In a recent decision Waliyah v. Yip Hoi Sun Terence and Chan Man Hong (DCEO 1/2015 & DCCJ 1041/2015), the Court held in favour of a sex and pregnancy discrimination claim brought by an Indonesian domestic helper (the “Claimant”) against her former employer (“the Employer”) and his wife (the “Wife”) for forcing her to take a pregnancy test and thereafter firing her and forcing her out of their home prematurely after a positive result was yielded.

In that case, having noticed that the Claimant’s abdomen was growing bigger, the Wife asked the Claimant to conduct a homepregnancy test. A positive result was yielded which was later confirmed by a physician. A few days later, the Employer terminated the Claimant’s employment by giving her one month’s notice. The Claimant was however required to move out of the Employer’s residence before the notice period had expired. The Claimant claimed against the Employer and the Wife for damages arising from sex and pregnancy discrimination, breach of contract, breach of statutory maternity protections under the Employment Ordinance (Cap. 57) and unlawful dismissal.

Sections 5 and 8 of the Sex Discrimination Ordinance (Cap. 480) prohibit sex discrimination and pregnancy discrimination against a woman. In deciding whether a claimant has a cause of action, the Court would apply a two-part test (as laid out in M v Secretary for Justice [2009] 2 HKLRD), (i) whether less favourable treatment to the claimant had occurred; and (ii) whether it had been caused by one of the prohibited discriminatory grounds. Insofar as (i) is concerned, the comparison is not one simply with another person without the relevant attribute of the claimant, but with another person not having the relevant attribute but behaving in the same way as the claimant did. The second part of the test involves the application of an objective “but for” test (i.e. would the claimant receive the less favourable treatment but for the existence of the particular attribute). Intention or motive to discriminate is not a necessary condition of liability, although it may be relevant when determining the appropriate remedies. If the discriminatory act was caused by two or more reasons and one of the reasons is the prohibited discriminatory ground, the act would be taken to have been done because of that ground, regardless of whether or not it is a dominant reason for doing the act. The claimant bears the burden to prove discrimination on the balance of probabilities.

At trial, the Claimant gave evidence that the Wife had asked the Claimant in a polite manner to take part in the home pregnancy test and that the Claimant took part in the test voluntarily, as she too was eager to know whether she was in fact pregnant. Nonetheless, the Court decided that the Wife committed sex discrimination against the Claimant by requesting her to urinate into a potty for the purpose of a pregnancy test because (a) whether an employee is pregnant is a private matter about which the employer has no right to know; and (b) the request to take a pregnancy test and without giving the employee an option not to inform the employer is considered “less favourable treatment” on the ground of her gender (a male employee would not be subject to the same request). The Court also opined that the consent or co-operation of the Claimant is not determinative because:

(1) the absence of a subjective intention nor motive to discrimination would not prevent an act from being discriminatory against an employee; -

(2) an employee’s consent or compliance could have been the result of her general servile and subservient character or ignorance of her legal rights; and

(3) the spirit of the anti-discrimination law focuses on the nature of the employer’s conduct, rather than the employee’s response to her employer’s request.

The Court further held that the Employer’s acts of terminating the Claimant’s employment contract and demand the Claimant to leave the Employer’s residence before the expiry of the notice period amounted to (i) breach of the implied term of trust and confidence; (ii) breach of the Employment Ordinance regarding pregnancy protection; and (iii) unlawful dismissal.

The key takeaway of this decision is that an employer should never direct their employees to undergo a pregnancy test even though the employee is willing to do so. The absence of a subjective intent or motive to discriminate would not exonerate the employer from discrimination liability.