Recent District Court decision on whether ‘gweilo’ remark discriminatory25Feb2022
More than three years ago, we published an article on this site in respect of a District Court claim lodged by a British construction professional (the “Employee”) who alleged that his former employer (the “Employer”) had discriminated against him on the ground of his race by terminating his employment.
One of the bases for the Employee’s claim was the use of the term ‘gweilo’ by his colleagues in the workplace.
Earlier this month, the District Court handed down its decision on the above claim in the case of Haden, Francis William v Leighton Contractors (Asia) Limited  HKDC 152. In essence, the ruling was consistent with our view that whether a slang term could be offensive to others and in what situation depends on the context of the particular situation.
Court’s view on the use of ‘gweilo’ remark
The Court made the following general observations:-
- the term ‘gweilo’ has been widely used in Hong Kong;
- according to the witness evidence from the Employer, not many expatriates had any objection to people using this term, which had been used by not only locals but expatriates themselves;
- it is unlikely that the term, even if used in a workplace, would necessarily carry a derogatory meaning (with a racially discriminatory overtone); and
- the mere use of such a term to describe or refer to a particular “foreigner” is insufficient to prove a background of racial hostility.
Overall, the Court considered that the Employee had either misunderstood the real meaning of the term or had exaggerated his adverse feeling (arising from the use of the term).
Ultimately, it is important to remember a key element to establishing racial harassment under the Race Discrimination Ordinance is that “a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated by that conduct”.
The effect of any other similar slang with racial connotations should normally be considered and interpreted with reference to the above standard and circumstances in which the slang term is used.
‘Real cause’ test or ‘but for’ test
Another issue considered by the Court was the appropriate test to be applied in determining whether the Employee suffered less favourable treatment on the ground of his race in this particular case.
- The long-established ‘but for’ test would require the Court to consider whether the Employee would have received the same treatment “but for” his protected characteristics (i.e. race). In addition, many cases had assessed this by reference to another similar employee who did not have the same protected characteristic (i.e. a “comparator”).
- The alternative ‘real cause’ test dispenses with the rigid use of the above methodologies to identify if there has been discrimination and instead requires the Court to consider the more basic and fundamental question of “in all circumstances of the case, what is the real and effective cause of the act complained of” and whether “the causative factor must be an effective [cause of the act complained of] which is more than a background event, but it need not be the only or predominant cause.” [our emphasis]
The Court was of the view that the “but for” test might be more suitable in straight-forward cases where the ground for the treatment complained of is inherent in the act itself, whereas a more stringent test is required in less obvious cases and the mental processes of the alleged discriminator should be considered in using the ‘real cause’ test.
It proceeded to analyse the factual evidence of the case in detail to determine whether the Employees race was one of the effective and real reasons for the less favourable treatment complained of.
Court’s assessment of real cause
The Court dismissed the Employee’s claim due to lack of sufficient factual evidence for it to draw any adverse inference against the Employer that the alleged discriminatory treatment of him was on the ground of his race.
In fact, the Court considered that even if it could draw any such adverse inference against the Employer, the Employer had provided a reasonable explanation and justification for the Employee’s termination in order to rebut any such inference and to show that the real cause was, in fact, his inter-personal relationship problems and poor working relationship with others.
The hypothetical issue of damages
Proceeding on the hypothetical basis that the Employee succeed in establishing his claim (in case of a successful appeal on liability), the Court considered that:-
- the appropriate damages for injury to feelings would be HK$60,000, which the Court said fell at the lower end of the middle band under the trite Vento guideline (and clarified that the uplift of the amount resulted from the update of the UK guidance should not be applied to Hong Kong);
- a reasonable period of loss of future income would be 8 months having regard to the Employee’s rather unique expertise (in blasting in the construction industry) which would take him longer to find alternative employment; and
- any compensation awarded by the Court would be sufficient and there would be no justification based on their Employer’s conduct to award additional punitive/ exemplary damages to punish the Employer for its conduct.
The Court’s discussion about the proper amount of injury to feelings is significant as it denoted a more realistic (and indeed reasonable) range of damages at a lower level even on the assumption that the Employee was dismissed due to racial discrimination and in an (allegedly) racially hostile environment.
Notwithstanding the fact-sensitive nature of the judgment and the Court’s dismissal of the Employee’s claim, the Haden case is a second discrimination case in this year which has given the same clear guidance in assessing the merits of such type of claim in focusing on the reason why a claimant was treated as he was (the “real cause” test) rather than insisting on the identification of the appropriate comparator. (see our recent article where the Court adopted the same approach in another case)
Given the more active development of case law in discrimination laws in Hong Kong recently, both employers and employees should keep themselves informed and updated of the relevant legal principles. Legal advice should be sought if there are doubts as to the bases and merits of a discrimination claim.
Russell Bennett & Mark Chiu
The above is not intended to be relied on as legal advice and specific legal advice should be sought at all times in relation to the above.
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Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.