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Discrimination


Article contributed by Johnson Stokes & Master

Three conditions to prove indirect discrimination

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

In the case of Aquino Celestina Valdez v So Mei Ngor Betty, a domestic helper alleged that her former employer had discriminated against her in contravention of the Disability Discrimination Ordinance (DDO). The claimant had a congenital deformity, since the three middle fingers of her right hand were partially fused together and were incomplete. The claimant said that the employer's family had subjected her to ill treatment and torture because of the deformity. This included shouting and using obscene language, falsely accusing her of being diseased and a thief, and threatening to kill her. There were also physical assaults and unlawful fines imposed for alleged incompetence in her work and for returning late on days off. The claimant also alleged that the employer forced her to sign warning letters, threatening dismissal for not doing so.

The claimant had worked for this employer for just over two months when she was summarily dismissed. She received no wages in arrears or in lieu of notice and no travel allowance or air ticket to return to the Philippines. Therefore, she claimed HK$7,908 in outstanding salary plus an air ticket. Subsequently, the employer paid HK$3,500 in full and final settlement at a Labour Department conciliation meeting in January 2004.

Nevertheless, the claimant decided to commence proceedings for unlawful disability discrimination in March 2004, alleging direct and indirect discrimination. Judge To said that to prove direct discrimination the disabled employee must identify the alleged discriminatory treatment, prove that it was on the grounds of disability and, thirdly, show that the treatment was less favourable than that given to another real person or a notional person without a disability or with the same disability.

Judge To said that indirect discrimination occurs if three conditions are satisfied when an employer applies to a disabled employee a requirement also applied to a person without a disability. Firstly, the employee must show that the proportion of people with a disability who can comply with the requirement is considerably smaller than the proportion of those without one. The next is if the employer cannot show it is justifiable to apply the requirement to an employee irrespective of disability. The third is if the requirement is detrimental to the employee in that he or she cannot comply with it.

Judge To said that intention or motive is an unnecessary condition of liability and that it makes no difference whether the discriminatory treatment is applied deliberately or thoughtlessly. Most importantly, he added that a dismissal is not discriminatory if summary dismissal is justified. In other words, summary dismissal can provide a complete defence in an action for discrimination if it is justified. In this case, the employer said she did not discriminate against the claimant and was justified in summarily dismissing her.

After analysing the credibility of the witnesses, Judge To found on the evidence that the claimant's failure to pick up the employer's daughter from ballet class and from school was a serious breach of the contract of employment and justified summary dismissal. Accordingly, the employer's actions were not connected to or on account of the disability.

The claimant had alleged indirect discrimination because the employer made no allowance for her disability in requiring clothes to be hung on a drying rack outside the flat instead of in the kitchen. Judge To found that it was not difficult to hang clothes outside and that nothing suggested only a small proportion of persons with a disability could perform this task. He also ruled that the requirement to hang clothes on the drying rack was justified and reasonable. Consequently, the claimant's case was dismissed.

Q&A on disability discrimination
Q1 What amounts to a disability under the Disability Discrimination Ordinance (DDO)?
A1 Disability is broadly defined in the DDO and can include things from a common cold to serious cases such as paraplegia. The definition covers a disability that presently exists, previously existed but no longer exists, may exist in the future, or is imputed to a person. So, an employer could be open to challenge by treating less favourably an individual who for example, used to have a chronic back problem, even if the complaint no longer exists.

Q2 Is there any defence in cases of disability discrimination?
A2 There are certain exceptions under the DDO. For instance, it is a defence against certain allegations of disability discrimination if an employer can show that the disability either:
(a) prevents the person from carrying out the inherent requirements of the position, or
(b) in order to carry out those inherent requirements, the person would need services or facilities not needed by people without a disability, the provision of which would cause unjustifiable hardship for the employer.

Q3 If I intend to sue my employer for disability discrimination, how long do I have to do this?
A3 You must commence proceedings within two years of the discriminatory act.


Taken from Career Times 03 February 2006

(Last review date: 23 August 2013)


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

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