Upcoming workplace discrimination law in Singapore

Introduction

According to the “Fair Employment Practices” report for 2022 released by the Manpower Research and Statistics Department, Ministry of Manpower, two in every five job seekers in Singapore experienced some form of discrimination in 2018, though this figure dropped to one in every five job seekers in 2022.

Common forms of discrimination encountered include age (16.6 per cent), race (7.1 per cent) and mental health (5 per cent) while the most common source of discrimination was job advertisements which stated a preference for specific demographic characteristics without justification. The report went further to compare the findings of a survey conducted by the European Foundation for the Improvement of Living and Working Conditions in 2021 and note that the prevalence of discrimination at work in Singapore compares favourably with most European countries, being lower than the EU-average and most of the EU-27 countries except Hungary. The Ministry of Manpower attributed the improvement in workplace discrimination to the collective efforts from all of the stakeholders to promote and sustain fair employment practices.

The existing discrimination framework in Singapore is set out in non-binding guidelines issued by the Tripartite Alliance for Fair and Progressive Employment Practices (TAFEP). TAFEP is an organisation comprising the three tripartite partners – the Ministry of Manpower (MOM) representing the government, the National Trades Union Congress representing the workers, and the Singapore National Employers Federation representing the employers. While there are no legislative penalties imposed for failing to adhere to the TAFEP guidelines, if employers are found to be non-compliant with the TAFEP guidelines, the MOM may take certain enforcement actions such as the curtailment of work pass privileges.

In 2021, the Singapore government commissioned a Tripartite Committee on Workplace Fairness (Committee) to review the workplace fairness framework in Singapore and an interim report was released in February 2023, putting forward some recommendations to bolster existing measures. After further consultations with the public, a final report was then issued in August 2023 (Final Report) where 22 recommendations were proposed to protect workers from discrimination. It is expected that the workplace fairness legislation will be introduced in the second half of 2024, marking a significant development in making workplaces in Singapore an inclusive and fair environment. In some sense, this has been long overdue as countries around the region and other developed countries have long had discrimination laws in place.

Summary of the upcoming legislation

For the upcoming workplace fairness legislation, there were four key thrusts identified under the Final Report which we will examine in some detail below. A key feature of this legislation is that it will only cover direct discrimination and direct prohibited actions. Instances where, for example, an employee is indirectly discriminated against or if an employer is not covered under this legislation.

Key Thrust A – Strengthening protection against workplace discrimination

The Committee recommends that the term “discrimination” should be clearly defined in order to remove ambiguity. “Discrimination” will thus be defined as making an adverse employment decision because of any protected characteristics. The two key terms in this definition are “adverse employment decision” and “protected characteristics”. “Adverse employment decision” will include all stages of employment, including pre-employment, in-employment and end-employment while “protected characteristics” include the following:

• Age;
• Nationality;
• Gender, marital status, pregnancy status, caregiving responsibilities;
• Race, religion, language; and
• Disability and mental conditions.

Certain organisations have criticised that the categories listed as protected characteristics do not go far enough and should have included sexual orientation, gender identity and criminal history. However, the Committee’s view is that the protected categories should be tightly scoped, and the proposed categories would already cover 95% of all discrimination complaints received by TAFEP and MOM.

To protect employees who may be hesitant to come forward with discriminatory or harassment claims, there will be protections in place to prevent employers from retaliating against those who made such reports. Employers who take such prohibited actions, such as dismissal, unauthorised salary deduction, deprivation of contractual benefits or any other acts that seeks to victimise the claimant, will face enforcement actions. However, there remains many concerns about how complainants can prove such prohibited actions, and whether the categories of “prohibited actions” are sufficiently wide to capture some subtle retaliatory actions such as increased level of micromanagement, “cold shoulder” treatment by managers and co-workers, or increased level of work and responsibilities.

We also foresee that this legislation may introduce difficulties in making certain decisions. For example, if the complainant is a poor performer and came forward with a complaint, will the company then be prevented from making a decision to terminate his/her employment or denial of a performance bonus? This highlights the need for a proper grievance handling procedure to handle discrimination complaints. It would also be ideal if there is a clear division of the processes where the person dealing with reports of discrimination is different from the person or department that handles key employment decisions such as promotion, termination and bonus declaration, so as to reduce the possibility of retaliatory actions. However, this may be difficult to implement for smaller organisations.

Key Thrust B – Support Organisation needs 

The legislation seeks to balance the position to allow employers to consider a protected characteristic in employment decisions if it is a genuine and reasonable job requirement. For example, if a wellness spa is hiring a therapist to service its female customers, being female is a genuine and reasonable job requirement. However, if the situation is not so clear cut and a certain characteristic falls short of being a genuine and reasonable job requirement but there is a strong preference for that characteristic, such as the ability to speak a certain language where the role requires frequent interaction with clients who speaks a certain language, there will still be ambiguity about whether an employer can take this into consideration when deciding whether to hire a candidate.

Smaller organisations and religious organisations will also be exempted from complying with the workplace fairness legislation. In the case of smaller organisations with less than twenty-five (25) employees, they will be exempted from the commencement of the legislation, but it is subject to review in five (5) years where it is expected that this specific exemption would be removed since there would be sufficient notice for smaller companies to change their policies to comply with the legislation.

Key Thrust C – Processes for resolving disputes

Further, the Committee recommends that all employers are mandated to put in place proper grievance handling processes and where possible, to protect the identity of the person(s) who report such workplace discrimination and harassment actions. Such grievance handling requirements would include:

• putting in place a proper inquiry and documentation process
• informing employees of the firm’s grievance handling procedures
• communicating the outcome of the inquiry to the affected employee
• protect the confidentiality of the identity of persons who report workplace discrimination and harassment, where possible.

Under the new legislative framework, the first step is for workers to try to resolve the discrimination claim internally. If the discrimination claim is not resolved, workers can then seek external assistance by consulting TAFEP. Thereafter, the complainant can undergo compulsory mediation at the Tripartite Alliance for Dispute Management (TADM) and if mediation fails, the claim will then be referred to the Employment Claims Tribunal (ECT) for adjudication.

In order to strike a balance between facilitating employees’ access to redress and preventing frivolous claims, the Committee also recommends that any claimant for discrimination must be able to produce prima facie evidence to support the claim that discrimination has occurred.

Key Thrust D – Ensuring fair outcomes for victims

The Committee recommends that there should be appropriate redress for victims of workplace discrimination and appropriate action taken against errant employers. Similar to wrongful dismissal claims, the ECT should be allowed to order a maximum compensation of $20,000 per claim and $30,000 for union-assisted claims.

For serious breaches of the workplace fairness legislation, the government may concurrently step in to conduct its own investigations and may take enforcement actions against the company and the person responsible for the discriminatory decision. Possible penalties include corrective orders, administrative penalties or financial penalties.

At the same time, there is a desire to prevent frivolous or vexatious claims where the claimant wilfully persists with the claim without any evidence. Legislative safeguards recommended include the ability for the ECT to fast track claims and skip mandatory mediation in order to save costs. The ECT will also be empowered to strike out claims which it considers to be frivolous or vexatious and costs of up to $5,000 can be awarded to the employer if the case is struck out. The employer is also permitted to take appropriate disciplinary actions where the case is struck out or if costs were awarded to the employer on the basis that the claim is frivolous or vexatious.

Conclusion

With the enactment of the workplace fairness legislation, it would be incumbent on employers to put in place appropriate measures to comply with the legislative requirements and to handle the anticipated increase in such claims at the workplace.

If you are concerned about how to prepare for this upcoming legislation and would like to have a deeper conversation about the procedures that would need to be put in place, please contact our Singapore-based colleagues Tan Choon Leng, Vincent Tan and Prashaanth Rajandran, working in the offices of JurisAsia LLC with whom Gowling WLG has an exclusive association.

• Category: Employment, labour & equalities, Insight
• Tag: employment