A settlement agreement (also known as a separation agreement) is a legally binding contractual document which sets out the employer’s and employee’s agreed terms of the termination of the employee’s employment. There is no statutory requirement to enter into a settlement agreement upon termination, however, where separation terms can be agreed, it is often helpful to confirm those terms in writing. Typically, a term of the settlement agreement will be to keep the terms and the fact of the agreement confidential. In this note, we consider the effect of a breach of a confidentiality clause in a settlement agreement and discuss factors that may be useful for drafting a confidentiality clause.
It is increasingly common for employers and employees in Hong Kong to agree cessation terms. In such cases, an employee may be asked to enter into a separation agreement. There are no statutory provisions which govern what should and should not be included in a separation agreement. Parties are generally free to agree terms of termination so long as those terms do not purport to contract out of the parties’ statutory rights. It should be remembered that although separation agreements are a particular type of contract, the ordinary rules of contract remain applicable. That is to say, there must be an offer, acceptance of that offer and consideration (i.e. something of benefit). Further, a separation agreement procured by a misrepresentation by either party may be rescinded under ordinary contractual principles.
The Hong Kong Government announced last week that The Employment (Amendment) Ordinance 2020 (“Ordinance”) - passed by the Legislative Council on 9 July 2020 - will come into operation on 11 December 2020. Under the Ordinance, statutory maternity leave will be extended by 4 weeks, to a total of 14 weeks. The leave must be taken continuously.
Andrea Randall was interviewed by RTHK Radio where she explored The Labour Department’s code of practice on work arrangements during typhoons which have left people confused about whether companies can order staff to work from home when a number eight storm signal is issued. The code stipulates that while essential workers have to continue to go to work, everyone else should stay in a safe place. But now that most people are used to working from home, do bosses have the right to order their staff to do so during a typhoon?
One of the changes brought about by Covid-19 is a shift in work practices particularly in relation to working from home. This has brought to the fore the question of whether employees have to work in the case of adverse weather conditions such as Black Rainstorm warnings, Typhoon signal 8 (or above) and/or “extreme conditions” caused by super typhoons (“Adverse Weather”). In this article, we consider arrangements that employers may consider putting in place during Adverse Weather conditions.
The Government has announced that the application for the second tranche of the Employment Support Scheme (“ESS”) is set to open on 31 August 2020 until 13 September 2020 (“Application Period”). Employers who wish to apply for ESS relief must submit a new application for the second tranche.Self-employed individuals who have already received a one-off lump sum subsidy in the first tranche will not be able to apply for the second tranche of the ESS.
Andrea Randall has written an article on PTRs for Human Resources Online which explores the effectiveness of appropriate and reasonable PTRs in employment contracts which seek to restrict the post-termination activities of a departing employee with the aim of protecting the employer’s business.
The Employment (Amendment) Bill 2019 (“Bill”) was passed by the Legislative Council on 9 July 2020. The Bill seeks to amend the Employment Ordinance (Cap. 57) “to extend the statutory maternity leave by 4 weeks; to introduce a cap on the maternity leave pay in respect of the extension of maternity leave; to shorten the period of pregnancy mentioned in the definition of miscarriage; to allow a certificate of attendance to be accepted as proof in respect of entitlement to sickness allowance for a day on which a female employee attends a medical examination in relation to her pregnancy; and to provide for transitional and related matters.” The details of the amendments to the Employment Ordinance (Cap. 57) have been have been discussed in our previous article which can be accessed here.
The Government has announced the much-awaited implementation details of the ESS along with the penalties in case of breach of undertakings. Our most recent update on the details of the ESS can be viewed here.
This practice note considers the applicable legal principles in respect of an application for a springboard injunction as well as key takeaways for employers seeking to protect their businesses when key employees depart.