Equal Opportunities Commission


E-news Issue 287

Court confirms EOC’s complaint-handling as fair and reasonable

Court confirms EOC’s complaint-handling as fair and reasonable

EOC Chairperson Mr Ricky CHU Man-kin published an article in China Daily and Sing Tao Daily last month, welcoming the High Court’s recent decision to refuse an application for judicial review of the EOC’s handling of a disability discrimination complaint.

The applicant had lodged a complaint with the EOC in March 2018 under the Disability Discrimination Ordinance, alleging that his employer had unlawfully discriminated against him because of his depression and another illness. The employer was said to have deducted his salary for his absence from the office, refused to let him use his vacation leave to cover the absence, and assigned him to a new position despite his objections based on medical reasons.

The EOC contacted the employer requesting a response to the allegations, as part of its established procedure. The employer explained that it had rejected the applicant’s applications for sick leave because he had failed to submit medical certificates issued by a government or Hospital Authority clinic, as required by the employer to prevent possible abuse of sick leave.

It also claimed that it had never forbidden the applicant to use his vacation leave to cover his absence. On the contrary, the applicant allegedly ignored repeated requests from the employer to make a valid application for vacation leave. It was on this basis that the employer eventually deducted his salary.

As for the job reassignment, the employer said it was merely implementing an existing policy under which employees who had worked in the same unit for more than five years, would be subject to a posting arrangement.

After reviewing all the information gathered from both parties, the EOC took the view that there was no sufficient evidence of any unlawful act — the employer’s actions could not be said to be done as a result of the applicant’s disability. The court agreed with this assessment and held that it was not unreasonable for the EOC to have eventually discontinued the investigation.

Further, the court considered that the EOC had given clear and adequate reasons for the discontinuation in a letter to the applicant, specifically by explaining why the alleged acts did not amount to disability discrimination and referring to relevant information throughout the letter.

“The court’s decision is no doubt a welcome one for the EOC, but it carries significance for everyone in Hong Kong,” wrote Mr Chu. “While the EOC is here to serve the public, it has to do so impartially and properly. This means ensuring that both parties in a dispute have an opportunity to explain themselves, as illustrated in this case.”

“It also means making the prudent decision of discontinuing an investigation when there is no evidence of an unlawful act and no new information can reasonably be expected to emerge. Otherwise, complainants who do have a substantial case may have their complaints stuck in the backlog. After all, as the saying goes, justice delayed is justice denied. The public wants efficiency.”

He continued, “Looking ahead, the EOC will earnestly address people’s concerns and difficulties in daily life regarding equal rights by adhering to its core values of fairness and impartiality in serving Hong Kong. We are also confident that more people will begin to understand the meaning of the procedure we follow, and that it exists for the benefit of all.”

To read the full article, please click the link below.