Can I Sue for Injury to Feelings Caused by Discrimination?

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Introduction

In cases of unlawful discrimination and harassment in Hong Kong, it is well-recognised that a victim can seek compensation from the wrongdoer for the injury to his or her feelings. Various legislations such as the Disability Discrimination Ordinance (Cap. 487), Race Discrimination Ordinance (Cap. 602), Sex Discrimination Ordinance (Cap. 480) and Family Status Discrimination Ordinance (Cap. 527) expressly provide that compensation for injury to feelings is possible. Nevertheless, difficult issues arise as to how the Court will approach such a claim and what should be the appropriate amount of compensation.

When the Court Will Accept a Claim?

袁慧嫺 v 南方安老事務有限公司 [2005] 2 HKLRD 277 concerns a claim by a pregnant employee against her former employer who dismissed her on the ground of her pregnancy. After the employee laid a complaint to the Equal Opportunities Commission, the employer made a report to the police and alleged that the employee had made misrepresentation about her previous working experience in order to obtain the job offer. At the trial, the Court found that the report against the employee was totally untrue and it was asked to determine whether such a false report should be taken into account when awarding the compensation for injury to the employee’s feelings. After considering the relevant circumstances and evidence, the Court concluded that the false report made by the employer was equal to an “attack” on the employee’s character and aggravated her distress due to the subsequent arrest and interrogation by the police. Therefore, the Court ruled that the false report by the employer was connected to its wrongful conduct against the employee and thus it was justified to order the employer to pay compensation for the employee’s injured feelings.

When the Court Will Reject a Claim?

In Yip Shui Kwon v Legend World Asia Group Ltd (unreported, 27 October 2016), the claimant sought to argue that the disco club had committed unlawful discrimination against him by charging him a higher price than female customers during the “ladies’ night”. Though a discrimination case was accepted by the Court under the Sex Discrimination Ordinance, the Court firmly rejected the claimant’s assertion that he had suffered injury to his feelings on the basis of his gender. In fact, the claimant admitted that he enjoyed the time in the club and he understood the price difference when he submitted the entrance fee. Therefore, there was no injury to his feelings that could warrant compensation.

How Much Compensation I Can Get?

The approach that the Hong Kong Court adopts to ascertain the amount of compensation for injury to feelings is the “Vento Bands” established in the leading English case, Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871, in which three broad ranges of compensation were set out by the Court depending on the degree and the extent of the injury to which the victim has suffered by reference to the severity, duration and frequency. The ranges were subsequently revised and expanded in Da’ Bell v National Society for Prevention of Cruelty To Children [2009] IRLR 19 and by the new guidelines published by the UK Employment Tribunal. The most updated version of the Vento Bands is as follow:-

Seriousness Range of Compensation (around)
The Lower Band: for less serious cases such as an isolated or one-off act of relatively minor discrimination HKD8,000 – HKD84,000
The Middle Band: for cases which are serious but do not fall within the top band, such as a serious one-off discrimination, a lengthy but less serious discrimination or a relatively minor discrimination but caused one to lose his or her job HK$84,000 – HKD252,000
The Top Band: for the most serious cases such as a long campaign of discrimination HKD252,000 – HKD420,000

By way of example, in 李佩霞 v 黃蘇記運輸有限公司 [2014] 4 HKLRD 254, another case concerning termination of employment on the basis of the plaintiff’s disability and pregnancy, the Judge took into account the fact that the plaintiff employee in question was only employed by the defendant employer for around two months and thus the injury to feelings that she had suffered was not a lengthy or substantial one. There was also no medical evidence suggesting that the employee’s miscarriage subsequent to her termination of employment had any connection to the discrimination acts of her employer. As such, the Court concluded that the discrimination and harassment the plaintiff had suffered should be categorised in the lower band and thus a sum of HKD60,000 was awarded as the compensation for the injury to her feelings.

In contrast, in Chan Choi Yin Janice v Toppan Forms (Hong Kong) Ltd [2006] 3 HKC 143, the victim who had been discriminated for a period of about 2-year was awarded $200,000 for the injury to her feelings which involved more serious circumstances such as placement of unfair pressure on the plaintiff, deliberate marginalisation and isolation amongst colleagues. The Court therefore considered that it would be appropriate to apply the high end of the middle band of the Vento Bands to recognise the severity of the employer’s wrongful dismissal and unlawful discrimination.

Conclusion

The cases discussed illustrate that the Court does not automatically award compensation to injury to feelings once the relevant law is found to have been breached, instead the Court will consider the surrounding circumstances and relevant evidence to determine whether the alleged injury to feelings is linked to the discrimination acts of the wrongdoer. Further, potential claimants must bear in mind that any award for injury to feelings should be regarded as compensatory in nature, which means the compensation must not be seen as punishing the wrongdoer. Nevertheless, the Court recognises that the society does condemn discrimination and thus the award should not be too low. Ultimately, the compensation must be just to both the injured party and the wrongdoer.

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.
Published by ONC Lawyers © 2017