News
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Submitted by // K Bowers, Partner / Solicitor Advocate; P Yeung, Senior Associate
20 April 2017

 

Pregnancy testing: Employer tested "negative"

Facts

In Waliyah v Yip Hoi Sun Terence [2017] HKEC 84, a foreign domestic helper ("Waliyah") was asked to take a home-pregnancy test after her employer ("R1") and his wife ("R2") observed that Waliyah's stomach had grown big. Following R2's instructions, Waliyah urinated in a potty and allowed R2 to dip a pregnancy testing stick into the potty. When the home-pregnancy test yielded a positive result, R2 took Waliyah to a physician to confirm the pregnancy. A few days after the physician's confirmation of pregnancy, R1 terminated Waliyah's employment contract by giving her one month's notice. R1 also required Waliyah to move out of his home before the expiration of the notice period.

The two-pronged test

In order to ascertain whether Waliyah had been subject to any sex / pregnancy discrimination under the provisions of the SDO, the Judge applied a two-pronged test. First, the Judge considered "whether less favourable treatment to [Waliyah] had occurred" by comparing Waliyah with another person without the relevant attribute (being another employee who was not female / who was not confirmed to be pregnant) but behaving in the same way as Waliyah. Secondly, the Judge considered "whether [the less favourable treatment] had been caused by one of the prohibited discriminatory grounds" (being the grounds of sex / pregnancy).

No justification to direct discrimination under the SDO

Upon applying the two-pronged test, the Judge held that R2's request for Waliyah to take a home-pregnancy test in a supervised manner and without the option not to inform R2 of the result constituted sex discrimination. This is because R2's request amounted to 'less favourable treatment' on the prohibited ground of Waliyah's sex. The Judge explained that, by comparison, the same requests would not have been made to a male employee.

Whilst an intuitive argument could be made that a male employee would not be asked to take a pregnancy test simply by virtue of the fact that he could not be pregnant, the Hong Kong Courts have held in the past that the SDO does not provide for any justification for direct discrimination. Therefore, the fact that it would have been illogical / impossible to ask a male employee to take a supervised pregnancy test is irrelevant in ascertaining the existence of discrimination.

"But she said yes!"

Whilst the Judge found that Waliyah took part in the home-pregnancy test "voluntarily" and that R2's request was made "in a polite manner and followed by [Waliyah]'s willing compliance", he concluded that Waliyah's "consent or co-operation… is not determinative" of the lawfulness of R2's request. In part, this is because Waliyah's consent or compliance was a result of her ignorance of her legal rights. The Judge concluded that whether or not a female employee is pregnant is a private matter about which the employer has no right to know.

Terminating employment by reason of pregnancy

Upon finding that Waliyah's pregnancy was the "obvious" reason for R1's termination of her employment, the Judge held that R1 had committed acts of pregnancy discrimination contrary to the SDO. The Judge also found that R1's conduct was unlawful for being in breach of the implied term of mutual trust and confidence between employer and employee, breach of the Employment Ordinance relating to pregnancy protection, and unlawful dismissal.

Whilst R1 was Waliyah's actual employer, the Judge found that R2 had acted as R1's agent, whether as a result of their marriage, or the express or implied authority from R1 for R2 to act on his behalf. Consequently, R1 was liable for R2's violations of the SDO in addition to his own.

The SDO is a social legislation concerned with the protection of civil rights

In assessing discrimination claims through the two-pronged approach, the Hong Kong Courts will give particular regard to the nature of the respondent's conduct. Consequently, the absence of a discriminatory intention would not necessarily absolve a respondent from liability for discrimination. This approach is evident in this case where, despite not having coerced Waliyah to take a pregnancy test, the fact that R2 had made such a request rendered R1 liable for sex discrimination.

Although this particular case involves unique facts in a domestic context, it has wide-ranging implications for all employers in Hong Kong, in whatever context.

Seeing as the underlying spirit of the SDO is for the equal treatment of all, the Courts have tended to adopt a "general and liberal" approach when it comes to interpreting and enforcing discrimination legislation in Hong Kong, meaning that employers should act prudently and with great care in relation to all decisions affecting their pregnant employees.


About Us

Howse Williams Bowers is an independent law firm which combines the in-depth experience of its lawyers with a forward thinking approach.

Our key practice areas are corporate/commercial and corporate finance; commercial and maritime dispute resolution; clinical negligence and healthcare; insurance, personal injury and professional indemnity insurance; employment; family and matrimonial; property and building management; and financial services/corporate regulatory and compliance.

As an independent law firm we are able to minimise legal and commercial conflicts of interest and act for clients in every industry sector. The partners have spent the majority of their careers in Hong Kong and have a detailed understanding of international business and business in Asia.

Disclaimer: The information contained in this article is intended to be a general guide only and is not intended to provide legal advice.  Please contact pr@hwbhk.com if you have any questions about the article.

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Press //
Submitted by // B Ho, Partner; D Che, Partner
11 April 2017


Howse Williams Bowers ("HWB"), a leading Hong Kong independent law firm, advised Ample Capital Limited, the sole sponsor and Ample Orient Capital Limited, the sole global coordinator and joint bookrunner, as the Hong Kong legal counsel, on the HK$104 million listing of the shares of Milestone Builder Holdings Limited ("Milestone") on the Main Board of the Hong Kong Stock Exchange. The shares commenced trading on the Hong Kong Stock Exchange on 7 April 2017.

Milestone is a long-established main contractor and subcontractor in Hong Kong that is principally engaged in the provision of building construction services, alteration, addition, fitting-out works and building services and repair and restoration of historic buildings. This is the fifth IPO that HWB has completed in 2017.

The HWB team was led by partners, Brian Ho and Denise Che. The team had lead responsibility on legal documentation, providing advice on corporate and regulatory issues, communicating with the regulators and undertaking general transaction management.


About Us

Howse Williams Bowers is an independent law firm which combines the in-depth experience of its lawyers with a forward thinking approach.

Our key practice areas are corporate/commercial and corporate finance; commercial and maritime dispute resolution; clinical negligence and healthcare; insurance, personal injury and professional indemnity insurance; employment; family and matrimonial; property and building management; intellectual property; banking; financial services/corporate regulatory and compliance.

As an independent law firm we are able to minimise legal and commercial conflicts of interest and act for clients in every industry sector. The partners have spent the majority of their careers in Hong Kong and have a detailed understanding of international business and business in Asia.

Disclaimer: The information contained in this article is intended to be a general guide only and is not intended to provide legal advice.  Please contact pr@hwbhk.com if you have any questions about the article.

 
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Submitted by // C Tan, Partner
30 March 2017


Howse Williams Bowers ("HWB"), a leading Hong Kong independent law firm, acted as the legal adviser to the sole sponsor and the underwriters in relation to the approximately HK$200 million share offer and listing of SHIS Limited (Stock Code: 1647) ("SHIS") on the Main Board of the Stock Exchange. Dakin Capital Limited acted as the sole sponsor while China Prospect Securities Limited acted as the sole bookrunner and sole lead manager. The shares commenced trading on the Main Board of the Hong Kong Stock Exchange on 30 March 2017.

SHIS is one of the top ten key players in the integrated building service industry in Singapore. They focus on maintenance and installation of mechanical and electrical systems, including minor repairs and improvement works. They also undertake building construction work in Singapore.

The HWB team, led by partner Chia Ching Tan, had lead responsibility in the verification process, legal documentation, corporate and regulatory issues and general transaction management.


About Us

Howse Williams Bowers is an independent law firm which combines the in-depth experience of its lawyers with a forward thinking approach.

Our key practice areas are corporate/commercial and corporate finance; commercial and maritime dispute resolution; clinical negligence and healthcare; insurance, personal injury and professional indemnity insurance; employment; family and matrimonial; property and building management; intellectual property; banking; financial services/corporate regulatory and compliance.

As an independent law firm we are able to minimise legal and commercial conflicts of interest and act for clients in every industry sector. The partners have spent the majority of their careers in Hong Kong and have a detailed understanding of international business and business in Asia.

Disclaimer: The information contained in this article is intended to be a general guide only and is not intended to provide legal advice.  Please contact pr@hwbhk.com if you have any questions about the article.

 
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News //
Submitted by // K Bowers, Partner / Solicitor Advocate
16 March 2017


BLAME GAME

Introduction

This case concerned a water leakage dispute. The Plaintiffs were the registered owners of a property on the top floor of a residential building ("Property"). The Defendant was the IO of the building. The Plaintiffs commenced an action against the Defendant on the basis that the water leakage into the Property was caused by the disrepair of the external wall outside the Property ("External Wall").

Background

It was common ground that there were eaves built upon a supporting structure above the Property. In 2015, the Buildings Department sent a demand to the Plaintiffs and the IO ordering the removal of the eaves on the basis that the eaves were an 'unauthorised structure'. Although the eaves had deteriorated to quite an extent, neither the Plaintiffs nor the IO took any action to remove the supporting structure or the eaves. There were also cracks found in the External Wall.

The Plaintiffs' case was that the water leakage constituted nuisance, and that this nuisance was caused by the disrepair of the External Wall, which was a common part of the building and was consequently the responsibility of the IO to repair.

The IO disagreed and argued that the water leakage was caused by the eaves which had been built by the Plaintiffs. The Plaintiffs denied that the eaves had caused the water leakage.

Issues

The Court had to consider the following issues:-

1. whether the water leakage was caused by the disrepair of the External Wall, the supporting structure, or by the eaves; and

2. if the water leakage was caused by the supporting structure or the eaves, who was responsible for the damage?

Supporting structure

Having reviewed the expert evidence and the approved building plans, the Court found that the supporting structure already existed before the Plaintiffs bought the Property. The Court held that seeing as the supporting structure was not built by the Plaintiffs, and as the supporting structure was on the exterior of the building, the supporting structure fell within the responsibility of the IO, which was responsible for the upkeep of the common parts of the Property and had a duty to take action in respect of any structure added onto common parts..

What caused the water damage?

Upon considering the evidence given by the Plaintiffs and IO's respective expert witnesses, the Court held that although there were cracks in the External Wall, the water did not seep through these cracks into the Property. Instead, the water leakage was caused by water seepage through the cracks in the supporting structure.

However, the real question was how did the water seep through the supporting structure into the External Wall and then into the Property in the first place. On this point, the Court held that the water leakage was caused by rusting on the eaves, which caused and expanded the cracks in the supporting structure and that water seeped through these cracks and into the External Wall.

Although the IO was responsible for the supporting structure, seeing as the eaves had been built upon the Plaintiffs’ instructions, and as it was the rusty eaves built by the Plaintiffs which ultimately caused and expanded the cracks in the supporting structure leading to the water leakage, the IO was not held to be liable for the water leakage.

Chain of causation

The Plaintiffs argued that even on a finding that the rusty eaves had damaged the supporting structure to allow water to seep through, the cause of the water leakage was broken by the IO’s failure to discharge its statutory duty under section 18 of the Building Management Ordinance (Cap. 344) to maintain the exterior of the building, which included the supporting structure.

The Court rejected this argument, and held that 'but for' the rusty eaves, there would not have been any water seepage into the Property. The Plaintiffs must have 'reasonably foreseen' that there would be water leakage if they added the eaves which were bound to cause damage to the supporting structure with the passage of time without proper maintenance. The Plaintiffs must also have reasonably foreseen that the IO would not promptly maintain and repair the supporting structure, especially when the eaves were still there, despite the maintenance and repair of the supporting structure being the IO's duty. Consequently, the IO's failure to maintain the common parts did not break the chain of causation.

The Court highlighted that in this case, it was important that the water leakage occurred inside the Property, and that the cause of the water leakage was not clearly known. Insofar as it was thought that the roof was the cause, the IO did repair the Roof in 2003. In 2007, the Plaintiffs complained to the IO about water leakage inside the Property, but the cause was unknown, and the Plaintiffs did not chase the IO for a response, and whilst the IO had a duty to maintain the exterior of the building, it did not have any duty to investigate the cause of water leakage in the Property.

Judgment

Consequently, the Court ordered the Plaintiffs to remove the eaves. The Court also ordered that the supporting structure had to be repaired (or removed), but since the supporting structure was part of the exterior, the IO was responsible for this work. The Court held that it was the IO's decision whether or not to remove the supporting structure. However, if after the Plaintiffs had removed the eaves, the water leakage problem persisted, it would appear that the IO would be liable.

Take-away

In many building management cases, it is difficult to ascertain the ultimate cause of water damage. Although in this case, the owners were ultimately liable for the water damage (the Court rejecting the Plaintiffs' argument that the IO's breach of its statutory duty broke the chain of causation), building managers should nonetheless be acutely aware of the duty to maintain and repair the common parts of the building. This judgment helpfully clarifies that the IO should be responsible for taking action in respect of any structure added onto common parts (even if it may be unclear when and who added the structure). When in doubt about liability to maintain and repair common parts, building managers should review the Deed of Mutual Covenant for the building and check the contractual terms of its appointment by the incorporated owners (and seek legal advice)!

 

About Us

Howse Williams Bowers is an independent law firm which combines the in-depth experience of its lawyers with a forward thinking approach.

Our key practice areas are corporate/commercial and corporate finance; commercial and maritime dispute resolution; clinical negligence and healthcare; insurance, personal injury and professional indemnity insurance; employment; family and matrimonial; property and building management; banking; financial services/corporate regulatory and compliance.

As an independent law firm we are able to minimise legal and commercial conflicts of interest and act for clients in every industry sector. The partners have spent the majority of their careers in Hong Kong and have a detailed understanding of international business and business in Asia.

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