Part 1: Hong Kong's Gig Economy

Hong Kong's gig workforce has boomed, particularly in respect of food delivery, ride-hailing, and on-demand services. This growth is driven in part by significant labour shortages, with the Labour & Welfare Bureau projecting a shortfall of 180,000 workers by 2028. More significant gaps were observed in labour-intensive sectors such as construction, health services, retail and tourism industries.

Many companies engage gig workers as independent contractors, which offers flexibility and cost savings, but it means these workers may not be entitled to statutory employment protections. As Hong Kong, has no statutory definition of "gig worker", the key legal issue is whether an inpidual is an employee or an independent contractor.

This two-part series discusses the issues surrounding the classification of workers as independent contractors versus employees and the immigration considerations that arise from this distinction.

An employee or an independent contractor?

The key legal distinction is whether a worker is an employee or an independent contractor. This is determined by the facts of each case. Hong Kong courts have applied the "overall evaluative-impressionistic approach", weighing the 11 indicia set out in the landmark decision of the Court of Final Appeal in Poon Chau Nam v Yim Siu Cheung (2007) 10 HKCFAR 156. These indicia are:

1. control;
2. whether the person who provides the service uses their own equipment;
3. whether such person can delegate the task/hire his own helpers;
4. the degree of financial risk the worker undertakes in the provision of the services;
5. whether the worker can profit from sound management in performing the services;
6. whether the worker assumes investment and management responsibility;
7. whether the worker can be identified as part of the employer's business;
8. whether the worker can concurrently perform their own business or provide services to another entity;
9. the parties' own views of their relationship;
10. incidence of tax and insurance; and
11. the traditional structure of the trade and arrangements within it.

Reflecting the fact-sensitive nature of this analysis, the determination of a gig worker's employment status has varied in Hong Kong. For example, in 2023, the Labour Tribunal ruled that six workers for Zeek, a delivery platform, were employees for the purposes of receiving statutory protection under the Employment Ordinance. The Labour Tribunal ruled that the delivery platform had exercised a high degree of control over the workers, including the determination of the delivery routes, work locations and orders. As a result, Zeek was ordered to pay the six workers outstanding wages, payment in lieu of dismissal notice, and statutory holidays and annual leave payments.

By contrast, in 2024, the Hong Kong District Court ruled in Gurung, Sanjaya Man v. Deliveroo Hong Kong Ltd [2024] HKDC 1932 that the plaintiff, a delivery worker for Deliveroo, was not an employee for the purposes of claiming employees' compensation. The Hong Kong District Court found that Deliveroo had exercised a low degree of control over the delivery worker. Instead, the delivery worker had complete discretion over whether to log on and accept orders, and he assumed the financial risk by providing and using his own equipment. All these factors indicated that the delivery worker was not an employee.

Legal risk and exposure

Businesses that engage gig workers as independent contractors often do so to avoid the statutory and common law obligations that arise from an employment relationship. However, if these inpiduals are later found to be employees, the business may face substantial legal, financial, and criminal exposure. The risks span across immigration compliance, statutory entitlements, workplace safety, and vicarious liability.

1. Immigration and right-to-work risks

A key legal exposure relates to an inpidual's right to work in Hong Kong. Employers have a statutory obligation to ensure the inpiduals they employ are lawfully employable in Hong Kong. Misclassifying workers as independent contractors does not shield a business from liability if it is found that the worker was, in substance, an employee. This is relevant to the gig economy, as illustrated by recent police investigations into suspected illegal work linked to ride-hailing services, including allegations that a mainland Chinese resident on a Hong Kong tourist visa provided such services without local identification documents, thereby breaching his conditions of stay. As we will discuss in Part 2 of this series, if gig workers are ultimately deemed employees, platforms could face criminal charges for engaging workers do not have the right to work.

2. Statutory financial obligations

Employment status also triggers significant statutory financial obligations under Hong Kong law. Where a gig worker is deemed an employee under a continuous contract, the employer must provide statutory holidays, paid rest days, sickness allowance, and annual leave. Employers are also required to make mandatory MPF contributions, maintain compulsory employees' compensation insurance, and potentially make severance or long service payments upon termination. Misclassification therefore carries the risk of retrospective liabilities, which can be substantial.

3. Workplace safety and common law duties

Apart from statutory obligations, employers are subject to various common law duties, including the non-delegable duty of care to their employees, including maintaining a safe system of work. This liability extends to physical and psychiatric injury, stress at work, and pure economic loss caused by the employer's negligence and cannot be avoided by labelling a worker an "independent contractor". The significance of this duty of care was highlighted in the recent case of Khan Farooq Ahmed v Delivery Hero Food Hong Kong Limited [2024] HKCFI 4030. There, the plaintiff, a delivery worker for Delivery Hero (widely known as Foodpanda), claimed damages for injuries sustained after making deliveries when a Typhoon Signal No. 8 was hoisted. While the delivery worker's status as an employee was not in dispute, the High Court reaffirmed an employer's duty to provide a safe system of work. It found Foodpanda had breached its duty of care and was negligent, awarding the delivery worker HK$1.34 million in damages for failing to provide a safe work system.

4. Vicarious liability for wrongful acts

Employers may also be vicariously liable for the wrongful acts or omissions of an employee committed in the course of employment, even where such acts are unauthorised. As a general principle, the employer is liable where the wrongdoing is a reasonably foreseeable result of the employee performing their duty. For gig-economy businesses, this could include claims arising from damages to property or injuries to third parties, or misconduct such as food tampering by a delivery workers.

5. Liability under anti-discrimination ordinances

Hong Kong's anti-discrimination ordinances including the Sex Discrimination Ordinance (Cap.480), the Personal Data (Privacy) Ordinance (Cap.486), the Disability Discrimination Ordinance (Cap.487), the Family Status Discrimination Ordinance (Cap.527) and the Race Discrimination Ordinance (Cap.602), expressly provide that an employer may be liable for discriminatory acts committed by its employees, regardless of whether the employer knew or approved of the conduct. If a platform's gig workers are found to be employees, these statutory liabilities may also apply, undermining any attempt to avoid risk by relying on contractor labels.

Future of gig workers

Overall, there is a general trend across the APAC region towards enhancing worker rights and extension of employee rights to different categories of workers. Governments are placing particular emphasis on non-standard work arrangements, platform and gig economy protections, and clearer frameworks for leave and termination. These developments signal a shift toward greater accountability for employers and more structured rights for workers.

For instance, Hong Kong has revised the definition of a continuous contract, changing the previous requirement of working at least 18 hours per week for four consecutive weeks to 68 hours over four weeks. This change, effective from 18 January 2026, is expected to widen the pool of employees eligible for statutory benefits, although their ultimate classification will continue to depend on the 11-indicia test.

In response to calls for enhanced protections from gig-economy workers, the Hong Kong Government has acknowledged the prevalence of digital platforms and as outlined in the 2025 Chief Executive's Policy Address, proposed legislative reforms to improve compensation for digital platform delivery workers. These proposals represent a significant step toward addressing emerging forms of work, with legislative amendments expected to be tabled this year.

Until these reforms are made, the classification of gig workers will continue to challenge legal systems across jurisdictions, with outcomes varying even under similar factual circumstances. Against this backdrop, businesses should review their workflows, service contracts and internal policies against the 11 indicia of employment and ensure they understand the immigration status and lawful work entitlements of inpiduals providing services in Hong Kong.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.