Key Takeaways and What you need to know – Tripartite Committee on Workplace Fairness Final Report and upcoming Workplace Fairness Legislation

While the majority of the Committee’s recommendations fall under Key Thrust A which remains the main focus of the proposed legislation to provide legal protection against workplace discrimination, there are overall key takeaways from each of thrusts that interact with each other – this is set out below.

Key Thrust A: Strengthen protection against workplace discrimination

The main takeaway is that the proposed workplace fairness legislation will address discrimination in all aspects of the employment process / relationship but these would only cover direct discrimination.  This is defined as making an adverse employment decision because of any Protected Characteristic(s) – these are:

1. Nationality
2. Age
3. Sex, Marital Status, Pregnancy Status, Caregiving Responsibilities
4. Race, Religion, Language
5. Disability, Mental Health Conditions
   
   

The Committee included an important footnote in its final report when it comes to the definition of direct discrimination and employment decision – it would also be a “breach of the legislation for employers to have discriminatory policies, even if a discriminatory decision has yet to be made.”  This is an important point to note as it effectively means that any policies that contain discriminatory practices, even if it is a historical version that is not actually practiced by employers and just has not been updated yet, would amount to a breach.  The practical takeaway is that employers would need to review all their policies to avoid such a situation of technical breach.

Another important note is that the Committee had also recommended that the definition of pregnancy and the scope of the protection extend to “women who are on statutory maternity leave, women who are breastfeeding, and women who express a desire to bear children”.  In this respect, the illustration provided in the final report (see page 18) is that of career development / advancement opportunities being denied to a female employee due to her future family plans.  For employers who already abide by the guidelines in the TGFEP, this would not come as a surprise since future family plans and desire for children are already considered to be discriminatory if it is considered at the hiring stage – this just logically and reasonably extends the same protection to all stages and aspects of the employment process / relationship.  Interestingly, what remains to be seen is what is meant by discrimination against “women who are breastfeeding” and whether this includes the failure to provide internal policies / provisions / safe spaces for mothers to breastfeed (and/or pump) and to what extent of provisions would need to be made (if any).

Apart from the above, the recommendations do not differ much from the existing guidelines in the TGFEP, where the main change is that what was already in the guidelines would now be legislated for, the key practices being:

1. the job advertising requirements under the FCF and the documentation relating to the same in respect of fair hiring and consideration of applications under the FCF; and
2. the prohibition of retaliation against employees who report cases of workplace discrimination (for e.g., whistleblowers) or grievances (i.e., non-retaliation policies).

A final interesting note for Key Thrust A would be how “disability” and “mental health conditions” would be defined in the legislation as this necessary requires the input of the relevant experts and professionals.  This is recognised by the Committee in the final report itself.

Key Thrust B: Provisions to support business/organisational needs and national objectives

The Committee also provided supporting recommendations and exemptions for employers who have genuine and reasonable job requirements, small firms with fewer than 25 employees (this exemption to be reviewed in 5 years), and employers who wish to hire persons with disabilities or seniors that are 55 of older (even if there is a more qualified candidate who is does not have a disability or is younger).

The key takeaway for employers is that even with these supporting recommendations / exemptions, it is clear that that employers need to take greater care and consideration in setting out job requirements. The allowance for employment decisions to be made based on genuine occupational requirements is already part of the current set of guidelines in the TGFEP and FCF and so it would be expected by MOM that employers are already familiar with what is a genuine occupational requirement and that the job requirements set out in their job advertisements do not go beyond such requirements.  The illustrations set out in the final report include employment decisions made on the basis of Protected Characteristics of:

1. Sex – where a job requirement for female only therapists would be considered genuine and reasonable because if the job was for personal body massages and spa treatments for female customers; and
2. Disability – where a job requirement for passing a hearing test is a genuine and reasonable occupational requirement for an audio production manager, even though this would preclude any candidates with hearing related disabilities / impairments.

Key Thrust C: Processes for resolving grievances and disputes while preserving workplace harmony

The key takeaway from the Committee’s recommendations is that employers would need to put in place proper grievance handling processes, policies and procedures including:

1. Putting in place proper inquiry and documentation processes;
2. Informing employees of the firm’s grievance handling procedures;
3. Communicating the outcome of the inquiry to the affect employee(s); and
4. Protecting the confidentiality of the identity of persons who report workplace discrimination and harassment, where possible.

Additionally, the Committee recommended that claims of workplace discrimination in respect of Protected Characteristic(s) would be required to go through compulsory mediation at the TADM.

The benefit of having a proper grievance process is not just to comply with the legislation’s minimum requirements as there would certainly be additional benefits in ensuring that workplace morale and fairness is upkept, while there also being an additional safeguard against frivolous and vexatious claims of discrimination and possibly having these weeded out at the compulsory mediation stage at the TADM.  The Committee had in its final report included an illustration to show that where complainant does not have documentary evidence of his/her claim, and/or where the employer can show that there is no basis for the complaint (through its own documented inquiry processes), TAFEP can assess at this stage whether the complainant is likely or unlikely to have a claim.

Key Thrust D: Ensuring fair outcomes through redress for victims of workplace discrimination, and appropriate penalties for breaches

This thrust involves empowering the ECT with powers and remedies if complaints are unable to be successfully mediated, such as orders of monetary compensation, and reinstatement for wrongful dismissal / unreasonable denial of re-employment claims.

Employers would be relieved that that there are specific recommendations from the Committee to also empower the ECT to (a) strike out frivolous and vexatious claims, and (b) award costs of up to $5,000 to be paid by the claimant (whose claim was struck out) to the employer-respondent.

Further, if there is no evidence to suggest that workplace discrimination had taken place, or if employers can do even better and show that there is actually evidence (through a documented inquiry process) to show that no workplace discrimination had taken place, then TADM has the discretion to offer the employer the choice between mediation and a ‘fast track’ option straight to the ECT for it case to be expeditiously resolved.  In this respect, while it was not explicitly said in the Committee’s final report, a logical extension of the this is that such expeditious resolution includes the striking out of frivolous and vexatious claims where there is clear evidence of the same.  In that spirit, there is all the more incentive to ensure that a properly documented inquiry process is in place.

Lastly, the Committee had also recommended that the enforcement options available ot the MOM be calibrated based on the severity of breaches:

1. For low severity breaches – corrective orders can be issued by the MOM
2. For moderate severity breaches – administrative penalties to be imposed by the MOM
3. For high severity breaches – civil penalties, where the MOM may bring an action against the employer / decision maker in the Courts of the Republic of Singapore, where even larger financial penalties may be imposed.
   
   

The above would be on top of the current powers of investigation and work pass privileges suspension / curtailment already present under the current status quo.