In the case of Tan, Shaun Zhi Ming v. Euromoney Institutional Investor (Jersey) Ltd  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.
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.
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: