FACV 8/2019

Background Facts

During imprisonment, the Appellant was required to have his hair (then around 80 cm long) cut pursuant to the Respondent’s Standing Order 41-05 (“Standing Order”). The Standing Order regulated hair length of both male and female prisoners. Male prisoners had to keep their hair cut “sufficiently close”. On the other hand, unless otherwise recommended by a Medical Officer, the female prisoner’s hair could only be cut shorter than her style on admission to prison with her consent. In other words, the choice concerning one’s hair length was open to female prisoners but not male prisoners.

The Appellant complained he was discriminated against on the basis of his sex as he was treated less favourably than female prisoners. His complaint was, while male prisoners’ hair had to be kept “sufficiently close”, female prisoners had a freer choice because their hair could not be cut shorter than the style on admission to prison without their consent, unless otherwise recommended by a Medical Officer.

The Respondent explained that the Standing Order was adopted to maintain custodial discipline, which required uniformity in appearance among inmates. It argued that the difference in treatment of male and female prisoners under the Standing Order merely reflected the conventional standards of appearance in Hong Kong society – namely, short hairstyle for male and either long or short for female – such that there was no less favourable treatment of male prisoners.

The Appeal History

The Appellant applied for Judicial Review against the decision requiring him to cut his hair. The Court of First Instance held in favour of the Appellant. On the Respondent’s appeal, the Court of Appeal allowed the Respondent’s appeal.

The Appellant appealed to the Court of Final Appeal.

Question before the Court of Final Appeal (the “CFA”)

The CFA was asked to decide on the following question of law: Whether the Standing Order issued by the Respondent requiring all male prisoners but not female prisoners to have their hair cut “sufficiently close”:

1. constitutes direct discrimination under s. 5(1) (a) of the SDO and is therefore unlawful under s. 38 of the SDO (i.e. unlawful discrimination in the performance of Government functions); and/or
2. is inconsistent with Article 25 of the Basic Law of the HKSAR (i.e. all Hong Kong residents shall be equal before the law) and is therefore unconstitutional?

CFA’s Decision

The CFA accepted that it was legitimate to take account of custodial discipline and the general principle that inmates were deprived of certain privileges enjoyed by persons outside prison. However, when assessing whether there was sex discrimination, the Standing Order clearly had differential treatment between male and female prisoners.

There were four steps to establishing direct sex discrimination under s. 5(1)(a) of the SDO:-

1. There is a difference in treatment between one person, the complainant (in the present case male prisoners; more specifically the Appellant) and another person from a different sex group, the compared person (here, female prisoners);
2. The relevant circumstances between the two persons are not materially different;
3. The treatment given to the complainant is less favourable than that given to the compared person; and
4. The difference in treatment is on the basis of sex.

The parties did not dispute that elements (1), (2) and (4) were established under the Standing Order. The dispute focused on element (3), which was whether there had been “less favourable treatment” of male prisoners on account of the denial of choice to them. The fact that male prisoners were denied a choice available to female prisoners concerning their hair length, on the face of it, pointed to male prisoners being treated less favourably than female prisoners. The burden then shifted to the Respondent to explain why in the Respondent’s case there was no less favourable treatment.

First, the CFA held that the Respondent failed to explain how different requirements regarding the length of hair for male and female prisoners according to the so-called conventional standards had any reasonable connection with the custodial discipline of prison inmates. Consequently, without a reasonable connection to the stated objective of custodial discipline, the Respondent had failed to explain why there was no less favorable treatment of male prisoners.

Second, while the CFA accepted that having societal or conventional standards may be legitimate in some circumstances, there must be concrete evidence to support what is asserted as the so-called conventional standard. The Respondent’s evidence could not prove its assertion that in Hong Kong, men’s conventional hairstyle is short, whilst that for women can be either long or short.

In conclusion, the CFA held that the Standing Order constituted direct discrimination under s.5(1)(a) of the SDO and was therefore unlawful under s.38 of the SDO.

As the Appellant’s appeal regarding his claim for sex discrimination under the SDO was allowed, it was unnecessary to deal with the constitutional law issue. The CFA nevertheless held that, on the facts of the case, the outcome under Article 25 of the Basic Law would be the same as under s.5(1) of the SDO.

DCEO 7/2012

Background Facts

The Plaintiff, a Senior Accounts Clerk, had been employed by the Defendant for 13 years before being dismissed in August 2010. The Plaintiff suffered from a traffic accident in November 2007 and had to take sick leave from time to time for medical and physiotherapy treatment.

The Plaintiff frequently turned up late for work. She claimed that she had to take her daughter to school and that the Defendant allowed her to have “flexi hours”. However, in August 2009, the Defendant issued a guideline (“the Leave Guideline”) stating that normal working hours for all employees were between 9am to 5:30pm. In line with provisions of the Employment Ordinance (Cap. 57), the Leave Guideline also required employees to submit sick leave certificates and stated that paid sick leave would only be granted if the sick leave period was not less than 4 days. The Plaintiff argued that the Leave Guideline discriminated against her because prior to its issuance the Defendant would grant sick leave to its employees without any minimum qualifying period.

In September 2009, the Plaintiff’s supervisor found that the Plaintiff’s work computer contained a lot of her personal data, violating the Defendant’s computer use regulations. The defence case was that consequently, it intended to serve a notice of termination of employment on 31 October 2009. Unexpectedly, the termination had to be put on hold when the Plaintiff submitted a pregnant certificate on 9 October 2009.

The Plaintiff alleged that, in a meeting attended between management of the Defendant and the Plaintiff in April 2010, the Defendant requested her to resign due to her unsatisfactory physical bodily condition and the necessity for her to take care of her baby after its birth. The Defendant denied making such a request.

When the Plaintiff returned to work from her maternity leave in August 2010, her work computer had been changed and her subordinates no longer reported to her. Soon afterwards, she was dismissed by the Defendant with full pay and benefits.

The Plaintiff claimed for declaration and damages on the ground of disability, sex and/or family status discrimination, both in terms of (1) the alleged unfair treatment she received during the employment and (2) the termination.

The Defendant denied the alleged discrimination. Its reasons for termination were the Plaintiff’s poor work performance, rude behaviour towards colleagues as well as abuse of work computer and office time for personal purposes.

Court’s Decision

The Factual Dispute

The Court held that the crux of the matter was whether the Plaintiff had ever been subject to any discrimination by the Defendant. The Court grouped the factual disputes under three main topics (“Factual Disputes”):-

1. whether the Leave Guideline and the way it was implemented constituted a discrimination against the Plaintiff;
2. during the meeting in April 2010, whether the Defendant’s management had actually requested the Plaintiff to resign on the basis of her physical condition and her need to take care of her baby and if so, whether such request amounts to a discrimination; and
3. what the Defendant’s real reasons were for terminating the Plaintiff and whether any of those reasons were discriminatory against the Plaintiff.

The Relevant Legal Principles

The Court held that for there to be a finding of direct discrimination, pursuant to a precedent case, both parts of the following two-part test had to be answered in the affirmative: (i) whether less favourable treatment to the Plaintiff had occurred; and (ii) whether it had been caused by one of the prohibited discriminatory grounds.;

As regards (i), the comparison is not one simply with another person without the relevant attributes of the complainant (i.e. disability, gender or family status in the present case), but with another person not having the relevant attribute but behaving in the same way as the complainant did. As regards (ii), according to another precedent case, an objective “but for” test is to be applied, so that intention or motive to discriminate was not a necessary condition of liability (but intention or motive to discriminate may be relevant when determining the appropriate remedies).

The Court referred to the discrimination legislation, which stated that if an act is done for two or more reasons and one of the reasons is the prohibited discriminatory ground (whether or not it is the main reason for doing the act), then the act would be taken to have been done because of that prohibited discriminatory ground.

The Court affirmed precedent legal principles which held that the burden is on the Plaintiff to prove discrimination on the balance of probabilities. Once the Court is satisfied that the Plaintiff is able to show from the primary facts that inferences could be drawn from the circumstances that disclosed a possibility of discrimination, the Court would look to the employer for an explanation. If there is no reasonable or satisfactory explanation put forward, then the Court would be entitled to infer discrimination as a matter of common sense.

Court’s Judgment on Factual Dispute (1): Sick Leave Guideline

The Court held that the Plaintiff failed to establish that the issuance of the Leave Guideline and its implementation amounted to direct discrimination against her.

Firstly, the Court accepted the Defendant’s evidence that the Leave Guideline aimed at malingering and not disability. As there were other employees who seemed to have imitated the Plaintiff by taking unnecessary sick leave, the Court held that there was a legitimate concern for the Defendant to tighten up the procedure for applying sick leave.

Second, the Leave Guideline introduced a scheme in compliance with the provisions of the Employment Ordinance (Cap. 57). The Plaintiff could not reasonably argue that an employer would commit an act of discrimination by following the law.

Third, simply because the Defendant had in the past paid all sick leaves in full did not mean that the Plaintiff had any contractual right to the same. Besides, the procedural requirements of the Leave Guideline (e.g. the requirements of informing the supervisor and the reception in the morning of the day of absence and submission of the sick leave certificate afterwards) were reasonable and fair. The Plaintiff failed to show both (a) how she had been subject to a less favourable treatment by following such procedural requirements, or (b) any valid reasons for failing to follow the procedure.

The Court also held that the Plaintiff had failed to make out a case that the issuance of the Leave Guideline or any of its requirements or conditions amounted to indirect discrimination against her. Firstly as a matter of evidence, the Plaintiff failed to prove that she had any difficulties in complying with the procedural requirements or conditions of the Leave Guideline. Secondly as a matter of inherent probability, since the Plaintiff was a person with a disability, she would have been the one employee who was more likely to be able to meet the minimum qualifying period for paid sick leave (i.e. 4 days or more) than other employees with no disability. As such, it cannot be said that she suffered any less favourable treatment than the other employees in this regard.

Court’s Judgment on Factual Dispute (2): April 2010 Meeting

Regarding the meeting in April 2010 between the Defendant’s management and the Plaintiff, the Court held that the Plaintiff failed to prove her case that the Defendant’s management had said or done anything which amounted to a discrimination of the Plaintiff by virtue of her disability, gender or family status.

The Court accepted the evidence of the Defendant and held that it was inherently improbable that its management, being highly educated persons with extensive work experience, would have been so unguarded and blunt in their conversation with the Plaintiff and say things so insensitive towards discrimination by asking her to resign owing to her physical condition and her need to take care of the baby.

Court’s Judgment on Factual Dispute (3): Reasons for Termination

The Court held that the Plaintiff had failed to prove, on a balance of probabilities, that she was dismissed by the Defendant on the basis of her disability, sex and/or family status.

On the other hand, the Court accepted the Defendant’s evidence that its real reasons for dismissing the Plaintiff was because of her poor work performance and abuse of work computer for personal use.

As an example of poor work performance, the Defendant established the fact that due to the Plaintiff’s delay in preparing the Defendant’s financial statements over the course of a number of years, the Defendant was sued by the Inland Revenue Department.

Regarding the Plaintiff’s abuse of her work computer, the Court accepted the Defendant’s evidence which showed that the Plaintiff’s work computer had contained voluminous non-work related and personal data (including her own stock trading record, personal photographs and even Mark Six records). As these were accepted by the Plaintiff, it was not in dispute that the Plaintiff had breached the Defendant’s computer guidelines, which made her liable to summary dismissal.

Having assessed all the evidence, the Court held the Defendant had a strong legitimate ground to dismiss the Plaintiff as a result of the cumulative weight of her shortcomings.

Conclusion

The Plaintiff failed to prove her case that she had been subjected to discrimination (either in the course of her employment or in relation to her dismissal). The Plaintiff’s claim against the Defendant was dismissed.

 

DCEO 5/2000

Background Facts

The Plaintiff was employed by the Defendant, an airline company, as a female flight attendant in 1979. At that time, according to the Defendant’s retirement policy, female cabin crew needed to retire at 40 years old, while male at 55 years old.

When the Plaintiff reached 40 years old in 1992, she was required to retire according to the above policy. Nevertheless, her employment was extended for a period of one year.

In 1993, the Defendant revised its retirement policy. Both female and male cabin crew newly recruited under the revised policy would retire at 45 years old. On the other hand, retirement age for existing staff (i.e. those on the original employment contract including the Plaintiff) remained unchanged basically. In other words, existing male staff could continue to work until 55 years old. Yet, female staff was given an option and they might choose to work to 45 years old on yearly contracts. As a result, the Plaintiff was offered further one-year extensions of contract.

In 1997, at the age of 45, the Plaintiff’s employment was terminated as she was not offered any further extension upon the expiry of her yearly contract.

The Plaintiff brought proceedings against the Defendant under the SDO, alleging that the Defendant had implemented sex discriminatory retirement policies and she was discriminated on the ground of her sex.

The EOC’s participation in this case was to act as an Amicus Curiae to provide assistance in respect of general principles of discrimination law.

Court’s Decision

Although the Plaintiff entered into employment with the Defendant before the SDO came into effect in 1996, the Court held that the SDO should apply to the Plaintiff’s employment, as it was clear that the Plaintiff was still in the Defendant’s employment, though on a short-term yearly contract, when the SDO was in force.

By adopting the “but for” test, which was approved by the Court of Final Appeal in Secretary for Justice v Chan Wah in Hong Kong, it was held by the Court that an appropriate comparator in this case was a male flight attendant who had been employed over the same period of time as the Plaintiff. It was apparent that, under the original retirement policy, while he was entitled to remain in the Defendant’s employment until 55 years old, the Plaintiff could not. The male flight attendant was in a much better position than the Plaintiff and the only reason for this difference was his gender. Hence, it amounted to direct discrimination under s. 5(1) of the SDO.

Further Case Development

Appeal by the Respondent to Court of Appeal dismissed. Please see the judgment of CACV 43/2001 dated 1 November 2001.

HCAL 1555/2000

Background Facts

The Government’s Secondary School Places Allocation System (“the System”) operated in a way which meant that priority for school placement depended in part on gender. The EOC challenged the legality of the System by way of judicial review.

Court’s Decision

The Court held that the operation of the System amounted to unlawful direct discrimination against individual pupils on the basis of sex under s. 5(1) of the SDO. The three discriminatory elements of the System were briefly summarized as follows:

First, there was a scaling mechanism which adjusted the scores of students from different schools so as to enable comparison between them. Boys and girls were treated separately in the scaling process with different scaling curves. This meant that the eventual priority in school placement depended in part on gender.

Second, there was a banding mechanism which put all students into bands based on their adjusted scores. Different band cutting scores were used for boys and girls, so that, for example, girls needed a higher score for the top band than boys. This again meant that priority for placement depended in part on gender.

Third, there was a gender quota in co-educational secondary schools to ensure that a fixed ratio of boys and girls would be admitted to each school. This meant that admission might depend on gender.

The Government tried to rely on the special measure exception (s. 48 of the SDO) in defence. It argued that the discriminatory elements of the System were not unlawful because they were reasonably intended to ensure that boys have equal opportunities with girls by reducing the advantage girls enjoyed through their better academic performance. The Court rejected this argument because first, there was no firm evidence of any developmental difference inherent in gender, and second, the discriminatory elements were disproportional to the objective of ensuring equal opportunities for the boys.

FACV 11 and 13/2000

Background Facts

Two non-indigenous villagers challenged the validity of the village representative election arrangements in the villages they lived in. This case involved a number of constitutional and administrative law issues, but the digest below will only focus on issues relating to the anti-discrimination ordinances.

Court’s Decision

First, in the villages concerned, while non-indigenous females married to indigenous villagers had the right to vote, but non-indigenous males married to indigenous villagers were not entitled to such right, the Court held that this amounted to sex discrimination against men under s. 5 (1) , s. 6(1) and s. 35 (3) of the SDO.

Second, due to the above arrangement, married non-indigenous females enjoyed the right to vote, whereas single non-indigenous females did not. This amounted to marital status discrimination under s. 7 (1)(a) and s. 35 (3) of the SDO.

Third, in order to have the right to vote, married female indigenous villagers must have resided in the village for seven years while there was no such requirement for married male indigenous villagers.

Fourth, female indigenous villagers were excluded from standing as candidates in elections, while there was no such prohibition against male indigenous villagers. These amounted to sex discrimination against women under s. 5 (1) and s. 35 (3) of the SDO.

The Court of Final Appeal restated the following general legal principles which are relevant to all set discrimination cases:

In considering whether a particular arrangement is discriminatory or not, the Court will adopt the “but for” test, to look at whether there is a less favourable treatment on the ground of a person’s sex. For example, if a female would have received the same treatment as a male but for her sex, then there is discrimination.

The intention or motive of the defendant to discriminate is not a necessary condition to liability, though it may be a relevant consideration. A prima facie case of discrimination will arise when a particular arrangement has the effect of favouring some persons because of his or her sex or marital status.

DCEO 11/1999

Background Facts

The Plaintiff was a former employee of the Defendant employer who alleged unlawful disability and sex discrimination by the Defendant. The Plaintiff’s claim was found at trial to be completely without merit and was dismissed. The issue before the Court in this proceeding was whether to award costs to the Defendant.

Court’s Decision

The general rule in discrimination claims is that each party bears its own costs. However, a court can award costs to a party if it is established that the proceedings were brought maliciously or frivolously, or that there are special circumstances which warrant the award.

In determining whether a claim was brought maliciously or frivolously, a court has to apply both a subjective and objective test: subjectively, whether the claimant knows there is no substance in his claim and is bound to fail, and objectively, whether the case is plainly without foundation and has no prospect of success. The court is given wide discretion in determining whether there are special circumstances that warrant the award of costs, with the aim of acting as a check on the ability of plaintiffs to bring unmeritorious claims.

Here, the Court awarded costs to the Defendant, finding that the Plaintiff’s claim was brought frivolously. The Plaintiff brought very serious allegations against the Defendant but could not provide even a hint of evidence to substantiate her complaints. Additionally, the Court found that there were special circumstances which would also warrant the award of costs in this case as the award would serve to deter the filing of unmeritorious claims.