HELEN TSANG v. CATHAY PACIFIC AIRWAYS LTD.

CACV43/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 43 OF 2001

(ON APPEAL FROM DCEO 5 OF 2000)

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J U D G M E N T

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Hon Mayo VP:

1. Cathay Pacific Airways ("Cathay") are appealing against a judgment of H.H. Judge Saunders in the District Court where he upheld a claim made by Ms Helen Tsang ("Ms Tsang") that Cathay discriminated against her contrary to the provisions contained in the Sex Discrimination Ordinance, Cap.480 ("the Ordinance").

2. Ms Tsang was born on 4 October 1952. On 8 January 1979, she was employed by Cathay as a Flight Attendant. Prior to this she had been a Ground Hostess with the airline.

3. Under the terms of her contract of employment, the normal retirement age was 40. The normal retirement age for male Cabin Attendants who performed similar duties was 55.

4. When Ms Tsang attained the age of 40 in October 1992, her employment was extended for a period of one year. At this time, she received the retirement benefits she was entitled to receive under the Standard Conditions of Service. During the course of her extension she was promoted to become a 747 Chief Purser.

5. She was offered and accepted further one year extensions of contract until 4 October 1997 when she attained the age of 45.

6. She was not offered any extension of her employment as a Chief Purser in October 1997.

7. In 1993, Cathay revised its terms of contract. Under the new terms, the age for retirement for male and female cabin crew was changed to 45. Existing employees were given an option to change to the new terms. There was also a specific provision that female staff already on extension may subject to mutual agreement be offered further extensions until the age of 45.

8. Part III of the Ordinance came into effect on 20 December 1996 during the currency of Ms Tsang's last extension.

9. Mr Tong, SC, on behalf of Cathay makes the point that there is nothing in the Ordinance to indicate that it was to have retrospective effect.

10. The discrimination referred to in section 11 relates to offering employment, access to opportunities, terms of employment and dismissal.

11. Section 11(1) and (2) reads :

"11. Discrimination against applicants and employees

(1) It is unlawful for a person, in relation to employment by him at an establishment in Hong Kong, to discriminate against a woman-

(a) in the arrangements he makes for the purpose of determining who should be offered that employment;

(b) in the terms on which he offers her that employment; or

(c) by refusing or deliberately omitting to offer her that employment.

(2) it is unlawful for a person, in the case of a woman employed by him at an establishment in Hong Kong, to discriminate against her-

(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them;

(b) in the terms of employment he affords her; or

(c) by dismissing her, or subjecting her to any other detriment."

12. Mr Tong submitted that Cathay had not been guilty of any discriminating practices which would contravene the provisions contained in section 11(1) and (2).

13. While it now appears to be at least implicitly accepted that prior to the modification in the standard terms of contract in 1993 that the terms were discriminating this was no longer the case.

14. Mr Tong went on to contend that Ms Tsang's contract of employment had come to an end in October 1992 when she had received her retirement entitlements. Thereafter she had been reemployed on a series of one year contracts which had not provided for any retirement as this was inappropriate for contracts of this duration. Even the last contract Ms Tsang had entered into had preceded the advent of Part III of the Ordinance and this being the case it could not be said that Cathay had discriminated against her. At the relevant time, the provisions relating to retirement were the same for males as for females.

15. At this point it is perhaps desirable to consider whether Mr Tong can make good his contention that Ms Tsang's employment ended on 4 October 1992 and that thereafter she was employed on separate and independent contracts of one year's duration.

16. Initially there would seem to be some merit in this contention as this appears to be borne out in Cathay's letter of 2 July 1992 which was in these terms :

"C/P Tsang H
Inflight Services Department
CX KAITAK

Dear Helen

This is to advise that, in accordance with the Conditions of Service for Cabin Crew, the Company intends to declare your official retirement on your attainment of age 40, i.e. 04 October 1992. Staff Department will write to you about your terminal payment, including retirement benefits, in due course.

Upon your retirement, Cathay Pacific takes pleasure in offering you employment as a line Cabin Attendant for a period of one year from 04 October 1992. This employment will carry a salary at Flight Attendant salary grade 16 plus a L1011 Chief Purser rank allowance grade 4. You will receive the annual salary review and year end bonus as applicable to other cabin crew.

With the exception of retirement benefits, all other benefits and travel concessions for cabin crew will be applicable. You will be entitled to 2.92 days leave for each completed month of service. Should you or the Company decide to terminate this employment, one month's notice in writing is required.

Kindly confirm your acceptance of this offer under the above conditions by signing and returning the duplicate of this letter to me.

Yours sincerely,

CATHAY PACIFIC AIRWAYS LTD.,

(Signed)
Robert J Nipperess
Manager Cain Crew

I agree to the conditions as stated in the le (sic)

(Signed)	2/7/92
------------------------------	------------------------------
C/P TSANG H	Dated"

17. In Cathay's letter of 1 July 1993 a different picture emerges. Reference is then made to "the expiry date of your extended service".

18. It is sufficient to also add that on each occasion of the renewal or extension it was evident that the terms of her employment were for all relevant purposes exactly the same as her previous employment save that she was not entitled to retirement benefits.

19. It should be added that when Cathay provided Ms Tsang with a reference on 10 January 1999 they indicated in the letter that her employment had been from 1979 to 1997. The letter read :

"Our Ref: ISD-CM-0006/01/99

10 January 1999

TO WHOM IT MAY CONCERN

This serves to confirm that Ms. TSANG HELEN (ERN: 401033G) was employed by Cathay Pacific Airways Ltd. from 08 January 1979 to 03 October 1997.

During her career with us, she was promoted to Senior Cabin Attendant with effect from 02 February 1985, L1011 Chief Purser with effect from 29 August 1989 and 747 Chief Purser with effect from 27 May 1993.

The main responsibilities of a Cathay Pacific Chief Purser is to ensure that through effective on-board management, our passengers receive the highest standards of inflight care. In addition, she is required to supervise and ensure compliance of all safety duties carried out by the crew.

The job requires a wide range of professional management skills and an ability to lead and motivate a multi-cultural team drawn from 11 different Asian countries. Ms. Tsang is efficient, knowledgeable and competent in all aspects of aircraft management and administration.

Ms. Tsang is a reliable and responsible person. She has maintained the good image and reputation of Cathay Pacific Airways by her high standard of performance. In view of her previous good record, she is recommended for any position within her capacity.

Your sincerely,

for CATHAY PACIFIC AIRWAYS LTD.

(Signed)
Margaret Chow
Cabin Crew Team Manager (V)"

20. I do not think that there can be any doubt that if all of the available evidence is considered that the period of Ms Tsang's employment was as stated in this reference. In determining this it is necessary to have regard to the seamless nature of the continuing employment.

21. Mr Tong was critical of the way in which the Judge had dealt with the issues. He said that had been in error in considering "employment" in the abstract rather than in its actual contractual context. "Employment" was defined in section 2(1) of the Ordinance and it was only possible to determine whether a person was employed by reference to their contract of employment.

22. I do not think that this criticism is well founded. It will be noted that the title to Part III of the Ordinance is "Discrimination and sexual harassment in employment field".

23. As has been pointed out by Mr Dykes SC for Ms Tsang, it is apparent from the long title to the Ordinance that the mischief which the legislation seems to address is aimed at what are seen to be deficiencies in the common law in relation to the practices referred to. It reads :

"SEX DISCRIMINATION

An Ordinance to render unlawful certain kinds of sex discrimination, discrimination on the ground of marital status or pregnancy, and sexual harassment; to provide for the establishment of a Commission with the functions of working towards the elimination of such discrimination and harassment and promoting equality of opportunity between men and women generally; and to provide for matters incidental thereto or connected therewith."

24. The title to Part III of the Ordinance is consistent with the approach which was adopted by the Judge in considering employment in general terms rather than confining the consideration to the particular contract in question.

25. It is also relevant to observe that the fact that different parts of the Ordinance came into effect at different dates is indicative that what the Legislature contemplated was that employers should be afforded an opportunity of "putting their houses in order" prior to the legislation coming into effect.

26. What is of importance is that the legislation should be interpreted with a purposive approach so that its objects can be achieved. In this connection it is necessary to bear in mind the provisions contained in section 19 of the Interpretation and General Clauses Ordinance, Cap.1 which provides :

"19. General principles of interpretation

An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit."

27. Assistance can also be derived from the approach which has been adopted in England. The Sex Discrimination Act 1975 is very similar to the Ordinance. It is clear from this legislation that it goes beyond any contractual terms which may have been concluded between the employer and the employee.

28. The Employment Appeal Tribunal considered the situation which would arise where it was suggested that the underlying contract of employment might be tainted with illegality in Leighton v. Michael & Charalambous [1998] IRLR 67. The observations made by Mummery J the President shed light on the way in which the Act operates :

"26 (8)We agree with Mr Sutton that the principles in the unfair dismissal and redundancy cases are not applicable in the present case. The starting point is the statute which confers the right not to be discriminated against on the ground of sex. The persons on whom that right is conferred include a woman, such as Miss Leighton, who is 'employed' at an establishment in Great Britain by a person who subjects her to detriment by treating her, on the ground that she is a woman, less favourably than he treats or would treat a man. Miss Leighton is prima facie within the scope of the class of persons entitled to statutory protection.

27 (9)It is accepted by Mr Sutton that in order to reach that conclusion it is necessary to consider the contract between Miss Leighton and Mr Michael to decide whether Miss Leighton falls within the protected class of persons entitled to complain of unlawful discrimination. He points out that that class is wider than the class of persons entitled to claim unfair dismissal and redundancy. The courts have interpreted the definition of 'employment' in the 1975 Act to include self-employed persons who supply personal services: Quinnen v Hovells [1984] IRLR 227 and Mirror Group Newspapers Ltd v Gunning [1986] IRLR 27.

28 (10)The cases in which an illegal contract of employment has been held to disqualify applicants for unfair dismissal and redundancy payments are distinguishable from claims under the Sex Discrimination Act. For the purposes of claiming unfair dismissal or redundancy payments the applicant is making a claim which is directly founded upon, relies upon and seeks to enforce the contract of employment. In order to invoke the statutory rights not to be unfairly dismissed and to claim redundancy payments, the employee has to establish not only that he was an employee but also that he was dismissed by his employer on the termination or expiration of the contract. Dismissal is an essential part of the cause of action. The definition of dismissal in s.55 of the Employment Protection (Consolidation) Act 1978 refers expressly to the contract under which the employee is employed and to its termination with or without notice and to the expiration of fixed-term contracts without renewal under the same contract. The definition also embraces constructive dismissal which involved examining possible breaches of the contractual obligations by the employer. As dismissal is an essential ingredient of the statutory right, the employee who invokes the statutory right has to refer to the contract of employment, but not just to identify himself as an employee. He has to found his claim on the contract, since whether he is dismissed or not within the meaning of the statute must rest on the contract.

29 (11)Protection under the 1975 Act against sex discrimination involves a reference to the contract to determine whether the person is 'employed' within the meaning of the statute, but the claim of sex discrimination does not involve enforcing, relying on or founding a claim on the contract of employment. In brief, the right not to be discriminated against on the ground of sex is conferred by statute on persons who are employed. There is nothing in the statute to disqualify a person, who is in fact employed, from protection by reason of illegality in the fact of, or in the performance of, the contract of employment. There is nothing in public policy to disqualify a person from the protection of the statute, if the claim to the statutory protection is not founded on, or is not seeking to enforce, contractual obligations."

29. It is apparent from what Mummery J says that it is the employment at large which comes within the scope of the Act.

30. This approach is consistent with the views expressed by the Court of Appeal in Hall v. Woolston Hall Leisure Ltd [2000] IRLR 578. Peter Gibson LJ had this to say at paragraph 67 :

"67 S.82(1) states that 'employment means employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour, and related expressions shall be construed accordingly.' While, therefore, s.6(1) looks to the potential conclusion of such a contract, there is no need for any such contract actually to have been concluded. And neither subsection is concerned with enforcing contractual entitlement. The Directive and the Act are aimed at providing relief which affords 'real and effective judicial protection' in respect of discriminatory conduct (see Johnston, paragraph 23), rather than relief which reflects any contractual entitlement which may or may not exist. The Court said in relation to remedies in Von Colson, paragraph 18 :

'Such measures may include, for example, provisions requiring the employer to offer a post to the candidate discriminated against, or giving the candidate adequate financial compensation, backed up where necessary by a system of fines. However, the Directive does not prescribe a specific sanction; it leaves Member States free to choose between the different solutions suitable for achieving its objective.'"

31. What seems to be clear from all of this is that Ms Tsang was in the employment of Cathay when Part III of the Ordinance came into effect.

32. If this interpretation of the Ordinance is the correct one, it follows that Part III applied to Ms Tsang's contract of employment for one year notwithstanding the fact that it had been entered into prior to the date when Part III came into effect. I am satisfied that it is.

33. The next question which has to be addressed is whether the Judge was correct in holding that Cathay had been guilty of discrimination under the Ordinance.

34. The starting point is section 5 of the Ordinance :

"5. Sex discrimination against women

(1) A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Ordinance if -

(a) on the ground of her sex he treats her less favourably than he treats or would treat a man; or

(b) he applies to her a requirement or condition which he applies or would apply equally to a man but -

(i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it;

(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied; and

(iii) which is to her detriment because she cannot comply with it.

(2) If a person treats or would treat a man differently according to the man's marital status, his treatment of a woman is for the purposes of subsection (1)(a) to be compared to his treatment of a man having the like marital status."

35. It will be appreciated that section 5(1)(a) deals with direct discrimination and section 5(1)(b) with indirect discrimination. Ms Tsang claims that she has been the victim of direct discrimination contrary to section 5(1)(a).

36. The House of Lords formulated a test to determine whether an employer had adopted a discriminatory practice in James v. Eastleigh B.C. [1990] 2 AC 751. This has come to be known as the "but for" test. Lord Bridge described how this test could be undertaken at p.764 of his speech :

"The Court of Appeal's attempt to escape from these conclusions lies in construing the phrase 'on the ground of her sex' in section 1(1)(a) as referring subjectively to the alleged discriminator's 'reason' for doing the act complained of. As already noted, the judgment had earlier identified the council's reason as 'to give benefits to those whose resources would be likely to have been reduced by retirement' and 'to aid the needy, whether male or female.' But to construe the phrase, 'on the ground of her sex' as referring to the alleged discriminator's reason in this sense is directly contrary to a long line of authority confirmed by your Lordships' House in Reg. v. Birmingham City Council, Ex parte Equal Opportunities Commission [1989] A.C. 1155. In that case the council, as local education authority, was held to have discriminated against girls under section 1(1)(a). At the council's independent, single-sex grammar schools there were more places available for boys than girls. Consequently the council were obliged to set a higher pass mark for girls than boys in the grammar school entrance examination. In his speech, expressing the unanimous opinion of the House, Lord Goff of Chieveley said, at pp. 1193-1194:

'The first argument advanced by the council before your Lordship's House was that there had not been, in the present case, less favourable treatment of the girls on the grounds of sex. Here two points were taken. It was submitted ... (2) that, if that burden had been discharged, it still had to be shown that there was less favourable treatment on grounds of sex, and that involved establishing an intention or motive on the part of the council to discriminate against the girls. In my opinion, neither of these submissions if well-founded ... As to the second point, it is, in my opinion, contrary to the terms of the statute. There is discrimination under the statute if there is less favourable treatment on the ground of sex, in other words if the relevant girl or girls would have received the same treatment as the boys but for their sex. The intention or motive of the defendant to discriminate, though it may be relevant so far as remedies are concerned ... is not a necessary condition of liability; it is perfectly possible to envisage cases where the defendant had no such motive, and yet did in fact discriminate on the ground of sex. Indeed, as Mr. Lester pointed out in the course of his argument, if the council's submission were correct it would be a good defence for an employer to show that he discriminated against women not because he intended to do so but (for example) because of customer preference, or to save money, or even to avoid controversy. In the present case, whatever may have been the intention or motive of the council, nevertheless it is because of their sex that the girls in question receive less favourable treatment than the boys, and so are the subject of discrimination under the Act of 1975. This is well established in a long line of authority : see, in particular, Jenkins v. Kingsgate (Clothing Productions) Ltd. [1981] 1 W.L.R. 1485, 1494, per Browne-Wilkinson J., and Ex parte Keating (1985) 84 L.G.R. 469, per Taylor J., at p. 475; see also Ministry of Defence v. Jeremiah [1980] Q.B. 87, 98, per Lord Denning M.R. I can see no reason to depart from this established view.'

Lord Goff's test, it will be observed, is not subjective, but objective. Adopting it here the question becomes: 'Would the plaintiff, a man of 61, have received the same treatment as his wife but for his sex?' An affirmative answer is inescapable."

37. Section 1(1)(a) of the English Act is in the same form as section 5(1)(a) of the Ordinance.

38. The Court of Final Appeal approved the adoption of this test in the Secretary for Justice and Ors v. Chan Wah & Ors. [2000] 3 HKLRD 641. I am satisfied that the test is germane in the present case.

39. The question which then arises is to find an appropriate comparator.

40. As has been indicated earlier in this judgment we have concluded that Ms Tsang's employment with Cathay was from January 1979 to October 1997.

41. The relevant comparator accordingly has to be a male Flight Attendant who had been employed over the same period of time

42. What immediately becomes apparent is that he was entitled to remain in Cathay's employment until the age of 55.

43. Over and above this when the terms of service were amended in 1993 he was given an option to retire at 45 if he wished to do so and obtain more favourable retirement benefits.

44. He was accordingly in a much better position than Ms Tsang was and the only reason for this was his gender.

45. It would appear to be quite clear from this that direct discrimination has been established contrary to section 5(1)(a) of the Ordinance.

46. In these circumstances, I am of the view that the Judge was right to make the declaration he did and that this appeal should be dismissed.

47. I would like to express my appreciation for the considerable assistance we received from all counsel.

Hon Le Pichon JA:

48. I agree with the Vice-President that this appeal should be dismissed with the proposed order nisi as to costs.

49. The issue which arises in this appeal is whether the judge below was correct in granting a declaration that Cathay Pacific Airways Limited ("Cathay") had engaged in conduct and committed an act which is unlawful under the Sex Discrimination Ordinance, Cap 480 by implementing a discriminatory policy concerning the retirement age of male and female cabin attendants against the claimant Helen Tsang, compelling her to terminate her employment with Cathay upon reaching the age of 45 while permitting male cabin attendants to remain in their employment until they attained the age of 55.

Cathay's retirement policies

50. The claimant joined Cathay as ground staff in 1977. She became a cabin attendant on 8 January 1979. Cathay's Conditions of Service for Cabin Attendants were revised on 13 February 1979 ("the 1979 Conditions"). These applied to the claimant and clause 21 set out the retirement provisions which reflected Cathay's retirement policy for cabin attendants at the time. Thereafter Cathay revised or altered its retirement policies from time to time. The relevant policies so far as retirement for cabin attendants is concerned may be summarised as follows:

(a) The 1979 Conditions:

"21. RESIGNATION AND RETIREMENT

...

(B) The normal retirement date for male cabin attendants is attainment of age 55, but this may be extended by the Company with the Employee's consent.

(C) Service within the category of female cabin attendants will not normally extend beyond age 40 and upon attainment of that age such employees shall, if found suitable, be transferred to any available ground duties.

..."

(b) The 1988 Conditions:

"25. Resignation and Retirement

...

(C) Normal retirement for cabin crew shall be:-

i) on attainment of age 55 for male cabin crew

and

ii) an attainment of age 40 for female cabin crew subject to the completion of 10 years' service.

'Cabin crew who have qualified for normal retirement may be retained by the Company beyond that age, with the consent of cabin crew concerned. The length of any such extension will be determined on a case by case basis according to the circumstances. The initial period of extension will be one year.'

..."

(c) The 1993 Conditions:

Further changes were made, effective from 5 February 1993. A uniform retirement age of 45 was introduced for all cabin attendants whether male or female recruited after 1 July 1993. However, "existing staff" (which included the claimant) were given certain options. For present purposes, the relevant options set out in paragraph 2 of the letter dated 10 May 1993 read:

"All cabin attendants currently in employment will have the option of remaining either on their current retirement age (40 for females, 55 for males); or accepting retirement age at 45.

...

Female staff already on extension may, subject to mutual agreement, be offered further extension until the age of 45."

(d) The 1995 Conditions:

"20. NORMAL RETIREMENT

The normal retirement age for Cabin Attendants is upon attainment of age 45 and, unless agreed otherwise in writing by the Company, the employment of each Cabin Attendant will automatically terminate on the day on which such Cabin Attendant attains the age of 45."

(e) The 1999 Conditions

On 16 July 1999, Cathay introduced further revisions to its retirement policy as regards cabin crew who joined before July 1993. A uniform retirement age at 55 was introduced for them.

51. As applied to the claimant, the effect of these policies was that she had to retire at 40 (under the 1988 Conditions). But for the fact that she was a woman, she would have been able to elect to work as a cabin attendant until 55 when the 1993 Conditions took effect. Being female staff already on extension, all she had was the prospect, but not a guarantee, of being able to work till 45. The 1999 Conditions introduced by Cathay to ensure compliance with the Ordinance were brought in some 21 months after the claimant had left Cathay's employment. It is fair to say that an offer to re-engage her till her 55th birthday was made in August 1999 by which time the claimant had already found other employment.

Employment history

52. From first becoming a cabin attendant in 1979, the claimant had various promotions and by 1989, she was L1011 Chief Purser. Some seven months prior to her 40th birthday, Cathay wrote to the claimant setting out what would appear to correspond to the full paragraph in clause 25(C) of the 1988 Conditions although the wording is not exactly identical. The letter then went on to 'quote' a further paragraph, viz.:

"All female Cabin Attendants who retire at age 40 will be offered an extension of their employment after retirement for a period of one year. After this period such Cabin Attendants may, by mutual agreement between the Cabin Attendant and the Company, be offered a further extension of employment on an annual basis for a maximum of two years."

Whilst that paragraph purported to be a quotation, I can find no corresponding provision in the copy of the 1988 Conditions that is before the court. Be that as it may, nothing appears to turn on it so far as this appeal is concerned.

53. On 26 June 1992, the claimant wrote to Cathay specifically requesting an "extension" of her service with Cathay. The reply dated 2 July 1992 advised that Cathay intended to declare the claimant's official retirement on her attainment of age 40 on 4 October 1992. The letter then stated:

"Upon your retirement, Cathay Pacific takes pleasure in offering you employment as a line Cabin Attendant for a period of one year from 04 October 1992."

The claimant was also advised that with the exception of retirement benefits, all other benefits and travel concessions for cabin crew would be applicable. There was no probation period stipulated and the employment offered carried the same salary as she had been receiving. In fact, during the claimant's first extension year, she was promoted to Chief Purser B747. It is to be noted that in an internal memo dated 4 July 1992, the claimant was described as having been offered "an extension of employment" on a temporary contract basis.

54. On 1 July 1993, Cathay advised the claimant that:

"... your extension of employment beyond the official retirement will cease on 04 October 1993. Upon the expiry date of your extended service, I have pleasure in offering you employment as line Cabin Attendant for another 12 months from 04 October 1993." (Emphasis added.)

Similar letters were written by Cathay on 25 May 1994, 3 July 1995 and 16 February 1996 in respect of the years commencing 4 October 1994, 1995, and 1996, offering corresponding extensions. Then on 15 August 1997, the claimant received a letter to the effect that her "temporary contract as line flight attendant will terminate on 4 October 1997." Two days earlier, on 13 August 1997, there had been an internal memorandum to the effect that the claimant's "extension of employment" as a line flight attendant would end w.e.f. 4th October 1997. It is noteworthy that the "subject" of the memorandum was: "RETIREMENT - 7CP-TSANG H (ERN401033G)" which appears to suggest that the ending of her employment had to do with 'retirement'. Finally, it should be mentioned that the letter of reference issued by Cathay on 10 January 1979 in respect of the claimant confirmed that she was employed by Cathay from 8 January 1979 to 3 October 1997.

The relevant provisions

55. The preamble to the Ordinance states that it is "an Ordinance to render unlawful certain kinds of sex discrimination ... and establish a Commission with the functions of working towards the elimination of such discrimination ...". The clear purpose of the Ordinance is to eliminate discrimination on the grounds of sex, inter alia, in the field of employment. Having regard to section 19 of the Interpretation and General Clauses Ordinance, Cap. 1, which reads:

"[a]n Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit",

a purposive approach is plainly called for when interpreting the provisions of the Ordinance. This is reinforced by the fact that the Ordinance was brought into effect in three stages. It would be legitimate to infer from this that the legislature was providing those affected with an appropriate opportunity to arrange their affairs so as to ensure compliance with the Ordinance.

56. The relevant provisions of the Ordinance for present purposes are the following:

(i) Section 5 of the Ordinance reads:

"(1) A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Ordinance if -

(a) on the ground of her sex he treats her less favourably than he treats or would treat a man; ..."

This sub-section deals with direct discrimination. The proper test to be applied in determining whether or not discrimination has occurred is the "but for" test enunciated by Lord Goff in his speech in Reg. v Birmingham City Council, Ex Parte Equal Opportunities Commission [1989] AC 1155, 1193-1194, which was approved by the majority of the House of Lords in James v Eastleigh Borough Council [1990] 2 AC 751, 764-765. The question to be asked is "would the complainant have received the same treatment from the defendant but for his or her sex?" The test, which is an objective one, has been applied by the Court of Final Appeal. See Secretary for Justice v Chan Wah [2000] 3 HKLRD 641, 656G-657A.

(ii) Section 11(2) renders it unlawful:

"for a person, in the case of a woman employed by him at an establishment in Hong Kong, to discriminate against her -

(a) ...

(b) in the terms of employment he affords her; or

(c) by dismissing her, or subjecting her to any other detriment."

It should be noted that there is a time limit within which proceedings under the Ordinance are to be brought. But section 86(1) which specifies the period has to be read in conjunction with subsection (5)(b):

"any act extending over a period shall be treated as done at the end of that period."

Was there a breach of the Ordinance?

57. It is accepted that the retirement policies in place under the 1979 and 1988 Conditions, requiring female cabin attendants to retire at 40 whilst their male counterparts did not have to retire until 55 were discriminatory. However, Mr Tong SC, on behalf of Cathay, submitted that, prior to 20 December 1996 when, inter alia, Part III of the Ordinance came into effect, Cathay's differential retirement policy even if discriminatory was not unlawful. He further submitted that Cathay's offer to employ the claimant on a yearly basis was also not unlawful since the last of the contracts was entered into before the Ordinance came into effect and the Ordinance did not have retrospective effect. Allowing the claimant to retire pursuant to the terms of that contract was thus equally not unlawful since that was the legal effect of the one-year contract entered into by the parties and not the result of any unilateral act on Cathay's part. Under section 11(2)(b) it is the terms of employment that have to be discriminatory. Cathay's case was that the contract pursuant to which terms the claimant's employment came to an end commenced in 1996 and therefore after 1 July 1993. It was submitted that the terms of the claimant's employment were not discriminatory because she was subject to the same regime as a male cabin attendant employed after 1 July 1993. Under the 1993 Conditions, compulsory retirement for both sexes was at 45 for staff recruited after 1 July 1993.

58. For a claim under section 11(2) of the Ordinance, it is incumbent upon the claimant to establish, first, that she was employed by the respondent at an establishment in Hong Kong and, secondly, that she was discriminated against in one of the ways rendered unlawful by sub-section (2). It was common ground that immediately before the claimant's employment ended on 4 October 1997, she was employed by Cathay. What was controversial was whether the claimant had established that she had been discriminated against in one of the ways rendered unlawful by section 11(2).

59. Much of the debate had centred round the terms of the claimant's employment. This was hardly surprising since the finding of discriminatory conduct by the judge below was expressly based on section 11(2)(b), i.e. in the terms of employment Cathay afforded the claimant. Cathay's case was that since the terms of employment have to be ascertained by reference to a contract of employment, the court must first ascertain the contract with which it is concerned. It was submitted that the relevant contract of employment was the last one-year contract entered into in July 1996 several months prior to Part III of the Ordinance becoming operative. That contract was neither discriminatory nor unlawful. There was no provision regarding retirement and the expiration of the contract was neither age nor gender based. Being a post-June 1993 employee, the relevant policy in place provided for a uniform retirement age for both male and female cabin attendants. As such, it was not discriminatory.

60. The claimant's case was that it would be wholly artificial to regard the one-year extension contract as the relevant contract. She was employed as a cabin attendant for a period commencing 1979 until October 1997. The contemporaneous documents showed that Cathay regarded her employment as continuing inasmuch as terms such as "extension", "further employment" and "extended service" were used to describe the continuing relationship of employer and employee. The complainant did not have to start afresh in terms of seniority, pay and other benefits (but which did not include retirement provisions). She was not put on probation. She did not have to undergo new training courses or made to pass tests or examinations.

61. Mr Dykes SC who appeared for the claimant submitted that the form of the contract under which the claimant was employed was irrelevant other than to establish employment at the relevant date because the contract of employment does not form the basis of a discrimination claim. He relied on Leighton v Michael and Charalambous [1998] IRLR 67 and Hall v Woolston Hall Leisure Limited [2000] IRLR 578. Those cases concerned claims made under the Sex Discrimination Act of 1975 ("the 1975 Act"). In both cases, the underlying contract was illegal due to the unlawful failure by the employer to deduct tax and national insurance from the relevant earnings. It was held that a claim under the 1975 Act was maintainable notwithstanding the illegality of the underlying contract. The reasoning appears in the judgment the Employment Appeal Tribunal delivered by Mummery J (at 29):

"Protection under the 1975 Act against sex discrimination involves a reference to the contract to determine whether the person 'employed' within the meaning of the statute, but the claim of sex discrimination does not involve enforcing, relying on or founding a claim on the contract of employment. In brief, the right not to be discriminated against on the ground of sex is conferred by statute on persons who are employed. There is nothing in the statute to disqualify a person, who is in fact employed, from protection by reason of illegality in the fact of, or in the performance of, the contract of employment. There is nothing in public policy to disqualify a person from the protection of the statute, if the claim to the statutory protection is not founded on, or is not seeking to enforce, contractual obligations."

In Hall, the Court of Appeal agreed with the judgment in Leighton, Peter Gibson LJ holding (at 46) that:

"[i]t is undoubtedly correct that where the complaint is of sex discrimination by dismissing an employee, the employee must establish that she was employed and was dismissed from that employment, so that to that extent reliance must be placed on the contract of employment. But in my judgment it could not properly be said that the complaint of sex discrimination by dismissal was based on the contract of employment, .... It is the sex discrimination that is the core of the complaint, the fact of employment and the dismissal being the particular factual circumstances which Parliament has prescribed for the sex discrimination complaint to be capable of being made."

But the cases of Leighton and Hall are of limited assistance when it comes to the proper construction of section 11(2)(b) of the Ordinance since no parallel provision can be found in the 1975 Act. Section 6(2) of the 1975 Act upon which section 11(2) of the Ordinance was modelled has only two paragraphs, namely, those that correspond to paragraphs (a) and (c) of section 11(2) of the Ordinance: paragraph (b) to section 11(2) is unique to Hong Kong.

62. However, it is clear from Hall that in addition to the fact of employment, "the particular factual circumstance" which the legislature has prescribed for the sex discrimination complaint to be capable of being made must also be established. The 'terms of employment' constitute but one particular factual circumstance. Another such circumstance is "subjecting [the claimant] to any other detriment". See section 11(2)(c) of the Ordinance.

63. In essence, the claimant's complaint is that when Part III of the Ordinance came into force, her employment with Cathay was governed by Cathay's employment policy that prevented her from working until 55. It is apparent that the termination of the claimant's employment was as a result of the application for Cathay's retirement policies: under the 1988 Conditions, she could not carry on as a cabin attendant on attaining 40 and any extension was to be determined on a case by case basis. The 1993 Conditions gave 'existing staff' which included the claimant an option to remain on existing terms. But the existing terms were discriminatory. A male cabin attendant who like the claimant had been in continuous service since 1979 would have been able to opt under the 1993 Conditions and retire at 55. But there was no question of female staff already being allowed to work to 55. Any extension was capped at 45. Even then, there was no guarantee that an extension to 45 would necessarily be given since any extension was "subject to mutual agreement". The net effect of the various policies on the claimant can be summed up thus: but for her sex, the claimant would not have been required to retire at 40 and would have been on a permanent contract until she reached the age of 55.

64. In my judgment, the facts establish beyond question that the claimant had been subjected to 'any other detriment' within section 11(2)(c). That is sufficient for the purposes of section 11(2) since it matters not which 'particular factual circumstance' (whether paragraph (b) or (c)) is established.

Whether actionable

65. The question which remains is whether the discriminatory act was actionable given that Part III of the Ordinance only came into effect in December 1996. Proceedings under the Ordinance have to be brought within 24 months of when the act complained of was done. As noted above, for the purpose of computing this time limit, "any act extending over a period shall be treated as done at the end of that period." See section 86(5)(b) which is analogous to section 76(6)(b) of the 1975 Act. In this context, Ms Sharpston QC, as amicus curiae, referred to a line of UK authorities where the courts have had to consider whether an act is a "one-off" act or a continuing act in determining whether an alleged discriminatory act took place before the entry into force of the 1975 Act.

66. The applicable legal principles are summarised in the judgment of Auld LJ in Cast v Croydon College [1998] ICR 500. He found that the authorities distinguish between a complaint of a "one-off" discriminatory decision whether or not it has a long term effect, which is governed by the general provision in section 76(1) (which corresponds to section 86(1) of the Ordinance), and one of the application of a discriminatory policy or regime pursuant to which decisions may be taken from time to time, "an act extending over a period" for which section 76(6)(b) of the 1975 Act (which corresponds to section 86(5)(b) of the Ordinance) provides. In Barclays Bank Plc v Kapur [1991] ICR 208 at 213G Lord Griffiths illustrated the distinction between a "one-off" decision and a "continuing state of affairs" by reference to two decisions. The first was Amies v Inner London Education Authority [1977] 1 ICR 308, where the defendant had made a decision in October 1975 not to promote the plaintiff but her male colleague instead. It was held that this was a "one-off" act even though the Act had continuing consequences. As the relevant provisions of the 1975 Act only came into force on 1 January 1976, the plaintiff had failed to establish that the tribunal had jurisdiction to hear the complaint. The second, an illustration of a continuing act, was Calder v James Finlay Corporation Limited [1989] IRLR 55. In that case, a female employee's application made in May 1981 for a mortgage subsidy was refused when such subsidies had been granted to male employees. The female employee left her employment in October 1981 and within three months of the termination of the employment brought her complaint against her employers under the 1975 Act. Although the tribunal was satisfied that she had been discriminated against because she was a woman, it held that it had no jurisdiction to entertain the complaint because the complaint had not been made within three months of the day upon which the complainant had last been refused a mortgage which was May 1981. The tribunal's decision was overturned by the Employment Appeal Tribunal:

"By constituting a scheme under the rules of which a female could not obtain the benefit of the mortgage subsidy in our judgment the employers were discriminating against Mrs Calder in the way they afforded her access to the scheme. If follows, in our judgment, that so long as Mrs Calder remained in the employment of these employers there was a continuing discrimination against her. Alternatively it could be said that so long as her employment continued, the employers were subjecting her to 'any other detriment' within s.6(2)(b).

Once this conclusion is reached, in our judgment it follows that the case does fall within s.76(6)(b). The rule of the scheme constituted a discriminatory act extending over the period of her employment and is therefore to be treated as having been done at the end of her employment. Accordingly her application was within time."

See per Browne-Wilkinson J delivering the judgment of the EAT at page 56, 10.

67. Another illustration of "a continuing act" may be found in Owusu v London Fire & Civil Defence Authority [1995] 1 IRLR 574. This concerned a complaint of an employer's failure to regrade the complainant on a number of occasions. The following passage from the judgment of Mummery J (at 576) giving the judgment of the Employment Appeal Tribunal dealing with the distinction was cited with approval by Auld LJ in Cast (at 508B-D):

"the tribunal erred in law in failing to treat the acts complained of on regrading and failure to give the opportunity to act up as continuing acts... in our view the allegations amount to a prima facie case that there was a continuing act. The continuing act was in the form of maintaining a practice which, when followed or applied, excluded Mr. Owusu from regrading or opportunities to act up.

'The position is that an act does not extend over a period simply because the doing of the act has continuing consequences. A specific decision not to upgrade may be a specific act with continuing consequences. The continuing consequences do not make it a continuing act. On the other hand, an act does extend over a period of time if it takes the form of some policy, rule or practice, in accordance with which decisions are taken from time to time. What is continuing is alleged in this case to be a practice which results in consistent decisions discriminatory of Mr. Owusu." (Emphasis added.)

Auld LJ went on to point out that as to an act extending over a period, the authorities made clear - at least in the case of discrimination in the field of employment - that it is the existence of a policy or regime, not a specific act of an employer triggering its application to the complainant, that matters.

68. In view of the fact that the Ordinance was modelled on the 1975 Act and section 86(5)(b) is identical to section 76(6)(b) of the 1975 Act, I see no good reason why the English authorities in this regard should not be followed. On the facts, throughout the claimant's employment by Cathay, there was a discriminatory policy in place with reference to which decisions were taken from time to time. In my judgment, the discrimination suffered by the claimant was not a "one-off" act that predated the entry into force of the Ordinance; rather, it was a continuing act of discrimination that extended to the end of the period during which the claimant was employed by Cathay. The termination of the claimant's employment upon reaching 45 was a result of the continuing application of that policy or regime. Each subsequent extension of employment was a re-application of that policy or regime. The observations of Browne-Wilkinson J in Calder v James Finlay Corporation Ltd (supra) are particularly apposite. So long as the claimant remained in Cathay's employment there was a continuing discrimination against her. Alternatively, so long as her employment continued, Cathay was subjecting her to 'any other detriment' within section 11(2)(c). That policy was discriminatory on grounds of sex and became unlawful once Part III of the Ordinance came into effect in December 1996.

69. For these reasons, I would dismiss the appeal.

Hon Yeung J:

70. I agree. For the reasons given by Mayo VP and Le Pichon JA, I too would dismiss the appeal.

Hon Mayo VP:

71. Accordingly the appeal is dismissed. There will be an order nisi that Ms Tsang is to have her costs.