Disability used as a pretext for dismissal

Article contributed by special arrangement with the Equal Opportunities Commission

David joined a manufacturing company as a trainee technician in 1997. He was assigned to work on the night shift and his annual appraisals stated that he was diligent and able to work independently. Subsequently, he was promoted to technician grade. In 2000, however, he developed insomnia and his doctor suggested that working the night shift for an extended period could lead to general sleeping problems. David obtained a medical certificate to this effect, which he handed to his supervisor when he decided to ask for a change of shift.

The supervisor was furious and rejected the request, forcing David to continue on the night shift and struggle with his insomnia. In 2002, things had got worse and David submitted a new medical certificate confirming that he was suffering from mental illness. This time, the supervisor seemed very responsive and, shortly afterwards, arranged a transfer to the day shift. Two days later, David received a warning letter about his lack of concentration at work and a month later he was dismissed for poor performance.

Obviously, he was shocked to be dismissed and took the advice of a relative who suggested lodging a complaint with the Equal Opportunities Commission (EOC).

The EOC case officer asked the employer for an explanation and was told that David had not presented a medical certificate in 2000, but that there had been one in 2002 stating the problem. The employer said it was known how much distress insomnia could cause, so David's request had been accepted immediately and a transfer arranged to the day shift. "It was his poor performance, inability to concentrate at work and frequent mistakes, not to mention other reasons, that led to the dismissal," the supervisor said.

Each side stuck to its story and, after lengthy negotiations, the company finally agreed to pay David monetary compensation equivalent to his annual salary, while denying any wrongdoing.

People with mental or chronic illness often face prejudice and discrimination in the workplace. However, under the Disability Discrimination Ordinance (DDO), which has been in force since 1996, it is unlawful for an employer to discriminate against an employee on the grounds of his or her disability. Such discrimination is prohibited at every stage of employment. This includes in job advertisements, interviews and the selection of candidates, employment benefits, promotion and dismissal.

If a person with a disability can perform the inherent requirements of the job with some adjustments, employers should consider providing "reasonable accommodation". This refers to any modification or adjustment to a job, an employment practice, or the work environment, to make it possible for an individual with a disability to have an equal opportunity for employment.

Q&A on how to avoid disability discrimination in employment
Q1 How will I know if I can perform the inherent requirements of a job?
A1 In reality, a person with a disability or chronic illness can still handle most jobs. Of course, they should be expected to follow the advice of a recognised medical practitioner. An employer should be able to define the inherent requirements of a job. If there is any doubt, try and get a copy of the job description beforehand and study the list of duties and responsibilities. The interview should also be used as an opportunity to ask more detailed questions about the nature of the work involved.

Q2 What are the inherent requirements of a job?
A2 The inherent requirements of a job are those that are necessary to achieve the goals of the job. In the context of people with disabilities, care must be taken not to confuse the goals of the job with the way in which it is carried out. The latter is not necessarily an inherent requirement. In determining whether a person with a disability can carry out the inherent requirements of the job, an employer is required to take account of:
(a) the person's past training, qualifications and experience relevant to the position;
(b) in the case of a serving employee, his or her work performance; and
(c) other relevant factors.

For example, an inherent requirement of being a light goods vehicle driver may be the ability to drive long distances on one's own. It may not be an inherent requirement of the job to be in excellent health.

Q3 If my colleagues avoid me, refuse to let me participate in activities, or say that I cannot use common facilities because of my illness, is it discrimination?
A3 Your colleagues' behaviour may amount to discrimination or harassment under the DDO, if they behave that way because of your chronic illness. Also, if they publicly incite hatred towards, serious contempt for, or severe ridicule of a person with a disability, this may amount to vilification. Under the DDO, the employer has a responsibility to provide a workplace that is free from discrimination, harassment and vilification. This means that the employer may be held responsible for your colleagues' behaviour, even though the employer may not approve or know of it.

Taken from Career Times 09 September 2005

(Last review date: 23 August 2013)

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