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Article contributed by Minter Ellison

Statutory rest days under scrutiny

by Winnie Ng, consultant, and Winnie Wong, associate, Employment Practice, Minter Ellison

All full-time employees in Hong Kong are entitled to one rest day in every seven-day period. The Employment Ordinance defines a "rest day" as any continuous period of not less than 24 hours, during which an employee is entitled to abstain from working for his employer. Rest days are in addition to statutory holidays, alternative holidays or substituted holidays.

The granting of rest days does not cause any problems for most employers. However, due to the work nature of public hospital doctors, the issue of rest days is not as straightforward.

In the case of Leung Ka Lau and others v The Hospital Authority, the courts considered whether doctors employed by the Hospital Authority (HA) are entitled to compensation for being on call beyond their normal working hours.

The case was initially heard by the Labour Tribunal in 2002 and was then put before the Court of First Instance. Subsequently, the matter ended up before the Court of Appeal and finally, in October 2009, before the Court of Final Appeal (CFA).

Just compensation

On-call duties for doctors give rise to a number of different legal issues, depending, for example, on whether a rest day is involved. The doctors who brought the court action in this case sought for their statutory right to rest days to be enforced and contended that they had been deprived of their rest days by being on call without the days being replaced.

With regard to this particular issue, the CFA considered whether doctors are entitled to an alternative day off or monetary compensation if they are on call on a rest day and, if applicable, the appropriate amount of compensation.

The HA has a system of putting doctors on an "on-call" roster in order for them to be able to respond, if necessary, to patients' needs outside normal working hours. Doctors placed on the "resident call" list have to be on stand-by within the hospital's premises. Those on the "non-resident call" list do not have to stay at the hospital but may be called back at any time. The CFA judgment focused only on the non-resident call scenario as it was accepted that doctors on resident call duty were clearly entitled to compensation.

Doctors on non-resident call has to remain close enough to the hospital to be able to get there within 30 minutes. They are not allowed to consume alcohol and have to be mentally prepared to respond if called. Given these restrictions, the CFA ruled that a day on which a doctor is on non-resident call cannot qualify as a rest day under the Employment Ordinance.

The court found that since a doctor on non-resident call is not entitled to abstain from working for the HA for a continuous 24-hour period, such a day cannot qualify as a rest day. The position remains the same if the doctor is not in practice required to treat a patient during an on-call day.

Substantial loss

The next question was whether doctors who are deprived of a rest day by being on non-resident call are entitled to nominal damages or substantial damages.

The CFA's view was that doctors who miss a rest day are subject to "a real and substantial loss" and that they, accordingly, should be granted an alternative day off. If this option is not practical, they should be entitled to substantial damages equivalent to a full day's wages.

The Court made it clear that doctors are entitled to monetary compensation for the entire day that they are on call, even if they are not actually required to provide their professional services on that day. The possibility that they may be asked to do so is sufficient.

Q & A on statutory rest days
Q1 Does the law require for employees to be paid on rest days?
A1 The Employment Ordinance does not stipulate whether an employee should be (or treated as being) paid or not on a rest day. This is a matter of contract between the employer and the employee.

Q2 What is the penalty for employers that fail to grant rest days to their employees?
A2 An employer that, without a reasonable excuse, fails to grant rest days may be convicted and subject to a maximum fine of HK$50,000.

Taken from Career Times 11 December 2009, p. B10

(Last review date: 23 August 2013)


The opinions expressed in this article are those of the contributor
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