Introduction

It is unlawful for employers to treat employees less favourably on the basis of sex. It is common for employers to take active steps to combat sexual harassment at workplace. Indeed, employers have been doing so since the Sex Discrimination Ordinance (Cap. 480) (“SDO”) came into effect over 25 years ago to reduce risks of claims by employees under the SDO. However, if this is overdone or not properly handled, it can also give rise to sex discrimination claims not by the (alleged) victim employees but by the (alleged) perpetrator.

In a recent judgment in Tan, Shaun Zhi Ming v Euromoney Institutional Investor (Jersey) Ltd [2022] HKDC 622, the District Court found that the employer has discriminated against a former male employee, who was subject to an unsubstantiated sexual harassment complaint.

Background

The employer, Euromoney Institutional Investor (Jersey) Ltd (“Employer”) is one of Europe’s largest financial information companies. Mr Tan Shaun Zhi Ming (“Mr Tan”) was employed by the Employer from 12 January 2017 as an Asia Reporter for Managing Intellectual Property in Hong Kong, reporting to the Managing Editor.

On 2 June 2017, Mr Tan joined a group of his colleagues (including their male supervisor) to attend a farewell lunch for a colleague. As he was late and the others were already seated at the restaurant, Mr Tan had to get a chair himself. He made contact with the waist of a female colleague with his hand to indicate to her that she could move to make space for his chair. After the incident, the female colleague made a complaint and accused Mr Tan of sexual harassment, upon which the Employer conducted some investigations and interviewed several witnesses. After the investigation, despite no sufficient evidence proving the complaint, The Employer requested Mr Tan to apologize to the female colleague. Mr Tan refused to do so. On 21 June 2017, he was dismissed immediately by payment in lieu of notice.

Regarding the reasons for Mr Tan’s dismissal, a letter from the Employer’s solicitors dated 17 July 2017 stated that the decision to terminate his employment was not a result of the complaint, but due to his “conduct during and following the investigation” of the complaint.

 

Striking-out order and appeal

On 20 July 2017, Mr Tan brought a lawsuit at the District Court for sex discrimination. It was Mr Tan’s case that he was unlawfully dismissed because he was a male and the accuser was a female. He also argued that the Employer’s conduct in handling the complaint demonstrated a “pro-female bias” and the investigations were not conducted fairly. The Employer’s case is that the termination was lawful and they were not obliged to give reasons to justify it.

In February 2018, the District Court struck out Mr Tan’s claim as frivolous and held that he failed to produce direct evidence of discrimination and the court could not infer discrimination. Even if Mr Tan had been treated unfairly during the investigation process, it does not mean the Employer had committed any act of discrimination under the SDO.

Mr Tan then appealed to the Court of Appeal. In May 2019, the Court of Appeal allowed his appeal and clarified that inference of sex discrimination could be drawn where there is no explanation for unreasonable behaviour or treatment.  As a result, Mr Tan was able to maintain his claim and proceeded to trial at the District Court.

The District Court’s findings at trial

In assessing whether Mr Tan was discriminated, the court would examine evidence from both sides to see if there are substantiated reasons for the termination, or explanations from the Employer as to why they placed much importance on Mr Tan’s refusal to apologize. If no such reason or explanation could be found, then it would be legitimate for the court to infer that there was discrimination against Mr Tan as a result of a pro-female bias. To this end, the District Court considered the evidence from other employees including Mr Tan’s supervisor, the accuser and the HR manager.

Mr Tan provided evidence showing that he had successfully completed the probation period, he got along with his supervisor, and everyone seemed pleased with his work.

At trial, the Employer sought to rely on Mr Tan’s impolite conducts before the incident and his “eccentric working behaviours” such as drumming his fingers on the table, standing behind people’s desks and staring at what they were doing, and making circuits in the office. The judge refused to accept such argument as those matters were not mentioned at the dismissal meeting with Mr Tan, and the Employer could not produce documentary evidence showing that there had been complaint against Mr Tan in relation to these conducts. 

Decision

The District Court ruled that Mr Tan had successfully proved a case of sex discrimination as the Employer failed to provide reliable evidence showing a reason for termination. In particular, they were unable to tell what conduct of Mr Tan during and following the investigations were the reasons for his dismissal. Had Mr Tan been a woman, the Employer would not have treated him in the same way or demanded him to apologize to the accuser while the complaint is not true.

The District Court ordered the Employer to provide a written apology to Mr Tan and to pay damages for his loss of income in the sum of HK$150,000.

Takeaway

In Tan, Shaun Zhi Ming, the District Court did not rule in favour of Mr Tan because the Employer was unable to substantiate the sexual harassment complaint.  Rather, it was because the Employer was unable to substantiate their so-called reasons for dismissing him, the judge drew inferences from that and decided in favour of the employee:  inference of sex discrimination could be drawn where there is no explanation for unreasonable behaviour or treatment.

This case also serves as a reminder for employers that sexual harassment complaints must be handled with care. Whilst many employers are well aware of the risks of claims by female employees for sexual harassment under the SDO, there are also legal risks relating to claims from the employees who are accused of committing the sexual harassment.  Employees should be mindful about such risks as men (as well as women) can be subject to sex discrimination. Sexual harassment complaints should be treated seriously and handled properly. It is good practice for employers to seek legal advice in dealing with sexual harassment complaints.

 

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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 © 2022