22 November, 2016
Law Miu Kuen Sally v Sunbase International (Holdings) Ltd [2016] HKCU 503
In brief:
The dismissal of a disabled employee who had recently returned from maternity leave did not amount to unfair dismissal, the District Court (“Court”) has found. The Court applied a two part test as to (i) whether the employee had suffered less favourable treatment; and (ii) whether the less favourable treatment had been caused by one of the prohibited discriminatory grounds.
Background:
The claimant suffered from a disability due to a road traffic accident in 2007, and frequently took sick leave for medical and physiotherapy treatment. In August 2009, the defendant employer issued a new set of guidelines (the “Leave Guidelines”) stating that paid sick leave would only be granted if the sick leave was for not less than four days. Previously, paid sick leave was granted without any qualifying period.
In September 2009 the defendant made the decision to terminate the claimant’s employment due to the claimant’s poor performance, negative behaviour towards colleagues and misuse of work computers for personal matters. However the termination was delayed when the claimant informed the defendant that she was pregnant in October 2009.
When the claimant returned to work in August 2010, her employment was terminated by the defendant.
The claimant argued that the Leave Guidelines amounted to unlawful discrimination (discriminating against her sex, disability and family status) and that she was dismissed due to her disability and her recent pregnancy.
Decision:
The Court held that:
- the introduction of the Leave Guidelines did not amount to unlawful discrimination as the Leave Guidelines were applicable to all employees and there was no evidence to suggest that the claimant would be unable to comply with the Leave Guidelines nor that the claimant had suffered unfavourable treatment; and
- there was no evidence that she was dismissed due to her physical condition or her need to take care of her new baby. The claimant was dismissed due to poor performance, mistreatment of co- workers and breach of the defendant’s IT policy.
Take away points:
- Paper trail: to ensure you can demonstrate you have a legitimate reason for dismissal, it is always helpful to properly document any performance issues, including appraisals, warning letters and notes from meetings with the employee. Note, however, that these may be subject to a Data Access Request by the employee, so care must be taken in preparing such documents.
- Take care when amending policies: the case demonstrates that an employer can react and amend a sick leave policy if it feels it is being exploited by employees but an employer must: (i) check that sick leave provisions are not enshrined in the employment contract; (ii) consider whether any employees have prohibited attributes that could be directly or indirectly discriminated against if the policy is changed; and (iii) ensure that the sick leave policy applies to all employees.
For further information, please contact:
Susan C. Kendall, Partner, Baker & McKenzie
susan.kendall@bakermckenzie.com
