In 2022, the Tripartite Alliance for Fair & Progressive Employment Practices (TAFEP), the agency that oversees the adoption of fair, responsible and progressive employment practices, received around 250 complaints of workplace discrimination, with the most common grounds of discrimination being discrimination on the basis of one’s nationality, age and sex. Evidently, achieving complete workplace fairness in Singapore is still a work in progress.
The latest step in the right direction was made by the Tripartite Committee on Workplace Fairness (Tripartite Committee), which was convened in July 2021 to review the current workplace fairness framework in Singapore. The Tripartite Committee released an interim report in February 2023 with their suggestions on new legislation that can be put in place to protect workers from discrimination.
This article will cover some of the Tripartite Committee’s recommendations and their implications for both employers and employees, and explain how the proposed laws seek to redress existing gaps in workplace discrimination in Singapore. It will discuss:
What is Workplace Discrimination?
Workplace discrimination refers to a practice where an individual or group of individuals is treated unfairly or unequally at the workplace because of specific protected characteristics that they possess. These protected characteristics can include one’s age, nationality, set, marital status, pregnancy status, caregiving responsibilities, race, religion, language, disability, or mental health conditions.
Such discrimination can be broadly classified into two categories: direct discrimination and indirect discrimination. The difference between the two categories of discrimination are as follows:
- Direct discrimination occurs when an individual is treated less favourably in the workplace due to a protected characteristic. For example, if an employer refuses to hire a qualified candidate simply because of their gender, that would be direct discrimination on the basis of the candidate’s gender.
- Indirect discrimination occurs when an employer implements a policy or practice that appears to be neutral but has an adverse impact on a particular group of people based on their characteristics. For example, if a company requires all employees to work on Saturdays, this could indirectly discriminate against employees who observe a religion that prohibits work on Saturdays. Even though the policy applies to everyone, it would disproportionately affect members of a particular group. Another example would be if a company expressly states that it is willing to consider only candidates who can speak Mandarin, that would be indirect discrimination on the basis of the candidates’ race.
Workplace discrimination can also come in many different forms, and can occur at all stages of the employment cycle, including at the job application stage. Some common examples of workplace discrimination include:
- Hiring or promoting one person over another based on protected characteristics instead of qualifications. This also includes subtler forms of discrimination like posting discriminatory job advertisements that stipulate a requirement or preference for certain characteristics which are not qualifications-based, or requiring job applicants to fill in discriminatory job application forms or undergo interviews that require the applicants to provide information that is not immediately relevant in assessing an applicant’s suitability for the role.
- Paying someone less than others in the same position because they possess one of the protected characteristics.
- Denying opportunities or benefits to employees based on one of the protected characteristics.
- Failing to provide reasonable accommodations for employees with disabilities.
- Creating a hostile work environment through harassment, bullying, or other discriminatory behaviour. This also includes less overt behaviour like instituting company policies that discriminate on the basis of one’s characteristics. Examples include having a company-wide policy that prohibits employees from wearing religious garbs to work, mandates that employees use gender-specific toilets, or prohibits flexible work schedules that make it more difficult for employees to manage family responsibilities.
For more information on discrimination during the hiring process, you can head over to our article on discriminatory hiring, which sets out the possible penalties that employers in Singapore who engage in discriminatory practices during the recruitment process.
How is Workplace Discrimination Currently Dealt With in Singapore?
Presently, there are no binding laws or legislation that tackle workplace discrimination / discriminatory practices. However, as mentioned above, TAFEP was set up in 2006 by the Ministry of Manpower (MOM), National Trades Union Congress (NTUC), and Singapore National Employers Federation to promote the adoption of fair, responsible and progressive employment practices among employers, employees and members of the public.
To achieve its objective, TAFEP published the Tripartite Guidelines on Fair Employment Practices (Guidelines), which sets out what is considered fair and responsible employment practices, complete with examples of what an employer should and should not do. Employers are expected to observe the Guidelines, and the MOM can take action against errant employers who breach the Guidelines.
Victims of workplace discrimination in Singapore still have a number of means to seek recourse, and can take several steps to address the situation. There are two main measures of recourse that victims of workplace discrimination can employ:
1) Report the discrimination to your employer
First, the victim can report the discrimination to their employer or the human resources department of their company. In line with the Guidelines, many companies in Singapore have implemented progressive human resource management systems to promote a more inclusive workplace. As such, the company may already have a pre-existing procedure in place for addressing discrimination complaints, which may address the victim’s concerns (e.g. the victim may be able to explain why the particular policy indirectly discriminates against the victim, and the company may decide to rescind the policy).
However, this is usually only an option if the victim works for a company with a dedicated human resource department, and the discrimination is localised or isolated (i.e. is not a company-wide policy from the top management). If not, it would be difficult for the victim to approach his/her employer alone to resolve his/her grievances.
2) File a complaint with the authorities
In such situations, the victim can also choose to file a complaint with one of three authorities: Tripartite Alliance for Dispute Management (TADM), TAFEP or the MOM. These organisations can investigate the complaint and take appropriate action.
- To file a complaint with TAFEP, you will need to complete an online form with your name and contact details, NRIC number, and details of the incident(s) of discrimination or harassment. TAFEP may then contact you for further information about your case depending on the information you provided and will follow up directly with your employer to pursue the case. TAFEP is also empowered to report discriminatory practices that do not adhere to the Guidelines to MOM for further investigations.
- TADM can assist in the resolution of your complaint either by arranging for a mediation session with the assistance of a TADM mediator, or by providing advisory services to you on how to move forward with your complaint.
- MOM offers a 24-hour online service that allows you to report an employment infringement. Employment infringements refer to violations of the Employment Act, and cover areas like an employee’s salary, leave entitlements, public holidays entitlements, or working hours and rest days. Hence, if you are affected by an incident of discrimination that coincides with one of the above areas (e.g. if your salary is deducted or you are denied your rest days entitlement solely on the basis of a protected characteristic), this may constitute an employment infringement. After you file your complaint with MOM, you will be contacted by a MOM officer to verify your report and advise on the next steps. MOM can take certain actions against the offending employer, including revoking work pass privileges of employers who are found to have engaged in discriminatory practices. This can prevent the employer from hiring foreign workers in the future.
Additionally, it is important to note that for serious cases of workplace harassment, you also have the option of directly making a police report, or suing your harasser for compensation and applying for a protection order under the Protection from Harassment Act in the Protection from Harassment Courts. For more information on what you can do if you are a target of harassment, you can access our guide to Singapore’s Protection from Harassment Act.
If you wish to find out more about the three measures listed above or what else an employee can do when he or she is involved in an employment-related dispute in Singapore, you can head over to our other article on where to get help for an employment dispute in Singapore, for a more detailed discussion.
How Would the Proposed Recommended Workplace Discrimination Laws Address Current Gaps?
The Tripartite Committee’s recommendations span four main areas:
- Strengthening protections against workplace discrimination, including introducing legislation to prohibit workplace discrimination;
- Instituting provisions to support business/organisational needs and national objectives;
- Putting in place processes for resolving grievances and disputes while preserving workplace harmony; and
- Ensuring fair outcomes through redress for victims of workplace discrimination and more appropriate penalties for breaches.
The new laws proposed by the Tripartite Committee are not meant to supersede or replace the Guidelines. Instead, the Tripartite Committee has clarified that the Guidelines will continue to uphold workplace fairness, and will work in tandem with the new legislation to provide protection against all forms of discrimination.
As will be explained below, the Tripartite Committee recommended that the new legislation should deal with certain protected characteristics, which leaves room for the Guidelines to continue upholding overarching and broad principles of fair employment, and also to combat all forms of discrimination (even those that fall outside of the protected characteristics).
What are the Proposed Recommendations For the New Legislation to Tackle Workplace Discrimination?
The Tripartite Committee made a total of 20 recommendations, which are set out in greater detail in its interim report which can be accessed here. A summary of the key proposed laws is set out below.
- The Tripartite Committee recommended that new legislation be passed prohibiting workplace discrimination in respect of the following protected characteristics:
- Sex, marital status, pregnancy status, caregiving responsibilities
- Race, religion, language
- Disability, mental health conditions.
- Having new legislation that specifically defines prohibited discriminatory acts in respect of the protected characteristics will enhance the protection against workplace discrimination on these grounds.
- The Tripartite Committee also recommended that the new legislation should provide protection against discrimination in respect of the protected characteristics for all stages of employment. This would include the pre-employment stage (e.g. recruitment), during one’s employment (e.g. training opportunities, employee benefits, promotion, performance appraisal), as well as at the end of one’s employment (e.g. dismissal).
- In order to tackle workplace discrimination at the pre-employment stage (which the Tripartite Committee observed to be the stage where most instances of workplace discrimination take place), the Tripartite Committee recommended the legislating of specific requirements to clarify to employers what practices are prohibited. For example, one recommendation was to prohibit employers from using words and/or phrases that indicate a preference based on any protected characteristic in job advertisements, that has no apparent connection with the job requirements (e.g. “Women preferred” or “looking for young workers”).
- To encourage more employees to step forward to report instances of workplace discrimination or harassment, the Tripartite Committee recommended that new legislation be passed to prohibit employers from taking retaliatory actions against those who report such cases. The prohibited retaliatory actions would include wrongful dismissal, unauthorised salary deduction or deprivation of contractual benefits, amongst others.
- The Tripartite Committee also recommended that new legislation be passed to require employers to put in place proper grievance-handling processes so that affected employees can try to resolve disputes within the firm first. These processes include having in place a proper inquiry and documentation process, communicating the outcome of the inquiry to the employee, and protecting the confidentiality of the identity of persons who report workplace discrimination and harassment.
- To deal with the aftermath of an incident of workplace discrimination, the Tripartite Committee recommended that the new legislation should provide for more appropriate redress for victims of workplace discrimination and more appropriate enforcement action against errant employers. These recommendations include:
- Requiring victims to undergo compulsory mediation at TADM. This is in line with the overall objective of preserving workplace harmony, and preserving the employment relationship where it is still practicable to do so. The mediation process also allows for a wider range of monetary and non-monetary remedies (e.g. having the employer reinstate an employment offer or even providing an apology), which may not be available elsewhere.
- If the workplace discrimination claim cannot be resolved at mediation, victims can proceed to seek recourse through the Employment Claims Tribunals (ECT) as a last resort, and for the ECT to be empowered to order compensation of up to $5,000 for pre-employment claims, and up to $20,000 for non-union members or $30,000 for union-assisted claims for claims during one’s employment or at the end of one’s employment.
- To enact a set of enforcement provisions that will apply to the company and/or the person responsible for the discriminatory decision. These penalties can be adjusted according to the severity of the breach. For example, for breaches of low severity, the MOM can issue Corrective Orders, requiring companies to review their hiring processes or individual employees to attend corrective workshops. For breaches of high severity, the MOM can bring legal action against the company and/or the person responsible, and seek larger financial penalties to be imposed.
What Should Employers and Employees Note About the Recommendations Regarding New Workplace Discrimination Laws?
As can be seen from the summary of the key proposed laws above, the Tripartite Committee’s recommendations are targeted at both employers and employees.
How will employees be affected?
The proposed laws are to apply to all employees, who will be protected from being discriminated against on the basis of one or more of the protected characteristics during all stages of employment (pre-employment, during employment, and end-employment).
However, it is important for employees to note that the proposed laws under the new framework will coexist with the current framework for dealing with workplace discrimination described above. In other words, if you are a victim of workplace discrimination, you can refer to the flowchart below to evaluate how you should move forward with your case.
If you choose to take your claim to the ECTs, you should be aware that under the proposed laws, the ECT will have the power to strike out what it considers to be frivolous or vexatious claims, and even to exercise its discretion to award costs of up to $5,000, to be paid by the unsuccessful employee to the employer. Such situations can include where a jobseeker filed a claim for discrimination and chose to pursue the claim to the ECTs, but have no tangible evidence of discriminatory behaviour by the employer.
How will employers be affected?
As for employers, one thing to know is that the proposed laws do not apply to all employers. The Tripartite Committee recommended that the proposed laws initially apply only to firms that have more than 25 employees. However, the plan is to lower this exemption for small firms in five years.
Things to look out for when recruiting prospective employees
Employers will also have to be more careful about how they recruit prospective employees. As mentioned above, the proposed laws will prohibit employers from using words or phrases that indicate a preference based on any protected characteristic in job advertisements. Employers will accordingly also not be allowed to recruit on the basis of the protected characteristics. However, this is subject to three exceptions that will be carved out in the proposed laws.
First, there may be jobs where a preference for a protected characteristic is a genuine and reasonable job requirement. In these cases, the employers will be able to advertise and recruit based on the protected characteristics. The examples provided by the Tripartite Committee are:
- A wellness establishment may require its therapists to be female, as their job is to carry out personal body massages and spa treatments for female customers. In such a situation, being female is a genuine and reasonable job requirement.
- An airline may require its pilots to be under the age of 65, as this is the regulatory age limit for airline pilots in Singapore. In such a situation, being under the age of 65 is also a genuine and reasonable job requirement.
Second, another exception in the proposed laws applies to religious organisations, where it is recognised that sharing common values is an integral part of the organisation’s work. As such, the proposed laws will allow religious organisations, i.e. places of worship and religious entities, the discretion to make employment decisions based on religion and religious requirements (i.e. to prefer to employ someone who conforms with the religious beliefs and practices of the organisation). However, such organisations will not be allowed to discriminate based on other protected characteristics where there is no religious basis to do so.
Third and lastly, employers will be allowed to favour persons with disabilities and seniors (i.e. over the age of 55) over other groups when making hiring decisions. Even though this would fall foul of the general prohibition against discrimination, the Tripartite Committee recognised that the pursuit of workplace fairness should not come at the expense of extending and promoting employment opportunities for vulnerable groups that need more support.
However, even in such limited situations, the prospective employee must still meet all the baseline job requirements, and after the employee is employed, all decisions during his/her employment must still be based on merit. While a natural question that may arise is whether this limited exception extends to recruiting women and minorities, the Tripartite Committee did not recommend extending this exception as such, but recognises the need for other approaches to support fair representation of women and minorities in the workplace.
Steps to take to improve internal systems and processes
Employers must ensure that their employment practices are built with the avoidance of unfair practices in mind. This could mean having a well-staffed and well-trained human resources department, and human resources personnel who are adept at keeping proper documentation for all employment-related matters. Employers should also review existing performance appraisal or promotion practices, so as to ensure that employees are only assessed based on work-related matters and not discriminated against based on any of the protected characteristics.
Employers should also institute proper complaints channels as well as investigative and disciplinary processes. This would include putting in place a proper inquiry and documentation process, informing employees of the firm’s grievance handling procedures, communicating the outcome of the inquiry to the affected employee, and protecting the confidentiality of the identity of persons who report workplace discrimination and harassment, where possible.
The proposed laws were crafted to complement Singapore’s existing framework for dealing with workplace discrimination. They add value in a number of ways, primarily through defining the concept of prohibited discrimination on the basis of protected characteristics and strengthening protections against such forms of discrimination, formalising processes for victims of workplace discrimination to seek redress, and expanding the scope of remedies available to employees and penalties applicable to employers.
Whether you are an employee or an employer, you may wish to consult an employment lawyer for further advice or guidance on the new laws and how they might apply to you.
If you are an employee, and you feel that you have been unfairly discriminated against, the lawyer will be able to provide you with advice on the next steps to take to obtain an outcome that is most optimal for you.
If you are an employer, the lawyer will be able to advise you on what steps you should take in order to ensure that you are prepared for when the proposed laws are passed and enacted. You may also consult the lawyer for advice if you have been accused of engaging in discriminatory practices, and wish to know what your rights and obligations are in such a scenario.