Introduction

In its recent decision 秦秀清 v 長鴻鋁窗裝飾工程有限公司 [2019] HKDC 1749, DCEO3/2018, the District Court had raised the starting point for the award of damages for injury to feelings in pregnancy discrimination cases from HK$50,000 to HK$55,000. The District Court also provided a detailed analysis on the assessment of damages and costs in such cases.

Facts

On 1 July 2014, the defendant company (the “Employer”) employed the plaintiff employee (the “Employee”) as a clerk.

On 2 June 2016, the Employee served a notice of pregnancy to Mr Chan, the sole director of the Employer. On 14 June 2016, the Employee had a miscarriage. The Employee took sick leave from 17 June to 4 July 2016. On 6 July 2016, the Employer served a notice of termination on the Employee for “poor work performance”.

The Employee’s claims against the Employer

The Employee claimed against the Employer, among other things, that she was discriminated on the basis of her pregnancy and by way of victimization.

Discrimination on the basis of pregnancy

The Employee claimed that after she notified Mr Chan of her pregnancy, Mr Chan had made multiple threats and requested her to resign. Mr Chan decided to terminate her employment because of her pregnancy and the sick leave taken by her after her miscarriage, which, from Mr Chan’s perspectives, adversely affected the Employee’s performance at work.

Discrimination by way of victimization

By an email and a letter to the Employee, the Employer expressly refused to make severance payment or provide reference letter to the Employee after the Employee filed a complaint with the Equal Opportunities Commission.

The Court’s judgment

Having considered the evidence, the Court accepted the Employee’s evidence in respect of Mr Chan’s discriminatory acts. The Court held in favour of the Employee and ruled that the Employer, through Mr Chan, conducted discriminatory acts against the Employee in contravention of the Sex Discrimination Ordinance (Cap. 480).

Remedies awarded to the Employee

The Employer was ordered to pay to the Employee a total amount of HK$133,000 (with interest), which comprised of (1) injury to feelings, (2) loss of income, and (3) punitive damages.

Injury to feelings

Regarding the injury to feelings, the Court cited the case袁慧嫻 v 南方安老事務有限公司 [2005] 2 HKLRD 277, in which the Court of Appeal stated that the amount of damages awarded for injury to feelings for discrimination against a pregnant woman should not generally be less than HK$50,000. Having considered that the 袁慧嫻 case was decided 15 years ago, the Court considered it appropriate to raise the starting point for the award of such damages to HK$55,000.

Having considered the specific facts of this case, in particular, (a) the good employment relationships between the Employee and Mr Chan prior to her pregnancy; (b) the discriminatory acts of Mr Chan against the Employee during her pregnancy; and (c) the immense pressure suffered by the Employee when dealing with the termination of her employment and the discriminatory acts of Mr Chan, the Court adopted HK$55,000 as the starting point and awarded the Employee the sum of HK$90,000 for her injury to feelings. 

Loss of Income

Regarding the loss of income suffered by the Employee after being dismissed on the basis of her pregnancy, the Court was of the view that 3 months would be a reasonable time for the Employee to find new employment. Taking into account the Employee’s monthly salary of HK$11,000, the sum of HK$33,000 (HK$11,000 x 3) was awarded to the Employee.

Punitive damages

Having taken into account of the fact that Mr Chan refused to admit the Employee was terminated on the ground of her pregnancy, insisted that the termination of the Employee’s employment was due to her poor work performance, and made unreasonable challenges to the authenticity of the Employee’s pregnancy and miscarriage, which had a combined effect of inflicting further damage to the Employee, the Court ordered the Employer to pay HK$10,000 to the Employee as punitive damages.

Costs order

In respect of the costs of the proceedings, the Court considered Mr Chan’s hostile behaviour in the proceedings, which included making unreasonable accusations against the Employee, the doctors of the Employee, the legal representatives of the Employee, and the judges handling this case. The Court ordered the Employer to pay the Employee’s legal costs.

Key takeaways

This case demonstrates the Court’s approach to protect female employees from pregnancy discrimination. With the updated starting point for injury to feelings for discrimination against a pregnant woman, there would be a greater deterrence against discriminatory acts and better protection for pregnant women in the workplace.

We can also note from this case the importance of properly handling the termination of employment contracts and complaints of discrimination from employees. As pointed out by the Court, the Employer’s actions were taken into account in the assessment of damages and costs order to be awarded to the Employee. Employers should obtain professional legal advice when dealing with contentious matters such as complaints made and/or legal action commenced by the employees in order to avoid additional punitive damages or unfavourable costs order.