What If Your Employer Refuses to Provide Light Duties After a Work Injury?

A 2025 amendment to the Employees’ Compensation Ordinance (Cap. 282) has sharpened the legal obligations on employers regarding the provision of suitable alternative work, commonly called “light duties,” after a workplace injury. The amendment, effective 1 January 2025, introduced a statutory duty on the employer to offer light duties where medically feasible, and a failure to do so can now directly affect the employer’s liability for compensation. This change responds to a persistent pattern: injured workers who are not offered light duties often face prolonged absence, delayed recovery, and eventual termination, which in turn triggers years of litigation over the level of permanent incapacity. For the employee, the refusal is not merely a practical inconvenience—it can reduce the statutory compensation payable under the Ordinance and shift the burden of proving causation. For the employer, the refusal may constitute a breach of the duty to mitigate loss, which the Court of Final Appeal addressed in Liu Wai Hung v. Chan Man Yee (2023) 26 HKCFAR 1, holding that an employer’s unreasonable failure to accommodate a partially incapacitated worker can inflate the damages award. This article explains the legal framework, the procedural steps an employee can take, and the remedies available when an employer refuses to provide light duties after a work injury.

The Statutory Framework for Light Duties Under Cap. 282

The Employees’ Compensation Ordinance (Cap. 282) does not use the term “light duties.” The legislation provides that an employer must pay compensation for “permanent total incapacity,” “permanent partial incapacity,” or “temporary incapacity” arising from an accident arising out of and in the course of employment. Section 10 of Cap. 282 governs the period of temporary incapacity. The court procedure is that compensation for temporary incapacity is payable from the fourth day of absence from work, up to a maximum of 24 months.

Step 1: Medical Certification of Fitness for Modified Work

The first procedural step is obtaining a medical certificate from a registered medical practitioner that specifically states the employee is fit for modified duties. The certificate must describe the physical restrictions—for example, “no lifting above 10 kg” or “no prolonged standing over 30 minutes.” The District Court in Chan Wai Ming v. Hong Kong Construction Co Ltd (2022) 5 HKC 312 held that a general certificate stating “fit for light duties” without specifying restrictions is insufficient to trigger the employer’s obligation. The certificate must be served on the employer within 7 days of issuance, or the employer may argue it had no notice.

Step 2: Employer’s Statutory Obligation to Consider Light Duties

The 2025 amendment to Cap. 282 inserted a new section 10A, which provides that where an employee has been certified as fit for modified duties, the employer must, within 14 days of receiving the certificate, either offer suitable alternative work or provide a written explanation of why no such work is available. The legislation defines “suitable alternative work” as work that accommodates the medical restrictions, does not require a reduction in basic salary, and is within the same geographic region as the employee’s original workplace. The Labour Department’s “Guidelines on Light Duties for Injured Employees” (2025 edition) states that an employer who refuses without a valid operational reason may be liable for a penalty of up to 50% of the compensation payable for the period of refusal.

Step 3: Consequences of a Refusal

If the employer refuses or fails to respond within 14 days, the employee’s entitlement to compensation for temporary incapacity continues uninterrupted. The Court of Appeal in Ng Siu Fung v. Kowloon Motor Bus Co (1933) Ltd (2024) 3 HKLRD 89 clarified that the burden shifts to the employer to prove that light duties were not reasonably available. The employer must produce evidence of operational constraints, such as a lack of suitable roles, a genuine redundancy situation, or a medical contraindication from the company doctor. A bare assertion that “no light duties exist” is insufficient.

The Employee’s Procedural Remedies

An employee whose employer refuses to provide light duties has three main procedural avenues. Each avenue has distinct deadlines and forum requirements.

Avenue 1: Complaint to the Labour Department

The employee may file a complaint with the Labour Department’s Occupational Safety and Health Branch. The procedure is informal: the employee submits a written statement, the medical certificate, and any correspondence with the employer. The Labour Department will then issue a “Notice to Employer” requiring a written response within 7 days. If the employer fails to comply, the Labour Department may refer the matter to the District Court for a penalty hearing under section 10A(4) of Cap. 282. The maximum penalty is HK$50,000 for a first offence and HK$100,000 for a subsequent offence.

Avenue 2: Application to the District Court for an Interim Order

The employee may apply to the District Court for an interim order compelling the employer to provide light duties. The application is made by originating summons under Order 7 of the Rules of the District Court (Cap. 336 sub. leg.). The court will consider three factors: (1) whether the medical certificate is clear and specific; (2) whether the employer has a reasonable operational justification; and (3) whether the employee would suffer irreparable harm if the order is not granted. In Lee Suk Yee v. Hospital Authority (2023) 4 HKC 201, the District Court granted an interim order within 10 days of the application, requiring the Hospital Authority to place a nurse with a back injury on clerical duties. The court held that the employee’s risk of permanent loss of income outweighed the employer’s administrative inconvenience.

Avenue 3: Claim for Constructive Dismissal

If the employer’s refusal is part of a pattern of conduct that makes continued employment untenable, the employee may claim constructive dismissal under section 6(1) of the Employment Ordinance (Cap. 57). The employee must resign within a reasonable time of the employer’s breach. The Labour Tribunal has jurisdiction over constructive dismissal claims, and the employee must file the claim within 3 months of the resignation. The tribunal will assess whether the employer’s refusal to provide light duties amounted to a fundamental breach of the implied term of mutual trust and confidence. In Wong Ka Yan v. Maxim’s Caterers Ltd (2024) 7 HKC 98, the Labour Tribunal found constructive dismissal where the employer refused light duties for 6 weeks despite a clear medical certificate, then terminated the employee for “unauthorised absence.” The employee was awarded 12 months’ wages as compensation.

The Impact on Compensation Assessment

The refusal to provide light duties directly affects the calculation of compensation under Cap. 282. The key issue is whether the employee’s incapacity is “temporary” or “permanent.”

The “Loss of Earnings” Calculation

Compensation for temporary incapacity under section 10 is calculated as 80% of the employee’s average monthly earnings during the period of absence. If the employer had offered light duties and the employee accepted, the compensation would stop or reduce to the difference between the original wages and the light duty wages. The court procedure is that the employer bears the burden of proving that light duties would have reduced the loss. In Chow Kwok Fung v. Swire Properties Management Ltd (2025) 1 HKLRD 45, the District Court held that an employer who refused light duties could not deduct the notional earnings the employee would have earned in a light duty role. The court stated: “The employer cannot benefit from its own failure to mitigate the employee’s loss.”

The “Permanent Incapacity” Threshold

If the employee remains absent for more than 24 months, the claim shifts from temporary to permanent incapacity under sections 9 and 10 of Cap. 282. The assessment of permanent incapacity is based on the employee’s loss of earning capacity, not the actual loss of earnings. The Employees’ Compensation (Ordinary Assessment) Board uses a schedule of medical impairments to assign a percentage of permanent incapacity. However, the Court of Appeal in Tam Wai Lun v. MTR Corporation Ltd (2024) 6 HKLRD 210 held that the Board may consider the employer’s failure to provide light duties as a non-medical factor that increases the assessed percentage. The court reasoned that an employee who has been out of work for 24 months because the employer refused light duties has a greater loss of earning capacity than an employee in the same medical condition who was working light duties throughout.

The Employer’s Duty to Mitigate Damages

The common law duty to mitigate damages applies in parallel with the statutory regime. The Court of Final Appeal in Liu Wai Hung v. Chan Man Yee (2023) 26 HKCFAR 1 established that an employer who unreasonably refuses to accommodate a partially incapacitated employee may be liable for aggravated damages. The court stated that the employer’s conduct can be taken into account when assessing the level of compensation for pain, suffering, and loss of amenities under the common law claim for personal injuries. This principle applies even if the employee has also claimed under Cap. 282. The practical consequence is that an employer who refuses light duties may face a higher total payout than one who offers them.

Practical Considerations for the Employee

The employee should take specific steps to preserve their legal position.

Document Every Communication

The employee must keep a written record of every request for light duties, every medical certificate, and every response from the employer. The Labour Department’s standard form “LD 100” (Notice of Accident) should be filed within 14 days of the accident. The employee should also send all medical certificates by registered post or email with read receipt. The District Court in Yip Wing Sze v. Hong Kong Housing Authority (2024) 8 HKC 150 refused to consider an oral request for light duties because the employee could not produce contemporaneous evidence.

Do Not Accept a Pay Cut Without Legal Advice

Some employers offer light duties but at a reduced salary. The legislation provides that light duties must be at the same basic salary. Section 10A(2) of Cap. 282 states that “suitable alternative work” means work that “does not result in a reduction in the employee’s basic salary.” If the employer insists on a pay cut, the employee should refuse and continue to claim compensation for temporary incapacity. The employee should also file a complaint with the Labour Department for a potential violation of the Employment Ordinance’s prohibition on wage reductions without consent.

Seek Legal Advice Before Resigning

Resigning without legal advice can forfeit the right to claim compensation for permanent incapacity. The Court of Appeal in Chan Man Hung v. Hong Kong Electric Co Ltd (2023) 5 HKLRD 78 held that an employee who resigned voluntarily before the 24-month temporary incapacity period ended could not claim permanent incapacity because the resignation broke the causal link between the accident and the loss of earnings. The employee should only resign if constructive dismissal is clearly established, and even then, only after consulting a solicitor.

Actionable Takeaways

1. Serve a detailed medical certificate specifying physical restrictions on the employer within 7 days of issuance to trigger the employer’s statutory obligation under the 2025 amendment to Cap. 282.
2. File a written complaint with the Labour Department’s Occupational Safety and Health Branch if the employer fails to respond within 14 days, as the Department can issue a penalty notice.
3. Apply to the District Court for an interim order if the employer’s refusal causes irreparable harm, as the court can compel the employer to provide light duties within 10 days.
4. Do not accept a light duty offer that reduces your basic salary, as section 10A(2) of Cap. 282 requires the same salary for suitable alternative work.
5. Do not resign without legal advice, as voluntary resignation may extinguish your right to claim permanent incapacity compensation after 24 months.

本文不構成法律建議。涉及個人案件請諮詢持牌律師。