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From Workplace To “Woke” Place

By Ian Lim
and Nicholas Ngo
and Elizabeth Tan

Singapore will soon be introducing important anti-discrimination employment laws. Here are the changes to expect in 2022 and beyond.

Zero Discrimination Day. International Women’s Day. International Day for the Elimination of Discrimination. On a global level, an increasing “wokeness” over discrimination issues has led to ramped up efforts to stamp out this toxicity. In recent years, high-profile corporates like Tesla, Walmart and Activision have been taken to task for alleged workplace discrimination – something hard to imagine even as recently as the end of the 20th century.

Singapore has yet to see such high-profile discrimination lawsuits, but that does not mean discrimination is absent here. Far from it. According to Singapore’s Minister for Manpower, an average of 379 workplace discrimination complaints were made annually between 2014 and 2021.

To be certain, many more cases go unreported. Surveys conducted by the National Trades Union Congress (NTUC) have found that only two out of five women are willing to report instances of discrimination. And there are many other forms of workplace discrimination that occur and need to be tackled as well – with likely similar trends of victims reticent to report the discrimination they suffer.

Like those in many other jurisdictions, Singapore’s population is becoming increasingly “woke” to these issues, and the government is not planning to sleep on this either. The country’s Prime Minister (PM) has already announced that tailored workplace discrimination legislation based on the existing Tripartite Alliance for Fair and Progressive Employment Practices (TAFEP) Guidelines will be rolled out, and we expect this to happen sooner rather than later.

Protected characteristics

The prospective local anti-discrimination laws will likely take a leaf out of those already found in other Commonwealth jurisdictions, such as the United Kingdom’s Equality Act; Australia’s Age, Disability, Racial, and Sex Discrimination Acts; and Hong Kong’s Sex, Disability, Family Status, and Race Discrimination Ordinances. Generally, the anti-discrimination frameworks in these jurisdictions provide for a list of protected characteristics, an avenue for making discrimination complaints, and applicable penalties.

Singapore’s PM has expressly identified five characteristics prospective anti-workplace discrimination laws would protect: nationality, age, race, religion, and disability. Gender is an almost certain sixth characteristic, as the PM also noted that women would be receiving better protection under these laws. This is consistent with the fact that the White Paper on Singapore Women’s Development, which addresses discrimination against women amongst other things, was unanimously endorsed by Parliament earlier this year.

After including the related area of marital status and family responsibilities, these characteristics are generally congruent with the seven most-frequent forms of discrimination complaints made in Singapore between 2014 and 2021. They are also in line with the forms of discrimination employees have dismissal protection from, as per Singapore’s Wrongful Dismissal Guidelines – but importantly, the new laws will presumably not wait until a dismissal before providing recourse to a victim of discrimination. Such employees should be equally protected from discrimination in all facets of work, including in relation to promotions, bonuses and increments, and maybe even also in terms of training and lateral movement opportunities. Discrimination at the point of hiring is also presently prohibited under Singapore’s Fair Consideration Framework, and it is expected that the upcoming anti-discrimination laws will codify this into hard law.

The remedies

The determination of what should be a protected characteristic is just the tip of the iceberg though, and this brings us to the thornier issue of resolving and preventing discrimination allegations and claims.

The PM has indicated that a tribunal system similar to Singapore’s Employment Claims Tribunals (ECT) will be set up to deal with workplace discrimination. The ECT provides a quick low-cost forum for employees and employers to resolve salary-related and wrongful dismissal disputes, subject to statutory claim limits. A key feature of the ECT is that mediation is a mandatory precursor to the determination of any claim.

If the ECT framework is closely followed, then we would expect employees and employers to also have to mediate any discrimination claims, similar to what we find in Australia, Hong Kong and the United Kingdom. What happens if mediation fails? It is likely that a discrimination tribunal will then be empowered to award compensation, order reinstatement, or make other appropriate orders.

In this respect, it is important that the discrimination tribunal should be granted broader powers than those of the ECT. Awards like compensation and damages are essentially blunt-force tools that destroy an existing employment relationship, and as such tend only to be suitable for end-of-employment scenarios, rather than discrimination cases during on-going employment. And the reinstatement of a dismissed employee into the same role, without more, may just result in more of the same treatment as before, leaving the fundamental issue unresolved.

The challenge therefore is to formulate suitable and workable remedies. Perhaps in the appropriate situations, a discrimination tribunal could order that a written apology be issued by the employer or the other employees at fault. Compulsory apologies tend to be foreign to Singapore’s current legal system, but there is in fact precedent for this in Hong Kong’s Apology Ordinance.

Another possibility is to shift attention away from an individual’s vindication – which can already be fulfilled by a compensatory award – and towards general deterrence. A discrimination tribunal could be conferred powers to direct remedial actions such as mandating an employer’s review of its internal policies and its application of them, similar to what Singapore’s Personal Data Protection Commission (PDPC) is already empowered to do in the area of data protection.

It would be useful if such directions could also be made in combating discrimination. And if all else fails, continuing to take a leaf from the data protection regime, the five or even six-figure fines that the PDPC levies for data protection breaches might be useful for correcting the behaviour of stubbornly recalcitrant employers.

Bridging the gap

Beyond just hard letter law and enforcement though, it is equally important to stop discrimination issues at their root, before tribunals have to intervene and employers find themselves staring down the barrel of a punitive sanctions shotgun. And perhaps more importantly, before there is an irretrievable loss of trust in the employer-employee relationship. If one accepts that prevention is preferable to cure, then the focus should equally be on early intervention.

For this, anti-discrimination laws should perhaps expressly allow unions, TAFEP, and the Ministry of Manpower (MOM) to come alongside employers early, to help employers deal with any shortcomings in their policies and practices, and address any nascent grievances and complaints, before these escalate to tribunal cases.

And the flip side of this is that TAFEP, at present entirely reliant on the MOM exercising its administrative powers of work pass sanctions, could also be given its own direct supervisory and enforcement powers. The insidious nature of discrimination as a problem, and the importance of addressing it, means that it must be tackled from all angles.

The way forward

For now though, employers should be keeping a keen eye out for these upcoming anti-discrimination laws, and should stand ready to amend and align their anti-discrimination policies and procedures once they enter into force.

Like it or not, the advent of workplace discrimination laws will serve as an important catalyst, compelling employers to rid themselves of any outmoded concepts, stereotypes or outdated norms, and allowing for an inclusive, diverse, and progressive workplace. The global anti-discrimination movement is inexorable, and employers must be ready to move with the times, and make their workplaces “woke” places. It is high time to stop sleeping on this job.

STAY AHEAD WITH FOREFRONT: BY TSMP

TSMP law corporation