Assessing damages for injury to feelings

by Hong Tran, partner; Jessica Tse, trainee solicitor, Employment and Employee Benefits Group, JSM

Article exclusively contributed by JSM

Mr Ip was employed by Federal Elite Limited (Federal) as a waiter working at Federal's Chinese restaurant. The two parties had entered into an 18-month employment contract.

After working for Federal for 10 months, Mr Ip injured his right wrist. He took nine days' sick leave and produced all the necessary medical certificates in support. However, on his return to work, Federal dismissed him.

Court's ruling

Under the Disability Discrimination Ordinance (DDO), a person discriminates against another person if, on the ground of that person's disability, he treats him or her less favourably than he treats, or would treat, someone without a disability.

Mr Ip alleged that he was dismissed because of his disabled right wrist, while Federal claimed that Mr Ip was dismissed because his work performance was unsatisfactory in spite of repeated oral warnings in the months leading up to the injury.

The Court had to decide the following:

  • Whether Mr Ip's performance was satisfactory before his dismissal and whether he was guilty of the misconduct alleged by Federal;
  • Whether Mr Ip had fully recovered from his wrist injury by the time he returned to work; and
  • Whether Federal dismissed him due to his disability in contravention of the anti-discrimination legislation (the DDO).

Federal could not produce any evidence to support its allegations that Mr Ip's performance had been unsatisfactory and therefore failed to show that his performance was not up to standard in the period leading up to his injury.

Federal claimed that Mr Ip had said his wrist had completely recovered on the day he returned to work. However, the Court believed Mr Ip's version of events, which was that he had told Federal that his wrist had only recovered 80 per cent and that he could not carry heavy loads until it had fully recovered. The Court also observed that it could not be expected that a person who injured his wrist so severely that he required nine days' sick leave would be fully recovered after the nine days.

The Court applied the "but for" test and asked whether Mr Ip would have been dismissed but for his wrist injury. Upon comparing the treatment that Mr Ip had received with the treatment of other employees without wrist injuries, the Court concluded that Mr Ip had been treated less favourably than his colleagues and ruled that Federal had directly discriminated against Mr Ip.

Damage's done

The Court awarded Mr Ip compensation of HK$94,544.53 under two categories of damages:

1. Damages for loss of income: HK$44,544.53. This was the amount of wages Mr Ip would have continued to receive until the expiry of his 18-month employment contract, less the wages he earned from his new job during the relevant period.
2. Damages for injury to feelings: HK$50,000. Mr Ip felt humiliated by his dismissal and became distressed and depressed as a result.

In assessing the damages for injury to feelings, the Court referred to the Court of Appeal decision in the case of Yuen Wai Han v South Elderly Affairs Ltd (CACV 172 of 2003). In this decision, the court had ruled that, in general cases, damages for injury to feelings in pregnancy discrimination cases should not be less than HK$50,000. The Court also referred to an earlier UK judgement, which held that damages awards should not be too low, as this would diminish respect for anti-discrimination legislation, but nor should it be excessive. Mr Ip was also awarded costs.

Q & A on disability discrimination
Q1 What would amount to direct disability discrimination under the DDO?
A1 According to the DDO, a person discriminates against another person if, on the ground of that person's disability, he treats him or her less favourably than he treats, or would treat, a person without a disability.

Q2 What is the "but for" test?
A2 In disability discrimination cases, the Court questions whether the complainant would have received the same treatment from the defendant "but for" his disability.

Q3 Can the Court grant damages for injury to feelings?
A3 Yes. The Court may grant damages for injury to feelings where it thinks fit. The decision whether or not to award such damages and, in what amount, depends on the circumstances of the particular case.

Taken from Career Times 27 June 2008, p. C18

(Last review date: 23 August 2013)

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Disclaimer: The opinions expressed in this article are those of the contributor

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