10 May, 2017
In the case Waliyah v Yip Hoi Sun Terence and Chan Man Hong (DCEO 1/2015 and DCCJ 1041/2015), the First Respondent (“R1”) and the Second Respondent (“R2”) had been a married couple at the relevant time but were separated at the commencement of the trial. Waliyah (the “Claimant”), an Indonesian domestic helper, was employed by R1 from 2012.
In October 2013, R2 suspected that the Claimant was pregnant and she requested the Claimant to urinate into a potty for home-pregnancy test. The result showed that the Claimant was pregnant and this was later confirmed by a doctor. Several days later, R1 terminated the Claimant’s employment by a month’s notice. R1 required the Claimant to move out of the home of R1 and R2 before the notice period expired.
The Claimant claimed for damages for discrimination on grounds of sex and pregnancy under the Sex Discrimination Ordinance (Cap. 480 of the Laws of Hong Kong) (the “SDO”) against R1 as her employer and R2, as R1’s agent, in addition to her claim for breach of contract, breach of statutory maternity protection under the Employment Ordinance (Cap. 57 of the Laws of Hong Kong) (the “EO”) and unlawful dismissal.
At the trial, R1 was absent and R2 was acting in person. The Claimant was represented by counsel instructed by legal-aid.
The court decided to proceed the trial in R1’s absence, and instead of just entering judgement against R1, the Court decided to consider the whole of the evidence adduced at the trial before deciding on the respective cases against both R1 and R2.
The Potty Test – Is it discriminatory?
It is the Judge’s findings that R2 had asked the Claimant in a polite manner to take part in the home pregnancy test and the Claimant took part in the test voluntarily as she was also eager to know whether she was in fact pregnant.
However, the Judge was of the view that the consent or co-operation of the employee is not determinative. This is because it is well established that the absence of a subjective intention or motive to discriminate would not prevent an act from being discriminatory against an employee. In addition, an employee’s consent could have been the result of her general servile and subservient character or ignorance of her legal rights.
The Judge considered that if an employer asks a female foreign domestic helper to take a pregnancy test in a supervised manner and without giving the employee an option not to inform the employer of the result, that is capable of constituting a “less favourable treatment” to that employee on the ground of her gender. This is because a male employee would not be asked to take such a test and to disclose his private information to the employer. Based on the evidence before the Court, the Judge ruled that R2 had committed sex discrimination against the Claimant by asking the Claimant to urinate into a potty so that R2 could find out herself whether the Claimant was pregnant.
Is the husband being the employer, liable for what the wife did?
Under section 46 of the SDO, principal will be liable wherever the agent discriminates in the course of carrying out functions authorized to do. Moreover, pursuant to section 47 of the SDO, any person who knowingly aids another person to do an unlawful act under the SDO shall be treated as himself doing the unlawful act.
On the evidence, the Court found that R1 was usually not at home during daytime whilst R2 was usually at home to be in
charge of the Claimant’s work as her mistress. It would be obvious and ready to infer that R1 intended R2 to be in a position to give orders and instructions to the Claimant and to supervise her work, in such domestic setting. R2 had in fact been clothed by R1 with authority for such purposes.
Whilst there was no evidence to show that R1 requested the Claimant to undergo the pregnancy test or that he had such knowledge beforehand, R2 asked the Claimant to urinate into a potty for home pregnancy test as the Claimant’s mistress whilst the Claimant complied as a maid.
Accordingly, by virtue of the SDO, if any discriminatory acts within the meaning of the SDO had been committed by R2 as the Claimant’s mistress, even if the Claimant was not employed by R2, both R1 and R2 would be liable under SDO.
Termination of the Claimant’s employment
Based on the evidence before the Court and in the absence of any evidence from R1 to the contrary, the Judge draw the reasonable inference that R1 had become aware of the Claimant’s pregnancy by his own observation and probably also by what he had been told by R2.
The Court found that but for the Claimant’s pregnancy, R1 would not have terminated the Claimant’s employment. The Court further found that R1’s acts of making the Claimant to sign the termination note and demanding her to move out of the residence before expiry of notice period, without reasonable and proper cause, amounted to manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between R1 and the Claimant. The Court considered that R1 was solely and personally accountable for terminating the Claimant’s employment. Accordingly, the Court held that R1’s acts amounted to:
- Pregnancy discrimination against the Claimant under the SDO;
- Breach of implied term of trust and confidence;
- Breach of the EO regarding pregnancy protection; and
- Unlawful dismissal.
Takeaway
This case is the very first case that a foreign domestic helper claimed against her employer due to a forced pregnancy test on the ground of sex and pregnancy discrimination. This case has clarified the scope of sexual and pregnancy discrimination to include requiring employee to undergo forced pregnancy test without giving them an option not to inform the employer of the result.
Employers of foreign domestic helper should be particularly cautious when noticing the helper to be pregnant and should refrain from taking initiative in asking the helper to undergo any home pregnancy test. Laying off female employee after acquiring knowledge of her pregnancy would further trigger the claim of unlawful dismissal by pregnant employee.
For further information, please contact:
Elsie Chan, Deacons
elsie.chan@deacons.com.hk
