Background
In June 2022, the District Court (which has exclusive jurisdiction to hear discrimination claims) handed down a judgment against one of Europe’s largest financial information companies, Euromoney Institutional Investor (Jersey) Ltd (Euromoney), for unlawfully terminating a male employee following an allegation of sexual harassment made by a female employee against him .
The Claimant, Mr Tan Shaun Zhi Ming (Mr Tan), has embarked on a long legal battle against his former employer by taking his case all the way to the Court of Appeal and back to the District Court again to finally secure a declaration that Euromoney indeed acted unlawfully in terminating his employment, securing HK$150,000 in monetary compensation and a provisional order that a written apology be given.
Facts
Mr Tan started working for Euromoney as a reporter in January 2017. On 2 June 2017, he arrived late at a farewell lunch for a work colleague and, when he arrived, he indicated to a female colleague to make room for him to insert his chair by making contact with her waist (the “Incident”). The female colleague did not complain at the time but later that day e-mailed Mr Tan to express that she found his conduct during the Incident to be “disturbing and unacceptable”, and threatened to report the matter to HR and the police. When Mr Tan responded by saying that he had no interest in her, that she could report it if she wished and that no one would take her seriously and she might need therapy, she made a formal complaint about sexual harassment to HR.
Euromoney took the complaint seriously but before finishing its investigation and making any findings on the allegation of sexual harassment, they requested Mr Tan to formally apologise to the complainant (which was something the complainant had requested). Mr Tan refused to apologise, insisting that he had done nothing wrong.
Around three weeks later, Mr Tan was given a choice to either resign immediately or be dismissed immediately (in truth he was not given any option at all, because Euromoney made it clear that he had to return his access card and leave the office premises immediately). He did not resign immediately and Euromoney terminated his employment with immediate effect by making a payment in lieu of wages in accordance with his employment contract. In communicating the termination to Mr Tan, Euromoney stated that it had taken legal advice and that it was allowed to terminate Mr Tan’s employment without giving any reason but, at the same time, it also made references to the fact that Mr Tan had refused to provide an apology to the complainant as requested. Euromoney made it clear to Mr Tan that, as an employer, it had the responsibility to ensure that its workforce “is not being threatened by the threat of sexual harassment or any kind of harassment...” and that it had obtained legal advice to “close down this situation now”.
Legal principles
Almost immediately after his termination, Mr Tan obtained a copy of the CCTV footage from the restaurant and informed Euromoney that he would sue under the Sex Discrimination Ordinance (Cap. 480) (the “SDO”), unless certain demands were met. Euromoney’s solicitors then responded, rejecting those demands and stating that the termination of his employment was “not as a result of any claim made against (him)...but as a result of (his) conduct during and following the investigation of that claim.”
Mr Tan then commenced proceedings in the District Court against Euromoney in July 2017 for unlawful discrimination against him, on the basis that he was terminated due to his gender (i.e. male), and the gender of his accuser (i.e. female), arising out of the “pro-female bias” stance adopted by Euromoney. Mr Tan’s position was that Euromoney “would not have treated a female employee in this disgraceful manner and fired her based on such a flimsy and unsubstantiated accusation. Because I am a male and my accuser was female, (Euromoney) was so scared of being accused of not doing enough that it was willing to discard truth and due process to get rid of the issue as fast as possible.”
Euromoney applied to strike out the claim on the ground that the claim was frivolous, because Mr Tan was properly terminated in accordance with the terms of his employment contract. The court allowed the strike-out but Mr Tan appealed the decision to the Court of Appeal.
In May 2019, the Court of Appeal held that the court below was wrong to strike out Mr Tan’s claim, and that it was “at least reasonably arguable” that the lawfulness of the mode of his termination did not determine whether it was discriminatory contrary to the relevant provisions under the SDO. The case was therefore remitted back to the District Court for trial.
Finally, following trial, in June 2022, the court delivered a judgment in favour of Mr Tan, finding that Euromoney had indeed acted unlawfully in contravention of the SDO in terminating his employment.
The starting point is that, in Hong Kong, there is no legal obligation for an employer to give a reason for termination of an employee. It is well established that a contractual right to terminate employment (by either the employer or the employee) can be exercised unreasonably or capriciously so long as the right is exercised in accordance with the employment contract, and the court is not concerned with the rightness or wrongness of a dismissal. This was only recently enunciated by the Hong Kong Court in Lam Siu Wai v. Equal Opportunities Commission.
What went so wrong for Euromoney?
The District Court and Court of Appeal judgments both refer to the fact that, prior to terminating Mr Tan, Euromoney had obtained legal advice and, throughout the legal proceedings that lasted nearly five years, Euromoney had firmly stuck to its position that it was entitled to terminate Mr Tan’s employment by making a payment in lieu of notice and without giving any reason. So confident was Euromoney in the way it conducted the termination that it sought to strike out Mr Tan’s claim and was successful until the decision was appealed.
The position is now made clear by the Court of Appeal – an employer’s contractual right to terminate an employee does not trump the SDO (or any of the other discrimination ordinances). To illustrate this principle, the court provides an “absurd” example: “If an employer were to terminate a female employee’s employment by handing her wages in lieu of notice whilst saying to her ‘I’ve chosen you for termination of employment just because you are a woman’, it cannot possibly be argued that that termination is nevertheless lawful because of the payment of wages in lieu. It has been rendered unlawful by the discrimination.”
At trial, Euromoney also sought to rely on section 32K of the Employment Ordinance (Cap. 57) (EO). It asserted that it had the right to terminate Mr Tan pursuant to section 32K(a), being the conduct of Mr Tan during his employment and prior to the Incident. The Court of Appeal held that section 32K is not relevant to this case because the section is designed to protect employees who have been continuously employed for at least 24 months and who are entitled to protection under Part VIA of the EO from being unreasonably dismissed without a valid reason. Mr Tan was only employed for approximately six months when he was terminated, and his complaint was not that Euromoney intended to extinguish or reduce his rights or benefits, so the section did not apply.
The operation of sections 32A and 32K of the EO is commonly misunderstood. Section 32A(2) provides a statutory presumption that the employee is taken to have been dismissed because the employer intends to extinguish or reduce any right, benefit or protection under Part VIA of the EO unless the employer can show a valid reason for dismissal. Section 32K then sets out five valid reasons as a defence for employers, namely: (a) the conduct of the employee; (b) lack of capability or qualifications of the employee; (c) redundancy or other genuine operational requirements; (d) contravention of law if the employment were to continue; and (e) any other reason of substance.
If an employer proves that the termination was by reason of one of these five grounds, then the statutory presumption would be rebutted without any additional discretionary consideration as to whether it was reasonable to have terminated the contract or whether there should have been some initial formal procedural process. These sections of the EO are not intended to provide a statutory scheme for unfair dismissal, they only “go to protecting employees against dismissal (or variation) where the employer is trying to save money at the employee’s expense by getting rid of the employee (or changing his or her conditions) before he or she becomes entitled to some benefits.”
An example would be an employer who unreasonably terminates an employee just before they reach the five-year mark in their service to avoid paying them a statutory long service payment.
Key takeaways
With the benefit of hindsight, here are some key lessons employers can learn from this case:-
1. Whether there is a satisfactory reason to support the termination of an employee is relevant when an allegation of discrimination arises. Although there is no legal requirement to provide any reason for termination in Hong Kong, it is good practice to provide a reason, and be truthful about that reason.
2. When an employer is not truthful in providing the real reason for termination, credibility may be undermined in due course. In this case, although Euromoney had all throughout maintained that it was entitled to terminate Mr Tan without providing any reason at all, at the beginning of the trial the company changed its stance and sought to rely on Mr Tan’s conduct prior to the Incident to justify the termination.
3. This turned out to be poor litigation strategy because the court found that this was clearly contradicted by the contemporaneous evidence, such as Euromoney’s own statements made to Mr Tan during his termination, as well as its solicitor’s written letter to Mr Tan after he was terminated. As a result, the court found that, in not disclosing any documents showing the real reason for Mr Tan’s termination, Euromoney was “not willing to tell the truth and (was) trying to conceal the real reason for the termination.”
4. If an employer decides to open an investigation because someone has made a complaint about sexual harassment, the employer should proceed with the investigation properly and finish it, before inviting the accused to make any admissions or apologise for the sake of “closing out the investigation” early in the hope that the complainant may withdraw the complaint if the apology is accepted. In this case, it may be said that Euromoney had “jumped the gun” and made the decision to terminate Mr Tan before it concluded the investigation. In fact, the judgment refers to the fact that the outcome of the investigation was that there was “no sufficient evidence proving the sexual harassment complaint”.
香港法院裁定「偏袒女性」僱主解僱被指性騷擾的男僱員性別歧視罪成
- 區域法院裁定，一名僱主在接獲女僱員投訴被男性僱員性騷擾後，非法解僱了該名男性員工。
- 該案例提醒僱主，在有人提出性騷擾投訴時，必須妥善展開調查，而不是試圖迅速「結案」，這一點至關重要。
背景
區域法院（擁有審理歧視指控的專屬司法管轄權）於2022 年 6 月裁定歐洲最大金融資訊公司之一的 Euromoney Institutional Investor (Jersey) Ltd（Euromoney，歐洲貨幣機構投資者集團）在接獲一女僱員投訴受某男僱員性騷擾後，非法解僱該名男性員工。
申索人 Tan Shaun Zhi Ming先生（陳先生）與他的前僱主進行了一場持久的法律戰，將案件一直帶到上訴法庭，再回到區域法院，最終確認Euromoney非法解僱，並獲得 十五萬港元金錢補償和要求該集團作出書面道歉的臨時命令。
實情
陳先生於 2017 年 1 月起在Euromoney 任職記者。2017 年 6 月 2 日，他出席同事告別午宴時遲到，當他到達時，觸碰一位女同事的腰部，示意她騰出空間讓他插入椅子（該事件）。該女同事沒有即時投訴，但當天稍後給陳先生發出電郵，表示她認為他在該事件中的行為「令人不安和不可接受」，並揚言要向人力資源部和警方投訴。陳先生回應謂對她不感興趣，如她想投訴，可悉隨尊便，但無人會認真看待，而她可能需要接受治療。她隨即向人力資源部正式作出性騷擾投訴。
Euromoney認真對待投訴，但在還未完成調查，對性騷擾指控有結論前，便要求陳先生向投訴人正式道歉（按投訴人要求）。陳先生拒絕道歉，堅稱沒有做錯任何事。
約三星期後，陳先生獲告知可以選擇即時辭職或即時被解僱（但事實上，他根本無得選擇，因Euromoney 明確表示他必須歸還進門卡並立即離開辦公地方）。他沒有立即辭職，Euromoney按僱傭合約支付了一筆代通知金，即時解僱他。在向陳生傳達解僱通知時，Euromoney表示已聽取法律意見，可以不給予任何理由終止陳先生的職務，但與此同時，Euromoney也提及陳先生拒絕按要求向投訴人道歉。Euromoney向陳先生明確表示，作為僱主，有責任確保其員工「不會受到性騷擾或任何形式的騷擾所困擾」，並已獲法律建議「即時結束這情況」。
法律原則
陳先生被解僱後隨即從餐廳取得閉路電視錄像副本，並告知Euromoney除非滿足某些要求，否則他將根據《性別歧視條例》（《香港條例》第 480 章）提出訴訟。Euromoney 的律師作出回應，拒絕要求，並表示解僱他「不是因為（對他的）投訴……而是因為（他）在調查投訴期間和之後的行為」。
陳先生隨後於2017年7月在區域法院以Euromoney非法歧視為由提出訴訟，理由是Euromoney的「偏袒女性」立埸，致使他因自己的性別（即男性）和投訴人的性別（即女性）而被解僱。陳先生的理據是，Euromoney「不會以這種可恥的方式對待一名女僱員，並基於如此站不住腳和毫無根據的指控而解僱她。因為我是男性，而投訴人是女性，（Euromoney）非常害怕被指責做得不夠，以至於願意放棄真相和正當程序，以盡快解決問題。」
Euromoney 以申索瑣屑無聊為由提出撤銷申索，因為已按照僱傭合約條款適當解僱陳先生。法院駁回申索，但陳先生向上訴法庭就裁決提出上訴。
上訴法庭於2019年5月裁定下級法院錯誤駁回陳先生的申索，並認為「至少可以合理爭辯」解僱他的方式的合法性並不能確定是否違反《性別歧視條例》的相關條文。案件因此發還區域法院審理。
最後，經過研訊，法庭於2022 年 6 月作出有利陳先生的判決，裁定Euromoney將他解僱確實違反《性別歧視條例》。
出發點是，在香港，僱主沒有法律義務說明解僱員工的理由。眾所周知，只要（僱主或僱員）根據僱傭合約行使權利，就可以不合理或任意地終止僱傭關係，法庭並不關心解僱是對或錯。香港法院最近才在「林小慧訴平等機會委員會」一案中闡明這點。
Euromoney錯在何處？
區域法院和上訴法庭的判決均提到，在終止陳先生的職務之前，Euromoney 已取得法律意見，在持續近五年的法律訴訟中，Euromoney一直堅持有權不提供任何理由，以通過支付代通知金的方式解僱陳先生。Euromoney對解僱一事極具信心，力圖駁回陳先生的申索並取得成功，直至裁決面臨上訴。
上訴法庭現在明確指出——僱主解僱員工的合約權利並不凌駕《性別歧視條例》（或任何其他歧視條例）之上。為了說明這一原則，法庭提供了一個「荒謬」的例子：「如果僱主給一名女僱員支付代通知金予以解僱，同時對她說『我選擇解僱你只因你是女性』，但支付了代通知金，不可能辯解說解僱就屬合法，那是因歧視而變成非法。」
在研訊中，Euromoney還試圖援引《僱傭條例》（《香港條例》第57 章）第 32K 條，聲稱有權根據第 32K(a)條解僱陳先生，那是基於陳先生在受僱期間和該事件發生前的行為。上訴法庭裁定，第32K條與本案無關，因為該條旨在保護已連續受僱至少二十四個月並有權根據《僱傭條例》第 VIA 部分獲得保障的僱員，免使其在沒有正當理由下被解僱。陳先生被解僱時只受僱約六個月，他也不是投訴Euromoney打算取消或減少他的權利或利益，因此該部分並不適用。
《僱傭條例》第 32A 和 32K 條的運用常被誤解。第 32A(2) 條提供了一項法定推定，即除非僱主能夠證明解僱的正當理由，可認定僱員是因僱主打算取消或減少《僱傭條例》第 VIA部分所定的任何權利、利益或保障而遭解僱。第32K節隨後列出了五個正當理由作為僱主的抗辯依據，即：(a) 僱員的行為； (b) 僱員缺乏能力或資格； (c) 冗餘或其他真正的業務運作需要； (d) 如果繼續僱用則違反法律； (e) 任何其他實質理由。
如果僱主證明解僱是基於這五個理據之一，那麼法定推定將被駁回，而無須額外酌情考慮終止合約是否合理，或是否應該有某些初步的正式程序。《僱傭條例》的這些部分並非旨在為不公平解僱提供法定方案，而只是「在保障僱員，免使僱主在員工有權享有某些福利之前，試圖通過解僱（或更改僱用條件）節省開支而損害員工利益。」一個例子是僱主在僱員服務滿五年之前不合理地解僱僱員，以避免向他們支付法定的長期服務金。
關鍵提示
事後看來，僱主可以從這個案例中得到一些重要的教訓：
1. 當有人提出歧視指控時，是否有令人滿意的理由支持解僱有關僱員是相關考慮。雖然香港沒有法律要求提供解僱理由，但提供理由並如實說明是良好做法。
2. 若僱主沒有如實提供解僱的原因，可能使信譽受損。在本案例中，儘管 Euromoney自始至終堅持有權不提供任何解僱陳先生的理由，但在研訊開始時，該公司卻改變立場，試圖依靠陳先生在該事件發生前的行為來證明解僱的正當性。
3. 這顯然是個差劣的訴訟策略，因為法院發現當時提出的證據明顯互相矛盾，例如 Euromoney在陳先生被解僱期間向他作出的陳述，以及其律師在陳先生被解僱後寫給他的書面函件。因此，法院認定Euromoney沒有披露任何文件足以顯示陳先生被解僱的真正原因，「不願說實話，並且（一直）試圖隱瞞解僱的真正原因」。
4. 如果僱主因有人提出性騷擾投訴而決定展開調查，應妥善進行到底，不應過早便要求被投訴者承認犯錯或作出道歉，以期儘早「結束調查」，希望投訴人在接受道歉後撤回投訴。在這案例中，Euromoney可說是「草草了事」，並在調查有定論之前解僱陳先生。事實上，裁決提到了調查結果，其表明「沒有足夠的證據證明性騷擾屬實」。
