Care needed to avoid unlawful disability discrimination

By Hong Tran, Registered foreign lawyer, Employment and Employee Benefits Group, Johnson Stokes & Ma

Article exclusively contributed by Johnson Stokes & Master

In 1988, Mr Siu was employed as a teacher by Maria College (the School). Fourteen years later, he was diagnosed with cancer, so he underwent an operation in August 2002. He was on sick leave from the day he was admitted to hospital and planned to resume his duties on November 1, 2002.

In late October, while he was still on sick leave, the School terminated his contract. Mr Siu therefore began proceedings in the District Court claiming that this amounted to unlawful disability discrimination under the Disability Discrimination Ordinance (DDO). The School admitted that Mr Siu's cancer was a disability under the DDO, but argued they had not discriminated against him on these grounds.

The District Court had to consider three things: whether the School had discriminated because of the illness; whether they could rely on an express contract term entitling them to terminate employment, or if this was void under the DDO or the Employment Ordinance (EO); and what the measure of damages should be.

Direct discrimination would occur if the School treated Mr Siu less favourably than others without a disability. The difficulty in applying this test is determining with whom the person alleging discrimination should be compared (the comparator).

In this case, the Court considered that the comparator should be a teacher who had applied for maternity leave or jury duty. The evidence showed that other teachers on leave for these reasons were not dismissed for absence from the workplace. The Court therefore found that Mr Siu was treated less favourably and had been subjected to direct discrimination because of his disability.

The only defence to a claim of direct discrimination is that the victim could not perform the inherent requirements of the job or that, to do so, the employer is required to provide reasonable accommodation that would cause unjustifiable hardship. The School did not raise this defence.

The employment contract said that if Mr Siu was absent for more than 10 per cent of his classes in the month of leave, he would have breached a fundamental term of his employment contract. The School's evidence was that any teacher committing a breach of contract would receive a warning letter. Mr Siu had not received one, so the Court found that this was inconsistent with the School's case that they were entitled to terminate his employment.

Generally, the level of damages awarded for unlawful discrimination is aimed at putting the victim in a position such as if the events had not occurred.

The Court awarded Mr Siu a total of HK$198,000 for the following:

  • loss of earnings – being the amount of wages he would have received from the date of termination until December 2003, when he suffered a relapse and would have had to stop working;
  • the sickness allowance he was entitled to under his employment contract;
  • injury to feeling – this was assessed by reference to three bands, following a precedent established in the UK. The top band is awarded in the most serious cases, such as a lengthy campaign of discriminatory harassment. The middle band is for not quite so serious cases and the lowest is appropriate for when the act of discrimination is an isolated incident or a one-off occurrence. The Court put Mr Siu's case in the lowest band and awarded HK$30,000.

    The Court made a declaration that the School had committed an unlawful action of disability discrimination by dismissing Mr Siu. He also sought a formal apology, but the Court considered the School was not contrite and repentant and therefore considered that an apology would be an empty gesture and did not order it.

    Q & A on unlawful discrimination in the workplace
    Q1 Are all acts of treating someone less favourably unlawful discrimination?
    A1 Not all acts of discrimination are unlawful. For example, there is no protection against discrimination on the basis of age, religious beliefs or sexual orientation. Nor is there any equal pay legislation. In addition, race discrimination legislation will not be enacted in Hong Kong until later this year at the earliest. Currently, discrimination based on the following attributes is unlawful: sex, marital status, pregnancy, disability and family status.

    Q2 I do not get a housing allowance because my spouse receives a similar entitlement from his employer. Is this unlawful discrimination based on marital status?
    A2 The Sex Discrimination Ordinance provides that it is not unlawful for an employer to refuse or omit to provide a benefit or allowance relating to housing, education, air-conditioning, passage or baggage to a married person if the married person's spouse receives or has received the same or a similar benefit or allowance either from the same employer or some other employer.

    Q3 What steps can employers take to reduce the risk of discrimination complaints?
    A3 Generally, employers should have a written anti-discrimination policy. They should implement it and provide ongoing training on anti-discrimination. An employer should also have a designated contact person and a grievance process for employees to voice complaints. Finally, employers should put in place procedures for documenting decisions.

  • Taken from Career Times 27 May 2005

    (Last review date: 23 August 2013)

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