WALIYAH v. YIP HOI SUN TERENCE AND ANOTHER

DCEO 1/2015 & DCCJ 1041/2015
(Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 1 OF 2015

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1041 OF 2015

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JUDGMENT

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Introduction

1.  The claimant (C) was a foreign domestic helper employed by the 1^st respondent (R1).  The basic facts, shortly stated, were that C was asked by her employer’s wife (R2) to urinate into a potty for the purpose of a home-pregnancy test.  A positive result was yielded which was later confirmed by a physician.  There were talks of abortion between C and R2, but the context of those is in dispute.  C’s case is that she wanted to keep the baby but was told by R2 that in which case her employment would be terminated.  R2 says, however, that C wanted an abortion as she did not want her husband to know about the pregnancy, the baby being illegitimate.  About a couple of days later, C’s employment was terminated by R1 by a month’s notice.  However, C was required to move out of the respondents’ home before the notice period had expired. 

2.  C now claims against the respondents for damages arising from the alleged sex and pregnancy discrimination, breach of contract,[1] breach of statutory maternity protections under the Employment Ordinance (Cap 57) and unlawful dismissal.  It is C’s case that although her employer was not R2 but R1, R2 had acted as R1’s agent.  R2’s agency was based not only on her marriage to R1, but also on the expressed and implied authority from the latter. 

3.  At the commencement of the trial, R1 and R2 had already separated and lived apart from each other.  Although R1 had appeared at several pre-trial conferences and hearings and had been given proper notice of the trial, he failed to attend the trial either by himself or by any legal representatives.  Moreover, he had not given any notice or explanation to the court regarding his absence.  Therefore, I ordered that the trial be proceeded with in R1’s absence.[2] There is an issue, however, as to whether judgment should just be entered against him.  This is because the evidence of R2 may also bear on the liability of R1.  Mr Deng, counsel acting for C, takes the pragmatic approach and agrees that the court should consider the whole of the evidence adduced at the trial, which consists of the evidence of C and R2, before deciding on the respective cases against the respondents.

4.  As suggested by Mr Deng, I agree that I should first deal with the question of liability of the respondents.  Therefore, I have yet to hear any argument on remedies and quantum of damages.  Subject to the decision on liability, a date can then be fixed for the hearing on remedies and quantum.

Disputed facts

5.  There are a number of discrepancies between C’s pleaded case, her witness statements and her oral evidence in court.  On the other hand, in the case of R2, who has acted in person throughout, her statement is devoid of details and a lot of supplemental information was added during her oral evidence with the help of the court. However, judging from the way that the parties conducted their cases and the evidence before the court, the following facts are largely not in dispute: -

(i) R1 and R2 were husband and wife and they had a daughter who was born in March 2011.  The household lived in a flat in Tsui On (North) Estate, Tsui Ping Road, Kowloon, Hong Kong (“the Residence”).

(ii) C was an Indonesian national who first came to Hong Kong to work in 2008.  Since then, she has been working as a foreign domestic helper.

(iii) C was first hired by R1 as a live-in maid by virtue of a foreign domestic helper employment contract dated 1 February 2012.[3]  She commenced her employment at the Residence on 2 April 2012.

(iv) Apart from general household chores, C also needed to take care of the respondents’ daughter.

(v) At the material time, R1 was employed as an estate agent and therefore would not usually be home during daytime on working days.  R2 was basically a housewife, although there is also evidence from her that she had taken some part time job. 

(vi) In September 2013, the respondents observed that C’s tummy was growing big. 

(vii) On 1 October 2013, as required by R2, C urinated in the morning into a potty in the toilet.  Afterwards, R2 dipped a testing stick into the potty and a positive result for pregnancy was indicated.  Later that day, R2 took C to see a doctor at Kwun Tong Jockey Club Health Centre where C’s pregnancy was confirmed.[4] According to the Consultation Note, which I find to be an independent and reliable piece of evidence and thus to be preferred, R2 had asked the doctor during the consultation as to whereabouts in Hong Kong could C’s pregnancy be terminated and she was told that “TOP” (which stands for “termination of pregnancy”) would be available at HA hospitals.  It was also noted in the Consultation Note that R2 then told the doctor that she preferred the Prince of Wales Hospital (PWH) and therefore she was given a referral to that hospital. 

(viii) On 2 or 3 October 2013, R2 took C to PWH intending to seek an assessment of suitability for abortion but they were unable to obtain any such service there. 

(ix) Shortly afterwards, C was made by R1 to sign on a termination notice.   It is obvious that the reason for the termination was her pregnancy.  She was not given a copy of the termination notice.

(x) On 26 October 2013, C was demanded to leave the Residence.  C was given $5,000 for wages up to 2 November 2013 and her airfare back to Indonesia. 

(xi) However, C did not return to Indonesia.  Instead, she stayed with her friends before she was referred to an NGO which supports migrant workers.

(xii) On or about 4 December 2013, C delivered a baby at Queen Mary Hospital.^[5]  Subsequently, the baby was given up for adoption.

(xiii) On or around 20 January 2014, C found another employment in Hong Kong as a domestic helper and continued to work in that job until 30 May 2014. 

(xiv) Subsequently, C found yet another employment and is still working in Hong Kong as a domestic helper.

Major issues

6.  The major issues for the court to decide at this stage are as follows: -

(i) in the context of the present case, whether R2 had acted as the agent of R1;

(ii) if so, whether R2 had committed any discriminatory acts in that capacity;

(iii) whether R1’s termination of C’s employment was unlawful on any of the grounds relied upon by C; and

(iv) if so, whether R2 would also be liable for the unlawful dismissal on any of the bases relied upon by C. 

Relevant legal principles concerning discrimination

7.  Sex Discrimination Ordinance, Cap 480 (“SDO”) is a social legislation which involves the protection of civil rights and therefore should be interpreted with a purposive approach so that its objectives, as stated in its long title,[6] can be achieved: see s 19 of the Interpretation and General Clauses Ordinance, Cap 1;[7] and Tsang v Cathay Pacific Airways Ltd.[8]  See also Wong Lai Wan Avril v Prudential Assurance Co Ltd,[9] where it is said that a “generous and liberal interpretation” should be adopted in interpreting an anti-discrimination statute.

8.  The definitions of sex discrimination and pregnancy discrimination are given in s5 and s8, SDO respectively.  The section which gives a discriminated female employee a cause of action, however, is s 11 which declares sex discrimination and pregnancy discrimination by an employer unlawful.  In order to decide whether any direct discrimination had occurred,[10] the test to be applied is the two-part test stated in M v Secretary for Justice,[11] namely (i) whether less favourable treatment to the claimant had occurred; and (ii) whether it had been caused by one of the prohibited discriminatory grounds.  Both parts have to be answered in the affirmative before there can be a finding of discrimination.  As regards (i), the comparison is not one simply with another person without the relevant attribute (sex or pregnancy, as the case may be) of the claimant, but with another person not having the relevant attribute but behaving in the same way as the claimant did.[12]  As regards (ii), an objective “but for” test is to be applied, so that intention or motive to discriminate was not a necessary condition of liability, although this may be relevant when determining the appropriate remedies: see Secretary for Justice & Others v Chan Wah & Others.[13]  Moreover, if an act is done for two or more reasons and one of the reasons is the prohibited discriminatory ground (whether or not it is the dominant or substantial reason for doing the act), then the act would be taken to have been done because of that ground.[14] 

9.  The burden is on the claimant to prove discrimination on the balance of probabilities.  Once the court is satisfied that the claimant is able to show from the primary facts that inferences could be drawn from the circumstances that disclosed a possibility of discrimination, the court would look to the employer for an explanation.  If there is no reasonable or satisfactory explanation put forward, then the court would be entitled to infer discrimination as a matter of common sense.  See North West Thames Regional Health Authority v Noone,[15] applied in Lam Wing Lai v YT Cheung (Chingtai) Ltd[16]  and Chan Choi Yin Janice v Toppan Forms (HK) Ltd.[17]  As highlighted in the recent case of Leung Kwok Hung also known as “Long Hair” v Commissioner of Correctional Services,[18] as far as direct discrimination is concerned, the SDO does not provide any for any justification for discrimination.

10.  Regarding a principal’s liability for discriminatory acts done by an agent, pursuant to s46(2), SDO, anything done by an agent with the authority (whether express or implied, and whether precedent or subsequent) of his principal shall be treated as done by the agent as well as the principal.  A similar provision has been interpreted to mean that the principal will be liable wherever the agent discriminates in the course of carrying out the functions he is authorised to do.  The principal can be liable even though he has not authorised the act of discrimination itself. It follows that the act itself may be – and no doubt usually will be – without the principal’s knowledge or approval.  It has also been recognised that an agent for the purpose of an anti-discrimination statute does not necessarily have the power to bind the principal contractually: see Ministry of Defence v Kemeh;[19] also Bowstead & Reynolds on Agency, 20^th Edition, at §1-004.

11.  Furthermore, pursuant to s47(1), SDO a person who knowingly aids another person to do an act made unlawful by the Ordinance shall be treated as himself doing the unlawful act.  Pursuant to   s47(2), an agent for whose act the principal is liable under s46 shall be deemed to aid the doing of the act by the principal. 

As to (i): Agency

12.  There is no evidence that it was R1 who asked for C’s pregnancy test or that he knew about it beforehand.  The evidence shows that it was R2’s idea and initiative.  On the other hand, R2 was neither C’s employer nor R1’s employee.  Therefore, in order for C’s claim against either of the respondents to be successful, she has to prove that R2 had acted as R1’s agent for the purpose of s46 and s47, SDO.

13.  As a limb of his contention that R1 is liable for the act of R2, Mr Deng relies on the judgment of the Supreme Court of the United Kingdom in Cox v Ministry of Justice.[20] In that case, it was held that the prison authority was vicariously liable for the negligence of a prisoner who was assigned to work in the prison kitchen, even though that there was not any employer/ employee relationship.  The vicarious liability arose from the fact that prisoners working in the prison kitchens were integrated into the operation of the prison, so that the activities assigned to them by the prison service formed an integral part of the activities which it carried on in the furtherance of its aims.  They were placed by the prison service in a position where there was a risk that they may commit a variety of negligent acts within the field of activities assigned to them.  Furthermore, they worked under the direction of prison staff. 

14.  With respect to Mr Deng, although the law point is an interesting one, I do not think that it is necessary to decide whether the common law principle stated in Cox is applicable to the present case.  First, Lord Reed, whose judgment the other judges concurred, made it clear that the case was not concerned with agency.[21] Secondly, Mr Deng’s submission would entail of an extension of the principle stated in Cox’s case to a domestic setting so as to make a person vicariously liable for the act of his or her spouse.  In the absence of any thorough arguments from both sides, I am reluctant to decide whether the common law principle can be so extended.  Thirdly, I am content that the respective liability of the respondents, personal or vicarious, can be adequately dealt with within the framework of SDO by deciding whether R2 was acting with R1’s authority (whether expressed or implied, precedent or subsequent). 

15.  Having considered the evidence before the court, I find that R2 was acting as R1’s agent for the purpose of SDO when she asked C to take the pregnancy test at home and later also to see the physician at the clinic.  My reasons are as follows: -

(a)   I draw the obvious and ready inference that, in a domestic setting like the present one, R1 intended that R2 should be in a position to give order and instruction to C and to supervise her work.  I also draw the inference that R1 had in fact clothed R2 with his authority for that purposes;

(b)   as a matter of evidence, R1 was usually not at home during daytime and it was R2 who was usually in charge of C work as her mistress; and

(c)   I find that when R2 asked C to urinate into a potty for the purpose of the home pregnancy test, she did that as C’s mistress and C complied as a maid.

Therefore, if R2 had committed any discriminatory acts within the meaning of SDO as C’s mistress, then even though R2 was not C’s employer, both R1 and R2 would be liable under SDO by the operation of s46 and s47. As discussed above, that R1 might not have authorised an act of discrimination would not absolve his liability.

 As to (ii): discrimination by R2

16.  The next question is whether R2 had committed any discriminatory acts.  In this regards, Mr Deng relies on the following: -

(a)   R2 requesting/demanding C to take a “mandatory” pregnancy test at home and afterwards also to see the doctor at the clinic;

(b)   R2 asking C to have an abortion as a condition for keeping her employment;

(c)   R2 dismissing C or inducing or attempting to induce R1 to terminate C’s employment;[22] and

(d)   R2 demanding C to leave the Residence before the notice period had expired.

17.  It is important to note that C’s oral evidence, especially on (a) and (c) above, is materially different from her pleaded case which she has endorsed by signing a statement of truth.  In particular: -

(i)   As regards the home pregnancy test, C gave evidence in court that R2’s tone was polite when she asked her to urinate into a potty and C felt that the request was “normal”.  C even said that she also wanted to know whether she was pregnant and therefore she voluntarily took part in the test.  This is to contrast with C’s pleaded case that R2 “imposed” the pregnancy test on her[23] and her witness statement that “I did not have any choice as to whether it was administered or not administered”.[24] 

(ii)   Regarding the termination notice, C’s pleaded case is that R2 told her that she must sign the document and that R2 did not explain it to her or allow her to read it.[25] In C’s witness statement, however, she said that it was R1 who told her to sign and said that they could terminate her employment because of her pregnancy and at the time R2 was standing next to her.  When C gave evidence in court, however, she said that R2 was in fact not present and was in the bedroom. 

18.  Having observed C giving evidence in court, I accept her evidence in court that she took part in the home pregnancy test voluntarily, as she was also eager to know whether she was pregnant.  I find also that R2 was not present when R1 asked C to sign on the termination notice.  Therefore, there is no direct evidence that R2 had caused R1 to terminate C’s employment and C did not have any personal knowledge about R2’s role in the termination.   Furthermore, I find that C’s pleaded case that R2 had “induced or attempted to induce” or otherwise “procured” R1 to commit a breach of contract is based on speculation.  On the other hand, there is R2’s evidence, which I accept, that she did not want C to leave and she had not contributed to R1’s decision to terminate C’s employment.

19.  I have borne in mind Mr Deng’s several criticisms of R2’s credibility as set out in paragraphs 42 to 51 of his written closing submission.  With respect, I do not find any of those criticisms justified.  In particular, I am not able to accept that R2 had tried to delay the proceedings or had been disrespectful by pretending to be in pain or sleepy whilst in court and so forth.  There is evidence before me, which I accept, that R2 has been seeing a psychiatrist and a physiotherapist and that she is also expecting an operation on her breast cancer (which is already at an advance stage).  I note also that R2 was brought up or educated on the mainland. Before her recent separation with R1, she had basically been a housewife.  She knows little English and has been acting in person.  She is now a single mother depending on public assistance.  I have not ignored the fact that there are certain areas in R2’s evidence which are less than satisfactory.  However, R2 does not strike me as a dishonest witness as Mr Deng seeks to portray.  

20.  I have also alive to the fact that the respondents in their respective witness statements (made for the present proceedings and for the proceedings in the Labour Tribunal) insisted that they had not been notified of any pregnancy.  However, that fact does not cause me to reject all of R2’s evidence in court.  Having observed R2 giving evidence as a witness, I accept her evidence and I find that R1 was a dominating husband, that he was disrespectful towards her and that she did not have much influence on his decision making.  I find as a fact that R2’s witness statements were drafted by R1 who alone dictated the statements should say and that explains why their witness statements look so similar.  I also accept R2’s evidence that she was unwilling for C to leave and it was R1’s sole decision to terminate C. 

21.  Furthermore, I find it more probable than not that it was C who first raised with R2 the topic of getting an abortion in Hong Kong and sought C’s help in canvassing that possibility.  Bearing in mind that C’s baby was not from her husband (who at the material time was working in Japan), it accords with common sense that C would want to deal with the situation without her husband knowing about it.  In support of this point, there is C’s evidence in court that she did not go back to Indonesia to give birth to the baby because she was ashamed and did not want her parents to know about it. Besides, it would come as no surprise that R2 may have done most of the talking in the clinic with the doctor, as it would be more convenient for R2 to communicate with the doctor in Cantonese.  It would also not be surprising that C would shortly after take R2 to PWH to see if C could have a TOP there, if that was what C wanted at the time.  I accept R2’s evidence that she did not like doing house chores and was worried about losing the service of a helper.  Therefore, it is in my view inherently improbable that R2 would have asked C to leave the Residence when there was only about a week to go before the expiry of the notice period.

22.  Having considered all the evidence as a whole and the submissions, bearing in mind that the burden is on C to prove her case: -

(a)   I am unable to be satisfied that R2 had forced C to take “mandatory” pregnancy tests.  Although R2 took C to see the doctor at the clinic and afterwards also to PWH, I find that C had failed to prove that R2 had in any way coerced C to go to either of the two places. 

(b)   I am also not satisfied that anyone, whether R1 or R2, had forced or asked C to choose between abortion and dismissal.  Based on the evidence before, I find it more probable than not that after R1 had learned about the pregnancy he simply decided to terminate C’s employment and get rid of the problem.

(c)   I find also that C has failed to prove that R2 had “induced or attempted to induce” R1 to terminate C’s employment or had in any other ways influenced him so to do. 

(d)   Although it was R2 and her mother-in-law (R1’s mother) who saw C leave on 26 October 2013, I am unable to be satisfied that R2 had demanded C to leave the Residence prior to the expiry of the notice period or that she had any contribution to that idea.  I find it more probable that it was R1’s order and therefore he asked his mother to come and help.

23.  On the other hand, I accept C’s evidence and find that R2 had asked C in a polite manner to take part in the home pregnancy test.  I find also that C took part in the test voluntarily, as she too was eager to know whether she was in fact pregnant. 

24.  That said, given my above findings it is still necessary to decide whether R2’s request of C to take the pregnancy test and to see the doctor, albeit in a polite manner and followed by C’s willing compliance, amounts to any direct sex discrimination.[26] In this regard, I accept Mr Deng’s submission that the consent or co-operation of the employee is not determinative.  My reasons are as follows:

(i) as discussed above, it is well-established that the absence of a subjective intention or motive to discriminate, though may be relevant to the assessment of damages, would not prevent an act from being discriminatory against an employee: see also R(E) v Governing Body of JFS (United Synagogue intervening);[27]

(ii) an employee’s consent or compliance could have been the result of her general servile and subservient character or (like the present case) ignorance of her legal rights; and

(iii) the spirit of anti-discrimination law being the equal treatment of people, in my view, it would further the purpose of SDO by focusing on the nature of the employer’s conduct, rather than the employee’s response to her employer’s request. 

25.  Furthermore, I accept Mr Deng’s submission that whether a female employee is pregnant is a private matter about which the employer has no right to know and that the latter may not take the former’s pregnancy into consideration for the purpose of applying her working conditions: Busch v Klinikum Neustadt GmbH & Co.[28] Of course, if the employee chooses to inform the employer of her pregnancy, then the statutory pregnancy protection provisions would come into play.

26.  I accept Mr Deng’s submission that if an employer asks a female foreign domestic helper to take a pregnancy test in a supervised manner and without giving the employee 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.    Moreover, as discussed above, SDO has not provided for any justification for direct sex discrimination. 

27.  Based on the above and the evidence before the court, I find that R2 had gone too far and committed sex discrimination against C for the purpose of ss 5(1)(a) & 11(2), SDO, by having asked the latter to urinate into a potty so that she (R2) could find out for herself whether C was pregnant.  Also, I find that R1 is made liable for R2’s aforesaid discriminatory act by the operation of s 46, SDO.   Regarding R2 taking C to see the physician at the clinic and then also to PWH, in view of my finding that it is more probable than not that it was C who first raised the possibility of getting an abortion in Hong Kong, I am unable to be satisfied that that amounts to discriminatory.

As to (iii): Dismissal by R1

28.  Based on the evidence before me and in the absence of any evidence from R1 to the contrary, I draw the reasonable inference that R1 had become aware of C’s pregnancy by his own observation and probably also by what he had been told by R2.  However, there is no credible evidence before me and I refuse to draw any inference that R2 had induced or attempted to induce, or otherwise procured R1 to terminate C’s employment.  As discussed above, I find that R1 was solely responsible for: -

(i) making C sign the termination note; and

(ii) demanding that C move out of the Residence on 26 October 2013 which was about a week before the expiry of the notice period. 

29.  I find also that R1 would not have done the above but for C’s pregnancy.  As such, R1 had committed acts of pregnancy discrimination against C for the purpose of ss 8(a) & 11(2), SDO.

30.  Besides, I find that R1 had, by committing (i) and (ii) above, without reasonable and proper cause conducted himself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between him and C: see Courtaulds Northern Textiles Ltd v Andrew.[29]

31.  Therefore, I find that R1’s aforesaid acts, apart from constituting pregnancy discrimination against C, also amount to: (i) a breach of the implied term of trust and confidence; (ii) a breach of the Employment Ordinance regarding pregnancy protection and (iii) unlawful dismissal. 

As to (iv): R2 and unlawful dismissal

32.  As discussed above, I am not satisfied that R2 had induced, attempted to induce or otherwise procured R1 to terminate of C’s employment.  I am also not satisfied that she had any intention to do so.  It follows therefore that R2 is not liable for any tortious inferences of C’s employment contract or the unlawful dismissal on any of the grounds relied upon by C: see OBG Ltd v Allan.[30]

Conclusion

33.  Based on the above, I find in favour of C to the following extent: -

(i) R2 was personally liable for her act of sex discrimination against C by asking the latter to urinate into a potty so that she (R2) could conduct a pregnancy test on the latter and R1 was also liable as R2’s principal for the aforesaid discriminatory act; and

(ii) R1 was also personally liable for his acts of pregnancy discrimination by (a) making C sign the notice of termination and (b) demanding that C move out of the Residence before the expiry of the notice period, such acts also constituting (i) a breach of the implied term of mutual trust and confidence; and (ii) a breach of the Employment Ordinance relating to pregnancy protection; and (iii) unlawful dismissal. 

34.  The question of costs is reserved.

35.  A day is to be fixed for the hearing on remedies and assessment of damages.

36.  As this judgment is written in English, arrangement will be made for a court interpreter to explain the judgment to R2.