On 4 August 2023, the Tripartite Committee on Workplace Fairness (Tripartite Committee) released[1] its final policy recommendations on the proposed legislative framework to enhance workplace fairness (referred to as the Workplace Fairness Legislation, or WFL), by way of a Final Report that has been accepted by the Singapore Government (Final Report).

The Final Report follows the Tripartite Committee’s earlier recommendations in its interim report released on 13 February 2023 (Interim Report), as well as several rounds of consultation with stakeholders. Crucial takeaways from the Interim Report, including the key aspects of the proposed WFL, can be found in our earlier blogpost: Singapore steps up controls over workplace fairness and discrimination | Global Workplace Insider

In this update, we set out the additional significant takeaways from the Final Report, which has further clarified the scope and direction of the upcoming WFL. As the WFL will be passed into law in 2024, companies with operations and employees in Singapore should pay close attention to these developments.   

Definition of “discrimination”

“Discrimination” in the WFL will be defined as making an adverse employment decision because of any protected characteristic. The five categories of protected characteristics remain as those stated in the Interim Report, namely: (i) age, (ii) nationality, (iii) sex, marital status, pregnancy status, caregiving responsibilities, (iv) race, religion, language, and (v) disability and mental health conditions. It bears highlighting that:

a. Unlike similar legislation in other jurisdictions such as the United Kingdom, this definition of “discrimination” does not cover indirect discrimination.

Indirect discrimination typically involves an apparently neutral company practice that has the effect of putting employees with a particular protected characteristic at a disadvantage. For instance, a company may require all jobseekers applying for a finance role to take and pass a numeracy test as numeracy is a relevant skill. Even though the company may not have intended to discriminate against older workers and has a reasonable basis for the numeracy test, older workers may find the test requirement to be a form of indirect discrimination if they generally perform poorer on such tests than younger workers.

Indirect discrimination will be excluded from the scope of the WFL to avoid imposing wide and uncertain legal obligations on employers, that can potentially result in grey situations and cause the employment relationship to become overly litigious. The Tripartite Alliance for Fair and Progressive Employment Practices (TAFEP) will continue to assess and take up complaints of such indirect discrimination where appropriate to help parties achieve a reasonable resolution.

b. An “employment decision” will cover all stages of employment (i.e., pre-employment / recruitment, in-employment (e.g., promotion, performance appraisal, training) and end-employment / dismissal). However, the provision of non-mandatory employee benefits such as additional leave, healthcare benefits, or flexible working arrangements will not be covered by the WFL.

This carve-out is intended to ensure employers retain the flexibility to implement progressive HR practices, and design competitive and fair benefits packages depending on their employees’ and business’ needs. For instance, it would not amount to discrimination under the WFL for a company to offer additional non-statutory maternity leave and childcare leave as benefits for employees who are mothers or have children, even though such benefits will not be available to unmarried male employees.

c. Apart from benefits-related policies, policies which discriminate based on any protected characteristic will be prohibited under the WFL. As such, a company may breach the WFL by simply having a discriminatory policy, even if a discriminatory decision has yet to be made.

Scope of the protected characteristics

While the Tripartite Committee received feedback to expand the scope of protected characteristics to include sexual orientation, gender identity and criminal history, it ultimately decided that the WFL should be tightly scoped to protect against more common and familiar forms of discrimination, in line with Singapore’s key social and economic objectives. Discrimination based on non-protected characteristics will be addressed by the existing Tripartite Guidelines on Fair Employment Practices (TGFEP), which protect against all forms of workplace discrimination and will apply in concert with the WFL.

The Final Report also clarifies the scope of certain protected characteristics under the WFL, namely, “pregnancy”,[2] “caregiving responsibilities”,[3] “disability”,[4] and “mental health conditions”.[5]

Matters not covered by the WFL

The Final Report also clarifies that the WFL will not apply in a number of scenarios.

Workplace harassment: The WFL will not specifically prohibit workplace harassment, or impose duties on employers to keep the workplace safe from harassment. However, employers will be required by the WFL to put in place grievance handling processes and ensure that employees are protected from retaliatory action for reporting workplace harassment – see our earlier blogpost on the WFL for details. 

Victims of workplace harassment can continue to seek recourse under the existing statutory framework (e.g., under the Protection from Harassment Act 2014 and the Penal Code 1871) or seek assistance from TAFEP. Where complaints are received, TAFEP will ensure that employers carry out proper, independent investigations into harassment complaints, take disciplinary action against harassers where appropriate, and implement proper harassment prevention policies and procedures that are in line with the Tripartite Advisory on Managing Workplace Harassment to prevent future incidents.

Non-employees: The WFL will apply only to individuals in an employment relationship (i.e., those covered by the Employment Act 1968; self-employed persons will therefore not be covered). This is because business relationships are often more complex than employment relationships. For instance, self-employed persons are not under the control of employers, and may be able to decide whether to take on the work.[6]

Reasonable accommodations for disabled employees: Apart from prohibiting discrimination on the basis of disability and permitting affirmative action in hiring less qualified disabled persons, the WFL will not go further in requiring employers to provide reasonable accommodations for disabled employees. Reasonable accommodations are adjustments to the job or work environment that make it possible for employees with disabilities to perform their essential job functions (e.g., providing a hearing loop system for hard-of-hearing employees, and installing ramps for employees on wheelchairs).

The Tripartite Committee’s view is that legislating for the provision of such reasonable accommodations may risk creating a more litigious workplace and inadvertently affect the employability of disabled individuals. Instead, a Tripartite Advisory will be issued to guide and encourage more employers to provide reasonable accommodations.

Enforcement levers

The Final Report provides illustrations of what may constitute a low severity breach of the WFL (which may be punished by a corrective order issued by the Ministry of Manpower (MOM)) and a high severity breach (which may be punished through civil penalties):

a. A company that has breached the WFL for the first time by posting a job advertisement indicating a preference for females because they can perform better in a sales role may be issued with a corrective order for the company to review its hiring processes and attend corrective workshops.

b. A company that has been intentionally promoting employees of a certain nationality, and has fired an employee after he filed a discrimination complaint against the company, may be found to have been guilty of systemic discrimination with clear intent. For such egregious breaches, MOM may seek a civil penalty against the company and the decision-maker(s) in Court, and curtail the company’s work pass privileges.

Implications for employers

In light of the policy recommendations in the Final Report, companies with operations and employees in Singapore should proactively review and assess their current HR practices to identify any problem areas that need to be addressed, before the WFL is passed in 2024. This may include reviewing existing HR policies and procedures for compliance with the WFL, drafting new policies and procedures which will be required by the WFL (e.g., a formal grievance handling policy), and considering whether the WFL poses any issues or challenges in the cross-border context (e.g., multi-jurisdictional group-level policies or procedures which may require Singapore-specific carve-outs and provisions).

If you have questions regarding workplace fairness and discrimination or any other employment matter, please feel free to contact us.

[1] https://www.mom.gov.sg/newsroom/press-releases/2023/0804-government-accepts-tripartite-committee-final-recommendations-for-wfl

[2] “Pregnancy” will be defined to cover women during their pregnancy (including those on their statutory maternity leave), women who are breastfeeding, as well as women who express a desire to bear children.

[3]  “Caregiving responsibilities” will be defined to cover individuals who provide care for a family member in need (including but not limited to parents, in-laws, spouse, and biological/step children), regardless of the caregiver’s sex or whether the person cared for is living in the same household. 

[4] “Disability” will be aligned with the scope of the Enabling Masterplan endorsed by the Singapore Ministry of Social and Family Development, which covers autism or any intellectual, physical or sensory disability or any combination of such disabilities with substantial impact on an individual’s ability to carry out day to day activities.

[5] “Mental health conditions” will be defined to cover more serious forms of diagnosed mental disorders usually associated with distress or impairment in important areas of functioning.

[6] However, the Tripartite Committee noted that expansions in the scope of the WFL can be considered after the proposed protections for employees have been effectively implemented.

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