Disciplinary Hearings: The Right to a Fair Hearing in the Employment Context

• 15 March 2011
• Farzana Aslam

Procedural fairness, in particular, the right to a fair hearing as a legal concept has long been an integral part of the jurisprudence of both criminal law and public law, based as it is on the principle of respect for the dignity of the individual. By ensuring that a State observes the rules of natural justice, due process, and the rule of law before implementing any decision affecting an individual’s liberty or property, a State is forced to take into account the interests of the individual. In the language of human rights law, equality of treatment is generally the protection that springs to mind in the employment context. However, this article focuses not on legal safeguards against discrimination, harassment or ensuring parity of pay for equal work, but rather on the subject of procedural protections against dismissal for disciplinary reasons, a subject that has not (certainly historically in Hong Kong) been regarded as a ‘human right’, to use the phrase in its broadest sense. However, by their very nature disciplinary dismissals involve an assessment of the conduct, behavior or competence of an employee. To this extent they involve value-judgments on the part of the employer which, if made without reference to all available facts, or to some irrelevant facts, or made by people who are biased, or operating under a conflict of interest, might lead to the dismissal of an employee which is not justifiable, with potentially devastating consequences for the employee.

(Article published in Law Lectures for Practitioners 2009, Hong Kong Law Journal 2010)

In some cases, this may simply entail an employee being out of work for a short period of time, but in others the very fact that the employee has been dismissed as a result of a disciplinary hearing may ensure that they never again practice in their chosen field or profession. Thus, ensuring that procedural safeguards against disciplinary dismissals are in place is simply one, but nonetheless an important, facet of ensuring that an employee is not dismissed in an unfair, unjust, or arbitrary manner; but instead of the focus being on substantive fairness – the reason for dismissal, the enquiry is concerned with procedural fairness – the manner of dismissal. Put another way, rather than being concerned with the question of whether or not an employee has been dismissed for fair cause, the investigation centres on whether or not the employee has been dismissed with due process.

The Legislative Landscape – The U.K. and Hong Kong Compared

The U.K. Employment Rights Act 1996 confers upon an employee “the right not to be unfairly dismissed by his employer”. It is for an employer to show that the dismissal was for a reason falling within one of the four justifying circumstances set out in the statute, or “some other substantial reason of a kind such as to justify the dismissal”. In determining whether a dismissal is fair or unfair, the issue turns on whether in the circumstances (including the size and resources of the employer) the employer acted reasonably or unreasonably in treating the reason for dismissal as a justification for dismissing the employee. In assessing the question of whether an employer has established fault on the part of the employee a tribunal has to refrain from substituting its own decision for that of the employer, but instead has to consider whether the employer’s response falls within a band of reasonable responses. The U.K. regime has its own inherent weaknesses; the process of justifying the dismissal will generally not be difficult to satisfy since all that must be proved is the employer’s subjective motivation for dismissal. The inquiry at this stage involves no consideration of fairness, as the assessment of what is reasonable in this context is based on what Prof. Hugh Collins has defined as a conventional rather than a normative standard. In other words, it inherently ensures that any conduct the employer dislikes sufficiently to invoke as a ground for dismissal will likely constitute a breach of contract on the part of the employee. By virtue of an employer’s strength of bargaining position it is free to dictate what standards amount to acceptable conduct within its workplace, and generally does so through express contractual terms and/or employee handbooks representing an employer’s own subjective view of fault or breach of contract. If one accepts this proposition then it follows that there is little more substantive protection against a disciplinary dismissal afforded to employees under U.K. legislation than there is in Hong Kong. However, the key difference between the statutory regimes lies in the fact that there are procedural safeguards underpinning an employer’s ability to terminate employment. Under U.K. law even if an employer proves substantive fault on the part of an employee a tribunal still has to consider whether the employer acted in accordance with fair procedure. The determination of whether or not a fair procedure has been followed is underpinned by a statutory requirement for an employer to provide its employees with a written disciplinary procedure.

By contrast, in Hong Kong the Employment Ordinance (“EO”) does not require an employer to have a disciplinary procedure, written or otherwise. For employees whose contracts of employment fall within the ambit of the EO employment can be, in the vast majority of cases, terminated by giving one month’s notice. There is no statutory regime requiring consultation prior to dismissal. Save in a limited category of cases employers in Hong Kong are permitted to dismiss an employee with no warning beyond the agreed notice period and, unless the employee has been employed under a continuous contract for a period of 24 months or more, without having to give a reason for the dismissal. Where an employee has been dismissed, the issue is whether the employer’s intention was to extinguish or reduce any right, benefit or protection conferred or to be conferred by the EO. Where an employee has been employed for a consecutive period of 24 months or more an employer is taken to have so intended unless he is able to establish that the dismissal was carried out for one of the five ‘valid’ reasons permitted by the EO. There is broad scope within these five sets of circumstances for an employer to justify a dismissal. Moreover, there is no further requirement to show that the dismissal was fair or was carried out with due process, that is, in a manner that was either reasonable or fair. This absence of a requirement for an employer to demonstrate that a termination has been carried out in accordance with procedural fairness is in stark contrast to the position in the U.K. This much was acknowledged by the Court of Final Appeal in Vincent v South China Morning Post Publishers Ltd. In comparing the approach to be taken under the statutory regime in Hong Kong with the position under the employment legislation in the U.K. Bokhary PJ described the provisions of the EO to be “materially different” to the provisions of the Employment Rights Act, noting in particular that there is no discrete requirement with regard to process, namely, there is no need for an employer to show that the process by which a dismissal decision had been arrived at was fair or reasonable. An indication that the court was not altogether comfortable with the absence of a requirement for employers to have regard to due process can be found in Bokhary PJ’s following note of caution:

Of course this does not mean that an employer can safely proceed in an arbitrary manner. If the manner of an employee’s dismissal was arbitrary then such arbitrariness could make it more difficult for his employer to show a valid reason for the dismissal.

However, it was far from clear, at least until recently, what would amount to “an arbitrary manner” in the absence of unfair or unreasonable conduct on the part of an employer.

Procedural Protection Conferred by the Contract of Employment

In Hong Kong, in the absence of a statutory requirement to follow fair procedures prior to a dismissal, the extent to which an employer is otherwise bound to follow a fair procedure when considering dismissal will depend upon the terms of the contract of employment. At common law, provided that a contract of employment is terminated by either party serving the requisite notice of termination provided for in the contract itself or, if the contract is silent as to notice, by either party giving reasonable notice, the contract of employment can be terminated lawfully, regardless of the reason for dismissal. If an employer terminates a contract of employment not in accordance with the terms of the contract of employment in circumstances where a summary dismissal is not justified, the termination will be deemed to be wrongful, and an employee may bring a common law action for wrongful dismissal. In an action for wrongful dismissal the employer’s liability does not continue beyond the period when the contract could lawfully have been terminated. The most common example of wrongful dismissal is the failure to serve the requisite notice of termination. Damages are therefore generally limited to the monetary value of what the employee would have received during his/her contractual notice period. In Gunton v Richmond Upon Thames London-Borough-Council the amount of damages awarded was extended to a period which covered the time it would have taken to complete a contractual disciplinary process. The Court of Appeal in that case was not prepared to go further to assess the chance that the plaintiff might have been successful in avoiding a dismissal. This was perhaps unsurprising given that at common law there is no independent requirement to adopt fair disciplinary procedures. The harsh reality at common law is that once the contract of employment has been lawfully terminated, the employment relationship comes to an end, and the employee is not able to sue for continuing wages, or to otherwise continue in employment. Lawful termination in this context is achieved simply by giving notice; it does not require an employer to give reasons for the termination. The approach to the assessment of damages for wrongful dismissal in Gunton has been followed in Hong Kong in the case of Lai Foon Yung v Tin Sum Valley Public Primary School.

But even where an employee has the benefit of a contractual disciplinary procedure, there has been some doubt cast over whether such a procedure can fetter an employer’s right to terminate an employee’s contract of employment on notice. In Cheung Chi Keung v Hospital Authority To DJ held that the employer’s contractual right to terminate by giving notice was not subject to the employer’s disciplinary code. The disciplinary code relied upon by the employee had, as a matter of construction, not been incorporated into the employee’s contract of employment. However, in To DJ’s view the parties’ contractual right to terminate was a separate and distinct right, which could not be undermined by a disciplinary procedure even if it had been incorporated into a contract of employment. The Court of First Instance in Warham v Cathay Pacific Airways Ltd declined to follow the reasoning in the Cheung decision. The question before it was whether an airline could bypass its own disciplinary procedure where the underlying reason was alleged misconduct and simply terminate the employment of aircrew officers by the giving of notice. The disciplinary procedure in this case was contained in an appendix to the contract of employment and thereby incorporated into the contract of employment. Reyes J expressly declining to follow the judgment in Cheung as authority, held that if the dismissal was due to misconduct on the part of an employee the contractual disciplinary process could not be by-passed by the contractual right to terminate on notice. To allow otherwise, in his view, would have allowed the employer always to bypass the contractual disciplinary process by simply giving no official reason for termination. The approach of Reyes J is to be preferred for the simple reason that it gives effect to the parties’ intentions at the time the contract was entered into. The parties are free to decide whether or not to incorporate a disciplinary procedure into the contract of employment, and indeed employers are generally in a stronger bargaining position than employees in this regard. The incorporation of a disciplinary procedure represents an important safeguard for an employee, and so once a disciplinary procedure is incorporated as a term of the contract there seems no justifiable reason why an employer should be able to by-pass such a term. Of course, once a contractual disciplinary process has been carried out and a final decision reached, regardless of the outcome of the proceedings, there is nothing to prevent an employer from proceeding to terminate the contract of employment upon notice or payment in lieu of notice.

Development of Procedural Safeguards at Common Law

At common law there has been a judicial recognition of the need to view the employment relationship as a special relationship, and the employment contract as one deserving of greater scrutiny than that generally afforded to commercial contracts. This is perhaps best illustrated by the willingness of the courts to incorporate implied terms which import duties upon the employer not to behave in a manner designed to undermine the employment relationship, most notably the implied duty of trust and confidence. However, the courts have been reluctant to extend the duty of trust and confidence beyond the term of employment to the termination of employment. In the English decision of Johnson v Unisys Ltd, the House of Lords held that the implied common law duty to maintain mutual trust and confidence applied to ongoing employment relationships, but did not extend to a dismissal itself. The House of Lords held that it would be inappropriate for the judiciary to extend the common law in circumstances where Parliament had already provided a system for redress in creating the right not to be unfairly dismissed.

Given the difference in the protection conferred by the EO when compared to the Employment Rights Act, it is perhaps unsurprising that initially the courts in Hong Kong did not adopt an approach similar to that in Johnson v Unisys. In Semana Bachicha v. Poon Shiu Man, a case involving a domestic helper who was badly treated by her employer and forced to leave her employment, the Court of Appeal held that the conduct of the employer in dismissing the employee amounted to both constructive dismissal and breach of the implied term that the employer will not engage in conduct likely to undermine the trust and confidence integral to the employment relationship. In addition to damages for wrongful dismissal (measured by one month’s salary in lieu of notice), the employee was also entitled to damages to the extent that she had suffered additional pecuniary loss that was not too remote as a result of the defendant’s breach of the implied trust and confidence term. The claimant was awarded loss of a chance of earnings for a period in which she did not have the permission of the Immigration Department to seek alternative employment. Despite this initial departure from the approach taken by the courts in the U.K., subsequent cases declined to follow the Bachicha line of reasoning, seeking instead to distinguish the case on its particular facts. In Ko Hon Yue v Liu Ching Leung Carlye Chu J held that there were difficulties in extending the implied duty of mutual trust and confidence to dismissal. He considered the Bachicha case (which he noted was decided before the Johnson v Unisys case), and concluded that whilst it recognised the existence of an implied term of trust and confidence in the context of an employment contract, it did not establish an implied duty on an employer to act in good faith towards his employee when exercising the power of dismissal or termination of the employment. Echoing the rationale of the House of Lords in the Johnson v Unisys case, Carlye Chu J made the following observation:

In Hong Kong, the protection against wrongful dismissal or termination is contained in the EO. The extent of the statutory protection is limited, as it is concerned only with the giving of due and proper notice for termination. There is no provision for awarding damages for the period after dismissal, except for any notice period that is required. As such the legislative intent is not to confer remedies for loss flowing from the unfair manner in which an employee is dismissed. In my view, it will not be appropriate for the courts to develop the common law to provide remedy for unfair circumstances attending dismissal.

Despite this judicial reluctance to extend the implied duty to the manner of dismissal, the implied duty is likely to apply to the events and processes leading up to a dismissal. In Ko Hon Yue Carlye Chu J considered the English House of Lords’ decisions of Eastwood v Magnox Electric plc and McCabe v Cornwall CC in which the claimants were able to bring a cause of action at common law for breach of the implied term of mutual trust and confidence based on events happening before their actual dismissal, namely lengthy and stressful disciplinary proceedings, and conceded that it was possible that an employee may have, before his employment was terminated, acquired an independent cause of action for breach of the implied term of trust and confidence. Most significantly, the recent Court of Appeal case of Tadjudin v Bank of America National Association suggests that the courts are prepared to scrutinize the tactics or motive of an employer leading up to the decision to dismiss. In Tadjudin the employee was dismissed prior to being eligible for consideration for a performance bonus. The employee brought a claim for breach of contract, pleading an implied term that the employer would not exercise its right to terminate her employment in order to avoid her being eligible for the employer’s annual discretionary performance bonus. At first instance the employer succeeded in striking out the employee’s claim on the grounds that there was no justification in allowing an implied term which could have the effect of cutting down the clear statutory right of termination without cause as provided for by sections 6 and 7 of the EO, an argument very much in line with that invoked in Johnson v Unisys. However, on appeal, the Court of Appeal, suggesting that this is an area of law in a state of development, held that it was inappropriate where an “emergent” legal principle was at stake to have the matter decided favourably at an interlocutory stage without the benefit of full legal argument based on the facts established at trial. Stone J rejected counsel’s submission on behalf of the employer that the EO represented the “current high watermark of employee protection, beyond which courts should not venture”, and preferring the employee’s contention that the EO constituted no more than the “lowest common denominator”, observed:

… The statute represents that which, for want of a better term, constitutes an irreducible minimum in terms of employee protection, and I fail to see why its terms necessarily preclude development of the common law if ultimately thought appropriate, via implication of the protective implied terms contended for by the plaintiff… As a matter of public policy the statute itself neither could constitute nor be invoked as a barrier in excess of the protection afforded by the express terms of that Ordinance

Suffiad J went further by engaging in a rights-based justification for development of the common law in this area:

All too often the common law has to be resorted to by the court to develop the law because justice and fair play so requires, at times when existing statutory provisions are found to be inadequate or insufficient to meet the requirements of justice.

The approach taken by the Court of Appeal in Tadjudin is to be commended and suggests that the courts are at least prepared to consider the development of procedural safeguards in the contract of employment as a natural development of employment rights in Hong Kong.

Equitable Relief Granted to Employees to Enforce Contractual Disciplinary Procedures

Another route through which the courts have been willing to protect employment rights is the grant of interim injunctive relief to enforce an employer’s positive contractual obligations, even though the result in some cases has been to halt the dismissal of an employee or delay the effective date of termination. The earliest example of this can be found in the case of Hill v CA Parsons & Co Ltd in which the English Court of Appeal was prepared to enforce the contract of employment through the grant of an interim injunction. In this case the employee was dismissed with one month’s notice after 35 years of service as a chartered engineer for refusing to join a union which had negotiated a closed shop with his employer. He had only two years to go until his retirement so that the dismissal would affect his pension rights. The unfair dismissal legislation was due to come into force in England within two months of his dismissal, at which point in time the remedy of reinstatement would have become available to him. The employee sued for wrongful dismissal and sought interim injunctive relief restraining his employers from treating the notice of dismissal as terminating his employment. The Court of Appeal granted an injunction preventing his employer from dismissing the employee with inadequate notice. What is interesting is the language used by the Court of Appeal, which described an employee’s security of employment: “akin to a property in his employment”, and thus worthy of the exercise of judicial discretion afforded under the law of equity:

Over the last two decades there has been a marked trend towards shielding the employee, where practicable, from undue hardships he may suffer at the hands of those who may have power over his livelihood – employers and trade unions. So far has this now progressed and such is the security granted to an employee under the Industrial Relations Act 1971 that some have suggested that he may now be said to acquire something akin to a property in his employment. It surely is then for the courts to review and where appropriate to modify, if that becomes necessary, their rules of practice in relation to the exercise of a discretion such as we today have to consider – so that its practice conforms to the realities of the day.

Although sometimes regarded as a case turning on the political circumstances prevailing at the time, the approach has been followed in subsequent cases. However, the language of employment as a property right has been replaced with a focus on employment as conferring upon the employee the very right to work, or put another way, the right to earn a living. In the case of Irani v Southampton & South-West Hampshire HA an interim injunction was granted to prevent a dismissal in breach of the contractual disciplinary procedural protections afforded by the local council. In granting the injunction Warner J considered damages not to be an adequate remedy given that the employee would become virtually unemployable throughout the National Health Service (“NHS”) and would lose the right to use NHS facilities to treat his private patients. At one time it was considered crucial to the grant of such an order that the employer retained trust and confidence in the employee. However, subsequent decisions have confirmed that it is not necessary for mutual trust and confidence to remain between the parties in order to grant injunctive relief of this nature.

Whilst there has not been a case in Hong Kong in which relief of this nature has been granted in similar circumstances, the decision of Warham v Cathay Pacific Airways Ltd, which held that a contractual disciplinary process could not be by-passed by the contractual right to terminate on notice, lends support to the prospect of Hong Kong courts granting injunctive relief to enforce an employer’s positive contractual obligations, or at the very least to prevent an employer from dismissing an employee. Of particular note is the adoption by the court of rights-based language:

[Citing Lord Hoffman in Johnson v Unisys Ltd] ‘…over the last 30 years or so, the nature of the contract of employment has been transformed. It has been recognised that a person’s employment is usually one of the most important things in his or her life. It gives not only a livelihood but an occupation, an identity and a sense of self esteem. The law has changed to recognise this social reality.’ Lord Hoffmann was referring to employment in the UK. But his remarks must be no less applicable to Hong Kong, where a person’s employment has come to be regarded as an important source of one’s identity, self-esteem and well-being. Just as in the UK, the Courts here have to be cognisant of that social reality and construe employment contracts in its context. Thus, if (for example) parties have agreed specific provisions giving an employee certain rights before an employer can dismiss him, the Court must be careful in construing the employment contract not inadvertently to undermine or negate such provisions. This is because, absent clear indications to the contrary, the Court must assume that in entering into an employment contract an employee would not have intended provisions protecting the security of his livelihood to be readily by-passed.

The Development of Employment Rights Under the Influence of the European Convention of Human Rights

Historically public law as an avenue for redress against dismissal was limited in scope to a fairly small category of public employees. ‘Ordinary employees’ were excluded from seeking the protection of principles of natural justice afforded under public law. Such protection was limited to ‘office holders’ who benefited from statutory protection of the tenure of their jobs, and even then, not for all aspects of their contracts of employment – if an employee’s claim was one for breach of contract then private law applied, but only if it concerned the exercise of a statutory power could public law be used. In Ridge v Baldwin the House of Lords drew a distinction between three classes of dismissal: “dismissal of a servant by his master, dismissal from an office held during pleasure, and dismissal from an office where there must be something against a man to warrant his dismissal.” Office holders (in that case, a Chief Constable of Police) could succeed in having a dismissal declared null and void for breach of principles of natural justice, but the same could not be said for ordinary employees falling into the category of a ‘master and servant’ relationship:

The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence: it depends on whether the facts emerging at the trial prove breach of contract. But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them.

Employment by a public authority did not per se inject any element of public law. However, the distinction between ordinary employees and office holders gradually softened in line with statutory developments in the U.K. In R v British Broadcasting Corp. ex parte Lavelle the BBC dismissed an employee when its property was discovered in her apartment. The disciplinary procedure in her contract was not followed and she sought judicial review, specifically, an order of certiorari (now known as a quashing order). Woolf J (as he then was), delivering the judgment of the Court of Appeal, held that the prerogative orders could not be used to enforce the performance of an employer’s obligations to his employee; public law remedies being inappropriate to deal with the relationship of employer and employee which was a matter of private law. Judicial review was not the appropriate remedy in this case because there was no statutory element in the employment. However, Woolf J made the following concession:

…the employment protection legislation has substantially changed the position at common law so far as dismissal is concerned. In appropriate circumstances the statute now provides that an industrial tribunal can order the reinstatement of an employee. It is true that the order cannot be specifically enforced. However, the existence of that power does indicate that even the ordinary contract between master and servant now has many of the attributes of an office and the distinction which previously existed between pure cases of master and servant and cases where a person holds an office are no longer clear.

A somewhat more dramatic shift has occurred under the influence of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”). The change was not, however, an instantaneous one. In R v Secretary of State for the Home Department, ex parte Brind the court held that because the ECHR operated in the sphere of International Law, it did not apply so as to overrule domestic law. The incorporation of Article 6(1) into domestic U.K. law did not come about until the passing of the Human Rights Act 1998 which came into force on 2 October 2000. Moreover, the interpretation of the ECHR by the European Court of Human Rights has taken some time to evolve to extend to the protection of employees.
Article 6(1) of the ECHR states:

In the determination of his civil rights and obligations or any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and the public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

Initially article 6(1) received very restrictive interpretation leading to a bias against the protection of civil servants. In Pellegrin v France the court adopted the ‘functional criterion’ test asking itself: ‘does the employee’s post entail direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities?’. An answer in the affirmative excluded the employee from protection afforded by the ECHR. This test excluded many civil servants, including armed forces and police. This approach seemed to contravene article 1 of the ECHR, which requires that the rights and freedoms are to be secured to ‘everyone’ and article 14 of the ECHR, which prevents discrimination on grounds of ‘other status’ – why should a policeman not be protected under article 6(1) when an employee of a private security firm is protected? The Pellegrin approach was not expressly overturned but was “further developed” in the case of Eskelinen v Finland. The European Court of Human Rights held that since articles 1 and 14 of the ECHR stipulate equality of protection there should be convincing reasons for excluding any category of applicant from the protection of article 6(1). In order to determine whether an individual had recourse to the protections afforded by article 6 the court proposed a two-fold test: (1) the State in its national law must have expressly excluded access to a court for the post or category of staff in question; and (2) the exclusion must be justified on objective grounds in the State’s interest.

The application of article 6(1) in domestic U.K. law has been tested in two recent cases. In R (on application of G) v Governors of X School and Y Council disciplinary proceedings were brought against the employee, a music assistant at X school, following allegations of sexual misconduct, namely, that he had behaved inappropriately with a 15 year-old pupil. The police had been informed of the allegations and commenced an investigation. On legal advice the employee stated that he would not take part in any proceedings until the police investigation had been concluded. He was warned that if the governors found that the allegations were true they would report their findings to the Secretary of State for Children, Schools and Families (“Secretary of State”), who had the power to make a direction under section 142 of the Education Act 2002 to prohibit a person from working with children in educational establishments (a “section 142 direction”). As it transpired, the Crown Prosecution Service decided to take no further action. Prior to his disciplinary hearing and the later hearing concerning his appeal against his dismissal, he was informed that the governors permitted representation by a colleague or trade union representative but no other person was permitted to attend the hearing. The employee was not part of the union and as a part-time casual employee had no colleague to call upon. His lawyers wrote to the governors pointing this out and asking that given the “lifetime disadvantage” to him of an adverse finding he be permitted legal representation. The request was denied. Following the disciplinary proceedings he was dismissed for gross misconduct. He appealed the decision and whilst the appeal was ongoing the governors reported the dismissal to the Secretary of State. The claimant sought judicial review on the grounds that the proceedings before the disciplinary committee and the appeal committee, including the referral to the Secretary of State, which could thereafter lead to the making of a section 142 direction, constituted a single procedure for the purpose of article 6(1) of the ECHR. The employee claimed that, by virtue of the seriousness of the conduct alleged and the severity of the consequences of a section 142 direction, he was entitled to the procedural protection provided specifically for criminal proceedings in arts. 6(3)(c) and (d), which included the right to legal representation. Alternatively, he contended that the proceedings involved a determination of his civil rights and obligations under article 6(1), so that legal representation was required as a commensurate measure of procedural protection. At first instance, the Deputy High Court judge accepted the fact that a referral to the Secretary of State was a natural and likely outcome of disciplinary proceedings involving allegations of sexual misconduct; that the consequent section 142 procedure was inevitable in the event that the allegations were proved; and held that there was no distinction between the dismissal from employment and a referral to the Secretary of State, as they formed part of one and the same proceedings for the purposes of article 6. Whilst the court held that disciplinary proceedings leading to a section 142 direction did not amount to a criminal offence for the purposes of article 6(3) and the protection it offered, it concluded that the employee was entitled, by reason of his right under article 6(1), to a fair hearing in a civil matter. What this meant in terms of the circumstances of the case, specifically, the seriousness of the nature of the allegations and the consequences of a section 142 direction, was that the employee could not fairly be expected to represent himself at the disciplinary and appeal committee hearings, and was therefore entitled to legal representation. The court considered neither the right to claim unfair dismissal, nor to appeal against a decision to put the employee on the register as an appropriate remedy, since neither would provide sufficient procedural protection to meet the requirements of fairness in the case. Both parties were given leave to appeal to the Court of Appeal.

The two questions heard on the appeal were: (i) whether the disciplinary proceedings were determinant of the employee’s right generally to practice as a teaching assistant; and (ii) If so, whether article 6(1) in the circumstances required the employee to be allowed legal representation in the disciplinary proceedings. An affirmative answer to the first question would involve a finding that there existed a close nexus between the disciplinary process and the barred list procedures. The Court of Appeal held that where an individual was subject to two or more sets of proceedings, or phases of a single proceeding, and a “civil right or obligation” enjoyed or owed by him would be determined in one of them, he could (but not necessarily would) by force of article 6(1) enjoy appropriate procedural rights in relation to any of the others if the outcome of that other would have a substantial influence or effect on the determination of the civil right or obligation. Laws LJ, delivering the judgment of the Court of Appeal, held that the outcome of the disciplinary proceedings would, if unfavourable to the employee, have a substantial effect on the outcome of the barred list procedures and thus his right to practice his profession might be irretrievably prejudiced by the disciplinary proceedings. Given the effect a lawyer might have in the disciplinary proceedings in issue, the Court held that article 6 required that the employee be entitled to legal representation, but made clear that article 6 did not necessarily entail a right of representation in relation to the determination of a civil right or obligation, but “might do so”.

Kulkarni v Milton Keynes NHS was another case in which the employee had faced a disciplinary hearing, the potential consequences of which were to deprive him of the right to practice his profession; in this case, as a doctor. The employee claimed that his employer had a discretion to allow him legal representation either under the express terms of the contract of employment or pursuant to the implied term of trust and confidence, and that on the facts of his case, that discretion could only have been rationally exercised in his favour. Alternatively, the denial of legal representation was a breach of natural justice and a denial of his rights under article 6. At first instance Penry-Davey J held, in the light of the express term in the defendant’s disciplinary policy which prevented legal representation and was a part of the employee’s contract of employment, that there was no room for an implied term providing a discretionary right. Alternatively, if there was a discretion to permit legal representation, there were no exceptional circumstances in the case that would require the discretion to be exercised in the employee’s favour. The court also held that the denial of legal representation did not amount to a denial of natural justice. On appeal to the Court of Appeal Smith LJ held that on a true construction of the contract the employee was entitled to be legally represented by a lawyer instructed by the Medical Protection Society. There was, therefore, no requirement to rule on the article 6 issue. However, Smith LJ went on to consider the article 6 ground raised by the employee, drawing a distinction between cases involving “ordinary disciplinary proceedings”, where all that could be at stake was the loss of a specific job, where article 6 would not be engaged; and cases where the effect of the proceedings could be far more serious and could deprive the employee of the right to practice his or her profession, where article 6 would be engaged:

The difficulty is to know where to draw the line. Mr. Stafford and Miss Lee both submitted that Dr Kulkarni was facing ordinary disciplinary proceedings brought by his employer and the only effect, if the charge were found proved, would be that he would lose his job. Only proceedings before the General Medical Council can deprive a doctor of the right to practise. But, as Mr. Hendy pointed out, the National Health Service is, to all intents and purposes, a single employer for the whole country. Indeed, for a trainee doctor, that is literally true, as a doctor cannot complete his training in the private sector. If Dr Kulkarni is found guilty on this charge he will be unemployable as a doctor and will never complete his training. If he applies for any other position he will be obliged to declare the finding against him and the fact of his dismissal. Moreover, submitted Mr. Hendy, it is highly likely that the system of ‘alert letters’ would be operated in this case if Dr Kulkarni were found guilty. An alert letter is a letter warning other NHS employers not to employ the doctor named, who is regarded as presenting an unacceptable risk to patients. The alert letter procedure is currently governed by the Healthcare Professionals Alert Notice Directions 2006. It seems to me that there is force in Mr. Hendy’s submission and, had it been necessary for me to make a decision on this issue, I would have held that Article 6 is engaged where an NHS doctor faces charges which are of such gravity that, in the event they are found proved, he will be effectively barred from employment in the NHS.

Smith LJ also considered the question of whether, in the context of civil proceedings, article 6 implied a right to legal representation.

In my view, in circumstances of this kind, it should imply such a right because the doctor is facing what is in effect a criminal charge, although it is being dealt with by disciplinary proceedings. The issues are virtually the same and, although the consequences of a finding of guilt cannot be the deprivation of liberty, they can be very serious.

At first instance Penry-Davey J, having not been convinced that article 6 was engaged in the context of disciplinary proceedings, stated that even if it were, and even if the disciplinary proceedings themselves were not article 6 compliant, the proceedings as a whole would be compliant because they could include proceedings before the General Medical Council (“GMC”) and the employment tribunal, both of which were article 6 compliant. This was an argument taken up by the employers on appeal. Smith LJ rejected this argument stating that neither an employment tribunal nor the GMC could be a tribunal with full jurisdiction for the purposes of article 6. The issues which the employment tribunal has to consider (in a case where the dismissal has been by reason of misconduct) is not the crucial question of fact of whether the employee was guilty of the misconduct but whether, having conducted a reasonably thorough investigation, the employer believed that the employee was guilty of the misconduct alleged and dismissed him for that reason; also whether the employer acted reasonably in treating that misconduct as a sufficient reason to dismiss the employee. As for the GMC, the Court of Appeal held that although a doctor appearing before a GMC Fitness to Practice Panel has full rights of representation before the GMC, the process undertaken there could not be described as “subsequent control by a judicial body” of the employer’s disciplinary proceedings for two reasons. First, the GMC is not a judicial body. Secondly, it does not conduct an appeal from the disciplinary proceedings by the employer. It decides whether the doctor’s fitness to practise is impaired. Smith LJ also noted that there was no certainty that there would in any event be GMC proceedings, since the doctor could not instigate them in his own right.

Although the decision involved public sector employers, there appears to be no obvious barrier to prevent a private sector employee engaged in employment which is regulated by statute, from claiming that the right not to be unfairly dismissed should be interpreted in accordance with article 6 of the ECHR and that he should therefore be entitled to legal representation – certainly in cases where dismissal leads to mandatory reporting to an external body which may lead to it being extremely difficult, if not impossible, for an individual to work in that field again.

Public Sector Employment Rights in Hong Kong

Similar to the developments being seen in the U.K. under the influence of the ECHR, significant in-roads to establishing procedural safeguards in disciplinary proceedings as an employment right have been achieved through constitutional challenge in the public sector in Hong Kong.

In Rowse v Secretary for Civil Service the employee, a senior civil servant who had represented the government as sponsor of Harbour Fest, faced five charges of misconduct, which included an allegation that his department had failed to critically examine and fully advise on the proposed HK$100 million budget to ensure that the government’s interest in the allocation of public funds was adequately protected. The context in which these allegations were laid was a very public one – Harbour Fest was conceived as a series of rock concerts attracting well-known international artists, including the Rolling Stones, to Hong Kong. It was intended by the Government as a boost to Hong Kong’s international standing as a world city following the aftermath of SARS. Michael Rowse, who was the Director-General of Investment Promotion (Invest HK) at the time, had been appointed Secretary of the Economic Relaunch Working and Strategy Groups, vested with oversight of the budget. Harbour Fest ultimately turned out to be a much-condemned failure for the Government, which was its primary financial sponsor. As a result, the Chief Executive appointed an Independent Panel to investigate the handling of the festival. In its report the Panel said that, in considering questions of responsibility, it was mindful “that, to varying degrees, most of the parties involved were hostage to the exceptional circumstances surrounding the approval and organisation of the event”. However, it was critical of Mr. Rowse himself, finding that, as Government’s controlling officer, he had not adequately discharged his responsibilities. Subsequently the Chief Executive directed that consideration be given to whether any civil servant should be made the subject of disciplinary action. Mr. Rowse transpired to be the only civil servant singled out for such action, and an Inquiry Committee was appointed to conduct the disciplinary inquiry into whether he had been guilty of misconduct. Mr. Rowse asked for permission to have legal representation at the disciplinary hearings. His request was denied by the Secretary for the Civil Service who adhered to an ‘established policy’ of allowing legal representation only for ‘compelling’ reasons. As a result of the proceedings Mr. Rowse was severely reprimanded, fined one month’s salary, and cautioned that he could be dismissed for any future misconduct. On judicial review proceedings one of the issues before the court was whether the denial of legal representation meant that he had been denied natural justice. Hartmann J held that the relevant section of the regulations mirrored the common law position, namely, that there was no absolute right to legal representation before an administrative tribunal, but there was a discretion to authorise representation if fairness required it. Hartmann J held that the Secretary had fettered his discretion by approaching the matter on the basis that he must adhere to the so-called ‘established policy’ of attempting to find ‘compelling’ reasons. The policy was held to be inappropriate and unlawful since it was not based on a reasonable response to the requirements of fairness, and did not pay sufficient attention to the justice and fairness of a case:

… in my opinion, what fairness dictates in determining whether legal representation should or should not be granted is not to be constrained by the shackles of some set policy, still less a policy that puts the bar as high as the requirement to show compelling circumstances. … there can be no threshold test of “exceptionality”.

Rowse could perhaps be seen as an “exceptional” case given the high profile circumstances attending it, but the same could not be said of the case of Lam Siu Po v Commissioner of Police, which involved a police constable who was convicted of a disciplinary charge relating to “serious pecuniary embarrassment stemming from financial imprudence”. Following police disciplinary proceedings he was compulsorily retired with deferred benefits. The employee argued that provisions in the Police (Discipline) Regulations, which prohibited legal representation, and to which the proceedings were subject, were unconstitutional as being contrary to article 10 of the Hong Kong Bill of Rights. Article 10 of the Bill of Rights, which confers upon Hong Kong residents the right to a fair hearing, states as follows:

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

The Commissioner of Police refuted the employee’s suggestion, arguing that article 10 was incompatible with the internal hearings of a disciplined service, which should be dealt with in an expeditious manner and with a minimum of formality. The Court of Final Appeal rejected the Commissioner’s argument, and held that disciplinary proceedings – whether in respect of professions, disciplined services or occupations – are determinations of “rights and obligations in a suit at law” within the meaning of article 10, and should therefore be conducted in accordance with the safeguards granted by article 10. Applying the two-fold test of Eskelinen v Finland the court went on to qualify the general principle by creating exceptions where it is shown that the protection has been either expressly excluded by law and that such exclusion is justified on objective grounds related to the effective functioning of the State, or some other public necessity which justifies removal of the Article’s protection. On the facts of the Lam Siu Po case article 10 had been engaged since the employee had faced a determination of his civil right to remain in employment, and the disciplinary proceedings in question had a direct and highly adverse impact upon his livelihood and pension. In addition, the Commissioner had not shown a sufficient objective justification for excluding article 10 protection. Moreover, the Police (Discipline) Regulations prevented the court on a judicial review from remedying non-compliance by quashing the decision on grounds of unfairness, because the statutory regulations could not be said to be unlawful as a matter of common law. The Court of Final Appeal held that the relevant regulations, which imposed a blanket restriction on professional legal representation in police disciplinary proceedings, prevented a tribunal from complying with its duty of fairness, and were thus systemically incompatible with article 10, and so were null and void.

Application of Article 10 to Disciplinary Hearings in Hong Kong

Article 10 of the Bill of Rights is derived from Article 14 of the International Convention on Civil and Political Rights (“ICCPR”) and closely resembles Article 6 of the ECHR. Indeed, the Court of Final Appeal in Lam Siu Po regarded the jurisprudence of the ECHR of immediate relevance to an understanding of article 10 for this very reason. Accordingly, in considering the question of whether article 10 applies to disciplinary proceedings in Hong Kong, the first question to be considered is whether or not the proceedings in issue are determinative of relations in civil law. Rights under an employment contract have been held to constitute “civil rights”, as have rights relating to regulatory bodies. Disputes leading to potential suspension, dismissal, disbarment or striking off, or suspension from a professional register, namely a right to work in one’s chosen profession, and “the right to remain in the employment one currently holds” – all have been held to fall within the definition of “civil rights”. Indeed, the Hong Kong Court of Final Appeal has had no difficulty in accepting, as a matter of principle, that article 10 applies to disciplinary hearings regulated by statute:

The fair hearing clause of article 10 of the Bill of Rights guarantees the fairness of the hearings to which it applies. Whether it applies to disciplinary proceedings depends on whether such proceedings are determinations of rights and obligations in suits at law within its meaning. If they are, then the fairness of such proceedings is secure. … The rights typically involved in disciplinary proceedings are important ones extending to the right to remain in a profession, service or occupation. Having regard to their context, the words “determination of … rights and obligations in a suit at law” call for a generous interpretation. The fundamental question is whether our constitution permits legislation that brings about unfairness at disciplinary proceedings. My answer is that our constitution does not permit that. In my view, disciplinary proceedings — whether in respect of professions, disciplined services or occupations — are determinations of rights and obligations in suits at law within the meaning of article 10. So article10 applies to disciplinary proceedings.

Article 10 will not however apply to all employees. The Bill of Rights binds the government and public authorities, and any person acting on behalf of the government or a public authority. Whilst on the one hand this would seem to cover employees engaged in the public sector and potentially some engaged in public sector work on behalf of the government or a public authority, there will be many employees in the private sector who simply fall outside of the scope of article 10.

The Requirements of Article 10

Where article 10 applies to a disciplinary hearing then such proceedings should be conducted fairly and in accordance with principles of natural justice. The express requirements of article 10 in civil proceedings are: a fair and public hearing; a competent, independent and impartial tribunal; and public judgment, although there are exceptions to this. Additional rights have been implied in order to give effect to the right to a fair trial, most notably: the right to be informed of the case to be answered, and the right to have an opportunity to make representations either before the decision is taken, or after it is taken, or both; the right to be present at an oral hearing if the “personal character or conduct of one of the parties is in question or the parties’ presence is otherwise required by the dictates of fairness”; and the right to equality of arms, namely, that each party be afforded a reasonable opportunity to present the case under conditions that do not place the party at a substantial disadvantage compared to the other party. What is clear from the decisions of the courts in Hong Kong (consistent with the jurisprudence of the ECHR on the interpretation of article 6) is that article 10 does not require every element of the protections conferred to be present at every stage of the determination of an employee’s rights and obligations, but only that “such protections should be effective when the determination is viewed as an entire process, including as part of that process such appeals or judicial review as may be available.” What fairness requires in a particular case will depend upon the context of the decision, and thus there are no definitive rules that can be applied in every case. However, some general guidance is offered by recent Court of Final Appeal decisions discussed below.

i. The right to a fair and public hearing

In Chow Shun Yung v Wei Pih the applicant challenged the procedure for leave to appeal to the Court of Final Appeal, where the practice involved the Registrar making a determination on written submissions rather than an oral hearing on the grounds, inter alia, that it contravened the right to a fair and public hearing under article 10. The Court of Final Appeal held that the procedure did not violate the right and set out a number of propositions, which could be derived from the jurisprudence of the ECHR on article 6(1), including the following: (i) the right was not absolute but might be subject to limitation if the restriction pursued a legitimate aim, if there was a reasonable proportionality between the means employed and the aim to be achieved, and if the restriction was not such as to impair the very essence of the right; (ii) the right was only engaged where the rules and proceedings in question were decisive of the substantive rights of the person and had no application to merely interlocutory or case management issues; (iii) in relation to first instance hearings, the right generally entailed an entitlement to an oral hearing held in public unless there were exceptional circumstances that justified dispensing with this, and generally required the court to give reasons for its decision and to pronounce its judgment in public; (iv) however, even at first instance, the right did not always require oral submissions. Where no findings of fact were needed and oral submissions were considered unnecessary, the court might properly decide the case on the basis of written submissions. (v) Whether proceedings on appeal were consistent with the right was judged by taking into account not merely the appeal, but the entirety of the proceedings, looking realistically at what the court’s powers were and how the applicant’s interests were presented and protected before the court. (vi) Thus, where there had been a fair and public hearing at first instance, relatively little was required to give effect to the right at the appellate stage. (vii) The right was even more easily satisfied in applications for leave to appeal made to a final court of appeal where there had already been public hearings with reasoned judgments in courts at more than one level below and where such application raised only narrow questions relating to known criteria for granting and refusing leave.

ii. The right to a competent, independent and impartial tribunal

In Medical Council of Hong Kong v Helen Chan the issue under consideration was whether the presence of legal counsel at the Medical Council’s private deliberations at the conclusion of a disciplinary hearing, and counsel’s preparation of a draft decision had deprived the respondent of procedural fairness at the hearing. The Court of Appeal considered both to be fundamental irregularities, going to the validity of the decision. In Le Pichon JA’s view the advisor’s involvement raised issues of breaches of natural justice, bias or the perception of bias, improper delegation and ultra vires. In his Lordship’s view, communication with the tribunal by a non-member in the absence of the parties would give rise to a perception of unfairness, whether or not the non-member actually communicated with that tribunal. Equally, the adviser’s role as a non-member drafting a decision might have influenced the tribunal as to the contents of the decision, through using thoughts and expressions in the decision, which might not otherwise have formed part of the decision. The Medical Council was given leave to appeal on the grounds that the issue raised a question of great general or public importance. The Court of Final Appeal, allowing the appeal, held that the question of whether the respondent had been deprived of procedural fairness at the hearing depended on whether the conduct complained of had rendered the Medical Council less than “competent, independent and impartial” as a tribunal. The Court of Final Appeal recognized that how this question was answered was potentially of extremely far-reaching implication, given the number of other disciplinary bodies, statutory appeal boards, and tribunals in Hong Kong for which a legal adviser may be appointed. Bokhary PJ, delivering the judgment of the Court of Final Appeal, agreed with the Court of Appeal’s sentiment that justice must not only be done but must be seen to be done, but disagreed that the latter had not been achieved in this case. The court had little difficulty in satisfying itself that the requirements of competence, independence and impartiality had all been met. The court held that the competence of a tribunal lies essentially in its own qualities, and thus a competent tribunal would not be rendered incompetent or be made to appear so by erroneous legal advice or assistance. If the advice or assistance is erroneous, injustice can be cured by the courts exercising their appellate or judicial review function. On the questions of impartiality and independence, the court considered that legal advisers function impartially, their allegiance being to “professional propriety” under the law rather than to one side or the other. Rather more consideration was given to the practice of decision drafting. Here the Court of Final Appeal conceded that it might be difficult, though not impossible, for a legal adviser to draft without letting in at least some of his own ideas. With that risk in mind, the Court of Final Appeal set out the following procedural safeguards which “must be insisted upon”:

The tribunal must deliberate without any participation by the legal adviser apart from giving it legal advice. No drafting by the legal adviser may commence until after the tribunal — having so deliberated — has arrived at its decision and has made its decision, findings and reasoning known to the legal adviser. What the legal adviser drafts must embody the tribunal’s findings and reasoning. The tribunal must scrutinise the draft. If necessary, the tribunal must modify the draft to ensure that it is the tribunal’s product, not the legal adviser’s, and that it says what the tribunal means. The practice under which the Legal Adviser produces draft decisions for the Medical Council includes all of those safeguards. Indeed it includes a further safeguard, namely that the drafting is done in the Medical Council’s presence. This further safeguard is at least desirable. I leave open whether it is always essential for other tribunals.

In the case at hand Bokhary PJ had no hesitation in concluding that the decision drafting did not compromise the Medical Council’s independence. Moreover, he suggested that the constitutional right benefits from the practice:

This is because the practice, properly understood and pursued, makes a valuable contribution to the safeguarding of the right to a competent, independent and impartial tribunal. It does so, first, by seeing to it that the tribunal is able, where the law is concerned, to seek the competent and impartial advice of a lawyer who acts under its instructions and subject to its approval so as to preserve its independence. Secondly, it makes it easier to see on what understanding of the law the tribunal had proceeded.

Instructively, on the question of whether justice had appeared to have been done, Bokhary PJ regarded it as generally important for legal advisers to disciplinary tribunals to make impartiality manifest at all times, and cautioned that it was desirable for legal advisers to make a full and accurate statement, immediately before retiring and in the presence of all parties, of the practice that will be followed, with a clear explanation of what will and what will not be done.

iii. The right to legal representation

Although in Lam Siu Po the employee succeeded in satisfying the court that his right to a fair hearing under article 10 required that he ought to have been allowed to have legal representation at the disciplinary hearings, the Court of Final Appeal held that there was no absolute right to legal representation; rather, a tribunal has a discretion to permit such representation where fairness so required. To this extent the protection conferred by article 10 appears to be no greater than that conferred at common law. Indeed, the courts in Hong Kong have suggested that an employer may satisfy the requirements of article 10 by applying common law principles of procedural fairness. The Court of Final Appeal has defined the overarching principle in the following terms:

… common law principles operate flexibly, requiring a tribunal to respond reasonably to the requirements of fairness arising in each case, balancing any competing interests and considering what, if any, limits may proportionately be imposed on legal representation in consequence.

Applying common law principles of procedural fairness, the factors to be taken into account in deciding whether fairness requires legal representation to be permitted at a disciplinary hearing include the following: the seriousness of the charge and potential penalty; whether any points of law are likely to arise; the capacity of the individual to present his own case; whether procedural difficulties are likely to be encountered; the need for reasonable speed in making the adjudication; and the need for fairness among the individuals concerned.

iv. Does the availability of judicial review satisfy the requirements of Article 10?

In a dispute involving the final determination of civil rights there will be no breach of article 10 merely because an internal disciplinary procedure does not comply with article 10, provided there is recourse to a court or tribunal that does comply with article 10, and which is able to review the decision in question. However, judicial review proceedings do not conduct afresh any fact-finding exercise underlying decisions, begging the question of whether a court, which exercises a judicial review function, can ever be regarded as a “court of full jurisdiction” for these purposes. As Ribeiro PJ pointed out in his judgment in Lam Siu Po, the original defects present at a disciplinary hearing may have resulted in skewed factual findings or materials wrongly excluded. In the same way that an employment tribunal in the UK or a labour tribunal in Hong Kong (before which legal representation is not permitted) may not be able to remedy such defects, arguably neither can such defects be remedied through judicial review since a court cannot substitute its own findings of fact for those of the decision-making authority if there was evidence to support them. Moreover, questions as to weight to be given to evidence or the credibility of witnesses are generally not considered by the court in judicial review proceedings. However, the weight of authority from the U.K. clearly indicates that “full jurisdiction” in this context does not require a court to have jurisdiction to re-examine the merits of the case, merely, that the court has full jurisdiction “to deal with the case as the nature of the decision requires.” Despite its inherent limitations, judicial review powers include the power to quash a decision if it is based on a finding of fact or inference from the facts, which is perverse or irrational; or if there was no evidence to support it; or it was made by reference to irrelevant factors or without regard to relevant factors. In such cases it is not necessary to identify a specific error of law. If the decision cannot be supported the court will infer that the decision-making authority misunderstood or overlooked relevant evidence or misdirected itself in law. Bearing these features of judicial review in mind, and following an extensive review of the case law from Europe and the U.K., Ribeiro PJ in Lam Siu Po concluded that “in Hong Kong, a court exercising its judicial review jurisdiction without statutory interference is likely to qualify for most purposes as a court of full jurisdiction”.

Conclusion

In the employment context Hong Kong has shown a resistance against protectionism of any form. The justification for this has tended to centre on economic arguments appealing for the need to maintain the competitiveness of Hong Kong’s labor market and its status as a financial centre in the region. However, alongside the reluctance on the part of the Legislative Council to enact employment laws in step with other developed nations across the globe, there has been a judicial acceptance of broader rights attaching to the employment relationship, most recently seen in cases