Posted by

Court Case: Cathay Pacific's Sex Discriminatory Retirement Policies


Tsang Helen v Cathay Pacific Airways Ltd

CACV 43/2001
[2002] 2 HKLRD 677, CA

Background

The Plaintiff was employed by the Defendant, an airline company, as a female flight attendant in 1979. At that time, according to the Defendant’s retirement policy, female cabin crew needed to retire at 40 years old, while male at 55 years old.

When the Plaintiff reached 40 years old in 1992, she was required to retire according to the above policy. Nevertheless, her employment was extended for a period of one year.

In 1993, the Defendant revised its retirement policy. Both female and male cabin crew newly recruited under the revised policy would retire at 45 years old. On the other hand, retirement age for existing staff (i.e. those on the original employment contract including the Plaintiff) remained unchanged basically. In other words, existing male staff could continue to work until 55 years old. Yet, female staff was given an option and they might choose to work to 45 years old on yearly contracts. As a result, the Plaintiff was offered further one-year extensions of contract.

In 1997, at the age of 45, the Plaintiff’s employment was terminated as she was not offered any further extension upon the expiry of her yearly contract.

The Plaintiff brought proceedings against the Defendant under the SDO, alleging that the Defendant had implemented sex discriminatory retirement policies and she was discriminated on the ground of her sex.
The EOC (Equal Opportunities Commision)’s participation in this case was to act as an Amicus Curiae to provide assistance in respect of general principles of discrimination law.

Court’s decision

Although the Plaintiff entered into employment with the Defendant before the SDO came into effect in 1996, the Court held that the SDO should apply to the Plaintiff’s employment, as it was clear that the Plaintiff was still in the Defendant’s employment, though on a short-term yearly contract, when the SDO was in force.

By adopting the “but for” test, which was approved by the Court of Final Appeal in Secretary for Justice v Chan Wah in Hong Kong, it was held by the Court that an appropriate comparator in this case was a male flight attendant who had been employed over the same period of time as the Plaintiff. It was apparent that, under the original retirement policy, while he was entitled to remain in the Defendant’s employment until 55 years old, the Plaintiff could not. The male flight attendant was in a much better position than the Plaintiff and the only reason for this difference was his gender. Hence, it amounted to direct discrimination under s. 5(1) of the SDO.

Comments

Post a Comment