HELEN TSANG v. CATHAY PACIFIC AIRWAYS LTD

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITY CASE NO. 5 OF 2000

(FORMERLY CIVIL ACTION NO. 18372 OF 1999)

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JUDGMENT

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1. In these proceedings the claimant (Ms Tsang) alleges that she has been subjected to discrimination by virtue of her sex contrary to the provisions of the Sex Discrimination Ordinance Cap. 480 (the Ordinance). The primary relief sought by Ms. Tsang is a declaration pursuant to s 76(3A)(a) of the Ordinance that the defendant company, Cathay Pacific Airways Limited (Cathay) has engaged in conduct and committed an act which is unlawful under the Ordinance by implementing a discriminatory policy concerning the retirement age of male and female cabin attendants against Ms. Tsang. It is contended that she was compelled to terminate her employment with Cathay upon reaching the age of 45 while permitting male cabin attendants to remain in their employment until they attain the age of 55.

2. Further orders were sought by way of an order preventing the continuation of such conduct and a written apology, but at trial those orders were not pursued. Orders for damages were also sought, but it was agreed by the parties at trial that the only issue to be determined at this stage would be that of liability.

3. The facts were not at all in dispute and may be shortly stated. On 24 March 1977 Ms. Tsang was employed by Cathay as a Ground Hostess. On 20 August 1977 she was promoted to the position of Check-in Receptionist. On 8 December 1979 she was offered a position as a female cabin attendant. She was asked, and agreed, to sign a copy of Cathay's "Standard Conditions of Service for Cabin Attendants" dated 13 February 1979.

4. Clause 21 of the standard conditions of service contained the following provisions (I have omitted provisions irrelevant to the case):

5. The conditions of service were varied by Cathay on 1 January 1986. The new provision, clause 25 (C), read as follows:

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."

6. On 11 April 1982 Ms. Tsang was promoted to Flight Purser. On 2 February 1985 she was promoted to Senior Purser. On 29 August 1989 she was further promoted to L1011 Chief Purser.

7. On 27 February 1992, eight months before her 40th birthday, she received a letter from Cathay to the effect that she must formally retire on 4 October 1992 (her 40th birthday). On 26 June 1992 she requested an extension of her contract with Cathay, relying upon the provisions of clause 25 (C) of the standard conditions of service. On 4 October 1992 she was duly offered an extension of employment on "a temporary contract basis" for a period of one year. On 3 October 1992 she received the retirement benefits to which she was entitled under the Standard Conditions of Service.

8. On 27 August 1993 she was promoted to Chief Purser 747. On 4 October 1993 her "temporary contract" was extended for a further one more year, as it was again, on the same day, in 1994, 1995 and 1996. At the termination of the final extension on 4 October 1997 no further renewal was offered to her.

9. During the period of the first one-year extension Cathay made a further change to its cabin crew retirement scheme. The effect of the change was that the retirement age for all cabin crew, male and female, was revised to 45 years. However special provision was made for cabin attendants currently in employment to have the option to remain on their present terms or to move to the new scheme. The new 45 retirement age however was to apply to all cabin crew recruited after 1 July 1993. The change specifically provided:

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

10. Ms. Tsang elected, presumably by taking no action, to remain on her then current terms of employment, and not to move to the new scheme, and to continue to seek extensions of her contract.

11. The provisions of the Ordinance came fully into effect on 20 December 1996, during the term of Ms. Tsang's final one year extension contract.

12. The first issue that arises for determination is whether or not the requirement that female cabin attendants should retire at age 40 and male cabin attendants should retire at age 55 is a discriminatory requirement.

The Ordinance provides in s 5(1) as follows:

13. Mr. Chan for Cathay was not prepared to concede that the different provisions for retirement were discriminatory, faintly arguing that a woman may in fact find it more favourable to be able to retire at 40 and receive, earlier than a man, the benefit of retirement pay. I reject the contention. She may gain a slight advantage of receiving the fund earlier but she is deprived of at least 10, if not 15 years work, and the increased retirement benefit that would flow from the longer duration in employment. It is in my view beyond argument that the provision as to different retirement ages is, in terms of the Ordinance, discriminatory.

14. The real issue in the case is whether or not the provisions of the Ordinance apply to the circumstances of Ms. Tsang. It is the contention of Mr Pun for Ms. Tsang that she began her employment in March 1977 and was thereafter continually employed by Cathay until her employment retirement in October 1997. She was, he therefore argued, in employment with Cathay at the time the Ordinance came into force in December 1996. As the relevant provision was discriminatory, liability must follow.

15. Mr Chan for Cathay argued that in fact, in December 1996, when the Ordinance came into force, Ms. Tsang was on a one year contract which commenced on 4 October 1996 and terminated on 3 October 1997. He argued that at the time of commencement of that contract of employment, and the commencement of the Ordinance, the relevant retirement provisions were that male and female staff were to retire at age 45. That provision, he said, and it must be right, is plainly not discriminatory. Mr Chan's argument was, and it is a superficially attractive argument, that it is necessary to determine the terms of the contract of employment because a retirement provision is a term of contract. It is argued that only by determining the terms of the contract could the court know the precise retirement provision that is to be considered.

16. Argument was addressed to me on whether or not the contract under which Ms. Tsang was employed was a "continuous contract", an expression used in the context of employment law. For the reasons which follow I do not find it necessary to determine whether or not the contract of employment was a continuous contract. In so holding I have not disregarded Hellyer Brothers Limited v McLeod [1987] 1 WLR 728 upon which Mr. Chan placed great reliance. That case is a decision on issues of redundancy and accordingly involves issues quite distinct from the issues raised in proceedings under the statutory scheme by which claims may be made in respect of sex discrimination.

17. I am satisfied that the provisions of the Hong Kong legislation as to sex discrimination are sufficiently similar to the equivalent legislation in the United Kingdom that reliance may be placed upon decisions made under that legislation when considering Hong Kong cases. It has been clearly established in United Kingdom that the contract of employment in a sex discrimination case is relevant only for the purpose of determining whether a person is "employed": see Leighton v Michael & Choriambus (1998) IRLR 67(EAT), approved in Hall v Woolston Hall Leisure Ltd (2000) IRLR 578 (CA).

18. The same principle should be applied in Hong Kong. Once the fact of employment is determined, it is necessary, applying the provisions of the Ordinance, to determine whether or not the behaviour complained of is discriminatory. To accept Mr. Chan's argument is to accept an argument that is essentially circular. It amounts to saying that by reason of the policy imposed on Ms. Tsang, which required her to take formal retirement at age 40 and continue in employment on a series of annual contracts, the court is precluded, at a time when the Ordinance was in force and the policy being applied to Ms. Tsang, from examining the legitimacy of the policy. That simply cannot be right.

19. I accordingly hold that it is not an answer to Ms. Tang's claim for Cathay to say that at the time her employment ended cabin attendants, both male and female, employed on or after 4 October 1996 (the date of the commencement of her final contract) had a retirement age of 45 years. But that does not conclude the matter.

20. Sex discrimination essentially involves different treatment of one sex when compared with the other. It will usually be necessary therefore to compare the treatment of one person or group of persons, with another person or group. When comparing the treatment meted out to Ms. Tsang by her employer it is necessary to compare that treatment with the treatment accorded to men who fall within the same category of employee as Ms. Tsang.

21. The revision of the retirement age provision in 1993 applies only to those persons employed after I June 1993, unless persons employed prior to that date elected to join the new scheme. Ms. Tsang did not so elect. Mr Pun for Ms. Tsang contended that, once the fact of employment is established, she must be compared with men employed at the same time as she was, that is December 1979, the date on which she began employment as a cabin attendant.

22. That that comparison is the correct approach is clearly demonstrated by the House of Lords in James v Eastleigh Borough Council [1990] 2 AC 751. There the issue was over whether it was discriminatory to a man to permit a woman free access to a swimming pool at age 60 whereas a man did not receive such free access until age 65. The test to be applied is an objective test. The House of Lords adopted the test laid down by Lord Goff of Chieveley in R v Birmingham City Council, Ex parte Equal Opportunities Commission [1989] AC 1155 at 1193-1194. In James' case the question to be asked was "Would the plaintiff, a man of 61, have received the same received the same treatment as his wife, but for his sex?" The court found that an affirmative answer was inescapable and accordingly relevant discrimination was established.

23. In the present case the question to be asked is not: "Would the plaintiff have received the same treatment as other Cathay Pacific cabin attendants but for her sex?" because that question does not reflect the fact that in October 1997 when her employment was finally terminated there were two categories of cabin attendants, those employed prior to 1 June 1983 and those employed after that date. The two different categories were subject to different rules as to retirement.

24. The proper question must be: "Would the plaintiff, a person employed as a cabin attendant in December 1979, have received the same treatment as other Cathay cabin attendants employed in December 1979, but for her sex?" The answer, equally inescapable, is in the affirmative. Were she a man she would have a retirement age of 55. Instead she was required to cease work for the company at the age of 45. Relevant discrimination is accordingly established.

25. By s 11(2)(b) of the Ordinance 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 in the terms of employment her affords her. For the foregoing reasons I find that the terms of employment afforded to Ms. Tsang in 1997 were discriminatory.

26. For these reasons there will be a declaration pursuant to s 76(3A)(a) of the Sex Discrimination Ordinance Cap 480 that Cathay Pacific Airways Limited has engaged in conduct and committed an act which is unlawful under the Sex Discrimination Ordinance by implementing a discriminatory policy concerning the retirement age of male and female cabin attendants against the Plaintiff by compelling her to cease employment with that Cathay Pacific Airways Limited upon reaching the age of 45 years while permitting male cabin attendants to remain in employment with Cathay Pacific Airways Limited until they attain the age of 55 years.

27. It is appropriate that this declaration should be put into a proper context for I perceive it may be considered to be a matter of embarrassment to Cathay to have such a declaration made. It must be noted that in June 1993, fully 3 ½ years before the commencement of the Sex Discrimination Ordinance, Cathay put in place a set of retirement provisions that are plainly not discriminatory. The company's policy now complies, it appears, in all respects with the Ordinance. Further, in December 1996 when the Ordinance came into force Ms. Tsang was one of only 20 female cabin attendants to whom the discriminatory policy applied. Of those 20, Cathay has reached amicable agreement with 18, one has not been located, leaving only Ms. Tsang affected by the policy.

28. The issue of damages still being at large these comments should not be taken to indicate that I have formed any view at all on issues relevant to quantum. They are intended merely to put the claim and consequent declaration into a proper public perspective.

29. There will accordingly be a declaration as set out above. The question of costs is reserved. The proceedings are adjourned sine die to be brought on at 14 days notice should the parties be unable to resolve issues of cost or damages.