Hong Kong Employer’s Duty of Care in Adverse Weather Conditions

Hong Kong has experienced a record-breaking summer of extreme weather, with an unprecedented number of Typhoon Signal No. 8 (T8) or higher and the Black Rainstorm Warnings. As employers continue to navigate the operational challenges posed by such conditions, the recent High Court judgment in Khan Farooq Ahmed v Delivery Hero Food Hong Kong Limited serves as a timely reminder to all employers (especially those operating in sectors with outdoor or mobile workforces) of their obligations and duty of care during adverse weather conditions.

Background:

The plaintiff, Mr Khan, was a Foodpanda rider, using his own motorcycle to deliver food.

On 18 August 2020, while Typhoon Signal No. 3 (T3) was in force and T8 imminent, the employer sent a message via Telegram warning riders of the approaching T8 and stating that operations would be suspended once hoisted. Despite this, riders were allowed to complete ongoing deliveries. The amendment to Mr. Khan’s employment contract provided that Mr. Khan “implicitly agrees to continue the delivery under the [black rainstorm or T8 conditions]” if he accepts a job after such signals were hoisted or is executing delivery during such conditions.

Mr. Khan accepted and completed three orders, the last of which was delivered 18 minutes after T8 was officially issued. On his way home, Mr. Khan was involved in a traffic accident caused by strong winds, resulting in significant injuries.

Court Findings:

• Employer’s Duty of Care: The Court reaffirmed the common law duty of employers to take reasonable care for their employees’ safety during adverse weather conditions. This includes providing a safe system of work, effective supervision, compliance with statutory obligations under the Occupational Safety and Health Ordinance and following the Labour Department’s “Code of Practice in Times of Adverse Weather and “Extreme Conditions””. This duty is non-delegable and extends to ensuring employees are not exposed to unnecessary risks.
• Unsafe System of Work: Despite sending the warning messages, the employer was found to have maintained an unsafe system of work as it allowed riders to accept and complete orders even after T8 was imminent or hoisted. The Court emphasized that automated systems must be capable of timely suspension to avoid exposing workers to foreseeable risks.
• Breach of the Code of Practice: The employer was found to have breached the Labour Department’s Code of Practice, which advises suspension of outdoor work during typhoons.
• Contributory Negligence: While the employer was held 80% liable, Mr. Khan was found 20% contributorily negligent for failing to take shelter and choosing to ride home despite worsening weather conditions. The Court awarded Mr. Khan over HK$1m in compensation.

Takeaways

The Court emphasized the need for proactive risk management and clear safety protocols during adverse weather and extreme conditions. Sharing safety messages alone is not sufficient; Employers must ensure their systems and practices align with legal obligations and employee welfare. Failure to do so can result in significant liability and reputational damage.

Key actions include:

• Suspend Operations During Adverse Weather: Employers must promptly suspend outdoor operations when T8 or higher or Black Rainstorm warnings are issued. Allowing employees to work during such conditions can result in liability. Employees who are not required to report for duty during adverse weather conditions should be released.
• Ensure Effective Communication: Use reliable systems to notify employees of weather-related risks and operational changes. Ensure employees can access and act on these notifications.
• Review Employment Contracts and Policies: Avoid contractual terms that implicitly compel employees to work during hazardous or adverse weather conditions. Ensure policies align with statutory and common law safety obligations.
• Comply with Labour Department Guidelines: Suspend outdoor work in exposed areas and provide employees with access to safe shelter during adverse weather. The Code of Practice is available here.
• Train Employees: Educate employees on safety protocols and encourage them to prioritise their safety without fear of repercussions.

The judgment is available here.

For tailored advice on employment contracts, workplace safety policies, or risk mitigation strategies, please contact our Hong Kong Employment Team.