Ss 6 and 11 of DDO

The Complainant (C) had been employed by an organisation (R) as a chef for about two years before she was diagnosed with gastric cancer. C took about one year’s sick leave and was terminated on the day she resumed work without given any reason. C said that she had no performance issues during her employment with R. She believed the termination was due to her illness.

The case was resolved through early conciliation after R agreed to pay C a sum equivalent to approximately four months’ salary of C, inclusive of payment in lieu of notice, payment for annual leave not taken, one day salary for the day she resumed duty and C’s contribution to Mandatory Provident Fund deducted from her salary.

Remarks:

It is unlawful under the DDO for an employer to discriminate against an employee on the ground of his/her disability by terminating that employee, unless it can be proved that the employee is not able to perform the inherent requirements of the job, or that providing services or facilities to help him or her to perform the job duties would impose unjustifiable hardship on the employer.

Ss 6 and 11 of DDO

The Aggrieved Person (AP) had mental illness. He said he had successfully got an offer to work as a security guard with a company (R) and was told to undergo a medical examination, after which he would be given uniforms and had to attend training courses. On the completion of the medical examination, AP called up the office of R and told the staff member on the other side of the phone that he had mental illness. AP alleged that the staff member immediately told him to wait for further notice, but he had not received any notice since then. AP felt that R withdrew the job offer because of his mental illness.

Represented by a social worker, AP lodged a complaint of disability discrimination with the EOC against R. The complaint was settled through early conciliation after R agreed to apologise for having caused AP displeasure due to misunderstanding in the communication process.

Remarks:

It is unlawful under the Disability Discrimination Ordinance to discriminate against a job applicant on the ground of his/her disability by refusing or withdrawing the job offer, unless it can be proved that the applicant is not able to perform the inherent requirements of the job, or that providing services or facilities to help him or her to perform the job duties would impose unjustifiable hardship on the employer.

Ss 6, 11 and 57 of DDO

The Complainant (C) applied for a position as a temporary assistant with R, a food manufacturer. The job duties included, among others, the production of dry ice. She was offered the job, and was required to disclose if she had any medical condition by completing a form. C disclosed that she had epilepsy and was then required to submit medical proof. One day after C submitted the medical proof, R withdrew the offer as they worried that the production of dry ice would cause health hazard to persons with epilepsy. C disputed with this as she had consulted her medical doctor who verbally advised that there would be brain damage only if she was required to produce dry ice for a long period of time. As the period of employment was about three weeks only, there should not be any adverse impact on her health.

C lodged a complaint of disability discrimination against R. The complaint was settled through early conciliation with C agreed to accept R’s pre-arranged training on equal opportunities to its staff members including the human resources crew as terms of settlement.

Remarks:

It may constitute unlawful discrimination to withdraw the job offer to an applicant on medical ground. It is not a defence to say that the withdrawal was done in the interest of safety of the employee, unless it can be shown that the act is necessary in order to comply with statutory health and safety requirements. It is advisable to seek medical opinion if in doubt.

Ss 6 and 11 of DDO

The Complainant (C) had been employed by a car service company (R) for nearly nine years when she was terminated.

C suffered severe neck pain in the mid of the year and was diagnosed to have Cervical Radiculopathy. She was given sick leave for about one month. She was terminated with immediate effect on the very first day she returned to work without any explanation. C alleged that the termination should be due to her disability, as her performance had always been good. She had been promoted thrice and paid bonus in the past eight years.

C lodged a complaint of disability discrimination against R. The complaint was settled through early conciliation after R agreed to pay C a sum approximately equal to 3.5 months’ of her basic salary.

Remarks:

It is unlawful to discriminate an employee on the ground of his/her disability, unless it can be proved that the employee is not able to perform the inherent requirements of the job, or that providing services or facilities to help him or her to perform the job duties would impose unjustifiable hardship on the employer.

Ss2(6), 22 and 48 of DDO

The Complainant (C) was a clerical assistant in the civil service. She had a number of physical ailments and suffered insomnia due to chronic pains. She alleged that her supervisor (R1) had, for a number of times when she called sick, responded in an intimidating tone by remarking that she had taken sick leave again or action would be taken against her when she returned to work. R1 also threatened to bring C to the Executive Officer, who was the head managing staff of C’s grade. R1 opined that C should attend medical board and apply for medical retirement, and said that her performance appraisal would be affected by her frequent sick leave and medical leave. C felt that R1 was suggesting that she was not suitable for the job, which subjected her to tremendous psychological pressure. As a result, C developed depression and anxiety disorder.

C lodged a complaint of disability harassment with the EOC against R1 She also lodged a complaint against the department she worked in (R2) for vicarious liability as an employer. The complaints were settled through early conciliation with R1 agreed to give a written apology and R2 undertook to support C’s application for transfer to other government departments. R2 also agreed to look into her appeal for a review of her past performance appraisals according to set procedures. Finally, R2 agreed to investigate on R1’s way of staff management and behaviours with regard to the statements made by C in this case.

Remarks:

Under the Disability Discrimination Ordinance, it is unlawful for an employer or an employee to harass another employee on account of his/her disability. Employers are vicariously liable for the unlawful conduct of their employees, unless they can prove that reasonably practicable steps have been taken to prevent such conduct from happening.

Ss 6 & 11 of DDO

The Complainant (C) is a person with epilepsy. C was employed by the Respondent (R), a pharmaceutical manufacturing company, as a production worker and his duties were mainly packaging. C did not inform R that he had epilepsy when he joined the company. He passed the probation three months after the employment and never received any verbal or written warning during his employment with R. Six months after C joined R, C was asked to undergo a medical check together with another co-worker. The result of the medical check was normal and C informed the doctor responsible for the medical check that he had epilepsy. Upon the advice of the doctor, C informed R of his epilepsy right after the medical check. Four days later, C was dismissed. C’s supervisor told him that the management was of the opinion that he was “not suitable for the job.”, although his performance was good. C felt the dismissal was on the ground of his disability.

C lodged a complaint of disability discrimination with the EOC against R. The case was settled through fast track conciliation after R agreed to give C a letter of recommendation.

Remarks:

It is unlawful under the Disability Discrimination Ordinance to discriminate against an employee by dismissing him/her on the ground of his/her disability.

Ss 22 & 48 of DDO

The Complainant (C), a non-civil service contract worker of a government department (the Respondent – R), alleged that his former supervisor had made disparaging remarks about him for taking frequent sick leave with foul languages which amounted to disability harassment.

C lodged a complaint against R for being vicariously liable for the alleged disability harassment incident. The case was settled through fast track conciliation after R agreed to issue a letter to C (1) stating the “zero tolerance” principle against any disability harassment in the workplace; (2) undertake to inform C of the outcome of the internal investigation regarding the alleged incident; and (3) to apologize for the distress feelings caused by the incident if it did happen.

Remarks:

Under the Disability Discrimination Ordinance, it is unlawful for an employer or an employee to harass another employee on account of his/her disability. Employers can be held vicariously liable for the unlawful conduct of their employees, unless they can prove that reasonably practicable steps have been taken to prevent such conduct from happening.

Ss 6 & 11 of DDO

The Complainant (C) was a foreign domestic worker working for the Respondent (R). C was diagnosed to have ovarian tumor and informed R shortly after the diagnosis. C continued to work while she waited for the surgery. C alleged that R started to nitpick on her performance subsequently. Around six months later and shortly before C's surgery, R dismissed C. C alleged the dismissal was on the ground of her disability.

C lodged a complaint of disability discrimination with the EOC against the employer. The case was settled through fast track conciliation after R agreed to give C a monetary payment of about nine-month's salary.

Remarks:

It is unlawful under the Disability Discrimination Ordinance to discriminate against an employee by dismissing him/her on the ground of his/her disability.

Ss 6 & 11 of DDO

The Complainant (C) had been employed by the Respondent (R), a security company, for over two years when he had work related injury to his back and took sick leave for around three weeks. As C resumed duty after his leave, C alleged that R done several discriminatory acts, such as not putting a name badge at his work station, not promoting him and adjusting his salary according to standard practice despite his enquiry, and making some remarks on others’ injury which made C felt uneasy. C alleged that such acts were done on the ground of his work injury. He resigned due to the alleged discrimination.

C lodged a complaint of disability discrimination with the EOC against the employer. The case was settled through fast track conciliation after R agreed to give him monetary payment of about six-month's salary.

Remarks:

It is unlawful under the Disability Discrimination Ordinance to discriminate against an employee by not promoting that person or by subjecting that person to any other detriment on the ground of his/her disability.

Ss 6 & 11 of DDO

The Complainant (C), a person with hearing impairment, had been employed by a fast food & bakery shop for around one year as a porter. Due to a raise in rent, the owner eased the operation of the fast food shop and only retained the bakery section of the shop. The employer laid-off C, along with 22 other staff members. However, the other staff members received their 7 days’ salary in lieu of notice while C was given the 7 days notice and required to work in the period. C alleged such arrangement was discrimination on the ground of his hearing impairment.

C lodged a complaint of disability discrimination with the EOC against the employer. The case was settled through fast track conciliation after the employer agreed to pay him 7 days’ salary to settle the complaint.

Remarks:

It is unlawful under the Disability Discrimination Ordinance to discriminate against an employee by treating that person unfavourably on the ground of his/her disability, entailing a detriment suffered by the employee with a disability.

Ss 6 & 11 of DDO

The Complainant (C), a green minibus driver, is a person with low level of blood platelets. He had been employed by the Respondent (R) for around two years when he started to have bleeding in his mouth. C's doctor recommended C to take 11 days of sick leave and C also took another 10 days of no pay leave to have more rest time. C later discovered that R did not pay his sick leave allowance and C chased for such allowance. R finally agreed to back pay C's sick leave allowance but dismissed C at the same time. C alleged the dismissal was on the ground of his disability and related to his sick leave.

C lodged a complaint of disability discrimination with the EOC against R. The case was settled through fast track conciliation after the employer agreed to make a lump sum payment equivalent to 1.5 month's salary to settle the complaint.

Remarks:

It is unlawful under the Disability Discrimination Ordinance to discriminate against an employee by dismissing that person on the ground of his/her disability.

S22 and 48 of DDO

The Complainant (C) was a member services assistant of a company (R1). C injured his leg and was advised by the doctor to avoid heavy duty temporarily. C claimed that on one occasion, a colleague (R2) harassed him by calling him a useless person and commenting that he pretended to be lame, among other comments. C lodged an internal complaint with R1 but was dissatisfied with R1's complaint handling.

C lodged complaints of disability harassment with the EOC against R2 and also against R1 for being vicariously liable for the alleged unlawful act of R2. The case was settled through early conciliation after R1 agreed to give him monetary payment of one month's salary, and R2 agreed to give him monetary payment and a written apology.

Remarks:

Harassment against a person with a disability is unlawful under the Disability Discrimination Ordinance. Harassment is any unwelcome conduct on account of a person's disability where it can be reasonably anticipated that the person would be offended, humiliated, or intimidated. Commenting on the disability of a colleague may amount to disability harassment. Employers have to ensure that there is no discrimination or harassment against persons with disabilities. Otherwise, they may be held vicariously liable for their employees' unlawful acts.

S11 of DDO

The Complainant (C) worked for Respondent (R) as an account clerk. She had a stroke and was hospitalized for a month. R employed a replacement during her hospitalization. C alleged that after her duty resumption, R treated her less favourably by not allowing her to perform her original accounting duties, criticizing her work performance verbally, not providing her the staff benefits on a festive occasion. R dismissed C on the ground of redundancy two weeks after her resumption of duty.

C lodged a complaint of disability discrimination with the EOC against R. The case was settled through conciliation after R agreed to give her monetary payment of about 2.5 months' salary.

Remarks:

It is unlawful under the Disability Discrimination Ordinance (DDO) to discriminate against an employee by dismissing or subjecting him/her to detriment on the ground of disability. The DDO requires employers to ascertain whether an employee can perform the inherent requirements of a job. The employer has a duty to provide reasonable accommodation (e.g. modification or adjustment to a job, providing or modifying equipment, or changing work schedules) to help the employee to perform the inherent requirements unless this would impose unjustifiable hardship on the employer.

S11 of DDO

The Complainant (C) worked for the Respondent (R) as a sales team leader. C's performance had been satisfactory. She had urological problems and had to undergo an operation. C took sick leave of about one week. A few days after resuming her duty, R claimed C had committed a serious mistake at work and terminated her employment. C disputed the claim.

C lodged complaints of disability discrimination with the EOC against R. The case was settled through early conciliation after R agreed to give C monetary payment of about 5 months' salary and C agreed to give up her rights in any potential claims or complaints arising from the dismissal.

Remarks:

It is unlawful under the Disability Discrimination Ordinance (DDO) for the employer to discriminate against an employee by dismissing that person on the ground of his/her disability. The DDO requires the employer to ascertain whether an employee can perform the inherent requirements of a job. The employer has a duty to provide reasonable accommodation (e.g. modification or adjustment to a job, providing or modifying equipment, or changing work schedules) to help the employee to perform the inherent requirements unless this would impose unjustifiable hardship on the employer.

S11 of DDO

The Complainant (C) applied for the post of a clerk in a company (R). C passed the interview and was invited to attend a pre-employment medical examination. C disclosed that he had undergone a neck operation over 15 years ago, but that it did not affect his daily work. After further medical examination, R withdrew the job offer, claiming that C might not be able to perform the inherent requirements of the job but refusing to give details.

C lodged a complaint of disability discrimination with the EOC against R. The case was settled through early conciliation after R agreed to give him monetary payment of about one month's salary.

Remarks:

It is unlawful under the Disability Discrimination Ordinance (DDO) to discriminate against a job applicant by refusing to offer employment to that person on the ground of disability. The DDO requires employers to ascertain whether an applicant /employee can perform the inherent requirements of a job. The employer has a duty to provide reasonable accommodation (e.g. modification or adjustment to a job, providing or modifying equipment, or changing work schedules) to help the employee to perform the inherent requirements unless this would impose unjustifiable hardship on the employer.

S11 of DDO

The Complainant (C) was an assistant accountant of a company (R). She was diagnosed with breast cancer and took two months' sick leave. For the first two months after resuming her duty, C worked half-day to receive regular treatment. When she resumed full-day work, R transferred her to another department for a temporary project and said the arrangement was to relieve her from the heavy workload. When the project was nearing completion about a year after the transfer, C requested to be posted back to her previous position. However, R did not give a concrete reply, but proceeded to recruit new staff members to take up her previous duties. C was made redundant a few months later.

C lodged a complaint of disability discrimination with the EOC against R. The case was settled through early conciliation after R agreed to give her monetary payment of 3.5 months' salary.

Remarks:

It is unlawful under the Disability Discrimination Ordinance (DDO) to discriminate against an employee by dismissing that person on the ground of his/her disability. The DDO requires employers to ascertain whether an employee can perform the inherent requirements of a job. The employer has a duty to provide reasonable accommodation (e.g. modification or adjustment to a job, providing or modifying equipment, or changing work schedules) to help the employee to perform the inherent requirements unless this would impose unjustifiable hardship on the employer.

S22 and 48 of DDO

The Complainant (C) was an assistant manager of a company (R). She took several weeks of sick leave for mental illness. After her return from sick leave, a colleague made harassing remarks, such as “crazy woman”, several times outside her room. C lodged an internal complaint with R.

C lodged a complaint of disability harassment with the EOC against R for being vicariously liable for the alleged unlawful act of its staff. The case was settled through early conciliation after R agreed to provide equal opportunities training to all staff working in the office and to provide complaints handling training to responsible staff.

Remarks:

Harassment of a person with disability is unlawful under the Disability Discrimination Ordinance. Harassment is any unwelcome conduct on account of a person's disability where it can be reasonably anticipated that the person would be offended, humiliated, or intimidated. Employers have to ensure that there is no discrimination or harassment against people with disability. Otherwise, they may be held vicariously liable for their employees’ unlawful acts.

S22 of DDO

The Complainant (C) was working as a car mechanic for a company. C injured his leg and had walking difficulties as a result. The company assigned him to temporarily perform light duties. One co-worker (R) commented that C contributed no production but got paid, posted poems which hinted at C’s mobility difficulties, and imitated C’s walking movements in a mocking way.

C lodged a complaint of disability harassment with the EOC against R. The case was settled through early conciliation after R agreed to give a monetary payment and an apology letter.

Remarks:

Harassment against a person with disability is unlawful under the Disability Discrimination Ordinance. Harassment is any unwelcome conduct on account of a person's disability where it can be reasonably anticipated that the person would be offended, humiliated, or intimidated. Commenting on the disability of a co-worker or imitating one’s movements in a mocking way may amount to disability harassment. Employers have to ensure that there is no discrimination or harassment against people with disability. Otherwise, they may be held vicariously liable for their employees’ unlawful acts.

S11 of DDO

The Complainant (C) was the chief operating officer of a company (R). She was diagnosed with breast cancer and took sick leave. After about two months, R employed a replacement for her position. When C was fit to resume duty, R told her they would find a suitable position for her consideration. Later, R told C they could not find such a position and terminated her employment.

C lodged a complaint of disability discrimination with the EOC against R. The case was settled through early conciliation after R agreed to give her monetary payment and a reference letter.

Remarks:

It is unlawful under the Disability Discrimination Ordinance (DDO) to discriminate against an employee by dismissing that person on the ground of his/her disability. The DDO requires employers to ascertain whether an employee can perform the inherent requirements of a job. The employer has a duty to provide reasonable accommodation (e.g. modification or adjustment to a job, providing or modifying equipment, and changing work schedules) to help the employee to perform the job’s inherent requirements unless this would impose unjustifiable hardship on employers.

S6 (a) of DDO

The Complainant (C) had been working as an assembly-line worker at a food packaging company (R) for almost 10 years. Once C developed severe back pain and took sick leave for several weeks. Her doctor advised her to perform light tasks only. She submitted a medical certificate to her supervisor but was still made to continue with her work. Instead of giving her physically less demanding work, R later assigned C to a different production line where the packaging materials were heavier.

Later, R issued a warning letter to C citing poor attitude towards senior staff for disagreeing with her supervisor over some work procedures. C refused to sign the letter. A few days later she was transferred to work on the night shift without reasons or prior notice. C found the overall work environment beyond her tolerance and resigned.

C filed a complaint of disability discrimination against R with the Equal Opportunities Commission (EOC). The case was settled through conciliation after R agreed to pay C a monetary compensation worth more than her yearly wages.

Remarks:

The Disability Discrimination Ordinance (DDO) makes it unlawful for an employer to discriminate against the employees with disability or sickness by subjecting them to detriment. In this case, the employer's failure to provide accommodation could have been detrimental to the employee, unless the employer could prove that the provision of accommodation would cause the company unjustifiable hardship. Accommodation refers to any modification or adjustment to a job or the work environment that makes it possible for an individual with disability to enjoy equal employment opportunities. As a good management practice, it is advisable to communicate clearly with the staff the reasons for transfer (either to a new post or to a new shift) to avoid misunderstanding.

S6 & S11 of DDO

The Complainant (C) was a clerk at a public organization(R). He was assigned to act as an assistant officer for more than six years. When there was a vacancy for the position of assistant officer, he applied. According to the company rule, applicants had to pass the Word Processing Proficiency Test (WPPT) in English and Chinese, to be allowed to sit for an interview for the position. He claimed that he requested R to consider his disability and make necessary accommodations but no measures were taken to accommodate his disability during the test. He failed the test and was, therefore, not granted an interview.

C lodged a complaint with the EOC alleging that R discriminated against him on the ground of his disability by requiring him to sit for WPPT without making any accommodations. R claimed the test was required to maintain fairness among all applicants. The case was settled through conciliation after R agreed to exempt C from that WPPT and allowed him to sit for the interview.

Remarks:

According to the Disability Discrimination Ordinance (DDO) a person indirectly discriminates against another person if he applies the same requirement (rule, policy, practice, or procedure) or condition, which cannot be justified, equally on people with and without disability but which has an unfair effect on a people with disability because they cannot meet it. C was indirectly discriminated against because the company applied the same rule to him as those to other applicants despite him having a permanent disability and did not take measures to accommodate his disability.

S22 of DDO

The Complainant (C) worked as an assistant building supervisor at a property management company (R1). C used to have shoulder pain due to work related injury. C claimed his supervisor (R2) harassed him by passing comments about his pain.

C lodged a complaint of disability harassment with the EOC against R2 and R1 for being vicariously liable for the alleged unlawful act by R2. The case was settled through early conciliation after R2 and R1 agreed to make an written acknowledgement of C’s work injury.

Remarks:

Harassment against a person with disability is unlawful under the Disability Discrimination Ordinance. Harassment is any unwelcome conduct on account of a person's disability where it can be reasonably anticipated that the person would be offended, humiliated or intimidated. Commenting on a co-worker’s disability may amount to disability harassment. Employers have to ensure that there is no discrimination against people with disability at workplace failing which they may be held vicariously liable for their employees’ unlawful acts.

S11 of DDO

The Complainant (C) worked as a senior merchandiser at a company (R). One and a half years after C joined office, he developed a blood disease which required taking daily injections for two consecutive weeks. C needed to take half-day off for two weeks to receive the treatment and notified R. C claimed that R dismissed him immediately upon receiving the notification.

C lodged a complaint of disability discrimination with the EOC against R. The case was settled after R agreed to provide a reference letter for C and also a monetary compensation amounting to half of C's medical expenses.

Remarks:

It is unlawful under the Disability Discrimination Ordinance to dismiss an employee on the ground of his/her disability and related sick-leave. In instances where employers allege that employees are dismissed for poor performance, employers have to be able to show the record of their performance evaluation.

S11 of DDO

The Complainant (C) worked in the Information Technology Department of a non-profit making organisation (R). C claimed that R dismissed him because of his refusal to participate in fund-raising activities due to poor health.

C lodged a complaint of disability discrimination with the EOC against R. R explained that C was dismissed because of poor performance. The case was settled after R agreed to provide a certificate of service to C, report in its newsletter that C had resigned due to health reasons and keep the dismissal letter confidential.

Remarks:

It is unlawful under the Disability Discrimination Ordinance to dismiss an employee on the ground of his/her disability and related sick-leave. In instances where employers allege that employees are dismissed for poor performance, employers have to be able to show the record of their performance evaluation.

S11 of DDO

The Complainant (C) was a manager at a company (R) where he had worked for more than a decade. C had to undergo five surgeries to treat cancer within two and a half years and had to take sick leave for most of that period. When C finally recovered and resumed work he was asked to perform clerical duties although he claimed he was fit to carry on his previous duties. His previous title and salary, however, did not change. Four months later, R terminated C's employment citing financial constraints. C later discovered that two other managers were leaving the job and R was looking for their replacement. R did not allow C to take up one of the positions.

C lodged a complaint with the EOC alleging disability discrimination. C claimed that since R had the provision of giving three months notice before quitting job, R was aware of the two vacancies that were to arise while dismissing him. C alleged that his dismissal and R's refusal to allow him to fill in for the vacant position was due to his past disability. The Complaint was resolved through conciliation after R agreed to pay a sum almost equal to C's nine months’ salary, as a monetary compensation.

Remarks:

It is unlawful under the Disability Discrimination Ordinance (DDO) to discriminate against an employee by dismissing that person on the ground of his/her chronic illness or the regular treatment for the illness. The DDO requires employers to ascertain whether an employee can perform the inherent requirements of a job. The employer has a duty to provide reasonable accommodation (e.g. modification or adjustment to a job, providing or modifying equipment, changing work schedules, and etc) in helping the employee to perform the inherent requirements unless this would impose unjustifiable hardship to employers.

S11 of DDO

The Complainant has worked at the Respondent School ("the School") as a teacher since 1997. He was first employed as Graduate Master. In 2002, he was diagnosed with lung cancer and took frequent and long sick leave in that academic year. In July 2003, the Respondent Principal ("the Principal") discussed with the Complainant his situation and downgraded him to an Assistant Graduate Master from academic year 2003/04 onwards. The Complainant agreed to the arrangement.

The Complainant had successful treatment in May 2005 and was certain he could resume his full duties as a Graduate Master. He made the request but was turned down by the School based on his health condition. The Complainant alleged that the Principal was responsible for the decision and that the refusal was disability discrimination. The School and the Principal both denied the allegation. The School did not have any updated information on the health condition of the Complainant.

The parties agreed to resolve the complaint through early conciliation before a full investigation and reached the following settlement terms:

The two Respondents to arrange a medical examination for the Complainant. If certified fit, the Complainant could resume his full duties as Graduate Master under previous terms within a week.

Where the first medical examination is unsatisfactory, the two Respondents would arrange a second medical examination for the Complainant at an agreed time.

If the results of both medical examinations were unfavourable to the Complainant, he would remain an Assistant Graduate Master until an agreed time to change this post.

Upon resumption of duty as Graduate Master, the Complainant would take up full duties and work appropriate to his rank and post.

Remarks:

Under the Disability Discrimination Ordinance, it is unlawful for an employer to cause detriment to an employee on ground of his/her disability. If an employer decides that an employee is unable to carry out the inherent requirements of the job, the employer has to show that its decision is justified based on available information. A person who knowingly aids the employer in an unlawful act under the DDO would be considered doing the unlawful act.

S11 of DDO

The Complainant was a Customer Relations Officer with the Respondent, a property management company. He alleged that the Respondent had discriminated against him by not paying him his annual bonus on the ground of his disability (epilepsy).

The Complainant had worked for the Respondent for several years before he underwent a brain operation to treat his epilepsy-related condition. He was admitted to hospital in late April 2005 and resumed duty in mid-July. His doctor recommended that he should not work night duties as it could make him emotionally unstable. He submitted his medical certificate to the Respondent and asked for accommodation. The Respondent did not respond positively and continued to assign him to night duties. At year-end, the Respondent did not pay him any bonus on the ground that he had taken too much sick leave in the year. The Complainant was also warned by his supervisor that he would be dismissed if he continued to take frequent sick leaves.

The parties agreed to resolve the complaint through early conciliation. The Respondent agreed to issue a bonus to the Complainant and to exempt him from night duties upon presentation of a doctor's recommendation.

Remarks:

An employee recovering from an operation may need time to recover and readjust. The employer should consider providing accommodation to help the employee to perform his/her job unless by doing so would cause unjustifiable hardship to the employer.

An employer acting contrary to medical advice may incur liability in case of work accidents.

Where a bonus payment relates to attendance level, the employer must ensure that such a scheme does not directly or indirectly discriminate against an employee with a disability.

S11 of DDO

This was a representative complaint. The Aggrieved Person (AP) was a person with a mental disability and she was represented by her mother, the Representative Complainant (RC). The AP and RC both worked for the Respondent. The AP was employed as a cleansing worker in mid-2003 and was dismissed in June 2004 on the ground that she had failed to cope with the job requirements.

The RC claimed the AP was dismissed on the ground of her disability following an incident in May 2004. The incident involved a male colleague taunting the AP and slapping her on the face. The AP took seven days of combined sick leave and annual leave afterwards but no disciplinary action was ever taken against the male colleague. On her return to work, the AP was transferred to the day shift and given notice of dismissal a week later.

Although the AP did receive one warning in April 2004 for leaving her position without informing her supervisor, the RC claimed the AP did not have any significant performance problems. The Respondent did not provide any substantive information to support the dismissal was based solely on the performance of the AP.

This complaint was resolved by conciliation. The Respondent agreed to pay the AP a sum for 10 months of wages, for causing injury to feelings and for other losses.

Remarks:

Under the Disability Discrimination Ordinance (DDO), it is unlawful to dismiss a person on the ground of his/her disability. There may be more than one reason for the dismissal but if disability is one of the reasons, the dismissal is to be taken as done for that reason whether or not it is the dominant or substantial reason.

Under the DDO, the Commission may decide not to conduct an investigation if the alleged discriminatory act occurred more than 12 months ago. This complaint was lodged with the Commission just within this time bar.

S11 & S12 of DDO

The Complainant was formerly employed by the Respondent, a karaoke entertainment centre, as a cleaner for the overnight shift from July 2004 to August 2004. She alleged that the Respondent discriminated against her by dismissing her on the ground of epilepsy.

The Complainant had epilepsy for some years but the frequency of relapse had been greatly reduced after an operation. In mid-August 2004, the Complainant had an epileptic seizure at work and was admitted to hospital. She resumed duty two days later but was dismissed. The manager told her that the company was worried about her condition and feared an accident might happen next time.

The Respondent denied the allegation and challenged the Complainant's integrity, as she did not disclose her disability at the time of recruitment. However, the manager admitted that he did ask the Complainant to consider resigning, as the Respondent was worried that she might have another seizure. The Respondent had not taken any steps to ascertain the effect of epilepsy on the ability of the Complainant to perform the inherent requirement of her job.

The matter was resolved through conciliation. The Respondent agreed to pay the Complainant a nominal sum on top of her termination payment.

Remarks:

Under the Disability Discrimination Ordinance, it is unlawful for an employer to dismiss an employee on the ground of disability unless the exception of inherent requirements applies. This means the dismissal may not be unlawful if (a) the employee is unable to perform the inherent requirements of the job due to his/her disability; or (b) in order to carry out those inherent requirements, the employee requires accommodation by the employer that would result in unjustifiable hardship to the employer. Unjustifiable hardship is not confined to financial consideration and can include the effects on the employee and other persons involved. The onus of proof of unjustifiable hardship rests with the employer.

S11 & S12 of DDO

The Complainant had worked in the Respondent Company as a cleaning worker for four years before her dismissal. She had a leg injury in March 2004 and was hospitalized for nearly six months. When first discharged from the hospital, she relied on wheelchair or crutches as walking aid. She made steady progress in recovery and requested to be placed on clerical or sedentary duties. No arrangement was made and the Complainant was eventually dismissed in March 2005. She believed there were tasks within her job scope that she could perform, and that she was making progress in recovery and could soon resume full duty.

The Respondent considered that the Complainant could not perform the job requirements, which were not sedentary duties in nature. According to the Respondent, it was impossible to make accommodation for her. A temporary part-time clerical position was offered to the Complainant but was rejected. The Complainant explained that the offer was made after her dismissal and she had a right to reject the offer.

The matter was resolved through conciliation. The Respondent agreed to pay the Complainant a sum equivalent to four months' wages and issued her with a certificate of employment.

Remarks:

Under the Disability Discrimination Ordinance, if an employer dismisses an employee on the ground that the employee is unable to perform the job due to disability, the employer needs to prove that the employee could not perform the inherent requirements of the job and it would experience unjustifiable hardship in providing any accommodation to employee. Without such proof, the employer may be liable for disability discrimination.

Register Ref: DDO/3/May/2003

S11 of DDO

The Complainant (C) had a key position in the Respondent (R) for over 10 years. In 1999 he was diagnosed with cancer and took sick leave to undergo an operation and chemotherapy treatment and he returned to work after his recovery. In November 2001, he was confirmed as head of the department. In February 2002, he was dismissed. He alleged that his dismissal was due to his disability.

R denied the allegation and explained that the breakdown of trust and confidence between C and the bank was the major cause. It claimed that the persons who were involved in the dismissal decision knew nothing about C's medical history.

After a series of proposal and counter proposals, the matter was settled in May 2003. R was to provide C with a reference letter and a payment of $660,000 (roughly equal to 9 months' salary of C).

Remarks:

Disability for the purpose of the Disability Discrimination Ordinance includes a disability that previously existed but no longer exists. It can amount to disability discrimination if an employer dismisses an employee on the ground of his/her past disability.

Register Ref: DDO/5/April/2003

S11 of DDO

The Complainant (C) worked as a traffic officer with a Company (R2). He alleged that the General Manager (R1) had discriminated against him on the ground of imputed disability by transferring him to another post. The company as employer should be held vicariously liable for the acts of R1.

C took sick leave in March 2001 for right frozen shoulder. While on sick leave, he underwent a medical examination by the company doctor but was not informed of its outcome. On his return to work, C produced a medical letter from his own doctor certifying his fitness to resume driving. C's supervisor considered this inadequate, as the company doctor had stated C was unfit to drive and perform heavy physical work and these were inherent requirements of his job. C's request to see the company doctor's report was refused and he was temporarily assigned to a security post. While on temporary assignment, R prepared a written consent letter for C to sign to obtain C's medical information from C's doctor. While the parties were negotiating the wordings of the consent letter, C was notified of his immediate transfer to another post, on a pay that amounted to 42% reduction in C's salary.

R1 denied he had discriminated against C. He claimed that the company doctor recommended C be assigned light duties until his conditions improved. Since C's medical letter did not certify C's fitness to perform all the inherent requirements of his job, R1 asked for C's consent to obtain medical information directly from his doctor. But C refused. For health and safety reasons, R1 decided to transfer C to a different post until C provided medical evidence to support his claim that he could perform all the inherent requirements of his job.

The parties were willing to settle their dispute by conciliation. The parties reached agreement in April 2003 a warning notice and warning letter issued against C for his allegedly poor performance were set aside. R1 undertook not to refer to the aforementioned warning letters when dealing with any personnel matters concerning C in the future.

R2 to grant C an additional 14 days paid annual leave on a special discretionary basis. R2 also paid two days wages as back pay to C and reimbursed him for expenses related to postage and obtaining of medical reports.

Remarks:

It is unlawful to discrimination against a person on ground of disability. The decision on transfer of post must be justified. An employer is vicariously liable for the unlawful act of its employee.

Register Ref: DDO/3/April/2003

S11 of DDO

The Complainant (C), a civil servant and a person with disability worked in a government offices building owned and managed by two departments, R1 and R2. There were staff toilets on each floor. Public visitors could use the public toilets, including the disable toilet, on the first floor. C felt aggrieved because disable toilets were not equipped with key locks as other staff toilets. Disable toilets could be opened by any one with a coin. Allegedly, some staff for purpose of smoking and public visitors often used the disable staff toilets. This made the disable toilets very dirty. She encountered an embarrassing experience when she was once inside the disable toilet and before she applied the switch lock, a man tried to enter. Moreover, while there were lockers installed inside the female staff toilets for personal items, the disable staff toilet was not so equipped.

Rs indicated that according to the "Design Manual 1997: Barrier Free Access" of the Building Department, fastening doors of the disable toilets should be capable of being opened from the outside in the event of emergency and there should also be an alarm bell inside the closet. R further explained that no lockers were provided inside the disable staff toilets in order to ensure persons with different kinds of wheelchairs could use the toilet. Also there was space limitation inside the disabled toilets concerned.

After conciliation the case was settled in April 2003. A key lock was installed at disable toilets.

Remarks:

It is unlawful for an employer to discriminate against a person with disability in the way he affords that person access to benefits, services or facilities or by refusing or deliberately omitting to afford that person access to them.

Register Ref: DDO/3/March/2003

S11 of DDO

The Complainant (C) claimed that his supervisor had written discriminatory remarks in his appraisal report for the period of June 2000 and May 2001 on the ground of his thyrohoid disorder. "C was suffering from impaired health" and "C was temperamentally unstable occasionally" were amongst the comments made by his supervisors. C raised his objections with the Respondent (R), the countersigning officer, but R said he concurred with the comments of C's supervisor and as a medical officer he did not find anything wrong with the remarks made. C claimed that R made assumptions on account of his disability and about its manifestations. He claimed that his disability had never affected his performance and he could not agree with R's comments as this would jeopardise his career development and promotion prospects.

R denied discrimination and claimed that he agreed with the supervisor's comments due to C's unusual and unexpected sick leave pattern and C's admission that his disability made him weak and vulnerable to influenza. R cited medical text to support his belief.

The parties agreed to resolve their dispute in March 2003 with R deleting the remark that "C was found temperamentally unstable occasionally".

Remarks:

Appraisal reports should be specific and evidence based. Erroneous assumptions about any disability and its manifestations may lead to adverse treatment of an individual, thus violating the law.

Register Ref: DDO/1/March/2003

S11 and S12 of DDO

The Complainant (C) worked with the Respondent (R) as a supervisor of its security service. C had a stroke in early 2002 and was hospitalised for 6 days and underwent rehabilitation for 10 days. After C was discharged from hospital, he underwent extensive physiotherapy and was finally recommended as fit to return to work in mid-2002. When C tried to arrange with R to return to work, R asked him to attend a medical examination to ascertain his health condition and C followed the instruction. C alleged that he was dismissed because R considered him to be high risk and vulnerable to relapse and therefore unfit to perform the duties of a security staff. C considered himself discriminated against on the ground of his disability.

R explained that it relied on the clinical recommendation in dismissing C and there was no alternative suitable post for C. R also asserted that C would not be able to obtain the licence required under the Security and Guarding Services Ordinance if he failed the requisite medical examination. R claimed that C could not perform the inherent requirements of the job and hence their act of dismissing did not breach the DDO. However, R could not show that C's disability was a long term or permanent one nor had the doctor provided sufficient information to substantiate that C was high risk and vulnerable to relapse within a definable period of time. As well, R could not provide any evidence to show it had considered short-term measures to accommodate C's disability.

Conciliation was successful with R agreeing to reinstate C on new terms on condition that C passed the medical examination required under the Security and Guarding Services Ordinance.

Remarks:

While seeking medical opinion is the right thing to do in considering if an employee was physically able to carry out his/her job, employers should also consider whether the disability was of a temporary nature or a permanent nature. A temporary disability would not automatically render an employee unable to perform his/her job. The law requires an employer to provide reasonable accommodation to the employee to enable him / her to perform the job.

Register Ref: DDO/3/February/2003

S11 and S22 of DDO

The Complainant (C) was recruited as a junior officer in a disciplinary force and started his training course. The Respondent Supervisor (RS) was the assistant trainer in his class. C claimed that he had hurt his foot whilst in training and that one day after a long foot-drill, he took a deep relieving breath. Allegedly RS asked why he had done that, accused him of dragging the progress of the class, scolded him with foul language, referred to him as a cripple, and told him to resign in front of 120 trainees. C also alleged that RS said that if C did not resign he would give him extra foot-drill and that he would not be able to survive the training. He felt humiliated on account of his disability and that he had no choice but to tender his resignation. He alleged disability discrimination and harassment by RS and vicarious liability on the part of the Respondent Employer (RE).

RS denied having referred to C as a cripple or told him to resign or indicated that he (RS) would give C extra foot-drill. RS said he had only asked C if he wanted to resign. RE indicated that it had issued a Headquarter Order to all its employees about the implementation of the three anti-discrimination ordinances and had provided training on the subject by phases to all staff, including the unit where RS worked. RE claimed that although RS had not attended the training owing to work commitments, he had had the opportunity to read the Headquarters Order in detail. RE denied its vicarious liability but was willing to participate in conciliation.

Case proceeded to conciliation, which was successful in February 2003. C and RS had an hour-long private discussion during the conciliation meeting and afterwards both indicated that they had reached settlement. They did not disclose their settlement terms. RE gave a verbal apology to C, who accepted it in settlement of his complaint against RE.

Remarks:

It is unlawful for the supervisor to harass and discriminate against a subordinate with a disability by subjecting the subordinate to any detriment. Reasonable accommodation in relation to a person with disabilities should be given to meet the special needs of the employee unless such changes should impose unjustifiable hardship.

Register Ref: DDO/2/February/2003

S11 of DDO

The Complainant (C) had been a teacher of Respondent Kindergarten (R) since the mid 90's. She developed a depressive mood disorder in mid January 2002 and took sick leave until the end of the month. On the expiry of her sick leave, her attending psychiatrist issued her with a certificate, confirming that she had recovered and could resume her teaching duties. In June 2002, R informed her that her contract would not be renewed for the year 2002/03 for redundancy reasons. C believed she was selected for redundancy because of her disability.

R produced information in support of its claim that the redundancy exercise was necessary. On why C was selected for redundancy, R did not deny that C's health condition had been taken into account in addition to her performance and academic qualifications but argued that the decision was made in good faith. R also argued that emotional stability was an inherent requirement of a kindergarten teacher but produced no solid evidence to show that C's performance had been affected. Although C had a relapse after her psychiatrist issued the medical certificate, R had not requested an up-to-date medical certificate after the relapse.

The case proceeded to conciliation, which was successful in February 2003, with R giving a verbal apology for the misunderstanding arising from the redundancy exercise and for the emotional upset caused to C. R undertook to consider C's application fairly should a suitable vacancy arise in R.

Remarks:

Redundancy exercise should be carried out in a fair and consistent manner. Consistent criteria with accompanying reasons for selecting whom to be made redundant are important. Showing that an employee is dismissed as a result of a redundancy exercise without justification why an employee is selected may not be enough to meet an allegation of discrimination.

Register Ref: DDO/1/February/2003

S11 of DDO

The Complainant (C) was an assistant fashion designer and the Respondent (R) was her boss in the company. In August 2002 C underwent an operation to cure a tumour in her right index finger. She was granted 10 days' sick leave but, according to her, she had gone to work during the period and taken only 4 days' rest. Not long after she resumed work, she applied for a day's sick leave to attend a follow-up treatment. Allegedly, R became very angry on hearing about C's application for sick leave again and said that C could not continue to take sick leave. Eventually R dismissed C, giving her a month's notice. C claimed that R had dismissed her on the ground of her disability.

R denied having discriminated against C, saying that he had dismissed C because of her poor attitude. R said he had granted C sick leave for her treatment and provided her with accommodation when she had to attend follow-up treatments on 4 occasions. However, as late August was the peak season for the company, her supervisor asked her if she could take half-day leave instead of a full-day leave when she applied for sick leave. Allegedly C replied in a bad manner. R said to her that if this should happened again, he would dismiss her. Without any second warning, C was then dismissed for poor work attitude.

Case proceeded to conciliation, which was successful, with R giving C a reference letter drafted to C's satisfaction.

Remarks:

“Poor attitude of the employee” alone without factual and objective evidence may not be sufficient to refute an allegation of dismissal on the ground of disability.

Register Ref: DDO/6/January/2003

S11 of DDO

The Aggrieved Person (AP) was an employee of the Respondent (R), a cleaning company. After working for about six months AP upon medical advice took sick leave due to the pain in her arms and shoulders. Allegedly, when she was still on sick leave, R informed her that her employment would be terminated because R was short of staff and AP was on sick leave. This was confirmed by R through registered mail to her. The Representative Complainant (RC), on behalf of AP, alleged R had discriminated against AP by dismissing her by reason of her sick leave.

Early conciliation was attempted and the dispute was successful in January 2003, R agreed to offer AP a new contract within a week, with details of the work location, nature of work, duration, working hours and OT pay specified.

Remarks:

Dismissal of an employee who temporarily lost her ability to work may constitute disability discrimination under the law. Reasonable accommodation should be given unless there is unjustifiable hardship.

Register Ref: DDO/5/January/2003

S22 & S48 of DDO

The Complainant (C) had deformed upper limps and was hired by a school intermittently as a substitute teacher on a number of occasions. The Respondent (R) was another employee of the school. C alleged that R had verbally harassed him, calling him "crippled hands" three times in a minibus and once in the staff room of the school. C also alleged that he had lodged a complaint with the school but it did not deal with the complaint, claiming that the incidents had occurred outside the school.

Early conciliation was attempted and was successful, with R paying C monetary compensation of $8,000 plus a written apology.

Remarks:

Employers assumes vicarious liability under the law. Anything done by a person in the course of his employment would be treated as done by his employer unless the employer could prove that he took reasonable steps to prevent the occurrence of the act.

Register Ref: DDO/2/January/2003

S11 of DDO

The Complainant (C) was appointed as a member of a disciplinary force (R) on temporary terms, subject to passing of a medical exam to be arranged. C's physical condition was found to be borderline. The medical report recommended further cardiac test to be conducted to assess his suitability for employment. R, however, decided that C was unfit for appointment. Without further assessment, C's service was terminated. C nevertheless attended the follow-up medical check-up at a public hospital and was found to have a healthy cardiac condition. C considered that R had discriminated against him on the ground of his disability.

R argued that the physical exercise test indicate a possibility of an underlying heart disease, and that a person with the disease would be an inherent danger given inappropriate physical exertion and hence was unfit for the post in question.

The case proceeded to conciliation, which was successfully concluded in January 2003, with C being appointed to the post he had applied for after a fitness check and paid $400,000 to compensate for C's injury to feeling and loss of income.

Remarks:

The belief that an illness would hinder a job applicant's performance needs to be justified. Employment decision based on unfounded belief may constitute discrimination.

Register Ref: DDO/1/January/2003

S11 of DDO

The Complainant (C) had been diagnosed as having high blood glucose level and been receiving regular treatment in a government-subvented hospital. She applied for a teaching post of a special school run by a charitable organization (R) and was offered appointment subject to satisfactory outcome of a medical check-up by R's designated hospital. C was asked to attend a meeting in preparation for the commencement of the new school term but on that day she was told that her pre-hiring medical check-up report showed that C had high blood glucose level and was unfit for appointment. The school principal of R advised her that, unless she could obtain a second opinion showing that she was fit for appointment, R could not offer appointment to her. Allegedly, the school principal also told her that only certificates issued by R's designated doctors would be considered. Thus, although C went to the subvented hospital for regular check-up the same day and got a certificate confirming that she was medically fit to take up the teaching post, she did not present it to R because she considered that the certificate would not be accepted by R.

R was unable to establish that being free from high blood glucose level was an inherent requirement of the job. Although R argued that it had never actually rejected the medical certificates issued by doctors other than its designated doctors and that C had never provided her attending doctor's report certifying her fitness to work, C alleged that R had told her that R would only consider reports by its designated doctors.

The case proceeded to conciliation, which was successful in January 2003, with R paying an amount equal to a month's salary of the post C had applied for.

Remarks:

Refusing to offer an applicant employment because of his/her illness amounts to unlawful discrimination on the ground of disability. A person having high blood glucose level is only unfit for employment if he/she cannot meet the inherent requirements of a job.

Register Ref: DDO/7/December/2002

S11 of DDO

The Complainant (C) was formerly a secretary of the Respondent (R). She alleged that R dismissed her on the ground of her systemic lupus erythematosus (紅斑狼瘡症). According to her, a senior manager told her that poor health and frequent sick leave were the cause for her dismissal.

R denied the allegation and claimed that C was dismissed for her poor performance. R quoted examples of C's poor performance and disputed that C's dismissal was related to her disability.

The parties agreed to conciliate the matter in December 2002 with R giving C a sum of $40,000 and an apology letter.

Remarks:

It is unlawful to discriminate against an employee on the ground of her disability by dismissing that employee or subjecting her to any other detriments. The employers have the duty to prove that the reasons for a staff's dismissal was not related to the staff's disability or sickness. Applying clear performance benchmarks consistently would help to avoid allegation.

Register Ref: DDO/2/December/2002

S6 of DDO

The Aggrieved Person (AP) applied to the Respondent (R), a government department, for a position in the health service. He disclosed his father's disability (Schizophrenia) during a medical examination arranged by R and his application was subsequently turned down. AP alleged that R refused to offer him appointment on the ground of his father's mental illness.

R admitted that AP was not offered the position because of his father's mental illness but R claimed that the job was demanding and the applicant needed to be both physically and psychologically ready to cope with the pressure associated with the job. R explained that the pressure from work might trigger a staff's mental illness if the staff belonged to the high-risk group. R also claimed that the overall effectiveness and efficiency of the rescue work and public safety would be adversely affected if one of the crew members failed to cooperate with others due to his mental illness.

The case was conciliated in December 2002 with R agreeing to offer AP employment and financial compensation of $275,000 for injury to feelings, loss of earnings and interest accrued.

Remarks:

It is an unlawful act of discrimination if a person treats another person less favourably because of the disability of an associate of that person (in the present case, AP's father). R's belief that AP could not cope with the work and that public safety was affected was not supported by objective evidence.

Register Ref: DDO/1/December/2002

S11 and S12 of DDO

The Complainant (C) worked as an engineer for the Respondent (R), a public transport company, and he was diagnosed as having depressive disorder in early 90's. He was assigned to less demanding duties between mid to late 90's, and his performance was regarded as “adequate” during this period. C alleged that he was not provided with further accommodation after his second relapse in late 90's. One month prior to his dismissal, he was given a warning letter and was told that he would be dismissed if he could not show improvement in one month. C argued that the work allocated to him after he received the warning letter did not fall within his regular duties and he was not given training for them. C was subsequently dismissed by R and he alleged that he was dismissed on the ground of his disabilities.

R claimed that C could not perform his job requirements despite 5 years of accommodation. R also claimed that C's performance was taken as adequate because he was only allocated 40% of the normal duties of a staff of his rank.

After a long conciliation process, the matter was finally settled in December 2002 for $550,000.

Remarks:

It is not unlawful discrimination to dismiss a staff that could not perform the inherent requirements of a job. However, an employer must prove that the employee can not perform his or her job requirements. It is always advisable that employers clearly define the job requirements.

Register Ref: DDO/4/November/2002

S6 of DDO and S8 of SDO

The Representative Complainant (RC) lodged a complaint on behalf of his wife (AP) who was a business manager. AP took extended sick leave after her maternity leave due to post-partum depression. RC complained that the Respondent Bank (R) had dismissed AP because of her pregnancy and post-partum depression. The medical reports provided by AP confirmed that AP's performance was affected by her post-partum depression.

R explained that AP was dismissed as a result of a redundancy exercise. In that exercise, 5 out of 22 business managers or equivalent staff were made redundant. Among the business managers affected, AP got the poorest performance rating for the year 2000 (before AP's pregnancy). On AP's return to work, R decided to dismiss her after taking into consideration her performance before and after her pregnancy.

The matter was settled in November 2002 with R providing AP with a written apology, monetary compensation of $33,000 equivalent to 1.5 month of AP's salary before her dismissal and a mortgage loan package with a special repayment and interest terms.

Remarks:

The law requires reasonable accommodation to be given to an employee suffering a disability. Performance appraisals which did not take into account the impact of a disability may give rise to claims of discrimination. Transparent and fair assessment criteria should always be adopted in a redundancy exercise to reduce misunderstanding.

Register Ref: DDO/3/November/2002

S11 of DDO and S47 of SDO

The Complainant (C) worked for the Respondent Company (R) as a Section Head since the 90's. C alleged that her employer transferred her assistant and denied her access to computers equipped with art software that she needed to complete her work after she informed the employer of her pregnancy in early 2002 and took a few days of sick leave. In addition to that, C claimed that R falsely accused her of reporting to work late, failed to fulfil her duties, and did not pay her extra salary as agreed. She also complained against three directors of the company in aiding R to discriminate against her.

The complaints were settled in November 2002. The employment was terminated by mutual agreement with R paying her a sum of $6,000 and issuing a good reference letter. One of the directors being complained against agreed to pay C $4,000 to settle the matter while the other two directors agreed to give C written apologies.

Remarks:

Treating a staff less favourably because of the staff's pregnancy and illness amounts to unlawful discrimination. A person who knowingly aids another to commit an act of unlawful discrimination would also be liable for the act.

Register Ref: DDO/1/November/2002

S11 of DDO

The Complainant (C) started working for the Respondent (R) as a cleaner in August 2001. About two weeks after she started her employment, she felt some discomfort in her chest so she visited the doctor on that day. She was informed by the doctor that she might have inflammation of the heel but follow up visits were not required. She called her supervisor and told her that she would be able to report for duty the following day. During the telephone conversation, C was informed by her supervisor that she was dismissed. C also heard from her colleagues that her supervisors had told her fellow colleagues that she was dismissed because of her chest problem. C lodged a complaint against R for dismissing her on the ground of her illness.

R explained that it was just a misunderstanding and denied that C had been discriminated on the ground of her illness. R claimed that C did not return to work after she had recovered from her illness so R treated that as a resignation on her own accord.

Case was conciliated in November 2002 with R reinstating C to her original position.

Remarks:

It is unlawful for an employer to discriminate against an employee by dismissing that person or subjecting him / her to any other detriment on ground of his / her disability.

Register Ref: DDO/3/October/2002

S11 of DDO

The Complainant (C) took sick leave in March 2002 for her back pain and she was dismissed on her return to work. C believed that the dismissal was related to her sickness and lodged a complaint against her employer (R1). She also lodged a complaint against her supervisor (R2) for commenting that she was "incapable".

R1 claimed that C was dismissed because of unsatisfactory performance, inharmonious relationship with colleagues and impoliteness towards supervisors and customers. R1 considered that the working environment was not suitable for C and her back pain might deteriorate if she continued to work, so R1 tried to persuade C to resign.

The case was conciliated in October 2002 with C agreeing to a settlement of $3,000 on a without admission of liability basis, roughly half of C's monthly salary.

Remarks:

It is unlawful for an employer to dismiss a staff because of the staff's disability or sickness. However, it is unlawful for an employer to dismiss a staff if having given a reasonable accommodation the staff cannot perform the inherent requirements of the job.

Register Ref: DDO/3/September/2002

S11 of DDO

The Complainant (C) has congenital heart disease. She was employed by the Respondent (R) as a cleaner on condition that she passed the medical examination. While waiting for the result of her medical examination, she started working for R. She was subsequently dismissed for failing to pass the medical examination. Her heart conditions were considered unsuitable to perform heavy duties. C argued that she had been working as a cleaner since 1994 and was capable to carry out the duties. The attending doctors did not perform any detail assessment on her and they only made the recommendations based on her medical history.

R did not provide substantive evidence to support its decision that C's disability would make her unable to perform the inherent requirements of the post.

It was agreed at the conciliation meeting held in September 2002 that R was to arrange a thorough medical examination for C. C would be reinstated if the medical examination confirmed that she could perform the requirements of the job for the remaining period of the C's six-month contract.

Remarks:

It is not unlawful to refuse employment of a worker who is unable to carry out the inherent requirement of the job. The onus is on the employer to prove that the particular employee could not perform the inherent requirements of the job. The recurrence of a previous disease or condition should not be taken as outright proof that the person could not fulfil the requirements of his or her job.

Register Ref: DDO/4/August/2002

S11 of DDO

The Complainant (C) applied for a post with a disciplinary services (R) in March 1999. C attended a physical test and he disclosed to the doctor that his brother had schizophrenia. C was later informed that his application was unsuccessful. C alleged that R did not offer him the job because of his brother's disability as he had passed all the other tests and interview.

R admitted that C was not suitable for the appointment because of the medical history of his family. R said that job holders must be physically and psychologically fit as they worked under great pressure and tension. R considered C to have a high risk of developing mental illness. R was of the opinion that C might develop a major psychotic illness in the course of his employment and thereby jeopardizing the lives of persons to be rescued and C's fellow team members.

Conciliation was successful in August 2002 with R agreeing to offer C employment and providing him compensation of $240,000.

Remarks:

It is unlawful to discriminate against (in this case his brother) an applicant on the ground of the applicant's disability or the disability of an associate of that applicant.

Register Ref: DDO/3/August/2002

S11 of DDO

The Complainant (C) applied for a post with a disciplinary force (R) and successfully passed the physical fitness test as well as the interviews. However, R informed C that he was diagnosed to have anaemia and was considered unfit for the post. C consulted his doctor and was advised that having anaemia would not affect his daily activities. C therefore alleged that R discriminated against him by not offering him the job on the ground of his disability.

R admitted that C was not offered employment due to the diagnosis of anaemia. R explained that they imposed a high and strict physical fitness requirement on the applicants because the job holders would have to carry out emergency and unforeseeable duties at times, including taking control of situations by force. R provided a medical opinion to the effect that persons with anaemia would experience chronic tiredness, shortness of breath, palpitation and might easily faint or go into shock when performing heavy physical exercise. R considered that the 23-weeks basic training would be too demanding for C. The possibility of sudden onset of this conditions during his duty would be a concern.

Conciliation was successful in August 2002. C was requested to attend a medical examination again and R would offer C employment if C successfully passed the medical examination.

Remarks:

Unless an applicant cannot carry out the inherent requirements of a job, not offering an applicant employment on the ground of his disability is unlawful. It is not unlawful for employers to request medical information where such information is necessary to determine whether an applicant is able to carry out the inherent requirements of the job or whether an applicant would require accommodation.

Register Ref: DDO/2/August/2002

S11 of DDO

The Respondent (R) employed the Complainant (C) as a human resources officer. C fell sick on 3 separate days after her probation period but there was no clear diagnosis mentioned in the medical certificates she submitted. C alleged that her supervisor was not pleased with her taking sick leave and asked her to resign. She refused and was subsequently dismissed. She alleged that her dismissal was on the ground of her disability.

R denied having discriminated against C. R attributed the dismissal to C's failure to comply with the company's regulation to inform the supervisor when she applied for sick leaves.

Conciliation was successfully concluded in August 2002 with R paying C a lump sum payment of $5,000.

Remarks:

If an act, in this case the dismissal, is done for 2 or more reasons and one of the reasons is the disability of a person, whether or not it is the dominant or substantial reason, the act is deemed to be done for the reason of the person's disability.

Register Ref: DDO/4/July/2002

S11 of DDO

The Complainant (C) was a graphic designer employed by the Respondent Company (R) since June 1994. In August 2001, her right index finger became swollen and numb. She attributed the problem to repetitive cutting of carton boxes. C reported the problem to her supervisor and presented her with a medical certificate. The supervisor discussed her case with the management and it was suggested that C be transferred to work in China as a “trainer”. C agreed to the arrangement. R also asked C to consult the Occupational Health Clinic to assess whether her disability was work-related. Allegedly, as an exchange for not making an occupational injury claim against R, R would offer her a better redundancy package and let her go immediately without going to work in China. C refused to sign any undertaking and she was subsequently dismissed in December 2001. Unsatisfactory performance was given as the reason. C alleged that R dismissed her on account of her disability.

R denied the allegation of discrimination and explained that the dismissal was made solely on account of C's prolonged unsatisfactory performance in meeting deadlines and workplace discipline. R argued that C did not pay heed to warnings on her poor performance and chatting with others during work. R explained that the decision to dismiss C was made prior to the report of sickness. The execution of the dismissal decision was interrupted by C's alleged occupational injury. R could not provide any documentary proof to support the warnings given.

The case was successfully conciliated in July 2002 with R issuing a good reference letter to C.

Remarks:

It is unlawful for an employer to discriminate against an employee with a disability by dismissing that employee or by subjecting him/her to any other detriment.

Register Ref: DDO/2/July/2002

S11 of DDO

The Complainant (C) was employed as a receptionist by the Respondent (R). C injured her back in the course of employment and took sick leave for a few days. Shortly after her return to work, she was summarily dismissed. C believed that she was dismissed on the ground of her sick leave and poor health.

R attributed C's dismissal to disciplinary problems and unsatisfactory customer services. R denied the allegation that C's sick leave was a contributing reason to her dismissal. Although no written warning was issued to C, she had been verbally warned.

Conciliation was successfully concluded in July 2002. R provided a record of employment to C. R also agreed to conduct an internal investigation into C's dispute with her supervisor.

Remarks:

It is unlawful for an employer to discriminate against an employee by dismissing that person or subjecting him / her to any other detriment on ground of his / her disability or sickness.

Register Ref: DDO/4/June/2002

S11 of DDO

The Complainant (C) worked in the Respondent Club (R) as account executive for about a year. Allegedly she was dismissed after informing R of her need to take sick leave. R contended that the dismissal was due to C's poor performance.

The case was successful conciliated in June 2002 with R paying C $6,000 and issued a reference letter to her.

Remarks:

It is unlawful to discriminate against an employee on the ground of disability by dismissing the employee or subjecting him/her to any other detriment.

Register Ref: DDO/3/June/2002

S11 of DDO

The Complainant's (C) brother has schizophrenia. C applied a for health service position with the Respondent Department (R) in October 1998. C attended a medical examination arranged by R and he disclosed the disability of his brother to the doctors. His application was rejected. C re-applied for the same post in June 2000 but he was not even offered a chance for interview. C alleged that R did not offer him the appointment on the ground of his brother's disability since he believed that he had passed the fitness test and interview.

The case was successfully conciliated in June 2002. R agreed to offer C employment and provided him with a lump sum compensation in the amount of $135,000.

Parties proceeded to conciliation in June 2002. The matter was finally settled with R paying C two months' salary ($17,000) and issuing a reference letter to her.

Remarks:

Under the law, it is unlawful discrimination if a person treats another person less favourably on the ground of the disability of an associate (in this case his brother) of that other person. The law also prohibits discrimination against a person on the ground of an imputed disability (the possibility of having the mental illness in his case).

Register Ref: DDO/2/June/2002

S11 of DDO

The Complainant (C) worked with Respondent (R) as an assistant sales manager. He fell sick and was diagnosed to have tuberculosis. He was hospitalised for 10 days in December 2001. The human resources manager allegedly pressed him for the reasons of his sick leave. He informed the manager about his illness for fear of losing his job. C also provided R with a medical certificate to prove his fitness for work and the low contagious nature of the disease. Allegedly he was forced by his supervisors to tender his resignation.

R contended that C tendered his resignation himself. C was not honest and refused to attend an examination with R's appointed doctor. In addition to that, R claimed that many workers were concerned about their health and they sent in a joint request asking the company to attend to the matter. R also raised a defence that C's disease was contagious.

This case proceeded to conciliation as C had a medical certificate to support he was fit to resume work and that he was considered to have low risk of contagion. The case was settled in June 2002 with the R paying C $17,500 roughly equal to a month's salary of C.

Remarks:

The law provides exemptions to the general principles of discrimination for illnesses that are classified 'infectious'. However, the employers would need to prove that the employee's illness is really contagious and the discriminating act is reasonably necessary for the protection of public health if the employers were relying on the exemptions provided under the law. Infectious disease includes any disease specified under the Quarantine and Prevention of Disease Ordinance and any communicable disease specified by the Director of Health by notice in the gazette.

Register Ref: DDO/1/June/2002

S11 of DDO

The Complainant (C) had worked in the Respondent Company (R) as a clerk since 1998. R was a small enterprise with only 5 workers including the business owner and his wife. In May 2001, C was diagnosed with breast tumour and surgery was recommended. The doctors granted C sick leave up to the end of December 2001. C was informed that she was dismissed on her return from leave. She considered the dismissal a form of disability discrimination.

R alleged it was only a small enterprise and C's failure to provide sick leave certificates at the latter part of her leave period had made it very difficult for R to arrange for other people to handle her work. It was found from our investigation that R could manage the work from May to December 2001 without any replacement worker despite C's prolonged absence. It was also found that R recruited new workers in February 2002 after C's dismissal.

Parties proceeded to conciliation in June 2002. The matter was finally settled with R paying C two months' salary ($17,000) and issuing a reference letter to her.

Remarks:

In claiming, unjustifiable hardship as a defence, all relevant circumstances of a particular case are to be taken into consideration, including the reasonableness of accommodation made available to the employee, benefit and detriment likely to accrue or suffered by any person concerned, the effect of the disability of the person concerned and the financial circumstances of the employer.

Register Ref: DDO/2/May/2002

S11 of DDO

The Complaint (C) was formerly a marketing manager with the Respondent (R). He alleged R discriminated against him on the ground of his work injury by unilaterally changing his terms of employment and duties, and imposing special work/attendance requirements only on him. C refused to comply with these requirements, which he believed to be discriminatory, and was warned several times. He was summarily dismissed in April 2001.

R denied the allegation. R claimed that lighter duties were assigned to C after his work injury as a form of accommodation. In addition, the work/attendance requirements applied to all employees with similar duties and not to C alone. C's inability to comply was unacceptable and C was finally dismissed because he did not improve his performance even after warnings.

The parties agreed to resolve their dispute through conciliation and the case was successfully conciliated in May 2002 with R paying C $10,000 and issuing C a reference letter.

Remarks:

An employer should provide reasonable accommodation to an employee with a disability to overcome barriers that restrict employment opportunities. Dismissing an employee on the ground of his disability is unlawful unless the employee cannot perform the inherent requirements of the job.

Register Ref: DDO/1/May/2002

S11 and S61 of DDO

The Complainant (C) complained against his employer (R) for imputing tuberculosis (TB) to him and dismissed him as a result. C was employed as a guard in January 2002 and was asked to attend medical check. He had chest x-ray and was suspected of having TB. R asked C to have another self-funded medical check again. C recovered from TB about 30 years ago and he believed that the x-rays might have shown the scarring tissues. He went back to a health clinic where he attended 30 years ago and obtained a certificate to prove his fitness to work. He submitted the medical certificate to R and heard nothing from R for a month or so. In mid-March 2002, just before the expiration of his probation period, C was informed of his dismissal for failing to pass the health test. C signed a "Voluntary Resignation Form" the same night, and he was asked to tender a formal resignation letter again on the following day. C was annoyed by such act and filed a complaint.

Parties agreed to settle the matter by early conciliation. R explained that the incident was an unfortunate misunderstanding between the management and front line staff. The matter was successfully conciliated in May 2002 with R paying C $10,000 as full and final settlement.

Remarks:

Dismissing a staff based on a mere conjecture that the staff might have an infectious disease is unlawful. Under the DDO, an exclusion is provided in the case of an infectious disease and the discriminatory act is reasonably necessary to protect public health. Infectious disease under the law includes any disease specified under the Quarantine and Prevention of Disease Ordinance and any communicable disease specified and gazetted by the Director of Health.

Register Ref: DDO/7/April/2002

S11 of DDO

The Complainant (C) started working for Respondent (R) as a beauty consultant since January 2000. In January 2001, she fell sick and was diagnosed to have tuberculosis. Sick leave was recommended until February 2001. She was then medically certified to be fit to resume work and her condition was considered non-infectious. She was dismissed after a few days after she returned to work. She considered that she was dismissed because of her disability.

R denied dismissing C on the ground of her disability and claimed that both C and another beauty consultant were dismissed for dishonesty and fraud. A case has been filed with the Police but no further action was taken by the Police.

The case was successfully conciliated in April 2002 with R paying C a sum of $5,000.

Remarks:

The law provides that it is not unlawful to discriminate against an employee who was having infectious disease if it is reasonably necessary for the protection of public health. However, for some infectious disease that can be cured or rendered not communicable after proper medical treatment, it may be discriminatory for the employer to dismiss the staff because of a past illness.

Register Ref: DDO/1/April/2002

S11 of DDO

The Complainant (C) has mild mobility difficulty but does not require any walking aid. She applied for the post of security guard with a security company in mid-March 2002. The Respondent (R) was the officer who interviewed C. C alleged that R, after noticing her mobility problem, refused to offer her the job. She considered she was discriminated against on account of her disability.

R agreed early resolution with C. The matter was successfully resolved in early April 2002 with R agreeing to issue a written apology to C. Furthermore, C was offered the post she applied for subject to her successfully passing the assessment held for all trainees at the end of the pre-employment training.

Remarks:

Refusing to offer an applicant with disability employment on the ground of his/her disability is unlawful under the law.

Ss 6 and 11 of DDO

The Aggrieved Person (AP) was diagnosed to have stage II breast cancer a few months after she had been employed as a domestic helper. She alleged that her employer (R) had suggested her to go back to her home country after the diagnosis, and she observed a change in the attitude of R’s family. They would talk to her in a rude, sarcastic or insulting manner. She was dismissed by R about one month later.

Represented by an NGO, AP lodged a complaint of disability discrimination against R. R denied the allegation. Nevertheless, both parties agreed to settle the complaint through early conciliation with R agreed to pay AP a sum approximately equal to 12.5 months’ of her basic salary.

Remarks:

It is unlawful to discriminate an employee on the ground of his/her disability, unless it can be proved that the employee is not able to perform the inherent requirements of the job, or that providing services or facilities to help him or her to perform the job duties would impose unjustifiable hardship on the employer.