Member Article

On 23 December 2005, the District Court delivered its judgment on a sex and family status discrimination claim in the case of Lam Wing Lai v YT Cheng (Chingtai) Ltd DCEO 6/2004. The Defendant was a Hong Kong company carrying on the business of trading in industrial raw materials and the Plaintiff was employed as the secretary to the director between 21 May 2001 and 11 November 2002. In this case, the Plaintiff claimed that she was dismissed by the Defendant due to her pregnancy and family status and she was also discriminated by way of victimisation. Under the Sex Discrimination Ordinance (the “SDO”), a person discriminates against a woman if on the ground of her pregnancy he treats her less favourably than he treats or would treat a person who is not pregnant and it is unlawful to discriminate against an employee by dismissing her, or subjecting her to any other detriment. Similarly, under the Family Status Discrimination Ordinance (the “FSDO”), it is not lawful to discriminate against a person on the ground of that person’s family status. In order to show pregnancy discrimination, the Plaintiff had to show that she was treated less favourably by being dismissed because of her pregnancy when compared to an employee who was not pregnant. Under family status discrimination, the Plaintiff had to show that she was treated less favourably by being dismissed on the ground of her family status compared to an employee who did not have such a family status. In this case, the Court applied the "but for" and "less favourable treatment" test. The burden was on the Plaintiff to prove discrimination on a balance of probabilities. Once the Plaintiff was 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 were no or no adequate explanation put forward, the Court would infer that there was discrimination as a matter of common sense. The Plaintiff’s case was that she had good performance, fostered a good relationship with colleagues and showed devotion to her job during her employment with the Defendant. She then became pregnant and because her pregnancy was not a smooth one, she had to take pregnancy related sick leave for significant length of time before childbirth. During the time she took the sick leave, the Defendant has been advertising for a permanent secretary. After she gave birth to her son, she asked the Defendant whether it was the Defendant’s intention not to employ her anymore. There was evidence that the Defendant told her that the Defendant did not want to continue to employ her because of her bad health and it wanted her to stay home to rest and take care of her son. Based on the above, the Court found that the Plaintiff had established the primary facts on her claim. On the other hand, the Defendant had failed to put forward adequate explanation in relation to the termination. Therefore, on a balance of probabilities, the Court was satisfied that the Plaintiff was dismissed on ground of her pregnancy and her family status. The Plaintiff was awarded compensation for injury to feelings and loss of income in a total sum of HK$163,500. In addition, the Court allowed a declaration that the Defendant had committed unlawful acts under the SDO and the FSDO. This ruling should serve as a strong message to the employers in Hong Kong and they should be mindful that employees are entitled to protection under the SDO and the FSDO. The employers should behave in a manner that observes the principle of equal work opportunities.