DCEO 16/2019

Background Facts

The Claimant claimed that the Respondent had discriminated against her on the ground of her pregnancy by (1) refusing to renew her employment contract (the “Dismissal”) and (2) refusing to pay her the yearly bonus for the 2017 business year, contrary to sections 8(a) and 11(2)(c) of the Sex Discrimination Ordinance Cap 480 (the “SDO”).

The Claimant gave written pregnancy notice to the Respondent in March 2017. In November 2017, while the Claimant was hospitalized for pregnancy complications, the Respondent informed the Claimant that her employment contract would not be renewed for 2018 (the “Dismissal Notice”). The Respondent also did not pay the Claimant any bonus for the 2017 business year (i.e. being the same year as her year of pregnancy).

The Respondent contended:

(1) The Claimant’s Dismissal was because of corporate restructuring (“架構重組”) and business downsizing (“業務縮減”).

(2) The Claimant was not paid bonus for the 2017 business year because her “unsatisfactory performance” did not deserve bonus.

Court’s Decision

Unlawful discrimination by the Dismissal

Pursuant to section 2(2)(a) SDO, a non-renewal of an employment contract upon its expiry is treated as a dismissal.

The Court found that the Respondent’s reasons for dismissing the Claimant based on corporate restructuring and business downsizing could not be made out, as the Respondent did not have any evidence showing it had plans for corporate restructuring, nor did it give particulars as to what corporate restructuring entailed.

The Court noted that after receiving the Claimant’s pregnancy notice in March 2017, the Respondent hired a “Mr. Li” in April 2017 to replace her; and the costs saved by hiring “Mr. Li” was minimal.

In light of the close proximity of time between the Claimant’s pregnancy notice in March 2017 and the Respondent’s hiring of Mr. Li in April 2017, and the finding that the Respondent’s case of corporate restructuring and business downsizing was “less than truthful”, the Court held that the Claimant’s pregnancy was a reason for her Dismissal and therefore the Respondent was liable for unlawful pregnancy discrimination.

Unlawful discrimination by refusing to pay bonus to the Claimant

In respect of the Respondent’s case in refusing to pay bonus to the Claimant because of her alleged poor performance, the Court held that:

(1) The Respondent’s allegation of the Claimant’s unsatisfactory handling of the illegal structures in its warehouses was baseless, contradicted by contemporaneous documents and unfair to the Claimant;

(2) The Respondent was unable to prove that the alleged drop in 2017 profits was due to the Claimant’s poor performance; and

(3) The Respondent never gave any detail in evidence as to what the terms “excel in clients” and “attracting quality clients” actually meant and how the Claimant failed to do so.

The Court commented that the legal issue was whether the Claimant received a less favourable treatment because of her pregnancy. In light of the evidence showing that the Respondent’s prevailing practice was that all staff received bonus for the 2017 business year except the 4 employees who were dismissed in 2017 (including the Claimant), the Court concluded that “the refusal to pay the year-end bonus was consequential upon the Dismissal, and therefore the refusal was also discriminatory as the Dismissal was.”

Remedy and award

The Court awarded the following damages and compensation to the Claimant:

(a)	Loss of Income	HK$306,680
(b)	2017 Bonus Payment	HK$498,500
(c)	Injury to Feelings	HK$130,000
(d)	Interests on all 3 items (a) to (c)
(e)	Costs of the legal action

 

The Loss of Income was calculated based on the amount that the Claimant would have earned if her annual 12-months’ employment contract was renewed for the whole 2018.

The value of the 2017 Bonus Payment was calculated as being the same as the bonus for the 2016 business year because the Court accepted that 2017 was a challenging year and there was no evidence to show that the Claimant had achieved noticeable results in that business year.

For the damages for Injury to Feelings, this was assessed provisionally on the basis that the Respondent would issue an apology letter and a reference letter to the Claimant. The Court held that if these documents were not issued by the Respondent, the parties were to expect that there be an increase to this figure and/or possibly a further award of exemplary damages (per the guidelines given by the CFA in Ma Bik Yung v Ko Chuen FACV No. 25/2000 paragraphs 34-38). As the Respondent gave the apology letter and the reference letter to the Claimant, the Court awarded damages for Injury to Feelings of HK$130,000 to the Claimant with interest.

DCEO 3/2018

Background Facts

Around the time the Claimant informed her then employer (the Respondent company) of her pregnancy, the Respondent company allegedly made threatening remarks to pressure her to resign, made work burdensome for her by re-posting her to another working location and installing a "clock-in" machine for all employees.

She then had a miscarriage and required an operation ("the Surgery") and allegedly asked her colleague to inform the Respondent company of it. Shortly after the Claimant resumed work, the Respondent company gave her one months' notice of termination of employment allegedly due to her poor performance.

The Respondent company refused to give any severance payment or proof of employment to the Claimant because she had filed complaints to the EOC against the Respondent company.

Thereafter, the Claimant brought proceedings against the Respondent company under both the SDO and DDO.

Court's Decision

Claim for discrimination under SDO:

The Respondent company's threatening remarks and exerting pressure on the pregnant Claimant to resign amounted to treating her less favourably than someone who was not pregnant. Also, the termination of the Claimant's employment on the ground of her pregnancy was unlawful. The Respondent company was therefore held liable for breaching s.8(a) and s.11(2) of the SDO.

However, installing a "clock-in" machine was not unlawful discrimination because other employees also had to clock-in and there was no evidence showing that the Claimant faced more difficulty in meeting the clock-in requirement than others. Also, requesting the Claimant to work at another location was not supported by evidence as less favourable treatment.

The Respondent company's various enquires about the Claimant's pregnancy was not unlawful discrimination because the concerns were legitimate and understandable.

Claim for discrimination under DDO:

The Claimant's miscarriage and the physical ailments subsequent to the Surgery was a "disability" within the DDO's broad definition of the word.

However, the Respondent company was not liable for disability discrimination because there was no evidence showing it was aware of the Claimant's disability (i.e. her miscarriage or the Surgery) when her employment was terminated. There was no evidence that the Claimant's colleague, who did not act as witness, had informed the Respondent company about the miscarriage. Moreover, miscarriage was not stated in the Claimant's hospital records.

Claim for victimization

The Respondent company's refusal to give the Claimant severance payments and proof of employment because of her complaints to the EOC was unlawful discrimination by way of victimization. Therefore, the Respondent company was held liable for breaching the provisions against discrimination by victimization under s. 9(1) SDO and s. 7(1) DDO.

Remedy and award

Despite having a good working relationship with the Respondent company's owner in the past, the Claimant was abused with threatening remarks and put under unreasonably intense pressure for her pregnancy and miscarriage during her employment. The Court, having initially taken HK$55,000 as the starting point, awarded HK$90,000 as damages for injury to feelings.

The Claimant claimed for 7.8 months of income loss and alleged it was difficult for her to find a new job sooner because the Respondent company refused to give her proof of employment.

However, the Court was of the view that she could have reasonably found a new job in 3 months and thus only awarded 3 months' loss of income. The Claimant’s alleged lengthy period for finding a new job due to the lack of employment proof was unsupported by evidence.

In light of the Respondent company's oppressive treatment, the Court awarded HK$10,000 as exemplary damages.

The Claimant was awarded a total of HK$133,000, the breakdown of which is:

Injury to feelings	HK$90,000
Loss of income	HK$33,000
Exemplary Damages	HK$10,000
	HK$133,000

The Respondent company was also ordered to issue a certificate of employment to the Claimant.

DCEO 1/2015

Background Facts

The 1st Respondent employed the Claimant as a foreign domestic worker. The 2nd Respondent was the 1st Respondent’s wife at the relevant time. Around 1.5 year into the Claimant’s employment contract, the Respondents suspected that the Claimant was pregnant. The 2nd Respondent asked the Claimant to urinate into a potty for a home-pregnancy test, which yielded a positive result. The pregnancy was later confirmed by a doctor. A few days later, the 1st Respondent terminated the Claimant’s employment by one month’s notice. Before the expiration of notice period, the Respondents asked the Claimant to move out of their home.

Court’s Decision

Asking the Claimant to undertake home-pregnancy test was sex discrimination. Absence of a subjective intention or motive to discriminate would not prevent an act from being discriminatory against an employee. This is a well-established principle affirmed by the Court in this case. The Claimant’s consent or co-operation to the discriminatory act was not determinative, and could be attributed to her general servile and subservient character or ignorance of her legal rights. Hence, by asking the Claimant to take a supervised pregnancy test, the 2nd Respondent treated the Claimant less favourably on the ground of her gender, because a male employee would not be asked to take such a test and to disclose such private information to his employer.

The 2nd Respondent, as the agent of the 1st Respondent (i.e. the Claimant’s employer), was personally liable for sex discrimination against the Claimant. This is because the Court inferred from the evidence that the 1st Respondent authorised the 2nd Respondent to instruct and supervise the Claimant, as the 1st Respondent was usually not at home during the day. Moreover, regarding the home pregnancy test, the 2nd Respondent acted as mistress of the Claimant, who complied with her request as a maid.

The 1st Respondent, as the principal of the 2nd Respondent, was also liable for sex discrimination by virtue of s. 46(2) and s. 47 of the SDO.

Furthermore, the 1st Respondent was liable for pregnancy discrimination by making the Claimant sign a notice of termination, and by demanding her to move out of the Respondents’ residence before the expiration of the notice period. Such acts also constituted (i) a breach of the implied term of mutual trust and confidence in the Claimant’s contract, (ii) a breach of the Employment Ordinance relating to pregnancy protection, and (iii) unlawful dismissal.

DCEO 6/2004

Background Facts

The Plaintiff was employed in 2001 as an executive secretary to the Director of the Defendant. Her work performance was satisfactory, as evidenced by her salary increment after she had passed the probation period. Later, the Plaintiff became pregnant. In February 2002, the Plaintiff suffered a threatened miscarriage and she informed her boss of the condition. From June to August 2002, the Plaintiff needed to take frequent sick leave due to further pregnancy complications. During this period, the Plaintiff discovered that a permanent secretary was recruited. She worried that the new secretary would be her replacement, though the Defendant assured her that was not the case then.

After the Plaintiff’s childbirth, the Defendant’s human resources manager revealed to the Plaintiff that her boss considered that she should stay at home to look after her baby and take more rest in view of her poor health situation. Nevertheless, the Plaintiff resumed duty upon her completion of maternity leave in November 2002 as scheduled. Yet, she was moved to another work station with no properly equipped computer. Besides, she was not given her original duties. A week later, she was dismissed on the reason that a customer had complained about her.

The Plaintiff brought proceedings against the Defendant under the SDO and the FSDO.

Court’s Decision

The Court found that the Plaintiff had established the relevant facts, as stated above, so that inferences could be drawn to support her claims of pregnancy and family status discriminations. On the other hand, the Defendant had failed to offer a reasonable explanation to the Plaintiff’s dismissal. Therefore, it was held that the Defendant had discriminated against the Plaintiff under s. 8(a) and s. 11(2) of the SDO, as well as under s. 5(a) and s. 8(2) of the FSDO.

As a result, the Plaintiff was awarded a total of HK$163,500 and the breakdown of the damages was as follows:

Loss of income	HK$88,500
Injury to feelings	HK$75,000
	HK$163,500

As it took the Plaintiff four and a half months to find a new job, the Court decided that the Plaintiff should recover the loss of income for this period. Since the new job’s salary was lower than the one offered by the Defendant, the Court had also awarded the salary’s difference to the Plaintiff, but limited to a period of three months, as the Court realized that the work in the private sector offered no guarantee of security of salary and employment.

For the injury to feelings, the Court considered that the injury to the Plaintiff in this case was more serious than that in Yuen Wai Han v South Elderly Affairs Ltd because the former had worked for the Defendant for one and a half years in a respected position and had established friendship with colleagues. Therefore, the amount of injury to feelings awarded was slightly higher in the present case.

Further Case Development

The Defendant’s application for leave to appeal the above judgment (in favour of the Plaintiff) was dismissed. See the Decision (dated 29 March 2006).

CACV 172 /2003

Background Facts

The Defendant appealed to the Court of Appeal against the above judgment of the District Court.

Court’s Decision

The appeal on liability was dismissed, whereas the appeal on quantum of damages was allowed in part.

The Court of Appeal decided that it was improper for the judge in the District Court to take into account twice the Defendant’s malicious conduct in making unfounded allegations against the Plaintiff to the police, the first time in calculating the injury to feelings, and the second time in the punitive damages. Therefore, the amount of punitive damages was reduced from HK$30,000 (as held in the District Court) to HK$10,000, making a new total amount of damages of HK$135,000.

DCEO 6/2001

Background Facts

The Plaintiff applied for a post of supervisor offered by the Defendant, an elderly home. During the interview, the Plaintiff had informed the interviewer, from the Defendant, of her pregnancy. The interviewer was impressed with the Plaintiff’s qualification as a social worker and therefore, the two parties entered into an employment contract. As a result, the Plaintiff resigned her previous job. However, one week before the commencement of the employment, the Defendant rescinded the contract.

The parties had a dispute on the reason of termination. According to the Plaintiff, she was informed by the Defendant that after further internal discussion held after the interview, it viewed that a pregnant woman was not suitable for the job. The Defendant, on the other hand, explained that the termination was due to her lack of experiences required.

After the Plaintiff lodged a pregnancy discrimination complaint with the EOC, the Defendant, in response, made a false report to the police alleging that the Plaintiff had provided inaccurate information when she applied for employment.

The Plaintiff eventually brought proceedings against the Defendant under the SDO.

Court’s Decision

The Court, after examining all the circumstantial evidences, concluded that the Plaintiff’s pregnancy was at least one of the reasons for the rescission of her contract. Therefore, it was held that the Defendant had discriminated against the Plaintiff directly under s. 8(a) and s. 11(2) of the SDO.

As a result, the Plaintiff was awarded a total of HK$135,500 and the breakdown of the damages was as follows:

Loss of income	HK$62,500
Injury to feelings	HK$62,500
Punitive damages	HK$30,000
	HK$155,000

When assessing the loss of income, the Court mainly considered the income she could have earned if she had not left her original employment. Concerning the amount of the injury to feelings and the punitive damages, the Court had taken into account the Defendant’s malicious conduct in making unfounded allegations against the Plaintiff to the police, which had further intensified her sufferings in the incident.

DCEO 6/2002

Background Facts

The Plaintiff had been employed by the Defendant as an Account Manager since 1997. Around a year later, she became pregnant. After giving pregnancy notice to the Defendant, the Plaintiff faced a series of less favourable treatments by the Defendant. These included derogatory remarks made by the senior management towards her pregnancy, repeated demands by the supervisor compelling her to return to work during sick leave and black-storm warnings, transfer to a new small team within the division which resulted in a substantial reduction of her income and difficult working conditions, etc.

The less favourable treatments continued when the Plaintiff resumed duty upon the completion of her maternity leave in 1999. Particularly, she was being transferred to another division against her will, resulting in a further reduction of income, as well as a demotion.

As a result, the Plaintiff lodged a complaint with the EOC. Later, the Defendant informed her that she would be made redundant due to the closing of her division. She was further told to withdraw her complaint lodged or she would be dismissed. Eventually she was dismissed in 2000.

The Plaintiff brought proceedings against the Defendant under the SDO.

Court’s Decision

The Court found that the Plaintiff had established the relevant facts, as stated above, so that inferences could be drawn to support her claims of pregnancy discrimination and victimization, whereas the Defendant had failed to offer a reasonable explanation to the Plaintiff’s less favourable treatment received and dismissal. It was held that the Defendant had discriminated against the Plaintiff under s. 8(a), s. 9(1) and s. 11(2) of the SDO.

As a result, the Plaintiff was awarded a total of HK$544,156.15 and the breakdown of the damages was as follows:

Loss of earnings	HK$164,505.20
Future loss of earnings	HK$179,650.95
Injury to feelings	HK$200,000.00
	HK$544,156.15

The loss of earnings was calculated basing on the amount that the Plaintiff could have earned if she had not been transferred.

For the future loss of earnings, the Court decided that the Plaintiff should recover six months’ loss of income because the Court viewed that she should be able to find alternative employment with similar salary within that period.

For the injury to feelings, the Court viewed that a substantial amount should be awarded to the Plaintiff to reflect the long period of injury suffered by her. While the Defendant’s unfair treatment towards the Plaintiff had lasted for two years since her pregnancy till her dismissal, the Plaintiff was further deprived of a favourable reference from the Defendant for more than three years while the legal proceedings were going on.

DCEO 10/1999

Background Facts

The Plaintiff had been employed by the Defendant as a Product Manager since 1995. She notified the Defendant of her pregnancy in 1997. Shortly afterwards, senior executives of the Defendant attempted to force her to resign, under the pretext of unsatisfactory work performance. She refused to resign and lodged a pregnancy discrimination complaint with the EOC. As a result of the complaint lodged with the EOC, the Defendant had unreasonably refused to grant her salary increment and put her under unnecessary pressure by imposing reporting requirements on her. As such situation continued, she eventually resigned upon her completion of the maternity leave.

The Plaintiff brought proceedings against the Defendant under the SDO.

Court’s Decision

It was held that the Defendant had discriminated against the Plaintiff directly under s. 8(a) and s. 11(2) of the SDO. The Court, after examining all the evidences, was satisfied that the Plaintiff’s pregnancy was a reason for the Defendant’s treatment of the Plaintiff, as the Defendant would not have treated a non-pregnant staff member in the same manner.

It was also held that Defendant had discriminated against the Plaintiff by way of victimization under s. 9(1) of the SDO. The Court concluded that as the Defendant had failed to prove the alleged poor conduct of the Plaintiff, it was the Plaintiff’s previous complaint lodged with the EOC which led to the denial of her salary increment and imposition of reporting requirements.

Although the Plaintiff resigned, her resignation was in response to the Defendant’s unlawful discrimination and should be regarded as constructive dismissal.

Note: The parties had later reached a settlement on the damages outside the Court.