Pregnancy testing: Employer tested "negative"
In Waliyah v Yip Hoi Sun Terence  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.
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