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 3 /2008

Background Facts

On 1st May 2001, the Plaintiff joined the 1st Defendant (an insurance company) as a business manager.

On 1st January 2005, the Plaintiff became a unit manager of the 1st Defendant under the direct supervision of her husband, Mr. Andy Leung (“Mr. Leung”). Mr. Leung at that moment was a senior unit manager of the 1st Defendant. The 2nd Defendant was the agency director of the 1st Defendant.

On 6th April 2006, the 1st Defendant decided to terminate its agency relationship with Mr. Leung. On the same date, the Plaintiff alleged that the 1st Defendant (through the 2nd Defendant) informed her that while she was innocent and had committed no fault, her agency relationship with the 1st Defendant had to be terminated because she was the wife of Mr. Leung.

On the recommendation of the 2nd Defendant, the 1st Defendant sent a letter to the Plaintiff on 6th April 2009 notifying her in writing that her agency relationship with the 1st Defendant would be terminated with effect from 6th May 2006.

The Plaintiff brought proceedings against the 1st and 2nd Defendants under SDO and FSDO that because of her marital status and family status, i.e. being the wife of Mr. Leung, she had been unlawfully discriminated by the 1st and 2nd Defendants by the termination of her agency.

The 1st and 2nd Defendant applied to strike out the Plaintiff’s claim, inter alia, because the Statement of Claim of the Plaintiff discloses no reasonable cause of action, in particular:-

1. the interpretation of “marital status” under SDO and “family status” under FSDO should be read as “the status or condition of being married” and “the status of having responsibility for the care of an immediate family member” respectively; and
2. on its plain and ordinary meaning, the status of being married to a particular person, i.e. Mr. Leung, is not the same as “the status or condition of being married” under the SDO;
3. similarly, the status of being married to a particular person, i.e. Mr. Leung, is not the same as “the status of having responsibility for the care of an immediate family member” under the FSDO; and
4. therefore, termination of agency relationship with the Plaintiff on the ground of her status of being the wife of Mr. Leung does not fall within the definition of “marital status” under SDO and “family status” under FSDO.

Court’s Decision

The Court held that a generous and liberal interpretation should be given to SDO and FSDO as they contain constitutional guarantee of fundamental rights to Hong Kong residents.

On this basis, a broad meaning of “marital status” and “family status” should be adopted to encompass circumstances where discrimination results from the particular identity of the complainant’s spouse.

The Court also indicated that “de facto spouse” is not a suitable comparator in the context of discrimination with reference to “marital status” and “family status” of a person.