Discrimination and victimisation

by Hong Tran, senior associate Employment and Employee Benefits Group, Johnson Stokes & Master

Article exclusively contributed by Johnson Stokes & Master

Mr Yeung had been employed by a hospital as a clerk since November 1997. He was originally attached to the admissions office. In 1998, as a result of a heart attack, Mr Yeung underwent open-heart surgery. This left him with residual disabilities in addition to his pre-existing ischemic heart disease.

In April 2001, Mr Yeung was transferred to work at the general store and the out-patients department, working different hours to those he had originally been used to. In July 2001, he was transferred to work at the general store, again working different hours. The hospital dismissed him on 24 July 2002.

Mr Yeung claimed that he was unlawfully discriminated against by the hospital by reason of his disability and contrary to the Disability Discrimination Ordinance. He made a complaint to the Equal Opportunities Commission (EOC) that the hospital had unlawfully discriminated against him on the basis of his disability.

Early conciliation failed and Mr Yeung commenced proceedings against the hospital for unlawful discrimination as well as unlawful victimisation by the hospital by reason of his having made a complaint to the EOC.

The court looked at which party had the burden of proof in discrimination proceedings. It concluded that the evidential burden did not shift to the defendant employer at any stage. That is: the onus of proof remained with the person alleging unlawful discrimination. However the court said that it should approach the question of proof with common sense, bearing in mind the standard of proof is on the balance of probability and that it is sometimes difficult to have direct evidence of discrimination.

So, once the plaintiff has established the relevant primary facts on the balance of probability, the court, in drawing the appropriate inferences, would have to consider the explanation (if any) given by the defendant.

Mr Yeung alleged that he was treated less favourably because of his disability by being transferred twice in 2001. In particular, he alleged that he was required to work between 11am and 7pm while all other predecessors in his position worked from 8am to 4pm.

Further, in the second transfer, he was required to work in one department from midday to 4pm and another from 4pm to 8pm while another clerk in a similar situation only worked in the one department from 8am to 4pm.

After hearing the hospital's explanation through its witnesses, the court found that the two transfers were a result of the hospital trying to manage its operational needs while meeting the plaintiff's request to join a particular department. The court also found that the change in working hours and the need to work in different posts had nothing to do with Mr Yeung's disabilities.

In respect of the victimisation claim, Mr Yeung argued that he was treated less favourably by reason of his complaint to the EOC. He alleged that as a result of making his complaint he was given unfavourable work performance reviews and was closely monitored by the hospital, thereby paving the way for his dismissal.

Mr Yeung further alleged that he frequently received disturbing or annoying telephone calls and was instructed by his supervisor to deliver heavy objects for no reason.

The court believed the hospital's witnesses and found that the report provided by Mr Yeung's supervisor was not created with a view to dismissing Mr Yeung, nor was it created because he had made a complaint to the EOC.

The court also found that the hospital had given an adequate and satisfactory explanation and that there was no or insufficient evidence to connect the report to the EOC complaint.

Q & A on disability discrimination
Q1 If I feel I have been subjected to unlawful disability discrimination, how long do I have to commence proceedings?
A1 You must commence proceedings within two years of the alleged act being perpetrated.

Q2 What assistance will the EOC provide?
A2 The EOC may assist, if it thinks fit to do so; in particular, where the case raises a question of principle or it is deemed unreasonable. This would apply with regard to the complexity of the case or the applicant's position and ability to deal with the case unaided. The assistance given by the EOC may include the provision of advice and arrangements for the provision of such advice or assistance by a solicitor or counsel. The EOC may also arrange for representation and any other form of assistance that it considers appropriate.

Taken from Career Times 23 February 2007

(Last review date: 23 August 2013)

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