Ignorance of disability not a defence

by Hong Tran, partner and Gabriel Cheung registered foreign lawyer (New South Wales, Australia), JSM

Article exclusively contributed by JSM

The fact that an employer does not have specific knowledge of an employee's disability is not a complete defence to a claim of unlawful disability discrimination. This was shown in the case of M v Secretary of Justice.

Mickey Chan was employed by the government as an administrative officer. His supervisors considered his performance to be poor, as he had difficulty settling into the job, lacked motivation, worked slowly and could only deliver if given detailed instructions.

Under threat of dismissal, Mr Chan resigned of his own accord. He then commenced District Court proceedings against the government, alleging that he had been discriminated against and harassed on the grounds of his generalised anxiety disorder (GAD).

District Court judge David Lok dismissed Mr Chan's claim, stating that although he did suffer from GAD, the government had not discriminated against him, as it had not been aware of his disability. Judge Lok also ruled that Mr Chan's supervisors had not harassed him.

Mr Chan appealed to the Court of Appeal on the grounds of direct discrimination, claiming that Judge Lok had used the wrong "comparator" and that the government had indeed known about his disability.

Manifestation of discrimination

Direct disability discrimination is defined as less favourable treatment on the grounds of a person's disability. The Court of Appeal said that there are two issues to consider when determining if there has been direct disability discrimination: the comparator issue and the causation issue.

To determine whether a complainant has been treated less favourably, the Disability Discrimination Ordinance (DDO) requires that the complainant be compared to a person (a comparator) in similar circumstances, but without a disability (not merely a comparator without the symptoms of the complainant's disability). Therefore, where the symptom or manifestation of a person's disability is, for example, violence, the appropriate comparator is not a person who is not violent, but rather a person without disability.

Having discussed the comparator issue, the Court of Appeal did not make any specific findings in relation to Mr Chan on this issue. It considered the more important question, regarding knowledge of Mr Chan's disability, in the context of the "causation" issue.

In order to constitute direct disability discrimination under the DDO, the conduct against the complainant must have been "on the grounds" of his disability. District Court Judge Lok had regarded knowledge of the disability to be crucial to causation, saying that if the government had not been aware of Mr Chan's disability, then his treatment could not have been "on the grounds of" his disability. Judge Lok found that the government had been genuinely unaware of Mr Chan's disability and that he could therefore not pass the causation test.

The Court of Appeal disagreed. It noted that the definition of "disability" in the DDO is largely descriptive and does not require the identification of the disability as such. The Court said it did not matter that an employer was unaware of an employee's disability, or even that the employee himself was unaware.

According to the DDO, the only issue is whether an employer is shown to have directly discriminated against an employee by treating him less favourably because of the manifestation of a disability, even if the employer did not know that the disturbed behaviour was the result of a disability. In other words, knowledge of the manifestation of a disability is knowledge of disability itself, the Court of Appeal pointed out.

With regard to the causation issue, all that is required is that the employee was dismissed because of the "disturbed behaviour", the Court of Appeal said. Since it did not matter that the government had been unaware of Mr Chan's disability, the Court found in favour of Mr Chan in relation to the causation issue.

However, the Court of Appeal agreed with Judge Lok that Mr Chan had been unable to carry out the inherent requirements of his job. It is a defence to an unlawful disability discrimination claim if the employer can demonstrate that the employee had been unable to carry out the inherent requirements of the job, either at all or without the provision of facilities that would impose an unjustifiable hardship on the employer.

As a result, even though the Court of Appeal overturned the District Court's decision regarding the causation issue, Mr Chan's appeal was dismissed.

Q & A on direct disability discrimination
Q1 Can an employer dismiss a hearing-impaired employee who has to stop working occasionally when his hearing aid malfunctions?
A1 No. Section 9 of the DDO protects employees that are using "a palliative or therapeutic device or auxiliary aid" (including hearing aids) against unfavourable treatment.

Q2 Does dismissal constitute disability discrimination if neither the employer nor the employee has any knowledge of the employee's disability at the time of dismissal?
A2 If the dismissal is "on the grounds of" the employee's disability and the employer does not have any legal defence under the DDO, then the employer may be guilty of unlawful disability discrimination.

Taken from Career Times 24 July 2009, p. B8

(Last review date: 23 August 2013)

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