Singapore's new anti-discrimination law: a stitch in time saves nine?

In February 2023, the Tripartite Committee on Workplace Fairness (comprising the Ministry of Manpower, the Singapore National Employers Federation and the National Trades Union Congress) finally published their long-awaited Interim Report on Workplace Fairness. The Interim Report outlines a series of 20 recommendations by the Committee which will form the basis of Singapore’s first Workplace Fairness Legislation, to be enacted sometime in 2024.

Here are ten initial thoughts on the Committee’s recommendations.

1) Sexual orientation. We are surprised that sexual orientation did not make the list of protected characteristics, and will therefore remain unprotected under the Workplace Fairness Legislation. Given the recent repeal of Section 377A of the Penal Code, this would have been an opportune moment for Singapore to demonstrate its progress on the issue by making a firm commitment to the LGBTQ+ community. Moreover, there is now incongruence in the legal position. The Tripartite Partners have indicated that the Tripartite Guidelines on Fair Employment Practices will be updated to ensure employees of diverse cultures, values and beliefs are treated sensitively at the workplace. This tangentially encourages diversity and inclusion in the workplace, but yet there will be a lack of positive protection against outright discrimination and harassment under the Workplace Fairness Legislation.

2) The list of protected characteristics. Singapore should have followed Hong Kong’s lead and expressly included breastfeeding as a protected characteristic, particularly as this is something many new mothers returning to work struggle with. This may well be subsumed under the category of “caregiving responsibilities”, but it is presently unclear based on the wording of the Interim Report.

3) Protection from retaliation. This is a very welcome move and one which many of us did not expect. To date, Singapore does not have any overarching whistleblower protections, and this is definitely a step in the right direction. It must however be clarified that the protection should only be available to those who report in good faith, otherwise there will be a significant propensity for employees to abuse this, knowing that the employer cannot retaliate against them.

4) The continued existence of the Tripartite Guidelines on Fair Employment Practices. Our main criticism of the Tripartite Guidelines is that it exists in no-man’s land. It is not legislation enacted by Parliament but appears to have force of law. This would have been a good opportunity for the Committee to clarify the position of the Tripartite Guidelines by placing it on a firm statutory footing (e.g. by enacting it as a subsidiary legislation to the Workplace Fairness Legislation) but it chose not to. This is bound to introduce confusion as to what the Tripartite Guidelines and the Workplace Fairness Legislation are meant to cover respectively.

5) Protectionist measures remain. The continued usage of the phrase “ensuring locals are fairly considered for job opportunities” is troublesome and undermines the raison d’etre of the Committee to “provide protection against all forms of workplace discrimination”. If Singapore intends for the Workplace Fairness Legislation to be truly anti-discriminatory, then it must step away from rhetoric which continues to suggest a positive discrimination towards Singaporeans, and at the expense of other talented individuals. This inherently undermines the value of the Workplace Fairness Legislation, and makes it appear as a protectionist measure to entrench Singaporeans in jobs.

6) Exempting companies with less than 25 employees from the Workplace Fairness Legislation. No reason has been given as to why small companies should be exempt from the Workplace Fairness Legislation. If, as it appears, this is being permitted because small firms need to build up expertise, this does not seem like a justifiable reason. Small firms can still build up expertise without having to resort to discriminatory measures, so long as they pick the right person for the role, which is what all employers are expected to do in any event. It is also unclear why companies with less than 25 employees can apparently engage in discriminatory hiring when companies with more than ten employees are required to advertise and consider all applicants fairly for the role. Again there is incongruity in the positions taken.

7) Support the hiring of disabled persons and seniors. This is a very commendable move. Affirmative action in favour of disabled persons and older workers is the correct step to take as it promotes inclusiveness and gives the vulnerable and needy a step up. This is a truly progressive move and not many of us expected to see this in the Interim Report.

8) Non-monetary remedies. The aim appears to be to salvage the employment relationship as far as possible, which seems naïve. By the time the employee has dragged the company to the Tripartite Alliance for Dispute Management, a lot of goodwill would have been lost. It would not be realistic to expect the parties to continue working together thereafter. Instead, monetary compensation (up to a cap) should be the primary penalty as it should compensate the employee for having fallen victim to discriminatory practices.

9) Compensation for discrimination. It is surprising that the compensation for discrimination at the pre-employment stage is lower than discrimination post-employment. If the purport of the Workplace Fairness Legislation is to prohibit discriminatory behaviour generally, then the same penalties should be expected to apply regardless of when the discrimination took place.

10) A proper grievance handling process. All companies will be expected to put a proper grievance handling process in place. This is not something all companies have at the moment, particularly smaller ones, and a grace period should be accorded to them.

For more information, please contact the Simmons Singapore Employment Team.