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Employer to Pay for Female Bias in Workplace
19 October 2022

The Sex Discrimination Ordinance (Cap 480) (“SDO”) renders unlawful discrimination on the ground of sex, marital status, pregnancy or breastfeeding, sexual harassment and harassment of breastfeeding women; with the aim of promoting equality of opportunity between men and women generally.

In the case of Tan, Shaun Zhi Ming v Euromoney Institutional Investor (Jersey) Ltd [2022] HKDC 622, DCEO 4/2017, the court found in favour of the male employee claimant (“Tan”) that the reason of his termination by Euromoney the respondent employer (the “Respondent”) was based on sex discrimination against him. The termination was thus unlawful. Tan was awarded damages by way of compensation in the sum of HK$150,000 and the Court also made an order for an apology letter to be sent by the Respondent to him.

Case Background

Tan commenced his employment with Respondent on 12 January 2017, completed his 3-month probation period on 12 April 2017 and following a series of events, was terminated by the Respondent on 21 June 2017 by payment of wages in lieu of notice in accordance with the employment contract (the “Termination”).

The series of events leading up to the Termination were as follows :-

– A female colleague accused Tan of sexual harassment during a staff lunch event at a restaurant.
– Subsequently, the female colleague lodged a formal complaint for sexual harassment against him to the Respondent (the “Sexual Harassment Complaint”). The Respondent conducted an investigation and interviewed several witnesses, including Tan himself.
– In the subsequent meeting with Tan, the Respondent asked him to avoid the female colleague as far as possible and to give her a written apology. Tan agreed to the former but not the latter.
– In the final interview where Tan’s employment was terminated, the Respondent told Tan that an investigation on the Sexual Harassment Complaint was made, staff (the female colleague and two other witnesses who were identified) were interviewed, legal advice had been taken and that Tan had a choice of resigning or his employment would be terminated (“termination decision”). Tan asked for details of the witnesses’ evidence against him but the Respondent did not respond. Tan was also not allowed time to consider whether to resign or to be terminated and decided not to resign at the moment. His employment was terminated with immediate effect by payment of wages in lieu of notice.

On 20 July 2017, Tan commenced proceedings against the Respondent under sections 5(1)(a) and 11(2)(c) SDO, on the basis that the termination decision was made due to the Respondent’s pro-female bias. His claim was first struck out at the District Court level and Tan took his case further to the Court of Appeal, which brought him back to the District Court again.

The Relevant Law

Although sections 5(1)(a) and 11(2)(c) SDO refer to sex discrimination against women, section 6 allows the two sections to apply equally to the treatment of men as well, with such modifications as are necessary. The Court referred to the case of Leung Kwok Hung (Long Hair) v Commissioner of Correctional Services (2020) 23 HKCFAR 456 for the four-step approach in determining whether there is sex discrimination under section 5(1)(a) SDO :-
(1) there must be a difference in treatment between one person, the complainant and another person, real or hypothetical, from a different sex group (i.e. the compared person);
(2) the relevant circumstances between the complainant and the compared person are the same or at least not materially different;
(3) it must then be shown that the treatment given to the complainant is less favourable than that given to the compared person;
(4) the difference in treatment is on the basis of sex.

The burden is on Tan, on the balance of probabilities, to prove that there was discrimination against him. The Court recognized that there is seldom direct evidence in discrimination cases, and in such circumstances, Tan may have to rely on inferences based upon the primary facts. The Court, on a balance of probabilities, will then draw appropriate inferences by considering and weighing the explanation(s) given by the Respondent. In other words, whether there is a satisfactory reason in support of the Termination would have a bearing in assessing whether there was sex discrimination against him.

The Court’s Decision

The Respondent’s explanation for the Termination was that it was not as a result of the Sexual Harassment Complaint, but rather as a result of Tan’s (1) alleged conduct during and following the investigation of the Sexual Harassment Complaint and (2) his conduct before it.

The Respondent tried to rely on section 32K(a) of the Employment Ordinance (Cap. 57) (“EO”) to argue that the Termination was lawful and that it is not under an obligation to provide reason to justify the Termination. The Court found that section 32K(a) EO only applies to certain categories of employees, which Tan did not fall under. Also, the mode of Termination cannot trump an employer’s treatment of an employee, therefore even if Tan was terminated in accordance with the employment contract (i.e. payment of wages in lieu of notice), if the termination decision is due to sex discrimination, that decision would be rendered unlawful by the SDO.

The Court did not accept the Respondent’s explanation for Tan’s Termination.

Despite no direct evidence and relying on inferences from primary facts, the Court was of the view that there was no reliable evidence given by the Respondent showing a reason for the Termination and inferred that the real reason for Termination is the pro-female bias as advanced by Tan. The Respondent had requested Tan to apologize to the female colleague notwithstanding that the Sexual Harassment Complaint is not proved and terminated Tan’s employment after Tan refused to give such apology. The Court was of the view that had Tan been a woman in the same scenario, the Respondent would not have treated Tan in the same manner, therefore the Respondent had breached sections 5(1)(a) and 11(2)(c) of the SDO, rendering the Termination unlawful.

Conclusion

Employers must handle all types of discrimination claims with extreme care. It is important for all employers to note that although an employer is not required to give a reason for termination as long as the termination is carried out according to the terms of the employment contract, careful thought and action must still be made when a decision is made to terminate an employee in the event of any discrimination claim. It is common to side with victims of the complaint especially women, but employers should always maintain fairness and be neutral. It should be noted that with a lack of written evidence documenting the employer’s deliberation and decision to part ways with the employee, the Court was ready to infer other reasons when the claim is based on discrimination. It must be kept in mind that the contractual right to terminate cannot trump any unlawful reason for termination of employment, such as sex discrimination.

If you have any questions on the above eNews or relating to employment law matters, experienced employment lawyers in our firm would be happy to assist you.

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