Legal Update: Recent judgment revises guidance for amount of damages for injury to feelings in pregnancy discrimination case

The recent District Court decision of 秦秀清 v 長鴻鋁窗裝飾工程有限公司 (“Tsun”; DCEO3/2018) updated the starting point of the award of damages for injury to feelings in pregnancy discrimination cases and provided further guidance as to the factors which the Court may take into account in awarding damages and costs in discrimination cases.

Facts of the case

In the above case of Tsun, the Claimant alleged her former employer of discrimination on the ground of her pregnancy, her disability and by way of victimization. The main allegations are that:-

1. the Claimant was pressured by various threats made by the employer to resign after she informed its sole director (“Mr. Chan”) of her pregnancy;
   
2. she was dismissed by the employer for poor performance after she resumed work from her sick leave taken as a result of the miscarriage she suffered;
   
3. the employer refused to make severance payment to her and provide her with an employment reference letter after she had made a complaint of discrimination to the EOC.

The Court considered the Claimant to be a credible witness and found that the alleged less favourable treatment of her by the employer did take place. It held that:-

1. the stated dismissal reason of ‘poor performance’ was not genuine and there was clear evidence showing that the Claimant was dismissed by her employer on the ground of the health conditions arising from her pregnancy, which constituted an act of pregnancy discrimination in breach of the Sex Discrimination Ordinance;
   
2. the definition of “disability” under the Disability Discrimination Ordinance covers the situation where a pregnant woman suffered a miscarriage, but since Mr. Chan was not aware of any symptoms resulted from the Claimant’s miscarriage, the employer could not have discriminated against her on the ground of disability; and
   
3. it was clear from the evidence that the refusal to pay the Claimant her severance payment and provide her with a reference letter were due to the Claimant’s discrimination complaint to Equal Opportunities Commission and constituted acts of victimization (which were in breach of both Ordinances mentioned above).  

Award of damages and costs

The Court referred to the Court of Appeal’s judgment in the case of Yuen Wai Han v South Elderly Affairs Ltd. [2005] 2 HKLRD 277, where it was stated that the amount of damages awarded for injury to feelings for discrimination against a pregnancy woman should not generally be less than HK$50,000.

Having regard to the fact that the said judgment was handed down 15 years ago, the Court considered that the starting point for such award of damages should be adjusted upward to HK$55,000.

In assessing the appropriate amount of damages to be awarded, the Court took into account of the facts of the previously good and stable employment relationship of over 3 years between the parties and the immense pressure brought by the threats of the employer during the vulnerable times of the Claimant’s pregnancy and miscarriage. Ultimately, the Court awarded an amount of HK$90,000 for injury to feelings to the Claimant.

The Court also made an award of HK$33,000, which is equivalent to the three months’ wages of the Claimant, for loss of income as the Court considered three months to be a reasonable period for the Claimant to find alternative employment after her dismissal by the employer in a discriminatory manner.

In light of Mr. Chan’s behavior in defending the proceedings, which included the unreasonable challenges to the facts that the Claimant was pregnant and miscarried during the material as well as strenuously denying that he dismissed the Claimant for pregnancy reason, the Court considered that HK$10,000 is an appropriate amount for punitive damages for the further harm caused to the Claimant.

As for the award of costs, the Court noted the general rule that it would usually be for each party to bear their own costs irrespective of the outcome of the case (please see our specific articles in discrimination cases for more details). In this case, however, the Court took into account of the number of false and serious allegations by Mr. Chan made against all parties involved in the case including the doctor of the Claimant, the legal representatives of the Claimant as well as to the handling judges. The Court was of the view that Mr. Chan’s hostile behavior was unreasonable and repugnant. On such basis, the Court ordered the employer to pay the legal costs (with amount to be assessed) incurred by the Claimant.

Conclusion

It is welcoming to see that the Court revised the guideline for damages of injury to feelings to reflect the development in the society and provided detailed reasoning as to the factors taken into account in considering amount of damages to be awarded. The above case of Tsun serves as a strong reminder to employers to not act discriminately towards pregnant employees.

More importantly, the case demonstrated the importance of properly handling a potential discrimination complaint or claim as the relevant conduct may be taken into account by the Court in whether to exercise its discretion in awarding punitive damages or costs to a particular party. Had the employer in the above case obtained professional legal advice in a timely manner rather than acting in person by its director, it may not have faced an adverse order of damages and costs of such a degree by the Court.

Russell Bennett & Mark Chiu

The above is not intended to be relied on as legal advice and specific legal advice should be sought at all times in relation to the above.

For more information on employment matters, please contact:

Russell Bennett
Partner | Email

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.