Major judicial decisions under the Sex Discrimination Ordinance
(VI) B v King of the King Group Ltd, DCEO 9/2010, 6 June 2012
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The plaintiff was an employee of the defendant company. She claimed that she had been sexually harassed in the workplace by her male colleague who was also employed by the defendant. The case of the plaintiff was that when she walked past the male colleague, he called her “Busty Lin” and hit her on her right breast using the back of his left hand.
- The Court found that the male colleague had committed an act of sexual harassment against the plaintiff, contrary to section 23(3) of the SDO. The act constituted unwelcome conduct of a sexual nature in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the plaintiff would be offended, humiliated or intimidated. Since the defendant did not adduce evidence to show that it had taken such steps as were reasonably practicable to prevent its employee from committing the act of sexual harassment, the Court held that the defendant was vicariously liable for the act committed by the male colleague. The Court ordered the defendant to apologise to the plaintiff and awarded $80,000 for injury to the plaintiff’s feelings.
(VII) Lau Hoi Man Kathy v Emaster Consultants Ltd, DCEO 11/2012, 3 January 2014
- After her employment contract had been renewed, the plaintiff notified the defendant employer that she was pregnant. The defendant then cancelled the renewed contract on the ground that she was being dishonest for not disclosing her pregnancy beforehand. Subsequently, the defendant signed a new contract with the plaintiff with a break of one day between the expired contract and the new contract. The plaintiff later applied for maternity leave with pay but her application was rejected as she had not been employed by the defendant under a continuous contract for not less than 40 weeks immediately before the commencement of the scheduled maternity leave. Her service with the defendant under the old contract could not be taken into account because there was a gap of one day between the old and new contracts.
- The Court held that the plaintiff was treated less favourably by the defendant on the ground of pregnancy, contrary to section 8(a) of the SDO. If the plaintiff had not been pregnant, the defendant would not have required that there must be a one-day gap between the old and new contracts. The Court awarded to the plaintiff $50,000 for injury to feelings, $20,000 as exemplary damages and $696.97 for the loss of one-day salary.
(VIII) Li Pui Ha v Wong So Kee Transportation Ltd, DCEO 4/2013, 25 June 2014
- The defendant operated a transportation business in Hong Kong. The plaintiff was employed by the defendant as a data processing officer. After admitted to hospital for abdominal pain, the plaintiff discovered that she was pregnant. She notified the defendant of her pregnancy and was discharged from hospital three days later. Shortly afterwards, the defendant terminated the employment of the plaintiff.
- Since the defendant did not give notice of intention to defend, the Court held that the plaintiff had been dismissed because of her pregnancy and awarded to her $60,000 for injury to feelings and $66,000 for loss of earnings.
(IX) Leung Kwok Hung also known as “Long Hair” v Commissioner of Correctional Services, CACV 34/2017, 30 April 2018
- The applicant was a well-known politician in Hong Kong. He had been widely known as “Long Hair” because of what he described to be his iconic long hair style. While in custody at a prison, he was required by the prison authorities to have his long hair cut. The decision to cut his hair was made pursuant to a Standing Order issued by the Commissioner of Correctional Services. The Standing Order required all male prisoners to have their hair cut “sufficiently close, but not close clipped” but allowed female prisoners a choice to keep their hair unless they requested to have them cut. The applicant challenged the lawfulness of both the decision and the Standing Order in requiring him and other male prisoners, but not female prisoners, to have their hair cut while in prison.
- The Court of Appeal held that there is no direct sex discrimination against the applicant. Both male and female prisoners are subject to custodial requirements, including requirements on physical appearance in order to achieve reasonable uniformity and conformity amongst prisoners. Those restrictions are set by reference to the respective conventional standards for appearance for male and female prisoners, and have to be examined in a package. It is not correct to single out the hair-cutting requirement without paying regard to other restrictions on the prisoners, e.g. restrictions on the use of make-up by female prisoners. Taking into account all relevant restrictions imposed on male and female prisoners, the hair-cutting requirement for male prisoners and the absence of such requirement for female prisoners are in conformity with the conventional hairstyle of men and women in Hong Kong, and does not amount to less favourable treatment of male prisoners.
- In response to the stereotyping argument of the applicant, the Court noted that this case is not concerned with differences in treatment based on generalisation or assumptions on skills or abilities or the role played by male or female prisoners. There is also no breach of the right to equality under Article 25 of the Basic Law. The hair-cutting requirement serves the legitimate aim of custodial discipline. There is a rational connection between the requirement and the maintenance of custodial discipline. In so deciding, the court gave due regard to the expertise and professional judgment of the Commissioner in managing the prison and maintaining custodial discipline.
(X) Yiu Shui Kwong v Legend World Asia Group Ltd, DCEO 8/2015, 27 October 2016
- The plaintiff complained that he had been charged more in terms of entrance fee on the ground of his sex for using the defendant’s services and facilities. Male customers needed to pay $300 but female customers only needed to pay $120 for the same services and facilities. The defendant did not appear in court and an interlocutory judgment was entered against it for committing direct sex discrimination against the plaintiff in the provision of services and facilities in breach of the SDO. The Court awarded the plaintiff $180, being the difference between what the plaintiff had paid and what the defendant would have charged its female patrons.
(XI) Waliyah v Yip Hoi Sun Terence and Another, DCCJ 1041/2015, 19 January 2017
- The plaintiff was a foreign domestic helper employed by the defendant. She was asked by the defendant’s wife to urinate into a potty for the purpose of a home-pregnancy test. A positive result was yielded and the plaintiff’s employment was terminated thereafter.
- The Court found that whether a female employee was pregnant was a private matter about which the employer had no right to know. If an employer asked a female foreign domestic helper to take a pregnancy test in a supervised manner and without giving the employee an option not to inform the employer the result, that was capable of constituting less favourable treatment to that employee on the ground of her sex. This was because a male employee would not be asked to take such a test and to disclose his private information to the employer. As such, the wife was liable for sex discrimination in breach of the SDO and the defendant was also liable as his wife acted as his agent. The defendant was further held liable for unlawful dismissal.
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