Russell Bennett and Mark Chiu of the Employment Practice at Tanner De Witt outline a recent District Court decision
More than three years ago, we published an article 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.
Last 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 can be offensive to others and in what situation depends on the context of the particular situation.
The Court made the following general observations:
i. the term ‘gweilo’ has long been and continues to be widely used in Hong Kong;
ii. according to the witness evidence from the Employer, not many expatriates had any objection to colleagues (both local and expat) using the term;
iii. it is unlikely that the term, even if used in a workplace, necessarily carries a derogatory meaning (with a racially discriminatory overtone);
iv. 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 Court adopted the ‘real cause’ test in determining whether the Employee suffered less favourable treatment on the ground of his race in this particular case. This means that the Court will consider the fundamental question of, in all circumstances of the case, what is the real and effective cause of the act complained of.
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.
Tanner De Witt was established in 1999 and now has a team of over 100, including more than 50 Hong Kong lawyers. The team at the firm’s Employment Practice advises on all aspects of employment law. For more information, email [email protected] or visit www.tannerdewitt.com.Tags: legal advice