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Legal Update

Hong Kong Employment Law Update: Can an Employer Request an Employee to Take a Pregnancy Test?

23 March 2017
Mayer Brown JSM Legal Update

In the Hong Kong District Court decision of Waliyah v. Yip Hoi Sun Terence and Chan Man Hong (DCEO 1/2015 & DCCJ 1041/2015), a domestic helper succeeded in her claim for sex and pregnancy discrimination against her former employer and his wife who had asked her to take a pregnancy test and then terminated her employment after her pregnancy was confirmed.

Facts

The two respondents, R1 and R2, were husband and wife. The claimant ("C") was employed by R1 as a live-in maid.

In October 2013, R2 (i.e., the wife) asked C to urinate into a potty for the purpose of a home-pregnancy test as it was observed that C's tummy was growing big. C took part in the test voluntarily as she was eager to know whether she was in fact pregnant. The pregnancy test indicated a positive result. R2 then took C to the hospital where C's pregnancy was confirmed and they considered C should undergo an abortion.

A couple of days after the pregnancy was confirmed, R1 gave C one month's notice of termination of employment. C was subsequently asked to move out of R1's home before the expiry of the notice period.

C's claims against R1 and R2 were for damages arising from sex and pregnancy discrimination, breach of the implied term of mutual trust and confidence in her contract of employment, breach of the Employment Ordinance and unlawful dismissal.

Court Findings

Had R2 committed any unlawful discriminatory act?

It is well established that the intention or motive to discriminate is irrelevant to determining liability for unlawful sex discrimination. The consent or co-operation of the employee is, likewise, not determinative. The consent or compliance could have been the result of the employee's general servile or subservient character or (similar to the present case), ignorance of legal rights.

The Court accepted that whether a female employee is pregnant is a private matter about which the employer has no right to know. If an employee was asked to take a pregnancy test in a supervised manner but was not given an option whether or not to inform the employer the result, then such request is capable of constituting a less favourable treatment on the ground of gender. This is because a male employee would not be asked to disclose such private information to his employer.

The Court ruled that R2's request for C to take the home-pregnancy test, notwithstanding C's willingness to comply with the request, amounted to a direct sex discrimination.

The termination of C's employment

The Court ruled that R1, who did not appear for the trial, would not have terminated C's employment and/or demanded C to leave his house but for her pregnancy. Apart from constituting unlawful pregnancy discrimination, R1's conduct was also held to have amounted to a breach of the implied term of trust of confidence, a breach of the Employment Ordinance regarding pregnancy protection and unlawful dismissal.

There was no evidence suggesting that R2 had played a role in the termination of C's employment and/or demanding C to leave R1's house. Hence, R2 was not liable for R1's conduct.

Lessons for Employers

Employers should not direct an employee to take a pregnancy test and to disclose the result solely for the purpose for ascertaining whether or not the employee is pregnant. Generally, an employee has the right to choose whether or not and if so, when to inform her employer of her pregnancy. There is no requirement under the Employment Ordinance as to when notice of pregnancy must be given to the employer. However, some of the protection available to a pregnant employee under the Employment Ordinance may not come into play until notice of pregnancy is given.

This case also serves as an important reminder to employers that an act would not be prevented from being discriminatory simply because of the absence of subjective intention or motive to discriminate or because the employee does not object to the request of an employer.

The judgment is available at this link.

Authors

  • Duncan A. W. Abate
    T +852 2843 2203
  • Hong Tran
    Partner
    T +852 2843 4233
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