Frequent Sick Leave During Probation: Can Employers Terminate? Legal Risks and Best Practices
- Jul 17
- 6 min read
The "Frequent Sick Leave" Dilemma During Probation
In Hong Kong, the probation period is a critical stage for both employers and employees to assess mutual fit. However, when a new employee takes frequent sick leave during probation, many employers and HR professionals are often perplexed: Can they refuse to confirm employment due to this? Would doing so violate the law?
This issue not only involves the strict regulations of the Employment Ordinance regarding sick leave and termination but may also touch upon the legal red lines of the Disability Discrimination Ordinance. Incorrect handling can lead to the company facing hefty fines and even criminal prosecution. This article will deeply analyze Hong Kong law's regulations on frequent sick leave during probation, provide employers with correct response strategies, and integrate the professional HR consulting services of Get More Resources Limited to help you mitigate legal risks and establish a compliant and efficient human resource management system.
1. Legal Framework for Terminating Employees During Probation: Not "At Will"
Although probation grants employers greater flexibility, under Hong Kong's Employment Ordinance (Cap. 57), employers are not entirely unrestricted when terminating employees during probation, especially in cases involving sick leave. Strict adherence to the law is required, otherwise, legal action may be faced.
1.1 Notice Period for Termination During Probation
According to the Employment Ordinance, the notice period for termination during probation is as follows:
Probation Stage | Notice Period | Payment in Lieu of Notice |
Within the first month | No notice required | No payment required |
After the first month | As per contract (usually not less than 7 days) | Required |
This means that after the first month of probation, employers still need to provide reasonable notice or payment in lieu of notice. However, the real legal risk does not come from the notice period itself, but from the "reason" for termination.
1.2 Employment Ordinance Restrictions on Termination During Sick Leave
This is one of the "red lines" most easily crossed by employers. According to Section 33 of the Employment Ordinance, except in cases of summary dismissal due to serious misconduct by the employee, an employer shall not terminate the employment contract of an employee on his/her paid sickness day.
•Consequences of Violation: Employers who violate this provision may be prosecuted and, upon conviction, are liable to a maximum fine of HK$100,000.
•Conditions for Paid Sick Leave: An employee must be employed under a continuous contract by the same employer, and the sick leave must be for not less than 4 consecutive days, supported by a medical certificate, to be entitled to paid sick leave.
2. Intertwined Risks of Frequent Sick Leave and the Disability Discrimination Ordinance
Even if an employer has the right to terminate an employee during probation under the Employment Ordinance, if the substantive reason for termination is related to the employee's illness or health condition, it may violate the Disability Discrimination Ordinance (Cap. 487), leading to substantial compensation.
2.1 What Constitutes "Disability"?
"Disability" under the Disability Discrimination Ordinance is broadly defined to include total or partial loss of bodily functions, illness, injury, mental illness, etc. Even a temporary illness may be considered a "disability" and be protected.
2.2 Legal Case Warning: Risks of Termination Due to Illness During Probation
There have been cases in Hong Kong where a waiter was terminated after taking sick leave due to foot pain during probation. The court ultimately ruled against the restaurant, ordering compensation for emotional distress to the waiter.
•Case Implication: The judge pointed out that although employers have the right to terminate without cause during probation, the law does not permit termination based on discrimination. This case highlights that even during probation, employers cannot use an employee's health condition as the primary reason for termination.
•Implicit Discrimination: Even if an employer claims termination was based on "poor performance," if the employee can prove that their poor performance was directly related to their illness and the employer failed to provide reasonable accommodation, it may still be ruled as discrimination.
3. Correct Employer Practices: Practical Strategies to Mitigate Legal Risks
Employers should base termination decisions on objective performance evaluations, not merely the frequency of sick leave. Thorough record-keeping, clear communication, and professional HR consultation are key to mitigating legal risks.
3.1 Establish Clear Probation Assessment Standards
•Quantifiable Metrics: Clearly communicate job objectives, performance metrics, and behavioral expectations to employees before the probation period begins.
•Regular Evaluations: Conduct at least one formal evaluation during probation, documenting the employee's strengths, weaknesses, and areas for improvement.
3.2 Maintain Comprehensive Employee Performance Records
•Document Facts: Detail any work performance issues during periods when the employee is not on sick leave, such as failure to meet targets, unsatisfactory work quality, or non-compliance with company policies.
•Avoid Subjective Judgments: Records should be based on objective facts, avoiding discriminatory or subjective language.
3.3 Engage in Effective Communication and Warnings
•Timely Feedback: When an employee's performance is problematic, provide timely verbal or written feedback and offer suggestions for improvement.
•Opportunity for Improvement: Before deciding on termination, give the employee a reasonable period for improvement and document all communications.
•Avoid Termination Communication During Sick Leave: Even if a termination decision has been made, avoid communicating it during the employee's sick leave to prevent violating the Employment Ordinance.
3.4 Seek Professional HR Consultation
•Complex Cases: When facing termination cases involving illness, disability, or long-term sick leave, it is crucial to consult professional HR consultants or labor law experts.
•Compliance Review: Regularly review company employment contracts, employee handbooks, and termination procedures to ensure compliance with the latest legal requirements.
4. Frequently Asked Questions (FAQ) on Frequent Sick Leave During Probation
Q1: Does taking sick leave during probation affect passing probation?
A1: Legally, an employer cannot refuse to confirm employment solely because an employee takes sick leave. However, if frequent sick leave leads to an inability to meet performance requirements, the employer can decide not to confirm employment based on "poor performance" rather than "taking sick leave," provided there is sufficient objective evidence.
Q2: Can an employer terminate an employee while they are on sick leave?
A2: According to the Employment Ordinance, an employer cannot terminate an employee's employment contract while they are on paid sick leave, except in cases of summary dismissal for serious misconduct. Violators may face a maximum fine of HK$100,000.
Q3: If an employee has a chronic illness, can the employer terminate them?
A3: If an employee's chronic illness is considered a "disability" under the Disability Discrimination Ordinance, the employer must consider providing "reasonable accommodation" before termination. Termination without providing reasonable accommodation may constitute disability discrimination.
Q4: How can an employer prove that termination was not based on discrimination?
A4: The employer needs to prove that the termination decision was based on objective, non-discriminatory reasons, such as the employee's failure to meet performance expectations or misconduct, and must have detailed written records to support this.
Q5: How is salary calculated for sick leave during probation?
A5: An employee must be employed under a continuous contract by the same employer, and the sick leave must be for not less than 4 consecutive days, supported by a medical certificate, to be entitled to paid sick leave. Paid sick leave allowance is four-fifths of the average daily wages.
Need Professional HR Advice? Let Get More Safeguard Your Interests
When facing complex employment contracts and payroll issues, having a professional HR consultant by your side is crucial. Get More Resources Limited, as a leading HR strategic partner in Hong Kong, has over 15 years of experience providing tailor-made HR solutions for over 5,000 companies.
Whether you need to understand your employment rights, negotiate contract terms, or require professional legal and HR guidance, Get More's expert team is ready to serve you. We not only provide HR outsourcing services but, more importantly, strategic human resources insights to help you protect your rights throughout your career.
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Disclaimer:
The content of this article is for informational purposes only and is intended to provide general legal information and HR management advice. It does not constitute professional legal advice in any form. Hong Kong's laws and regulations may change at any time, and each case has its unique circumstances. Readers should consult a professional lawyer or the Labour Department before making any business or legal decisions. Get More Resources Limited is not responsible for any loss or impact arising from the use of the information in this article.
