Damages awarded for discrimination

Judith Wong
Senior Associate, The Employment Law Group
Allen & Overy

Article exclusivelycontributed by
Allen & Overy

In this article, we will look at damages awarded in the recent pregnancy discrimination case of Yuen Wai-han v South Elderly Affairs Limited. In this case, Ms Yuen's contract of employment as a supervisor at South Elderly Affairs Limited was withdrawn after the company took her pregnancy into account.

While her employer tried to justify that the withdrawal was because of Ms Yuen's lack of experience in handling social welfare allowance applications, the court decided that, if Ms Yuen had not been pregnant, her contract would not have been withdrawn.

The court ruled that there was pregnancy discrimination against Ms Yuen and awarded her HK$155,000 in damages. The award consisted of (i) damages for loss of income, (ii) damages for injury to feeling and (iii) punitive damages (in other words, a penalty for South Elderly Affairs Limited).

Loss of income
When deciding on (i), damages for loss of income, the court took into account the fact that it took Ms Yuen four months to find another job. This job was also at a reduced salary (HK$5,000 a month lower than what she was paid by South Elderly Affairs Limited).

The court decided that, without the pregnancy discrimination, Ms Yuen would have had no problem remaining employed by South Elderly Affairs Limited for at least one year. However, it also took into account the fact that she would have had to go on unpaid maternity leave for 10 weeks during her employment. Her loss of income was therefore assessed at HK$62,500.

Injury to feeling
When deciding on (ii), damages for injury to feeling, the court found that Ms Yuen was the only person in her family with income at that time and that she had suffered from anxiety and embarrassment as she had to borrow money to make ends meet.

As a result of her complaint to the Equal Opportunities Commission, South Elderly Affairs Limited made a report to the police which was not backed up and Ms Yuen suffered the indignity of being treated like a criminal in a police station. This was seen as an attack on her character. The court decided that the injury to Ms Yuen's feelings was serious but, as it was a one-off occurrence, damages were assessed at HK$62,500.

The court noted that, under the Sex Discrimination Ordinance, punitive damages could be awarded but that any award should not be inflated. The allegations made by South Elderly Affairs Limited to the police and Ms Yuen's arrest and bail merited these punitive damages. The court assessed the punitive damages to be HK$30,000.

This is the first time that a Hong Kong court has been asked to rule on damages in a pregnancy discrimination case. It is expected that, if an act of discrimination (such as taking away responsibilities) continues during employment, rather than being an isolated event, an even higher amount of damages will be awarded. Refusal to mediate and/or reach a settlement would also prolong injury to feelings and therefore attract a higher award of damages.

Q&A on damages for pregnancy discrimination
Q1 What is the maximum amount of compensation a court can order in a discrimination case?
A1 There is no maximum limit. Everything depends on the circumstances of the particular case.

Q2 What was the highest award of damages ever made in Hong Kong for discrimination?
A2 In K and others v Secretary for Justice (2000), the court awarded damages of over HK$1 million to one of the plaintiffs, W, for disability discrimination. The Customs and Excise Department dismissed W after his medical examination revealed that his mother suffered from schizophrenia. Damages awarded included the loss of W's future income and HK$150,000 for injury to his feelings.

Q3 Is an employee in a company (such as a human resources officer) personally liable to pay damages for discrimination if the company itself is found to be liable?
A3 Any person who causes, instructs, induces, aids or abets another person to do an unlawful act (such as discriminate against a pregnant employee) is taken to have committed this unlawful act him or herself. Therefore, he or she may also be liable to pay compensation to the victim. But, in reality, victims of discrimination usually choose to sue the employer, rather than individual employees, after taking into account the availability of financial resources.

Q4 Is there a time limit for bringing discrimination actions?
A4 Yes, proceedings in the District Court must generally be instituted within 24 months of when the act being complained of was committed.

Taken from Career Times 19 December 2003

(Last review date: 23 August 2013)

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