First Workplace Fairness Bill introduced in Singapore to protect employees against discrimination

Since 2007, workplace discrimination in Singapore has largely been addressed by the Tripartite Guidelines on Fair Employment Practices – a set of best practice guidelines. In 2023, the Tripartite Committee on Workplace Fairness (Committee) released a final report containing recommendations for a new workplace fairness legislation to complement these guidelines. On 12 November 2024, the first phase of the Workplace Fairness Legislation (WFL) was introduced in the Singapore parliament via the workplace fairness bill (First Bill), outlining principles for worker protection and mechanisms for addressing breaches. A second workplace fairness bill is expected to be released in 2025, which will cover the claims procedure and other technical details. If both bills are passed, they will likely take effect by 2027.

The First Bill represents a landmark moment for Singapore employment law, as it lays the framework for workplace discrimination being governed by statute in Singapore for the first time. It empowers employees to seek remedial measures from their employer directly and subjects employers to punitive actions for serious breaches. It should be noted that save for the fair consideration requirement (see below for further details), the WFL will not apply to employers with fewer than 25 employees, but this will be reviewed in five years. The exception for smaller businesses is intended to give them time to establish internal policies to comply with the WFL.

For more information on the recommendations, please refer to our previous alert here.

 

Definition of Discrimination

The WFL defines discrimination as making an employment decision that adversely affects an individual on the ground of a protected characteristic, unless a relevant exception applies. The protected characteristics are age, nationality, sex, marital status, pregnancy, caregiving responsibilities, race, religion, language ability, disability, and mental health condition.

Notably, the protected characteristic of sex does not include an individual's sexual orientation or gender identity. However, sex does refer to the individual's sex assigned at birth, or the sex re-assigned to an individual after a sex re-assignment procedure. Additionally, the scope of pregnancy is rather broad – it includes a woman expressing a desire or intent to bear children and the fact that a woman breastfeeds her infant.

A discriminatory “employment decision” can occur at any stage of an individual’s employment. This includes actions taken during pre-employment (recruitment), in-employment (promotion and appraisal), and end-employment stages (termination).

Importantly, the presence of a protected characteristic does not need to be proven. An employer can be deemed discriminatory if they suspect, assume, or believe the individual has a protected characteristic when making the employment decision. For example, if a female employee is dismissed because her manager had mistakenly believed she was pregnant, even though she was not in fact pregnant, this would still constitute a discriminatory employment decision under the WFL. However, an employer can only be caught by the WFL if the employment decision is directed at the employee with a protected characteristic. Decisions based on the protected characteristics of a relative or an associate of the individual are not considered discriminatory under this legislation. It is also not necessary to prove that the individual was treated or affected differently compared to any other individual.

As expected, the WFL appears to exclude indirect discrimination and focuses solely on direct discrimination. In addition to direct discrimination against an individual, the WFL outlines other prohibited discriminatory practices. Unless a relevant exception applies, these include:

• An employer issuing, communicating, or publishing a discriminatory direction, instruction, or policy in writing.
• An employer publishing an advertisement or description relating to possible employment in Singapore that mentions (expressly or by implication) a protected characteristic as a condition, criterion, requirement, advantage, disadvantage or disqualification for employment.

Additionally, employers are prohibited from applying for a work pass if they have not met specific requirements. These requirements include having considered in good faith and in a fair and objective manner, all responses to a job advertisement and offering foreign workers a salary within the advertised range. This statutory provision legislates the current job advertisement requirement for submission of Employment Pass and S Pass applications under the existing Fair Consideration Framework.

For completeness, note that the WFL does not address the provision of employee benefits, in order to give employers the flexibility to continue implementing progressive practices such as providing additional leave and healthcare benefits for employees who require them more.

 

Exceptions

Part 5 of the WFL outlines exceptions that allow employment decisions based on protected characteristics to be lawful under certain circumstances. These exceptions include:

• Genuine Job Requirements: If a protected characteristic is essential for the job, it is not deemed discriminatory. For example, a spa that primarily serves female customers may require female masseuses for reasons of privacy and comfort. In particular, language requirements for a job are permissible only if reasonably necessary for the job’s performance, such as the role of an interpreter, and not merely because other employees regularly communicate in that language.
  
  
• Age: If an employer decides not to hire an employee because they are younger than the prescribed age, then this is not considered discriminatory. This also applies to policies and advertisements that specify an age requirement, such as requiring individuals to be over a certain age. This means that employers are allowed to prefer older works, and is in line with the Committee's recommendation to support the employment of senior workers.
  
  
• Citizens and permanent residents: It is not discrimination for an employer to make an employment decision that adversely affects an individual on the ground that they are not a Singapore citizen nor permanent resident. This means that employers are allowed to publish job advertisements that expressly mention that candidates who are Singapore citizens or permanent residents (i.e. candidates who do not require a work pass to validly live and work in Singapore) will be required or given an advantage in the recruitment process.
  
  
• Religious groups: Religious groups are permitted to restrict employment to individuals who are members of their religion.
  
  
• Disability: It is not considered discriminatory for an employer to choose to not hire an individual if they do not have a disability. This means that discrimination is allowed in favour of disabled individuals and against abled individuals in hiring.

 

Prohibited Retaliatory Actions and Grievance

The WFL provides protection to employees who report cases of workplace discrimination by prohibiting employers from carrying out retaliatory acts against employees who have: (i) brought proceedings against the employer or any other employee of the employer; (ii) given evidence or information in connection with those proceedings; (iii) alleged that the employer or any other employee of the employer has committed a civil or serious civil contravention; (iv) raised a grievance to the employer; or (v) anything in relation to the employer or any other employee of the employer, or because the employer knows or suspects that the employee or any other person intends to do any of the aforementioned acts.

Employers should take note that retaliatory acts are as follows:

• Dismissing the employee;
• Refusing to offer re-employment or failing to provide an employment assistance payment to the employee;
• Deducting the employee's salary;
• Breaching any obligation within the employee’s employment contract;
• Harassing the employee; or
• Subjecting the employee to any other detriment in connection with their employment.

The WFL also mandates that employers must implement a clear and transparent grievance-handling process. Employers are required to:

1. Conduct a thorough inquiry into and review each grievance raised by an employee;
2. Communicate the outcome (if any) of the grievance process to the employee in writing;
3. Keep a written record of each inquiry and review for a specified period; and
4. Ensure that grievance-related information is not disclosed except where reasonably necessary.

 

Penalties

The WFL categorises offences into civil contraventions and serious civil contraventions based on the severity.

A civil contravention is committed if the employer:

• Commits an act of discrimination against an individual;
• Issues, communicates or publishes a discriminatory direction, instruction or policy;
• Publishes or causes to be published a discriminatory advertisement;
• Applies for a work pass in contravention of job advertisement or description rules;
• Fails to develop a compliant grievance-handling process in writing;
• Fails to inform all employees in writing of the above grievance-handling process;
• Retaliates against an employee;
• Contravenes any prescribed regulations in relation to the WFL; or
• Provides inaccurate information or particulars to authorised persons, inadvertently or without intent to mislead or default.

In terms of penalties, an employer may receive a contravention notice requiring payment of an administrative penalty, and the amount will depend on the civil contravention and circumstances in question. An appeal mechanism is available to dispute such contravention notices. In lieu of or in addition to issuing a contravention notice, an employer may be issued with directions to bring the civil contravention to an end, and if necessary, an employer may be required to take action to remedy, mitigate or eliminate effects of the civil contravention and to prevent its reoccurrence. For example, a corrective order may be issued to an employer to remove any discriminatory job advertisement from an online job portal.

A serious civil contravention is committed if the employer:

• Commits a second or subsequent civil contravention for a discriminatory act, whether or not in relation to the same employee;
• Commits an act of discrimination that is directed, instructed or influenced by a discriminatory direction, instruction or policy;
• Retaliates against an employee by dismissing them or refusing to offer re-employment or failing to provide an employment assistance payment to them; or
• Committing a second or subsequent civil contravention for a retaliatory act less than one year after any previous civil contravention against that employee.

With the public prosecutor’s consent, an action can be brought in court against the employer to seek an order for a civil penalty in respect of that serious civil contravention, capped at SGD50,000 for a first order and SGD250,000 for subsequent breaches.

For both civil contraventions and serious contraventions, it should be noted that both the corporate body and officers of the body corporate who had consented to or connived at the offence can be liable. This means that individuals such as directors can be held personally liable for offences under the WFL.

 

Comments / Concluding remarks

Overall, while the First Bill marks a significant milestone towards protecting employees from discrimination and establishing fair employment characteristics, certain areas of the First Bill are drafted broadly and will require clarification.

As a starting point, some protected characteristics may be difficult to conclusively establish from an evidentiary perspective. For example, the protected characteristic of pregnancy includes the fact that a female employee is pregnant on the day and contracted an illness related to the pregnancy during the pregnancy. It may be difficult to obtain proof that an illness was related to or distinct from the pregnancy. Furthermore, under the meaning of certain protected characteristics, there is no "prescribed period" that would limit whether the employee has that particular protected characteristic. For example, the protected characteristic of pregnancy can be established by the fact that a woman has expressed a desire or intent to bear children – and for the protected characteristic of caregiving responsibilities, if there is no prescribed period for the relevant provision, it would mean the fact that the individual has a responsibility to care for or support any family member at any time before that day. It is therefore possible for situations to arise where a discrimination claim is brought on the basis that such facts had taken place, even though a substantial period of time had passed before the employee was terminated on valid grounds. We expect that this wide ambit could muddy the waters and lead to an increase in claims being brought against employers, making it more difficult to determine whether the employment decision was genuinely connected to the protected characteristic or not.

In relation to retaliatory acts, the relevant provisions of the WFL are also drafted broadly and could have a detrimental impact on employers. For example, an employer must not do any retaliatory act in relation to an employee who has simply raised a grievance to the employer, and such acts would include making deductions from an employee's salary or dismissing the employee. This appears to suggest that even where an employer has valid grounds to make deductions from an employee's salary (eg for absences from work), or where there are genuine reasons for the termination of employment (eg poor performance, redundancy or misconduct), such acts may nonetheless be considered retaliatory and attract penalties under the WFL, even where the grievance is unmeritorious. In practice, this may lead to an increase in frivolous grievances being raised by employees and make it difficult for employers to make employment decisions even where they have valid business grounds to do so.

Ultimately, a balance needs to be struck between sufficiently protecting employees and allowing businesses to make valid employment decisions efficiently. Further clarification in respect of such matters will likely be eagerly anticipated by employers and employees alike, and we look forward to receiving details of the second workplace fairness bill when it is published in 2025.

For any enquiry on what these updates will mean to your business, please contact David Smail or Michelle Chua.