In a recent decision, the Hong Kong District Court considered an employee's claim that she had been dismissed due to her pregnancy and not the (unreasonable) performance concerns of her employer. The Court found that, when considering if summary dismissal is justified, it is critical to consider if the employee breached the basic terms of the contract and that an employee's accumulative breaches may amount to a habitual disregard of their duties justifying summary dismissal. Where this is established, it may be a valid defence to a claim of unlawful discrimination.
The Plaintiff was employed as a domestic helper by the Defendant between April 2016 and February 2017. She brought proceedings against her former employer claiming that her dismissal was unlawful on the basis that it amounted to a discriminatory act specifically, that she was terminated from her role because she was pregnant. Section 8 of the Sex Discrimination Ordinance makes it unlawful for an employer to dismiss a woman because of her pregnancy.
The Defendant argued that the Plaintiff's employment was lawfully terminated without notice in accordance with section 9 of the Employment Ordinance ("EO"), and not because of her pregnancy. The scope of the Plaintiff's work was not disputed by the parties. It was agreed that the Plaintiff would carry out ordinary house-keeping duties, including cleaning, buying groceries, and preparing meals. However, it was claimed by the Defendant that there were disagreements over the performance of the Plaintiff's duties, with the Defendant being dissatisfied over the quality of the execution on more than one occasion.
In January 2017, the Plaintiff was given a warning letter, which listed in detail a large number of complaints made by the Defendant. The Plaintiff understood the content and accepted the letter although expressed her disagreement with the points raised. The Plaintiff alleged that it was the Defendant's discovery of her pregnancy that caused a change in the attitude towards her, and that the warning and complaints only arose after the Defendant learnt of her pregnancy. This was denied by the Defendant who claimed that she regularly gave verbal warnings and written feedback through messaging applications.
The Court held that, on balance, the Defendant's case was more credible on two main grounds. First, the Court found that the Plaintiff's allegation that the Defendant changed her attitude towards her after January 2017, when the Plaintiff's pregnancy became known, was unsupported by the evidence. It was noted that the Defendant's complaints did not markedly change after January 2017. Second, the Court found that the Defendant's case was supported by numerous contemporaneous documents which had few contradictions.
The Court held that when considering summary dismissal under section 9 of the EO, it was critical to consider if the employee breached the basic terms of the contract, which would vary depending on each case. In the circumstances of this case, it was clear that the Plaintiff had breached her employment terms. The Court accepted that the consequences of breach should be taken into consideration as well, but held that under the circumstances of this case, the seriousness of breaches were always going to be limited. Despite that, the totality of her accumulative breaches amounted to a habitual disregard of her duties under her employment contract. The argument that the Defendant's expectations of the employment contract were unreasonable was also rejected. Accordingly, the Court found the dismissal was justified and not due to the plaintiff's pregnancy.
The question of whether or not an employee has disregarded their employment duties will depend upon whether the duty in question is reasonable. Summary dismissal under section 9(1)(a)(iv) of the EO (where an employee is habitually neglectful in their duties) must relate to circumstances where the expected duties are reasonable for the role.
In this context, reasonableness can be assessed in two ways:
(1) whether the expectation is reasonable in light of the role; and
(2) whether the level of performance expected in relation to that duty is reasonable.
The case also serves as a reminder to employers about the importance of having objective, documented reasons which demonstrate a failure to meet reasonable performance expectations. This will be particularly important in the context of employees of taking disciplinary action or dismissing an employee with a protected attribute under Hong Kong's anti-discrimination laws.