13 ASIAN LEGAL BUSINESS – MAY 2024 WWW.LEGALBUSINESSONLINE.COM EMPLOYMENT “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 inemployment 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. 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.”
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