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Discrimination


Article contributed by special arrangement with the Equal Opportunities Commission

Is illness a cause for dismissal?


Paul worked as a surveyor with a construction company and was diagnosed as suffering from nasopharyngeal carcinoma. He immediately reported his condition to his supervisor and asked for permission to take time off during office hours for regular check-ups and treatment in the next few weeks. The request was approved.

Two weeks later, without being consulted, Paul was transferred from the construction site to an office job and, worse still, was made redundant a few days later. He was shocked by this decision and asked for an explanation from the general manager, who claimed he was unaware of Paul's condition and that the dismissal had simply been part of the company's downsizing exercise.

Not long afterwards, however, Paul found out that the company was advertising to recruit a surveyor to take his position. He felt this was unfair since his illness had never prevented him from performing his duties effectively. He concluded that the comment about downsizing had been used as an excuse to get rid of him. Therefore, he filed a complaint with the Equal Opportunities Commission (EOC) alleging that his former employer had discriminated against him because of illness.

On receiving the complaint, the EOC approached the company for a response and suggested the option of early conciliation. This led to the employer agreeing to pay Paul three months' salary as monetary compensation and offering to reinstate him. These terms of settlement were accepted and early conciliation was reached.

Early conciliation offers an alternative means for the complainant and respondent to settle a case more quickly. It can be conducted at any stage before or during the process of investigation provided the two parties reach consensus.

People are entitled to equal consideration for jobs regardless of whether they have a disability. The Disability Discrimination Ordinance (DDO) provides that it is unlawful to discriminate by dismissing an employee on the grounds of disability. It would also be unlawful if disability was one of the considerations in making an employee redundant.

An employer should not assume that someone with a particular disability would be unable to do certain types of work. To claim an exception, the employer has to show in each case that, having considered the performance of a serving employee and other relevant factors, the person with the disability would be unable to carry out the inherent requirements of the job. Alternatively, the employer has to show that, in order to carry out those inherent requirements, the person would require special accommodation, and that this would result in unjustifiable hardship for the employer.

(Update: In the recent case of Kwok Wing Sun v Law Yung Kai Trading as Wan Kou Metal & Plastic Factory (2008), although the plaintiff's doctor had opined that the plaintiff's work ability was unaffected by his disabilities, constraints on his work were imposed and he was later dismissed without reason. The Court held that there had been direct discrimination under s6(a) of the DDO.)

In line with good management practice, employers should review their redundancy procedures to ensure there is no discrimination against persons with a disability.

Q&A on disability discrimination in employment
Q1 Can a company dismiss me on the basis of my chronic illness or because I need regular treatment?
A1 It is unlawful for an employer to dismiss you on the grounds of chronic illness or because you need regular treatment. The DDO requires employers to know whether an employee can perform the inherent requirements of a job. If they cannot, the employer must provide special services or facilities to help the employee perform the inherent requirements unless this would impose unjustifiable hardship. For example, if an employee has renal disease, the employer should consider allowing them to work flexible hours so they can receive dialysis treatment.

Q2 My store manager hurt his back at work and took sick leave while he recovered. When the injury recurred, he tried to take more leave, but I told him the company couldn't afford to keep him on. He's letting the whole team down by staying on leave while we're understaffed. I can't afford to employ a replacement while I'm paying him to be on sick leave. Now he's threatening to file a discrimination complaint against me. It's nothing personal against him, but what else can I do if I'm to keep my business going.
A2 You should consider assigning other jobs for the store manager while he recovers. You can change some of his duties so there is less lifting, more assistance and regular rest breaks. Perhaps he could also handle additional paperwork. You are legally obliged to make reasonable accommodation for your store manager to continue working, unless doing so would cause unjustifiable hardship. Call the EOC for advice about how to accommodate your employee or on what might constitute unjustifiable hardship.

Q3 If I am applying for a job, can the employer require me to provide medical information?
A3 An employer can ask a job applicant to provide medical information if it is to be used to determine whether the job applicant:
(a) would have any infectious disease recognised under the DDO
(b) would be able to perform the inherent requirements of the job
(c) would need special services or facilities to perform the inherent requirements of the job.

If you are asked to provide medical information and think it is not for the reasons above, you can seek advice or lodge a complaint with the EOC.


Taken from Career Times 28 October 2005

(Last review date: 23 August 2013)


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

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