Keywords: damages, pregnancy, disability, discrimination, Hong Kong
The recent Hong Kong District Court case of 李佩霞 v. 黄苏记运输有限公司 (DCEO 4/2013) involved a termination of the employment of the plaintiff on the ground of her disability and pregnancy. This was held to be unlawful under both the Disability Discrimination Ordinance (DDO) and the Sex Discrimination Ordinance (SDO).
The court had to assess damages for compensation for injury to feelings. In so doing, it applied the English authority of Vento v. Chief Constable of West Yorkshire Police  ICR 318.
Vento laid down three broad ranges of damages which apply depending on the severity of the injury to feelings. The court held that this case fell into the lowest range.
The defendant operated a transportation business in Hong Kong. The plaintiff commenced employment with the defendant in August 2011 as a data processing officer with a monthly salary of HK$11,000.
In October 2011, the plaintiff was admitted to hospital. She was diagnosed with an umbilical hernia and also confirmed pregnant. She informed the defendant of her condition by telephone.
The plaintiff was discharged from hospital soon after and was granted sick leave. A few days after her discharge, she was informed by her supervisor over the telephone that the defendant would terminate her employment by making a payment of seven days' salary in lieu of notice. The plaintiff therefore worked for the defendant for no more than two months.
The defendant did not defend its case, the facts were taken to have been admitted and judgment was entered in default. It was therefore held that the defendant had terminated the employment of the plaintiff due to her pregnancy and disability in breach of both the DDO and SDO.
In assessing damages for injury to feelings, the court applied Vento (which had been applied in the 2005 Hong Kong Court of Appeal case of 袁慧嫺 诉 南方安老事务有限公司). Vento set out the three broad ranges of compensation for injuries to feelings in relation to discrimination cases: a top range (for the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment); a middle range (for serious cases, which do not merit an award in the highest range); and a lower range (for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence). The actual monetary ranges have been subsequently updated in the 2010 English case of Da' Bell v. NSPCC to be:
- The top range: GBP 18,000 to GBP 30,000 (approximately HK$239,000 to HK$398,000).
- The middle range: GBP 6,000 to GBP 18,000 (approximately HK$79,600 to HK$239,000).
- The bottom range: GBP 500 to GBP 6,000 (approximately HK$6,630 to HK$79,600).
In determining the severity of the injury to the plaintiff's feelings in this case, the court noted that the plaintiff had only worked for the defendant for about two months and as such her injured feelings would not be substantial.
Taking everything into consideration, the court concluded that the case should fall into the lowest range of awards in Vento, and awarded the plaintiff HK$60,000 for her injured feelings. She also got HK$66,000 for her loss of earnings.
A court will consider the circumstances and gravity of each case to determine the appropriate range of awards in assessing damages for injury to feelings. In cases where the act of discrimination is an isolated or one-off occurrence, it is unlikely that the damages awarded would be higher than the lowest range set out under Vento.
Originally published 16 July 2014
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