Introduction

There were more than 340,000 foreign domestic helpers in Hong Kong as of end of 2015, mostly from the Philippines and Indonesia.  On average, 1 in 7 households has a helper; 1 in 3 households with children has a helper.[1]

Foreign domestic helpers are entitled to the benefits and protection under Hong Kong labour law and anti-discrimination law.  An employer is prohibited from dismissing a pregnant foreign domestic helper who has served a notice of pregnancy.  But what if an employer suspects the foreign domestic helper is pregnant and she has not given any notice of pregnancy?  Can the employer ask the foreign domestic helper to take a pregnancy test and to disclose the result to the employer?  A recent District Court case has shed light on this.

The recent labour and equal opportunities case

In Waliyah v Yip Hoi Sun Terence and Chan Man Nong also known as Chen Meng Hong [2017] HKEC 84, the claimant was an Indonesian domestic helper (“Helper”).  The respondents were the employer (“Employer”) and his wife (“Wife”).  Having noticed the Helper’s abdomen was growing bigger, the Wife asked the Helper to urinate into a potty so that she could conduct a home pregnancy test.  The pregnancy test indicated positive result and the Wife took the Helper to consult a doctor where her pregnancy was confirmed.  Shortly afterwards, the Employer made the Helper signed a termination notice and later demanded her to leave his residence.  She was given $5,000 for wages up to a week after she was demanded to leave and her airfare back to Indonesia.  The Helper claimed against the Employer and the Wife for damages arising from sex and pregnancy discrimination, breach of contract, breach of statutory maternity protections under the Employment Ordinance (Cap. 57) (“EO”) and unlawful dismissal.

At trial, the Helper gave evidence that the Wife asked her politely to urinate into a potty and she took part in the home pregnancy test voluntarily, as the Helper was also eager to know whether she was pregnant.  The Court also found that the Helper was not coerced by the Wife to see the doctor.  Notwithstanding this, the Court decided that the Wife’s request for the Helper to take the pregnancy test and to see the doctor amounted to direct sex discrimination.  The Court confirmed the well-established rule that even if there was no subjective intention to discriminate, it would not prevent an act from being discriminatory against an employee.  The spirit of anti-discrimination law is the equal treatment of people. The Sex Discrimination Ordinance (Cap. 480) (the “SDO”) is a social legislation which involves the protection of civil rights and should be interpreted with a purposive approach so that its objective can be achieved.  It would further the purpose of the SDO by focusing on the nature of the employer’s conduct rather than the employee’s response.  If an employer asks a female foreign domestic helper to take a pregnancy test in a supervised manner and without giving her an option not to inform the employer the result, that is capable of constituting a “less favourable treatment” to that employee on the ground of her gender.  This is because a male employee would not be asked to take such a test and to disclose his private information to the employer.

The Court held that the Employer’s acts of making the Helper signed the termination notice and demanding her to move out of his residence before the expiry of the notice period amounted to unlawful dismissal and breach of pregnancy protection under the EO and pregnancy discrimination against the Helper under the SDO, as the Employer would not have done so but for the Helper’s pregnancy.  These acts also amounted to a breach of the implied term of trust and confidence under the employment contract.

Takeaway points

Whether a female employee is pregnant is a private matter; an employer has no right to know.  If an employer suspects an employee is pregnant, the employer should handle the matter tactfully.  Under no circumstances should an employer ask a female employee to take a pregnancy test and to disclose the result to the employer.  Of course, if an employee chooses to inform her employer that she is pregnant, then the statutory pregnancy protection provisions apply and the employer must observe them.