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‘Pro-Female Bias’ Found To Be Sex Discrimination By Hong Kong District Court – Discrimination, Disability & Sexual Harassment


In the case of Tan, Shaun Zhi Ming v. Euromoney
Institutional Investor (Jersey) Ltd
[2022] HKDC 622
DCEO4/2017, the District Court (DC) ruled in favour of an employee
claiming sex discrimination because his employment was terminated
after refusing to apologise to a female co-worker who accused him
of sexual harassment. The employee argued that the employer’s
decision to terminate was due to a “pro-female bias” and
that because the sexual harassment accuser was female the employer
was so scared of being accused of not doing enough that it was
willing to discard the truth and due process to get rid of the
issue as fast as possible.

Background

The employee was employed by the defendant company (Company). On
2 June 2017, a female colleague (JL) lodged a complaint against the
employee for sexual harassment (Sexual Harassment Complaint),
following an incident at a staff lunch event.

The Company investigated the Sexual Harassment Complaint and
ultimately terminated the employee:

  • At an investigation meeting on 7 June 2017, the Company’s
    HR Manager (HR Manager) informed the employee of the Sexual
    Harassment Complaint and that JL wanted an apology. The employee
    refused to apologise, insisting that he had done nothing wrong, and
    that JL’s complaint was not “backed by something
    reasonable
    “.

  • At a subsequent meeting on 15 June 2017, the employee’s
    Supervisor (Supervisor) conveyed JL’s further demands that the
    employee (1) should avoid JL as far as possible in the future; and
    (2) should give JL a written apology. The employee agreed to the
    first demand but not the second. The Supervisor told the employee
    that “…the apology did not need to include an admission
    of fault, but that JL was ‘upset’, and that if the
    [employee] did not apologize, JL had said that she would call the
    police and the matter would then be ‘out of their
    hands’.

  • During a meeting on 21 June 2017, the employee was asked to
    either resign or his employment would be terminated in order to
    “close down this situation now“. The Supervisor
    said that the Company was allowed to terminate the employee’s
    employment without any reason, but he also referred to the
    employee’s refusal to apologise to JL. The HR Manager also said
    that the Company “could not force the [employee] to admit
    wrongdoing, and that was why they had to ‘find a way to resolve
    this issue because as an employer we have the responsibility to
    ensure our workforce is not being threatened by the threat of
    sexual harassment or any kind of harassment…
    ‘” The
    employee refused to apologise, and was terminated. The employee
    covertly recorded this meeting.

In a letter later sent by the Company’s solicitors to the
employee (Solicitor’s Letter), the reason for termination was
stated to be “not as a result of any claim made against
you…rather, that decision was made as a result of your conduct
during and following the investigation of that
claim…

Arguments at Trial

The employee sued the Company for sex discrimination in breach
of the Sex Discrimination Ordinance (Cap. 480) (SDO). The employee
claimed that the termination decision was made due to the
“pro-female bias” of the Company and that “[the
termination decision] was the result of sex discrimination against
him because of his gender, and the gender of his
accuser.
” He argued that had the complaint been brought
against a female employee, she would not have been treated in the
same manner, and she would not have been fired.

The Company could not produce a compelling reason for the
termination of employment. It argued that the employee’s
termination was not only based on his conduct during and following
the investigation into the Sexual Harassment Complaint, but also
based on previous conduct amongst other staff (Previous Conduct).
However, under cross examination, the HR Manager admitted that no
formal complaints had been filed against the employee before the
Sexual Harassment Complaint. Furthermore, from the employee’s
covert audio recording of the termination meeting, as well as the
Solicitor’s Letter, it was evident that the basis of the
termination was the Sexual Harassment Complaint, and there had been
no mention of the Previous Conduct at the time of the
termination.

DC’s Decision

The DC found that it was “blatantly untrue
that the termination decision was based upon or partially upon the
Previous Conduct.

Based on the factual findings, the DC inferred that the real
reason for termination was a “pro-female bias”. The DC
held that “…in the same scenario, had the [employee]
been a woman, the [Company] would not have had treated the
[employee] in the same way. Had the [employee] been a woman, the
[Company] would not have demanded the [employee] to offer an
apology to JL while the Sexual Harassment Complaint is not true.
The [Company] also would not have terminated the [employee]’s
employment after the [employee] refusing to offer the
apology.

The DC held that the Company breached the SDO, and granted the
employee: (1) a declaration that the Company’s decision to
terminate the employee was based on sex discrimination and is
unlawful; (2) damages by way of compensation, capped at HK$150,000
with interest; and (3) an apology order.

Takeaways for Employers

An overzealous approach to dealing with an accused in a
harassment complaint, without legitimate and genuine grounds, can
give rise to sex discrimination. Men can, of course, be the subject
of sex discrimination. It is important to take action based on
legitimate and genuine grounds.

While the Employment Ordinance does not require an employer to
provide reasons for termination at the time of terminating
employment (see our Legal Update on this point), in certain
situations it may beneficial to do so. If the circumstances are
such that maybe there is a suggestion of less favourable treatment
based on gender (such as the facts of the present case), it would
help to pro-actively establish and document the legitimate and
genuine grounds for termination in order to reduce potential
dispute. Naturally, there must be legitimate and genuine reasons
for the termination in the first place, e.g., performance issues
and breaches of contract, conduct issues, etc..

The judgment is available at the following link:

https://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=145258&QS=%28%7BTan+Shaun+Zhi+Ming%7D+%25parties%29&TP=JU

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This
Mayer Brown
article provides information and comments on legal
issues and developments of interest. The foregoing is not a
comprehensive treatment of the subject matter covered and is not
intended to provide legal advice. Readers should seek specific
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discussed herein.



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