Since the start of 2023, there have been a number of significant developments in the employment landscape in Singapore, largely focused on workplace fairness and discrimination. These developments have wide-ranging legal and practical implications for employers. Accordingly, employers should review their existing practices and procedures, including their grievance handling procedures, to ensure that they are well-equipped to meet the minimum standards / necessary requirements in this evolving area.
The following recent developments are addressed in this blogpost:
a. the enhancements to the Tripartite Guidelines on Fair Employment Practices released on 30 January 2023, targeting workplace fairness and discrimination; and
b. the Tripartite Committee’s Interim Report on Recommendations for Workplace Fairness Legislation, released on 13 February 2023.
A. Singapore’s enhanced protections relating to workplace fairness and discrimination
Singapore’s Tripartite Guidelines on Fair Employment Practices (“Fair Employment Guidelines”) will be enhanced from mid-February 2023.[1] The Fair Employment Guidelines set out various workplace anti-discrimination guidelines, and are formulated by the Tripartite Alliance for Fair and Progressive Employment Practices (“TAFEP”), which is an independent body established by the tripartite partners (namely, the Ministry of Manpower (“MOM”), the National Trades Union Congress (“NTUC”) and the Singapore National Employers Federation (“SNEF”)) to promote the adoption of fair, responsible and progressive employment practices.
The recent enhancements to the Fair Employment Guidelines aim to promote the building and maintaining of a harmonious workplace, regardless of values or beliefs, by providing guidance on exercising sensitivity in the workplace in relation to non-work related activities. This stems from the recognition of the growing trend globally towards promoting an inclusive workplace, where employees are free to support various causes and activities, which are often unrelated to the primary business of the employer or duties of the employee.
The enhanced Fair Employment Guidelines provide that employers should demonstrate and communicate the importance of an inclusive and harmonious workplace, and have regard to the following:
a. employers should be sensitive to the diverse cultures, values and beliefs of their employees when developing, promoting or implementing non-work related events, programmes and policies;
b. support for any cause should not lead to bullying, harassment or ostracism at the workplace in any circumstances. Employers should provide employees with a safe environment to raise their concerns, including through a proper grievance handling process;
c. employees should be assessed for performance, promotion and related areas based only on work-related requirements; and
d. employees should not be required or pressured to participate in non-work related events, programmes and policies and non-support or non-participation should not affect their employment outcomes.
Employees who feel victimised or discriminated against by their employers can seek help from the MOM or TAFEP, who will then further investigate the allegations and consider enforcement action against the employer. This includes placing the employer on the Fair Consideration Framework watch list, requiring the employer to attend corrective workshops conducted by TAFEP, asking the employer to rectify lapses in its human resource processes, and, in more serious cases, curtailing the employer’s ability to obtain approval from MOM for work passes privileges in order to employ foreign workers in Singapore. [2] Apart from curtailment of work pass privileges, legislation is also currently being considered to widen the range of enforcement levers against discriminatory acts by employers, including remedial actions, and financial penalties against both the company and persons responsible for the discriminatory act – we elaborate on this below.
B. Interim report on recommendations for proposed workplace fairness legislation
The Tripartite Committee on Workplace Fairness (“Tripartite Committee”)[3] released an interim report on 13 February 2023[4] (“Interim Report”) concerning the proposed Workplace Fairness Legislation (“WFL”). This marks a significant milestone in an initiative which was first announced by Prime Minister Lee Hsien Loong in 29 August 2021.[5]
The Tripartite Committee is holding a one-month public consultation and will refine its recommendations thereafter, with its final report expected to be ready later this year.
The crux of the Interim Report comprises 20 recommendations for the WFL across 4 “Key Thrusts”, which are summarised below.
Key Thrust A: Strengthen protections against workplace discrimination
The Interim Report proposes retaining the Fair Employment Guidelines as a broader benchmark to work in concert with the WFL. It is envisaged that the Fair Employment Guidelines will continue to uphold workplace fairness by setting expectations for employers and providing protection beyond what is specifically prescribed or proscribed by law.
In this regard, the Interim Report recommends that the WFL prohibit workplace discrimination in respect of the following characteristics: (i) age, (ii) nationality, (iii) sex, marital status, pregnancy status, caregiving responsibilities, (iv) race, religion, language, (v) disability and mental health conditions (the “Protected Characteristics”).
Employers should note that sexual orientation and gender identity are not presently on the list of suggested Protected Characteristics. As previously indicated by Deputy Prime Minister Lawrence Wong, a distinction will be maintained between sex and gender.[6] The Minister for Manpower, Dr Tan See Leng stressed the need to be “judicious” about which aspects to include in the legislation.[7]
The Interim Report further recommends protecting employees from retaliation for reporting workplace discrimination and harassment by prohibiting the following retaliatory behaviours, with errant employers to face enforcement action:
a. wrongful dismissal;
b. unreasonable denial of re-employment;
c. unauthorised salary deduction;
d. deprivation of contractual benefits;
e. harassment; and
f. any other act done to victimise the individual who made the report (i.e. single out the individual for unjust treatment).
Other recommendations to strengthen the protections against workplace discrimination include:
a. extending protection against discrimination to all stages of employment, including pre-employment (e.g. recruitment) and end-employment (e.g. dismissal) stages;
b. prohibiting prospective employers from using words or phrases indicating a preference based on the Protected Characteristics;
c. legislating the job advertisement requirement for submission of Employment Pass and S Pass applications under the existing Fair Consideration Framework; and
d. updating the Fair Employment Guidelines to provide protection against discrimination for workers engaged in work through service buyers and intermediaries.
Key Thrust B: Provisions to support business / organisational needs and national objectives
At the same time, in consideration of the practical needs of businesses and organisations, as well as national objectives in certain contexts, the following recommendations have also been issued to balance these concerns:
a. employers are allowed to consider a Protected Characteristic in employment decisions if it is a genuine and reasonable job requirement;
b. small firms with fewer than 25 employees will be exempted from the WFL for 5 years to allow them to familiarise themselves with the WFL;
c. religious organisations and entities with a solely religious purpose or function should be allowed the discretion to make employment decisions based on any religion and religious requirements for any job role; and
d. employers will be allowed to favour persons with disabilities and seniors aged 55 years and above over other groups in hiring decisions, even if there are other equally or more qualified candidates.
Key Thrust C: Processes for resolving grievances and disputes while preserving workplace harmony
The Interim Report recommends requiring employers to implement proper grievance handling processes including:
a. putting in place a proper inquiry and documentation process;
b. informing employees of the firm’s grievance handling procedures;
c. communicating the outcome of the inquiry to the affected employee; and
d. protecting the confidentiality of the identity of persons who report workplace discrimination and harassment, where possible.
All claims of workplace discrimination in respect of the Protected Characteristics will follow the present process in place for employment disputes – with such claims undergoing compulsory mediation at the Tripartite Alliance for Dispute Management (“TADM”) first, with adjudication by the Employment Claims Tribunal (“ECT”) as a last resort.
Concurrently, TAFEP will continue to serve as the first external port of call for aggrieved employees, with unions to also continue to play an important role in the dispute resolution process for union members.
Key Thrust D: Ensuring fair outcomes through redress for victims of workplace discrimination, and appropriate penalties for breaches
In relation to claims of workplace discrimination, the focus of mediation is to correct errant practices and mend the employment relationship, rather than monetary compensation. However, if the dispute is escalated to the ECT, remedies will be limited to: (i) monetary compensation and (ii) reinstatement for end-of-employment claims. For monetary compensation, this is limited to S$5,000 for pre-employment claims (e.g. claims of unfairness in the recruitment process), and for all other claims, up to S$20,000 for non-union members and S$30,000 for union-assisted claims.
Costs of up to S$5,000 may be awarded against an unsuccessful claimant who is found to have made a frivolous or vexatious claim.
In relation to enforcement measures, the Interim Report recommends:
a. allowing the State to concurrently conduct investigations on claims that involve suspected serious breaches of the workplace fairness legislation, with a view to taking enforcement action; and
b. providing a range of penalties including corrective work orders, financial penalties, and work pass curtailment that can be imposed against firms and/or culpable persons, depending on the severity of breach.
Implications for employers
The enhancement of the Fair Employment Guidelines and the release of the Interim Report is consistent with the Singapore government’s efforts towards building a more inclusive and fairer workplace.
While the proposed WFL is still being finalised, the Interim Report provides a timely indication on the likely ambit and scope of the WFL, and also explains how the WFL will co-exist with the Fair Employment Guidelines.
In particular, the recommendations to prohibit specific forms of retaliatory action by employers and requiring employers to implement a formal grievance handling process is a welcome development to ensure that employees remain adequately protected when raising sensitive matters such as workplace discrimination or harassment. This is especially in light of recent findings that local employees who are victims of workplace discrimination or harassment tend not to seek redress through formal channels out of fear of potential employment or career-related repercussions.[8] This ought to be a cause for concern for employers as such reports serve a valuable function in detecting employee misconduct, workplace bullying, harassment and discriminatory / unfair practices. Robust grievance handling procedures are therefore critical to controlling such risks and allowing businesses and organisations to implement the appropriate remediation measures.
While the WFL has yet to be enacted, employers are advised to continue adhering to the Fair Employment Guidelines as a matter of good practice. Employers should also note that non-compliance may still be penalised via administrative penalties issued by MOM, including the curtailment of work pass privileges. Employees may report instances of non-compliance to TAFEP (or union leaders for employees who are union members), who may then refer such cases to MOM for investigation and further action. More information on the avenues for recourse against non-compliant employers can be found at our previous blogpost: Singapore to enshrine workplace anti-discrimination laws | Global Workplace Insider
It is vital for employers to stay abreast of these developments and actively review their existing employment and workplace policies and procedures for compliance with the enhanced Fair Employment Guidelines and the recommendations in the Interim Report, in anticipation of the WFL coming into force. Employers with a presence in jurisdictions apart from Singapore should take this opportunity to update or consolidate their internal policies and procedures across all jurisdictions to ensure that they meet the standards and expectations of regulators in the relevant jurisdictions, if not already done.
If you have questions or require assistance regarding workplace fairness and discrimination or any other employment matter in Singapore, please contact us.
[1] https://www.mom.gov.sg/newsroom/press-releases/2023/0130-enhanced-tripartite-guidelines-on-exercising-sensitivity-for-a-harmonious-workplace
[2] https://www.straitstimes.com/singapore/workers-supporting-causes-outside-workplace-should-not-face-bullying-harassment-or-ostracism-under-beefed-up-guidelines; https://www.channelnewsasia.com/singapore/ndr-2021-anti-discrimination-law-tafep-pm-lee-2143101
[3] The Tripartite Committee is co-chaired by Minister for Manpower Dr Tan See Leng, NTUC Secretary-General Mr Ng Chee Meng, and SNEF President Dr Robert Yap, and comprises employers, unions, the human resource community and senior government representatives.
[4] https://www.mom.gov.sg/newsroom/press-releases/2023/0213-tripartite-committee-releases-interim-report-on-recommendations-for-wfl
[5] https://www.channelnewsasia.com/singapore/ndr-2021-anti-discrimination-law-tafep-pm-lee-2143101
[6] https://www.straitstimes.com/singapore/government-will-take-steps-against-workplace-discrimination-support-older-singaporeans-dpm-wong
[7] https://www.channelnewsasia.com/singapore/anti-discrimination-workplace-law-fairness-3273846
[8] https://www.todayonline.com/commentary/commentary-tackling-workplace-discrimination-needs-more-legislation-staff-training-essential-too-2112691
