends extending protection against discrimination to workers engaged through service buyers (eg, property management companies) and intermediaries (eg, platform companies providing matching services).
There will also likely be specific protection for employees against any form of retaliation for making complaints of workplace discrimination or harassment. The Committee recommends the legislation clearly specifies what type of retaliatory action would constitute a breach and thinks this 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.
Provisions to support business / organisational needs and national objective
The Committee recognises that the legislation may represent a significant change to the current workplace fairness framework and has, therefore, made several recommendations with a view to supporting businesses to adapt to the change.
The Committee recommends there be an exception for employers who need to consider a protected characteristic when making employment decisions if it is a “genuine and reasonable job requirement". This is already an established principle under the TGFEP and includes, for example, a health spa who may require its therapists to be female if their job is to carry out personal body massages for female customers.
Employers should also be allowed to promote employment opportunities for vulnerable groups (also known as ‘positive discrimination’ in other jurisdictions). The Interim Report specifically refers to persons with disabilities and seniors aged at least 55 years old – for these groups, employers should be allowed to favour them over groups in hiring decisions even if another candidate may be equally or more qualified. However, the Committee does not recommend extending the exception to other groups such as women and racial / ethnic minorities (although these groups will be supported in other ways such as ensuring access to education, upskilling and job opportunities).
There is a recommendation to allow religious organisations to make employment decisions based on religion and religious requirements which help these organisations adhere to their religious beliefs.
Finally, there should be a transitional period for small employers. Those with fewer than 25 employees should be exempted from the legislation to begin with, with a view to tightening up this exemption after five years.
Processes for resolving grievances and disputes while preserving workplace harmony
In terms of making complaints and resolving disputes, the Committee recommends that claimants should first approach the Tripartite Alliance for Fair & Progressive Employment Practices (TAFEP) who will make a preliminary case assessment. If TAFEP thinks there is a case to answer, the claimant can proceed to file a workplace fairness complaint. This pre-step would be similar to that which exists for salary or wrongful dismissal claims lodged with the Tripartite Alliance for Dispute Management (TADM).
The complaint will then be subject to compulsory mediation at TADM before adjudication at the Employment Claims Tribunals (ECT) as the last resort. This is somewhat surprising as the Government had previously said there would be a new workplace discrimination tribunal set up to hear complaints. It seems the recommendation is now to make use of the existing employment disputes framework – the TADM and ECT being the forums for resolving salary-related and statutory wrongful dismissal claims.
Notably, the Committee recommends that the ECT be empowered to strike out frivolous or vexatious claims and to make an award of costs of up to SGD5,000 in favour of the employer in such cases. This is a welcome recommendation as it will give employers comfort that its obligations should be limited to responding to claims made in good faith.
There will likely also be a positive obligation on employers to implement grievance handling processes, so that aggrieved employees can choose to try to resolve disputes internally in the first instance. The TGFEP and the Tripartite Standard on Grievance Handling already encourage employers to put in place proper grievance handling processes.
Ensuring fair outcomes through redress for victims of workplace discrimination and more appropriate penalties for breaches
One of the key drivers behind the call for legislation was the feeling that employees who suffer workplace discrimination and harassment do not have adequate redress. The key enforcement mechanism under the current TGFEP is through the curtailment of work pass privileges rather than any personal monetary relief or financial penalties against the employer.
The Committee recommends that there should be a range of monetary and non-monetary remedies for claimants.
During the mediation stage at TADM, the focus should be on non-monetary remedies where practicable such as correcting errant practices, providing an apology and reinstatement.
If the complaint proceeds to the ECT, remedies should be limited to monetary compensation and reinstatement. In terms of monetary compensation, the Committee recommends the ECT adheres to the following caps: (a) for pre-employment claims (eg during the recruitment stage), SGD5,000; and (b) for claims during employment or at the end of employment, SGD20,000 for non-trade union members and SGD30,000 for trade union-assisted claims.
It is somewhat strange that a distinction has been made between claims that arise before and during employment. If the intention is for the scope of the legislation to cover pre-employment decision making (which is currently the case under the TGFEP), then it does not make sense that a different sanction should be imposed in cases where the act of discrimination is still substantively the same. It is also contradictory to the Interim Report’s emphasis on the pre-employment stage being where most discrimination complaints arise.
The compensation caps for claims during / at the end of employment are not entirely surprising, as they match the current compensation caps for statutory wrongful dismissal claims which was somewhat expected. However, discrimination is already a recognised ground for a statutory wrongful dismissal claim under the Tripartite Guidelines on Wrongful Dismissal Claim, and we would expect that most discrimination claims are likely to arise – and most employers are likely to be concerned about discrimination claims made – upon dismissal. If the compensation an employee can claim is the same regardless of whether they bring a wrongful dismissal claim or a discrimination claim, it begs the question of whether there is any tangible difference for the employee. It is also not clear whether an employee’s right to seek compensation on a discrimination claim will be in substitution of or is in addition to an employee’s wrongful dismissal claim.
Aside from individual claims, the Committee also recommends that the Singapore Government has the right to conduct investigations and take enforcement action if the claim involves a suspected serious breach of the legislation. The Interim Report provides a range of possible penalties varied according to the severity of the violation, which includes: (a) for low severity breaches, corrective work orders issued by the Ministry of Manpower; (b) for moderate severity breaches, administrative financial penalties up to a few thousand dollars; and (c) for high severity breaches, civil penalties for larger financial penalties.
The Interim Report is open to a one-month consultation period, with any feedback to be directed to the Ministry of Manpower. The Committee will continue to engage stakeholders as it refines its recommendations and aims to publish a final report later this year.
The legislation is expected to be tabled in Parliament by the second half of 2024.
Paternity leave and unpaid care leave set to increase
In his 2023 Budget speech, Finance Minister Lawrence Wong announced that paternity leave will be doubled from the current two weeks to four weeks, and unpaid infant care leave (for children aged below two) will be doubled from the current six days to 12 days per year.
This is not yet a legal requirement. Employers can offer to do so on a voluntary basis and if they do, the government will reimburse the costs for the expanded leave entitlement.
The Government’s offer of reimbursement applies to eligible employees of children who are born on or after 1 January 2024.
While the extended leave period is offered on a voluntary basis, Wong said the Singapore Government intends to make it mandatory "in due course".
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.