Singapore is set to introduce a new anti-discrimination employment law later in the year, and while employers welcome the changes, lawyers say more needs to be done in terms of building capabilities to ensure compliance.

 

In August last year, Singapore’s Ministry of Manpower announced its acceptance of the final set of recommendations by the Tripartite Committee on Workplace Fairness (Tripartite Committee) for the Workplace Fairness Legislation (WFL).

The WFL, which is slated to be passed in the second half of 2024, prescribes measures that employers in the country must follow to prevent discrimination in employment decisions at all stages of employment, put in place processes for resolving workplace grievances and ensure fair outcomes for victims of workplace discrimination, and prohibit retaliation against those who report cases of workplace discrimination.

There are five protected characteristics under the WFL on which employers may not discriminate: age, nationality, sex, marital status, pregnancy status, caregiving responsibilities, race, religion, language, and disability and mental health conditions.  

Employers are prohibited from referencing protected characteristics in job advertisements, recruitment, in-employment (e.g. promotion, performance appraisal, training selection), and end-employment (e.g. dismissal) stages.

The law also requires employers to put in place grievance handling processes. This includes protecting confidentiality of the complainant, building infrastructure for compulsory mediation and taking claims for adjudication before the Employment Claims Tribunals (ECT) as a last resort.

Small firms with less than 25 employees will be exempted from the WFL for a start, but this will be reviewed in five years. “This approach recognises that smaller firms may not have the expertise and resources to fully implement the legislated requirements at the start,” says Wong Pei-Ling, employment partner at CNPLaw.

Exemptions are also available to a tightly scoped group of religious organisations that may make employment decisions based on religious considerations.

The law also allows employers to consider a protected characteristic in employment decisions if it is a genuine and reasonable job requirement. For example, explains Wong, language teachers should be proficient in the language that they are teaching and the employer can state language proficiency as a job requirement in advertisements. “However, the employer must state the job requirement (e.g. ‘Tamil-speaking’) instead of the protected characteristic that is not the job requirement (e.g. ‘Indian teacher’).”

This ensures that the job advertisement avoids the perception of discrimination and enables employers to reach the widest pool of qualified candidates, the Tripartite Committee’s final report states.

It is important to note that many of these regulations are already in place under the Tripartite Guidelines on Fair Employment Practices (TGFEP), which will not stop being in effect once the WFL is passed.

“The proposed WFL is not intended to replace TGFEP, but to complement it. The existing TGFEP continue to apply, and employers are expected to continue to observe them,” says Toh Wei Yi, employment partner at Harry Elias Partnership.

BUILDING COMPLIANCE

For the requirements in the proposed WFL, which are already contained in the Tripartite Guidelines, many employers in Singapore are already familiar with and in compliance with these requirements.

“There, however, are some new areas in the proposed WFL which employers will have to consider what needs to be done in order to be able to comply with the legislation, especially where what is to be implemented is not explicitly stated,” Toh says.

“Employers may need to consider how its decisions made even in the in-employment stage (e.g. when giving a promotion) are properly documented and can withstand scrutiny in the event of a challenge by an employee,” explains Toh.

Generally, larger and multi-national companies are more well-prepared to comply with the proposed WFL as they already have in place procedures which appear to be largely sufficient to comply with many aspects of the proposed WFL.

“It is expected that the smaller companies may have to do more to bridge the gulf between their current practices and the proposed legislative requirements,” Toh adds.

Leaders of trade associations and chambers representing small and medium enterprises requested for more time to build their corporate human resource capabilities and put in place proper grievance handling procedures, the Tripartite Committee’s final report noted.

Wong at CNPLaw explains that employers can start by reviewing their policies and practices in two key areas: ensuring fair recruitment practices and building clear grievance-handling procedures.

Fair recruitment practices include “ensuring that listed selection criteria are related to the job requirements, ensuring all personnel involved in writing the job advertisement (including staff outside of your HR team) are aware of the need to adhere to the TGFEP, and having a comprehensive vetting process in place to check for words or phrases that could be perceived as discriminatory before posting it online,” she says.

Building a grievance mechanism involves “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; and protecting the confidentiality of the identity of persons who report workplace discrimination and harassment, where possible,” Wong adds.

 

“Employers can start by drawing up or improving its internal policies addressing what is appropriate workplace conduct. Employers can look to refine their processes for record keeping, to determine what is the most efficient, yet sufficient, method of documenting its employment decisions (at all stages of employment).”

- Toh Wei Yi, Harry Elias Partnership

 

Toh at Harry Elias adds that creating internal policy on discrimination and building documentation for all employment decisions is also a crucial aspect employers can start working on immediately.

“Employers can start by drawing up or improving their internal policies addressing what is appropriate workplace conduct. Employers can look to refine their processes for record keeping, to determine what is the most efficient, yet sufficient, method of documenting its employment decisions (at all stages of employment),” she says.

EMPLOYER CONCERNS

As employers scramble to build capabilities to comply with the WFL, some are concerned the law may incentivise frivolous litigation by disgruntled employees.

“The primary concern that we have heard from employers is the potential for frivolous and baseless complaints of discrimination by disgruntled employees, which the employer will then have to expend significant time and effort to address,” explains Toh. 

Wong explains that companies are also seeking more clarity on the definition of discrimination and the evidence required to lodge such claims.

“There is a common view that eliminating workplace discrimination requires a change in mindset which could not be legislated,” she adds.

Wong also notes that while a handful of employers suggested that indirect discrimination be covered under the WFL, most are quite pleased with its exclusion from the WFL by the Tripartite Committee.

Indirect discrimination typically involves an apparently neutral company practice that has the effect of putting persons with a particular protected characteristic at a disadvantage.

Its exclusion is “likely to be welcomed by employers generally as prohibiting indirect discrimination in WFL would impose very wide legal obligations on employers, resulting in uncertainty for both employers and employees, the final report noted.

This concern may be addressed by introducing a proportionality requirement, notes Wong. “For instance, section 19 of the UK’s Equality Act 2010 prohibits indirect discrimination unless the employer can ‘show it to be a proportionate means of achieving a legitimate aim.’ Hence, it remains to be seen whether Singapore would eventually align with other jurisdictions to include a prohibition on indirect discrimination,” Wong says.

“This may also increase the cost of hiring as employers may tend to adopt defensive hiring practices, which may then limit flexibility in hiring,” she says.

“Some employers were also concerned with the omission of sexual orientation, gender identity, and criminal history (SGC) as protected characteristics under the WFL,” Wong adds.

Wong explains that the exclusion of these characteristics from WFL protection is because the Tripartite Committee found that complaints of discrimination based on sexual orientation, gender identity, and criminal history comprised less than 5 percent of the total number of complaints received by the TAFEP and the Ministry of Manpower from 2018 to 2022.

“This was a factor in the Tripartite Committee’s decision not to include the SGC characteristics as protected characteristics under the WFL as the objective was to keep the WFL tightly scoped to protect against the more common and familiar forms of discrimination,” Wong explains.

While SCH characteristics remain protected under the TGFEP, these may be included in the WFL in the future, along with discrimination based on flexible work arrangements, says Toh.

“There may be an extension of the protection against discrimination to SGC characteristics which is already present in other countries,” she notes. “Recently, the Report on the Tripartite Workgroup on the Tripartite Guidelines on Flexible Work Arrangement Requests was published. It is possible that the future workplace discrimination law may develop to explicitly prohibit discrimination based on an employee’s requested work arrangement.”