Hong Kong HR Investigation Insights: 'Pro-female bias' can amount to discrimination

The Hong Kong District Court has provided a timely reminder to employers of the importance of ensuring that fair and proper processes are followed in the handling of sexual harassment complaints.

In this recent case,¹ a male employee accused by a co-worker of sexual harassment succeeded in arguing that his termination by the employer amounted to sex discrimination due to the pro-female bias of the employer.

The Court required the former employer to pay compensation for lost income and to provide a signed written apology letter to the employee.

Background

Mr Tan (the Claimant) was a former employee of Euromoney Institutional Investor (Jersey) Ltd (the Employer). In June 2017, a co-worker made a sexual harassment complaint against the Claimant, alleging that the Claimant had deliberately pressed his hand on her waist when he was trying to make space at a lunch table in a restaurant (the Complaint). During the investigation, in an apparent attempt to resolve the Complaint, the Employer’s Group Human Resources Manager and the Claimant’s supervisor both requested the Claimant to tender an apology to the co-worker, which the Claimant refused on the basis that he did not believe he had done anything wrong.

After completing the investigation into the Complaint, the Employer concluded that there was no evidence sufficient to prove the Complaint. Nonetheless, the Employer presented the Claimant with an ultimatum – to resign from his employment or to have his employment terminated. The Claimant refused to resign, and the Employer proceeded to terminate the Claimant’s employment with immediate effect by paying him wages in lieu of notice, which was communicated to the Claimant during an interview (Termination Interview). During the Termination Interview, the Human Resources Manager stated that the Employer had to “ensure [its] workforce [was] not being threatened by the threat of sexual harassment or any kind of harassment.”

Subsequently, the Claimant commenced proceedings against the Employer under the Sex Discrimination Ordinance (Cap. 480) and claimed that he had been subject to sex discrimination and unlawfully dismissed due to the Employer’s pro-female bias. That is, that the termination was because the Claimant was male and his accuser was female. In rejecting that the termination was discriminatory, the Employer put forward a number of explanations for the termination relating to the Claimant’s conduct.

Factual findings

The Court made the following key factual findings:

1. The basis of the Employer’s decision to dismiss the Claimant was the Complaint and not anything else. In particular, comments made in the Termination Interview were interpreted to mean that if the Claimant had apologised to the co-worker, his employment would not have been terminated.
2. The termination was not based on the Claimant’s conduct during and following the investigation of the Complaint because the Employer was unable to identify any conduct by the Claimant that would support the dismissal.
3. The termination was not based on the Claimant’s conduct prior to the Complaint arising because the Claimant had successfully passed probation and there were no investigations or warnings about that conduct.

Relevantly, the Court also noted that the Employer had not adduced any evidence concerning the reason for the Claimant’s dismissal. The Court was of the view that, in the circumstances, it was “inherently improbable” that there would be no emails or written documents recording the Employer’s internal discussions concerning the Claimant’s dismissal, and the Employer was trying to conceal the real reason for the dismissal.

Whilst not a factual finding, the Court did re-affirm that exercising a contractual right to terminate an employment contract on notice does not make a discriminatory termination lawful.

Inference of pro-female bias

Based on the factual findings for the case, the Court inferred that the real reason for the Claimant’s dismissal was the pro-female bias of the Employer. Specifically, the Court was of the view that had the Claimant been a woman, the Employer would not have demanded the Claimant offer an apology to the co-worker where the Complaint was not proven, and would not have terminated the Claimant for refusing to do so.

Apology order

In addition to compensation for lost income, the Court made a provisional order requiring the Employer to provide a written apology in terms specified by the Court.

The Court noted that should the Employer not be willing to offer the specified apology (or any apology at all), then the Employer could apply to vary the provisional order. However, in such circumstances, the Court may determine to instead require the Employer to pay punitive or exemplary damages to the Claimant, which “may be substantial.”

Key takeaways

There is no doubt that it is important for employers to take allegations of sexual harassment seriously, and to ensure that appropriate action is taken if the allegations are proven. The scenario the Employer was dealing with here would be a novel one for many employers – the person accused of sexual harassment was the one alleging that they had been discriminated against.

However, it highlights the importance of establishing and following effective workplace procedures and processes when handling such allegations to ensure that all parties are treated fairly.

Employers should put in place policies that are clear, cogent and fair, to ensure any complaints are handled properly without any bias (in particular of the protected characteristics under anti-discrimination laws in Hong Kong, including gender, disability, race, family status, etc.) towards or against the complainant and the alleged perpetrator. This generally includes:

1. conducting a full and transparent investigation, while maintaining the confidential and sensitive nature of the matter and protecting the complainant and any witnesses against victimisation;
2. allowing the alleged perpetrator sufficient opportunity to respond to the complaint;
   deciding whether any timely remedial measures or disciplinary actions should be taken after concluding the investigation process, as supported by the findings and evidence from the investigation. In particular, employers should refrain from taking remedial measures out of fear of being accused of not having properly addressed the complaints; and
3. maintaining proper documentation throughout the processes, which include any relevant internal discussions among management.

Such an approach is also consistent with the recommendations of the Equal Opportunities Commission in its “Territory-wide Representative Survey on Sexual Harassment in Hong Kong 2021” (the Report) published in May 2022. One of the Report’s recommendations for employers is to enhance their transparency and governance in preventing and responding to workplace sexual harassment by formulating effective anti-sexual harassment policies and measures.

The Report provides ten recommendations to stakeholders with a view to preventing and addressing sexual harassment in Hong Kong based on the findings and analysis of the territory-wide representative survey, to which employers can refer when reviewing or formulating their workplace anti-sexual harassment policies.

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1 Tan Shaun Zhi Ming v Euromoney Institutional Investor (Jersey) Ltd [2022] HKDC 622