By Teddy Lam, Jennifer Lee and Stephanie Van

Hong Kong, 7 October 2022: A high-profile court case in which a male employee successfully claimed unfair dismissal on the basis of gender discrimination provides salutary lessons for Hong Kong employers.

The landmark judgment in Tan, Shaun Zhi Ming v Euromoney Institutional Investor (Jersey) Ltd DCEO 4/2017 [2022] HKDC 622 underscores the requirement for workplace sexual harassment complaints to be properly and impartially investigated. Further, careful consideration should be given to any subsequent disciplinary action, including termination.

Background

The complainant, Shaun Tan, had been working as a reporter for one of Europe’s largest financial information companies, Euromoney Institutional Investor, for six months when he was accused of sexual harassment by a female colleague in June 2017. After arriving late for a co-worker’s farewell lunch, he touched the woman’s waist to indicate to her to make space so he could sit down. She did not comment at the time but emailed him later in the day alleging he had “deliberately pressed” on her waist, which she found unacceptable. Mr Tan insisted he had only given her a nudge to get her attention. The woman then made a formal complaint of sexual harassment.

Euromoney investigated but before making any findings requested Mr Tan to apologise to his colleague. He refused on the grounds he had done nothing wrong. Some three weeks later, at a meeting he covertly recorded, Mr Tan was asked to either resign or be fired. He was told the firm was allowed to terminate his employment without any reason, but his supervisor also referred to his refusal to apologise. Mr Tan reiterated he would not apologise and was thus terminated. Euromoney’s solicitors then wrote to him stating his dismissal was “not as a result of any claim made against you … but as a result of your conduct during and following the investigation of that claim”.

Legal action

Mr Tan sued Euromoney in the District Court for breaching the Sex Discrimination Ordinance (Cap. 480), claiming the company had fired him as a result of its “pro-female bias”. He argued Euromoney would not have treated a female employee in the same way nor fired her based on such a flimsy and unsubstantiated accusation. Initially, Euromoney had the claim struck out on the basis Mr Tan was terminated in accordance with the terms of his contract, but he successfully appealed to the Court of Appeal and the case was returned to District Court for trial.

During the hearing, Euromoney also advanced Mr Tan’s “eccentric working behaviour” prior to the alleged lunch incident as a reason for dismissal. The company argued that such termination was valid under section 32K(a) of the Employment Ordinance (Cap. 57) and that under the terms of his contract he could be dismissed with payment in lieu of notice.

Judgment

His Honour Judge MK Liu found Euromoney’s contention that the termination was based partly on previous conduct to be “blatantly untrue”. He continued: “Obviously, the respondent would not terminate the claimant’s employment without a reason. However, the respondent is not willing to tell the truth and is trying to conceal the real reason for the termination. I infer that the real reason for the termination is the pro-female bias as advanced by the claimant in his case.

“In my judgment, in the same scenario, had the claimant been a woman, the respondent would not have treated the claimant in the same way. Had the claimant been a woman, the respondent would not have demanded the claimant to offer an apology to [the female colleague] while the sexual harassment complaint is not true. The respondent also would not have terminated the claimant’s employment after the claimant refusing to offer the apology.”

Judge Liu ordered Euromoney to pay Mr Tan HK$150,000 in damages and issue a stipulated written apology. In the event that Euromoney is unwilling to offer the stipulated apology or any apology at all, the Court may consider to replace the apology order with an order of punitive or exemplary damages. 

Takeaways

This case, widely reported in the media, highlights the need for firms to handle workplace grievances, particularly sexual harassment complaints, with care and sensitivity. The investigation must be fair, comprehensive and impartial, and should reach a conclusion before any sort of disciplinary action is considered.

While the Employment Ordinance does not require an employer to give reasons for termination, in instances where there are disputed facts or allegations of discrimination, it is preferable to provide clear justification.

All disciplinary actions, including termination, should be backed up with documentation. Hence, the need to preserve records of meetings, correspondence and any other communications.

Teddy Lam has been a Partner in BC&C since 2003. He heads the firm’s burgeoning Insurance & Personal Injury practice while also handling criminal and civil litigation, employment disputes and commercial law. He can be contacted at teddy@boasecohencollins.com.

Jennifer Lee focuses her practice on Insurance & Personal Injury litigation and has experience in dealing with a wide range of personal injury and liability claims, including employees’ compensation, public liability, motor and property damage. She can be contacted at Jennifer@boasecohencollins.com.

Stephanie Van’s practice focuses on Insurance and Personal Injury litigation. She has experience in handling a wide range of personal injury and liability claims, including employees’ compensation, motor and recovery claims. She can be contacted at StephanieVan@boasecohencollins.com.