DCEO 6/2017

Background Facts

In early 2011, C accepted an offer of a place on a part-time postgraduate Master of Arts programme (“the MA Programme”) at the Respondent University (“the University”). All postgraduate students, including C, were subject to certain University regulations. Paragraph 5.4 of such University regulations (“the 5.4 Regulations”) provided:

“A student shall complete all requirements for graduation within the maximum period of study, which shall include any periods of leave of absence and suspension of studies. A student who has not completed all requirements for graduation within the maximum period of study shall be required to discontinue studies at the University. However, in special cases, the Graduate Council may on the recommendation of the Graduate Division concerned grant a student extension beyond the maximum period of study” (emphasis added).

According to the University’s regulations, C had to complete the MA Programme within a maximum study period of 4 years (“the MSP”), though the MSP was extendable in accordance with the 5.4 Regulations.  

C suffered from depression and anxiety disorder (collectively “the Disabilities”) at the material time. With medical certificates to confirm her condition, the University granted C with leave for 2 years from January 2013 to December 2014.

On 6 August 2015, the University reminded C of the outstanding graduation requirements she had not yet fulfilled: 4 outstanding assignments (2 of which were due over 3 years, 1 was due over 2 years and the remaining 1 was due 3 months ago) (“the 4 Outstanding Assignments”) and passing an IT competence test. Pursuant to the 5.4 Regulations, C required approval for an application for extension of the MSP.

On 14 August 2015, C applied for an extension of the MSP by two (2) months (“the Extension Application”). In the Extension Application, C specifically referred to her Disabilities (attaching a recent medical certificate in support) as preventing her from completing the MA Programme within the MSP. 

C’s Extension Application was refused by the MA Programme’s Division Head. In the letter terminating C’s studies (the “Termination Letter”), the Division Head reasoned that “considering [C’s] recent medical history” (“the Medical History Reference”), the pressure to complete the 4 Outstanding Assignments and the IT competence test in a short period of two (2) months would not be in her best interests as a student. 

C's Claim

Amongst C’s various complaints, C alleged to have been directly and indirectly discriminated against by the University on the grounds of her Disabilities and her studies were compulsorily terminated in August 2015 as a result. 

This case summary will only focus on her core allegations of suffering from direct and indirect discrimination. 

C’s claim of direct discrimination

For direct discrimination, C alleged that the University (as an educational establishment) contravened sections 6(a) and 24(2)(a) to (c) of the DDO, by treating her less favourably (than it would a student without a disability) by both the University’s (a) refusal of her Extension Application, and (b) the termination of her studies by reason of its consideration of her recent medical history. 

C’s claim of indirect discrimination

For indirect discrimination, C alleged that the termination of her studies contravened sections 6(b) and 24(2)(a) to (c) of the DDO by reason of the University’s application of the requirement or condition in the 5.4 Regulation to her.
 

Court’s Decision

Judgment on whether both claims of direct and indirect discrimination can be made simultaneously

The parties did not dispute that C’s Disabilities fell within the meaning of section 2 of the DDO.

The Court first made judgment on the legal and academic issue of whether claims of direct discrimination and indirect discrimination were mutually exclusive. The Court held that there was nothing preventing claims of both direct and indirect discrimination being made in the same action. As long as a claimant can prove both (i) the material facts for direct discrimination under section 6(a) of the DDO, and (ii) the material facts for indirect discrimination under section 6(b) of the DDO, he should succeed in both claims.

However, in the present case, the Court held that as the material facts pleaded for each of the claims of direct discrimination and indirect discrimination were not identical, the issue of mutual exclusivity in respect of direct and indirect discrimination did not arise.

Judgment on the claim of direct discrimination

With reference to the 4-step approach for determining sex discrimination set out in Leung Kwok Hung also known as “Long Hair” v Commissioner of Correctional Services FACV 8/2019, the Court held that the 4-step approach in determining whether there was direct disability discrimination under section 6(a) of the DDO was as follows:

1. There must be a difference in treatment between one person (the complainant) and another person from a different group (the compared person).
2. The relevant circumstances between the complainant and the compared person are the same or at least not materially different.
3. It must then be shown that the treatment given to the complainant is less favourable than that given to the compared person.
4. The difference in treatment is on the basis of disabilities.

C alleged that the University’s refusal of the Extension Application was an act of direct discrimination. The crux of C’s case of direct discrimination was based on the University’s reference to her recent medical history in the Termination Letter. The University’s reference to her recent medical history was the only direct evidence relied upon by C as the reason why the Extension Application was refused.

Therefore, to answer the question why C received the allegedly discriminatory treatment (the allegedly discriminatory treatment being the University’s refusal of the Extension Application by reason of her Disabilities (as shown by the Medical History Reference in the Termination Letter) (“the Why question”), the Court examined the content of the Termination Letter. In the present case, C specifically applied for a 2-month extension. The Termination Letter referred to the respective lateness of the 4 Outstanding Assignments: 2 were due 3 years ago; 1 was due 2 years ago; 1 was due 3 months ago. The Division Head indicated that he was unable to believe C could complete the 4 Outstanding Assignments in merely two (2) months in the absence of C’s clear demonstration of her ability to do so.

The Court held that on a fair reading of the Termination Letter, the Division Head’s disbelief that C could complete her 4 Outstanding Assignments in merely two (2) months was the sole reason why the Extension Application was refused.

The Court took the view that applications for an extension of time pursuant to the 5.4 Regulation were made on the basis that the applicants were unable to complete the graduation requirements within the MSP (hence they needed an extension). In considering such applications, the University was bound to consider both (1) whether the applicants can satisfactorily explain why they were unable to complete the graduation requirements, and (2) whether they were actually able to complete the graduation requirements within the extended period of study applied for. The University was entitled to refuse to grant an extension if either question (1) or question (2) were in the negative.

The Court held that in the present case, the University considered question (2). In light of the lateness of C’s 4 Outstanding Assignments, the University concluded that C would not be able to complete them within the extended period of two (2) months which C applied for, as C did not produce any information indicating her ability to do so (for instance, C did not show she had already completed the bulk of the 4 Outstanding Assignments and needed two (2) months more only). The University’s decision to refuse C’s Extension Application was hence not made on the grounds of her Disabilities.

Regarding the Medical History Reference in the Termination Letter, the Court accepted the Division Head’s evidence and held that he was merely stating the obvious when he said that the pressure to complete the 4 Outstanding Assignment within 2 months would not be in C’s best interests as a student. The Court noted that such pressure could not be insignificant to any student without any illness, let alone a student who has C’s Disabilities. The Medical History Reference, in itself, was not a reason for the University’s refusal of the Extension Application and did not form any part of the reason either. 

The Court rejected C’s argument that any refusal of her Extension Application having taken into account her medical condition must be discriminatory. Since C had submitted a medical certificate to support the Extension Application, she would have expected the University to have considered such information. Certainly the University could and should have regard to the same. It did not follow that any decision that the University subsequently made must have been made on the grounds of her Disabilities and hence directly discriminatory.

C also argued that the University should give reasonable accommodation for her Disabilities in compliance with the DDO and the EOC’s Code of Practice on Education. C argued that her Disabilities could only be a favourable factor; if her Disabilities were taken to be a factor against her, it would be direct discrimination.

The Court rejected this argument because it would lead to absurd situations. For example, a student applies for an extension of his MSP after he has become mentally incapacitated due to an accident causing him serious brain damage. In considering his application, the University (1) takes into account his mental incapacity, and (2) should assess the likelihood of his successful completion of the graduation requirements. It is unacceptable to say that the University has no option but to allow the application for extension because of his disabilities.

In summary, the Court held that none of the reasons given in the Termination Letter was on the grounds of C’s Disabilities. There was no direct discrimination in the decision of the University to refuse the Extension Application.

Judgment on the claim of indirect discrimination

Section 6(b) of the DDO provides that a person indirectly discriminates against another person if:

“he applies to that other person a requirement or condition which he applies or would apply equally to a person without a disability but-

(i) which is such that the proportion of persons with a disability who can comply with it is considerably smaller than the proportion of persons without a disability who can comply with it;
(ii) which he cannot show to be justifiable irrespective of the disability or absence of the disability of the person to whom it is applied; and
(iii) which is to that person's detriment because he cannot comply with it …”.

For the claim of indirect discrimination, C’s pleaded case was that it was indirect discrimination to have an across-the-board application of the 5.4 Regulation to her. C argued that the University applied the 5.4 Regulations equally to persons with and without a disability, but a considerably smaller proportion of people with a disability (including C as she had the Disabilities) could comply with it, which was not justifiable and operated to her detriment because she could not comply with it. The detriment suffered by C included her lost opportunity to complete MA Programme, which diminished her future job prospects and earning capacity.

The Court rejected this argument. In the present case, the first element of a claim of indirect discrimination is that it had to be proved -- on a balance of probabilities --that a considerably smaller proportion of students with a disability (including C’s Disabilities) could comply with the 4-year MSP requirement in the 5.4 Regulations applicable to her. 

However, the Court held that in the present case, C could not even meet this first element of indirect discrimination. C failed to provide statistical evidence proving that the proportion of students with a disability (including C’s Disabilities) who could comply with the 4-year MSP requirement in the 5.4 Regulation was considerably smaller than the proportion of persons without a disability who could comply with it.

Moreover, the Court accepted the Division Head’s reasons for the 4-year MSP and came to the view that it was amply justified by the University (for example, one of the reasons accepted was: not setting and enforcing a maximum period of studies was impracticable and will compromise the University’s ability to maintain a high academic standard). C suggested that the MSP for the MA Programme should be 4 years and 2 months, such that it would not be indirectly discriminatory to students with a disability. The Court found such suggestion absurd, and held that the 4-year MSP had a legitimate objective and there was no proportionality issue.

In the premises, the Court rejected C’s claim of indirect discrimination. 

DCEO 7/2019

Background Facts

The Claimant was a Sales Supervisor at the Ophthalmology Business Unit of the Respondent.  He started to take sick leave in December 2015 and was subsequently diagnosed with end-stage renal failure and/or chronic kidney disease (“disability”) and had to undergo transplant surgery.  

In January 2016, the Claimant returned to work for one day.  Apart from that day, the Claimant took sick leave for the whole of 2016 due to his disability.  In December 2016, the Respondent terminated his employment contract on the ground of redundancy. 

The Claimant alleged that the termination due to his disability. He brought proceedings against the Respondent under s. 6 and s.11 of the DDO.

The Respondent denied disability discrimination. They contended that the termination was solely because the Claimant’s position had been eliminated during an integration exercise in 2016, under which its Ophthalmology Business Unit was integrated with another company.

Court’s Decision

In determining whether there was direct disability discrimination under DDO s.6(a), the Court adopted the following four-step approach laid down in the Court of Final Appeal’s judgment in Leung Kwok Hung (Long Hair) v Commissioner of Correctional Services FACV 8/2019:

1. There must be a difference in treatment between one person with a particular disability (i.e. the complainant) and another person, real or hypothetical, without that disability, (i.e. the compared person).
2. The relevant circumstances between the complainant and the compared person are the same or at least not materially different.
3. It must then be shown that the treatment given to the complainant is less favourable than that given to the compared person.
4. The difference in treatment is on the basis of the presence or absence of the disability.

The Court found that the Respondent already regarded Claimant’s performance unsatisfactory in the 2015 performance review, before knowing his medical condition. As the Claimant gave an acknowledgement to the said review, he was aware of the Respondent’s concerns on his performance in 2015. Therefore, the Court rejected the Claimant’s case that the Respondent only complained of his performance after knowing his medical condition.  

The Court held that the sole reason for the termination was that the Claimant’s position had been eliminated in the integration exercise in 2016, and was not related to the Claimant’s medical condition.  There is no evidence showing that the Respondent had used the integration exercise as an excuse to eliminate the Claimant’s post. There were two other positions also being eliminated in the integration exercise. The treatment given to the Claimant and the other two affected employees who did not suffer any disability were the same.  All the positions eliminated had not been refilled after the integration.  Also, there was no evidence showing that after the integration exercise, the Respondent could offer a position with terms similar to those of the Claimant’s original position, but the Respondent has refused to make that offer to the Claimant because of his disability.

The Court concluded that the Claimant had not been discriminated by the Respondent in any way by reason of his disability.  The Claimant’s claim was dismissed accordingly.

DCEO 3/2018

Background Facts

Around the time the Claimant informed her then employer (the Respondent company) of her pregnancy, the Respondent company allegedly made threatening remarks to pressure her to resign, made work burdensome for her by re-posting her to another working location and installing a “clock-in” machine for all employees.

She then had a miscarriage and required an operation (“the Surgery”) and allegedly asked her colleague to inform the Respondent company of it. Shortly after the Claimant resumed work, the Respondent company gave her one months’ notice of termination of employment allegedly due to her poor performance.

The Respondent company refused to give any severance payment or proof of employment to the Claimant because she had filed complaints to the EOC against the Respondent company.

Thereafter, the Claimant brought proceedings against the Respondent company under both the SDO and DDO.

Court’s Decision

Claim for discrimination under SDO:

The Respondent company’s threatening remarks and exerting pressure on the pregnant Claimant to resign amounted to treating her less favourably than someone who was not pregnant. Also, the termination of the Claimant’s employment on the ground of her pregnancy was unlawful. The Respondent company was therefore held liable for breaching s.8(a) and s.11(2) of the SDO.

However, installing a “clock-in” machine was not unlawful discrimination because other employees also had to clock-in and there was no evidence showing that the Claimant faced more difficulty in meeting the clock-in requirement than others. Also, requesting the Claimant to work at another location was not supported by evidence as less favourable treatment.

The Respondent company’s various enquires about the Claimant’s pregnancy was not unlawful discrimination because the concerns were legitimate and understandable.

Claim for discrimination under DDO:

The Claimant’s miscarriage and the physical ailments subsequent to the Surgery was a “disability” within the DDO’s broad definition of the word.

However, the Respondent company was not liable for disability discrimination because there was no evidence showing it was aware of the Claimant’s disability (i.e. her miscarriage or the Surgery) when her employment was terminated. There was no evidence that the Claimant’s colleague, who did not act as witness, had informed the Respondent company about the miscarriage. Moreover, miscarriage was not stated in the Claimant’s hospital records.

Claim for victimisation

The Respondent company’s refusal to give the Claimant severance payments and proof of employment because of her complaints to the EOC was unlawful discrimination by way of victimization. Therefore, the Respondent company was held liable for breaching the provisions against discrimination by victimization under s. 9(1) SDO and s. 7(1) DDO.

Remedy and award

Despite having a good working relationship with the Respondent company’s owner in the past, the Claimant was abused with threatening remarks and put under unreasonably intense pressure for her pregnancy and miscarriage during her employment. The Court, having initially taken HK$55,000 as the starting point, awarded HK$90,000 as damages for injury to feelings.

The Claimant claimed for 7.8 months of income loss and alleged it was difficult for her to find a new job sooner because the Respondent company refused to give her proof of employment.

However, the Court was of the view that she could have reasonably found a new job in 3 months and thus only awarded 3 months’ loss of income. The Claimant’s alleged lengthy period for finding a new job due to the lack of employment proof was unsupported by evidence.

In light of the Respondent company’s oppressive treatment, the Court awarded HK$10,000 as exemplary damages.

The Claimant was awarded a total of HK$133,000, the breakdown of which is:

The Respondent company was also ordered to issue a certificate of employment to the Claimant.

HCAL 91/2011

Background Facts

This is a judicial review case against a decision of the Education Bureau (“EDB”). The Applicant suffered from intellectual disability (“ID”) and studied in a primary level special school for students with intellectual disability (the “ID School”). EDB rejected the ID School’s application to join the Hong Kong Government’s Native-speaking English Teacher (“NET”) Scheme because it claimed that such schools (i.e. schools for students with intellectual disability) had different educational needs and thus the NET Scheme did not cover the ID School (the “EDB’s Decision”). However, the EDB indicated that the ID School could instead apply for peripatetic support provided by the Advisory Teaching Team (“ATT”). Advisory Teachers under the ATT are also NETs.

The Applicant sought to judicially review the EDB’s Decision. Amongst his various grounds, the Applicant claimed that the EDB’s Decision was unlawful because it directly discriminated against him on the basis of his disability, contravening s. 6 of the Disability Discrimination Ordinance (“DDO”).

Court’s Decision

The Applicant argued that his case should be allowed on the basis of “inter-disability” discrimination (i.e. comparing the disabled Applicant with a disabled student in a mainstream school who was provided with a NET under the NET Scheme). He argued that s.6(a) of the DDO prohibits not only discrimination between a disabled person and a person not suffering from any disability, but should also prohibit against “inter-disability” discrimination (i.e. discrimination between a disabled person and another disabled person suffering from a different disability).

The Court disagreed and held that in light of the legislature’s deliberate choice of words “without a disability” in s. 6(a) of the DDO, which means a person without any disability, it was not permissible for the Applicant to seek to establish discrimination on “inter-disability” basis by comparing himself with another disabled person suffering from a disability other than ID.

The Court nevertheless found that, pursuant to the EDB’s Decision, a primary level student without any disability, who studied English under the curriculum of a mainstream school, could enjoy the benefits of full-time NETs, whereas the Applicant (studying in the ID School) could only have a peripatetic NET acting as an Advisory Teacher and visiting the ID School only several times a year. Therefore, the Court rejected the EDB’s submissions that there was no less favourable treatment in not providing a NET to the Applicant. In conclusion, the Court held that EDB’s Decision was direct discrimination based on the Applicant’s ID, which is prohibited under s.6(a) of the DDO, and thus unlawful.

DCEO 7/2012

Background Facts

The Plaintiff, a Senior Accounts Clerk, had been employed by the Defendant for 13 years before being dismissed in August 2010. The Plaintiff suffered from a traffic accident in November 2007 and had to take sick leave from time to time for medical and physiotherapy treatment.

The Plaintiff frequently turned up late for work. She claimed that she had to take her daughter to school and that the Defendant allowed her to have “flexi hours”. However, in August 2009, the Defendant issued a guideline (“the Leave Guideline”) stating that normal working hours for all employees were between 9am to 5:30pm. In line with provisions of the Employment Ordinance (Cap. 57), the Leave Guideline also required employees to submit sick leave certificates and stated that paid sick leave would only be granted if the sick leave period was not less than 4 days. The Plaintiff argued that the Leave Guideline discriminated against her because prior to its issuance the Defendant would grant sick leave to its employees without any minimum qualifying period.

In September 2009, the Plaintiff’s supervisor found that the Plaintiff’s work computer contained a lot of her personal data, violating the Defendant’s computer use regulations. The defence case was that consequently, it intended to serve a notice of termination of employment on 31 October 2009. Unexpectedly, the termination had to be put on hold when the Plaintiff submitted a pregnant certificate on 9 October 2009.

The Plaintiff alleged that, in a meeting attended between management of the Defendant and the Plaintiff in April 2010, the Defendant requested her to resign due to her unsatisfactory physical bodily condition and the necessity for her to take care of her baby after its birth. The Defendant denied making such a request.

When the Plaintiff returned to work from her maternity leave in August 2010, her work computer had been changed and her subordinates no longer reported to her. Soon afterwards, she was dismissed by the Defendant with full pay and benefits.

The Plaintiff claimed for declaration and damages on the ground of disability, sex and/or family status discrimination, both in terms of (1) the alleged unfair treatment she received during the employment and (2) the termination.

The Defendant denied the alleged discrimination. Its reasons for termination were the Plaintiff’s poor work performance, rude behaviour towards colleagues as well as abuse of work computer and office time for personal purposes.

Court’s Decision

The Factual Dispute

The Court held that the crux of the matter was whether the Plaintiff had ever been subject to any discrimination by the Defendant. The Court grouped the factual disputes under three main topics (“Factual Disputes”):-

1. whether the Leave Guideline and the way it was implemented constituted a discrimination against the Plaintiff;
2. during the meeting in April 2010, whether the Defendant’s management had actually requested the Plaintiff to resign on the basis of her physical condition and her need to take care of her baby and if so, whether such request amounts to a discrimination; and
3. what the Defendant’s real reasons were for terminating the Plaintiff and whether any of those reasons were discriminatory against the Plaintiff.

The Relevant Legal Principles

The Court held that for there to be a finding of direct discrimination, pursuant to a precedent case, both parts of the following two-part test had to be answered in the affirmative: (i) whether less favourable treatment to the Plaintiff had occurred; and (ii) whether it had been caused by one of the prohibited discriminatory grounds.

As regards (i), the comparison is not one simply with another person without the relevant attributes of the complainant (i.e. disability, gender or family status in the present case), but with another person not having the relevant attribute but behaving in the same way as the complainant did. As regards (ii), according to another precedent case, an objective “but for” test is to be applied, so that intention or motive to discriminate was not a necessary condition of liability (but intention or motive to discriminate may be relevant when determining the appropriate remedies).

The Court referred to the discrimination legislation, which stated that if an act is done for two or more reasons and one of the reasons is the prohibited discriminatory ground (whether or not it is the main reason for doing the act), then the act would be taken to have been done because of that prohibited discriminatory ground.

The Court affirmed precedent legal principles which held that the burden is on the Plaintiff to prove discrimination on the balance of probabilities. Once the Court is satisfied that the Plaintiff is able to show from the primary facts that inferences could be drawn from the circumstances that disclosed a possibility of discrimination, the Court would look to the employer for an explanation. If there is no reasonable or satisfactory explanation put forward, then the Court would be entitled to infer discrimination as a matter of common sense.

Court’s judgment on Factual Dispute (1): Sick Leave Guideline

The Court held that the Plaintiff failed to establish that the issuance of the Leave Guideline and its implementation amounted to direct discrimination against her.

Firstly, the Court accepted the Defendant’s evidence that the Leave Guideline aimed at malingering and not disability. As there were other employees who seemed to have imitated the Plaintiff by taking unnecessary sick leave, the Court held that there was a legitimate concern for the Defendant to tighten up the procedure for applying sick leave.

Second, the Leave Guideline introduced a scheme in compliance with the provisions of the Employment Ordinance (Cap. 57). The Plaintiff could not reasonably argue that an employer would commit an act of discrimination by following the law.

Third, simply because the Defendant had in the past paid all sick leaves in full did not mean that the Plaintiff had any contractual right to the same. Besides, the procedural requirements of the Leave Guideline (e.g. the requirements of informing the supervisor and the reception in the morning of the day of absence and submission of the sick leave certificate afterwards) were reasonable and fair. The Plaintiff failed to show both (a) how she had been subject to a less favourable treatment by following such procedural requirements, or (b) any valid reasons for failing to follow the procedure.

The Court also held that the Plaintiff had failed to make out a case that the issuance of the Leave Guideline or any of its requirements or conditions amounted to indirect discrimination against her. Firstly as a matter of evidence, the Plaintiff failed to prove that she had any difficulties in complying with the procedural requirements or conditions of the Leave Guideline. Secondly as a matter of inherent probability, since the Plaintiff was a person with a disability, she would have been the one employee who was more likely to be able to meet the minimum qualifying period for paid sick leave (i.e. 4 days or more) than other employees with no disability. As such, it cannot be said that she suffered any less favourable treatment than the other employees in this regard.

Court’s judgment on Factual Dispute (2): April 2010 meeting

Regarding the meeting in April 2010 between the Defendant’s management and the Plaintiff, the Court held that the Plaintiff failed to prove her case that the Defendant’s management had said or done anything which amounted to a discrimination of the Plaintiff by virtue of her disability, gender or family status.

The Court accepted the evidence of the Defendant and held that it was inherently improbable that its management, being highly educated persons with extensive work experience, would have been so unguarded and blunt in their conversation with the Plaintiff and say things so insensitive towards discrimination by asking her to resign owing to her physical condition and her need to take care of the baby.

Court’s judgment on Factual Dispute (3): Reasons for Termination

The Court held that the Plaintiff had failed to prove, on a balance of probabilities, that she was dismissed by the Defendant on the basis of her disability, sex and/or family status.

On the other hand, the Court accepted the Defendant’s evidence that its real reasons for dismissing the Plaintiff was because of her poor work performance and abuse of work computer for personal use.

As an example of poor work performance, the Defendant established the fact that due to the Plaintiff’s delay in preparing the Defendant’s financial statements over the course of a number of years, the Defendant was sued by the Inland Revenue Department.

Regarding the Plaintiff’s abuse of her work computer, the Court accepted the Defendant’s evidence which showed that the Plaintiff’s work computer had contained voluminous non-work related and personal data (including her own stock trading record, personal photographs and even Mark Six records). As these were accepted by the Plaintiff, it was not in dispute that the Plaintiff had breached the Defendant’s computer guidelines, which made her liable to summary dismissal.

Having assessed all the evidence, the Court held the Defendant had a strong legitimate ground to dismiss the Plaintiff as a result of the cumulative weight of her shortcomings.

Conclusion

The Plaintiff failed to prove her case that she had been subjected to discrimination (either in the course of her employment or in relation to her dismissal). The Plaintiff’s claim against the Defendant was dismissed.

DCEO 10/2010

Background Facts

The Plaintiff was a waiter at the Defendant’s Chinese restaurant. His duties included carrying customers in wheelchairs up and down the stairs from the pedestrian way to the restaurant’s main entrance together with three other waiters. While carrying a customer in wheelchair down the stairs, the Plaintiff sustained injuries and thus became unable to lift heavy objects with his left hand. The Plaintiff subsequently brought an employees’ compensation claim against the Defendant for outstanding reimbursement of his medical expenses.

Since the accident, the Plaintiff alleged that he was subjected to unreasonable, hostile and disparaging treatment by the Defendant because of his disabilities. Eventually, the Defendant terminated the Plaintiff’s employment by payment of 7 days’ salary in lieu of notice, without given any reasons.

On the other hand, the Defendant alleged the Plaintiff had already recovered and that his dismissal was due to his poor work performance.

Court’s Decision

The Defendant failed to prove its claims of the Plaintiff’s poor performance with evidence. Importantly, the Plaintiff’s manager, who dismissed the Plaintiff, did not give evidence in court on the alleged poor performance.

The Defendant was liable for direct discrimination under s. 11(2)(c) of the DDO by treating the Plaintiff less favourably with the delay in reimbursing his medical expenses and eventually dismissing him.

Furthermore, the Defendant, who knew the Plaintiff could only use his right hand to lift the wheelchairs, indirectly discriminated against him under s. 6(b) of the DDO by requiring him to continue lifting customers’ wheelchairs. It was also unreasonable for the Defendant to impose this requirement as lifting of wheelchairs should not be essential to the Plaintiff’s duties in his employment as a waiter.

As for damages, the Plaintiff was awarded HK$50,000 for injury to feelings and HK$51,181.70 for approximately 6 months of loss of income.

HCAL 73/2009

Background Facts

The Applicant was a student with Down’s syndrome suffering from a mild grade of intellectual disability (“ID”) (a student with ID is referred to as an “ID student” below). He had been studying in a special school for 12 years (i.e. normal maximum duration of free education received by ID students) and would reach his age of 18 by the end of the school year 2008/2009.

The Applicant alleged that it was the policy of the Government that unless the Applicant could provide reasons approved by the Government and that there were vacancies in the special school concerned, the Applicant must leave the special school when he attained his age of 18 in the coming school year.

There was no similar age restriction imposed on students studying in mainstream aided secondary school.

The Applicant applied to study in the special school for one more year, which was not approved.

The Applicant challenged the decision of the Respondents by way of judicial review. EOC participated in this case as an Interested Party.

This case involved a number of other issues, but this digest will only focus on issues relating to DDO.

Court’s Decision

The Court held that the Applicant failed to substantiate his claim of direct discrimination under DDO against the Respondents for the following reasons:-

1. If an ID student could provide reason(s) approved by the Respondents, his/her study would be extended. Any other application for extension of study would be subject to availability of vacancies of the special school concerned.

2. The suitable comparator in this case should be a mainstream school student who has completed all his 11 years of free education (i.e. normal maximum duration of free education for mainstream student) and taken the HKCEE, and applies to repeat his/her Secondary 5 study in a mainstream secondary aided school in the school year 2008/2009.

3. Such application for repeating his/her Secondary 5 study is subject to student’s performance and availability of vacancies. Mainstream schools could admit a maximum number of repeaters not exceeding 5% of total enrollment of the school. However, the 5 % quota is spread among all grade levels of the school and places available to Secondary 5 repeaters could be lower than 5%.

4. Vacancies available to ID students like the Applicant who have completed 12 years of free education in his special school are 4.7% of the total enrollment.

5. As there is no significant difference in the percentage, the Applicant failed to adduce sufficient evidence to prove less favourable treatment.

It was observed that a non-ID student with a non-ID disability (e.g. physical disability) could receive free education until he/she attains the age of 20. It was further observed that there may be an argument that the treatment given to such a non-ID student is more favourable when compared with the treatment given to an ID student.

In relation to this observation, the Court left open the issue of whether there could be disability discrimination between persons with different disabilities, but in any event commented that the favourable treatment is not referable to the disability of the ID student, but to the disability of the non-ID student. As the non-ID student has to compete with mainstream student, the extra 3 years are meant to compensate for this non-ID student’s disability, and should not be regarded as discrimination against ID students.

DCEO 2/2007

Background Facts

The Plaintiff had been having ventricular septal defect and renal disease for years. Though he needed to attend medical check-up regularly, his work ability was unaffected according to his doctor’s opinion. He was employed as a family driver by the Defendant in May 2005 and he passed the 3-month probation period in August 2005.

According to the Plaintiff, one day in September 2005, the Plaintiff submitted the sick leave application form for his medical check-up to the wife of the Defendant. The wife of the Defendant suddenly became angry and asked for details of his disabilities. Since then, she became picky on the Plaintiff and imposed new restrictions on his work. In January 2006, the Plaintiff was dismissed by the Defendant without being given any reasons.

The Plaintiff brought proceedings against the Defendant under the DDO.

Court’s Decision

It was held that the Defendant had discriminated against the Plaintiff directly under s. 6(a) of the DDO, as on the evidence, the Plaintiff would not have been dismissed if he had not revealed his disabilities.

To reach such decision, the Court started by considering the Plaintiff’s evidence, and it was satisfied that the Plaintiff had provided sufficient evidence to substantiate his disability discrimination claim. The Court then turned to the Defendant to see if there were any explanations justifying its acts. The Court viewed that, taking into account all the incidents given by the Defendant, there were no sufficient lawful reasons to dismiss the Plaintiff. The Court was satisfied that on the balance of probabilities (the standard of proof required in civil cases), the Plaintiff was unlawfully discriminated and dismissed on the ground of his disabilities previously revealed.

As a result, the Plaintiff was awarded a total of HK$98,500 and the breakdown of the damages was as follows:

For the loss of earnings, the Court decided that the Plaintiff should recover six months’ loss of income as the Court viewed that he should be able to find alternative employment with similar salary within that period. For the injury to feelings, the Court had taken into account the length of time the Plaintiff had worked for the Defendant and the treatment he had received during his employment period.

Note: The amount of damages was assessed in a separate hearing. Its judgment could be assessed here.

DCEO 8/2006

Background Facts

The Plaintiff was a waiter employed by a restaurant, the Defendant, under an 18-month contract starting from July 2004. The appraisal report dated January 2005 showed that his performance was satisfactory. In May 2005, he injured his right wrist and 9 days of sick leave were granted by the doctor. On the first day of work upon the completion of his sick leave, the Plaintiff was dismissed by the Defendant without being given any explanation for the dismissal.

The Plaintiff brought proceedings against the Defendant under the DDO.

Court’s Decision

It was held that the Defendant had discriminated against the Plaintiff directly under s. 6(a) of the DDO, as on the evidence, the Plaintiff would not have been dismissed if he had not sustained his wrist injury.

During the trial, the Defendant denied any relevance of the Plaintiff’s disability to his dismissal. Instead, it claimed that the dismissal was due to his unsatisfactory performance prior to his sick leave. Yet, the Court was unconvinced of such defence, as the Defendant could not produce any records of oral or written warnings given to the Plaintiff. The Court also viewed that if what was claimed in the defence was true, the Defendant should have been dismissed earlier, but not after the sick leave.

On the other hand, the Court, drawing an inference from the circumstantial evidence, found that the Defendant decided to dismiss the Plaintiff when the Plaintiff informed it that his wrist injury had not fully recovered. This was because in the Defendant’s view, the Plaintiff was unable to fulfill a waiter’s duties while he needed to wear a wrist brace and avoid carrying heavy load before a complete recovery, and therefore, he should be dismissed.

As a result, the Plaintiff was awarded a total of HK$94,544.53 and the breakdown of the damages was as follows:

The loss of income was calculated mainly on the basis of the amount that the Plaintiff could have earned if he could continue to work until the completion of his 18-month contract. For the injury to feelings, the Court considered that it was justifiable for the Plaintiff to feel aggrieved since the dismissal was sudden and unfair. Yet, since he had worked in the restaurant for a relatively short period of time, the amount awarded should fall into the lower end of the scale.

DCEO 9/2004

Background Facts

The Plaintiff had been employed by the Defendant, a school, as a teacher since 1988. He was diagnosed to have rectum cancer in July 2002 and he underwent an operation in August 2002. He then started to take sick leave and expected to return to work in November 2002. Yet, his employment was terminated by the Defendant in October 2002, before the end of his sick leave.

The Plaintiff brought proceedings against the Defendant under the DDO.

Court’s Decision

It was held that the Defendant had discriminated against the Plaintiff directly under s. 6(a) of the DDO, as the Plaintiff would not have been dismissed if he did not have the disability. Evidence showed that, although no teacher had applied for a period of leave as long as the Plaintiff’s, by adopting a hypothetical comparator of a teacher on maternity leave or jury service who was absent for a similar period of time, a teacher would not be dismissed by the Defendant due to the absence.

It was also held that Defendant had discriminated against the Plaintiff indirectly under s. 6(b) of the DDO, because the relevant attendance requirement in the employment contract was not justifiable. Even if the Defendant’s objective to minimize disruption to the teaching was legitimate, the means used to achieve it was unreasonable, as they would cause teachers who had to take leave for reasons beyond their control, particularly as a result of their disability, to lose their employment. The Defendant had not considered other alternatives before dismissing the Plaintiff, but simply relied on the attendance requirement without giving any accommodation to him.

As a result, the Plaintiff was awarded a total of HK$198,000 and the breakdown of the damages was as follows:

The loss of income was calculated from 1 May 2003, when the Plaintiff intended to resume work, to 31 December 2003, when he suffered a relapse. The Plaintiff was also entitled to sickness pay because the Defendant had previously deducted the Plaintiff’s sickness pay from his long-service pay.

CACV 265/2007

Background Facts

The Plaintiff appealed to the Court of Appeal against the above Judgment of the District Court.

Court’s Decision

The Court of Appeal upheld the fact-finding made by the trial judge of the District Court. In particular, on assessment of evidence, the Defendant did not have knowledge of the Plaintiff’s disability at the material time, and that the Plaintiff was unable to carry out the inherent requirements of the job.

The Court of Appeal accepted the approach adopted by the High Court of Australia in the case of Purvis v State of New South Wales (HCA) [2003] 217 CLR 92 that, when a question of direct discrimination arises, the Court has to:

1. identify a suitable comparator, then compare the treatment given to the comparator with the treatment given to the complainant, so as to ascertain whether the complainant was treated less favourably;

2. in making the comparison:-

   1. identify all the relevant circumstances, such as, in the case of Purvis (above), the violent behavior of the pupil with disability;
   2. compare the treatment given to the complainant with the treatment which would have been given to a person without disability where the circumstances in both cases are the same or not materially different. For example, in the Purvis case (above) a comparison was made between a pupil with a disability who exhibits violent behaviour (even if the violent behaviour was associated with the disability) and a pupil without the disability who also exhibits violent behaviour. Less favourable treatment could not be established as the pupil in both cases would be expelled from the school.
3. if less favourable treatment is established, decide whether such less favourable treatment was given “on the ground of” the complainant’s disability (either solely or partially).

Applying the above test, the Court of Appeal held that the Defendant’s decision to terminate the employment with the Plaintiff was on the ground of his poor performance, instead of his disability.

In respect of employer’s knowledge of an employee’s disability, the Court of Appeal adopted the view that knowledge of the manifestation of a disability is knowledge of disability itself.

The Court of Appeal also affirmed the general principle that an employer must provide to an employee with disability services or facilities which:-

• would not impose an unjustifiable hardship on the employer; and

• would enable the employee to carry out the inherent requirement(s) of the employment

provided that such provision of accommodations do not require the employer to create a job different from that of the disabled employee, or to employ someone else to do the work of the same.

Further Case Development

DCEO 8/2004

Background Facts

The Plaintiff was employed by the HKSAR Government, the Defendant, as an Administrative Officer (“AO”) in 1998. After he began working in the Government, he started to suffer from a kind of psychiatric disability, namely Generalized Anxiety Disorder or adjustment disorder. During his employment, he had worked in 2 bureaus. However, his supervisors in both bureaus found that his performance was far from satisfactory, as he was unable to work under stress and complete the tasks properly. Eventually his employment was terminated in 2000.

The Plaintiff alleged that a series of conducts and remarks by his supervisors amounted to direct and indirect disability discriminations, as well as disability harassment. His allegations mainly included: supervisors’ hostile reactions to his disabilities, unfair comments about his performance in the appraisal report, application of the same assessment criteria to which all other AOs were subjected without providing accommodation to enable him to comply with the same standard, pressure to him to resign, decision to terminate his employment, etc.

The Plaintiff brought proceedings against the Defendant under the DDO.

Court’s Decision

The Court, after examining all the evidences, dismissed all the Plaintiff’s claims. The rationale behind and legal principles elaborated in this case are important to all discrimination cases and are summarized as follows:

Concerning the employer’s degree of knowledge towards the employee’s disability which is sufficient to make the employer liable for direct discrimination under the DDO, the Court stated that a subjective approach is generally adopted. In other words, if the alleged discriminator genuinely has no knowledge about the employee’s disability, he should not be liable. A more objective approach may still be used sometimes, but must be with good reasons. Assuming that an employee has symptoms which are so obvious that has indicated some kind of disability, and yet the employer turns a blind eye towards the situation and treats the employee in an unfavourable manner, such recklessness may be sufficient to make the employer liable for direct discrimination, subject to the satisfaction of other requirements.

Applying the above principle to this case, the Court held that the Defendant had no knowledge about the Plaintiff’s disability and hence there was no direct disability discrimination. The facts fell short of establishing the necessary knowledge on the Defendant when it decided to terminate the Plaintiff’s employment. The display of the Plaintiff’s “symptoms” was not obvious to an extent that it would have alerted the Defendant about the Plaintiff’s disability.

For indirect discrimination, the Court took into account the peculiar features of the job of an AO and held that upon a balance between the discriminatory effect on the Plaintiff and the reasonable needs of the Defendant, it was justifiable for the Defendant to apply to the Plaintiff the same assessment criteria to which all other AOs were subjected, without any allowance or accommodation provided. Hence, the indirect discrimination claim also failed.

Furthermore, the Court had summarized the law on the defence of “inherent requirements of the job” under s. 12 (2) of the DDO and in gist:

• Whether a defendant can rely on such defence involves a two-stage inquiry: firstly to identify the inherent requirements of the relevant employment, and secondly to ask whether because of the employee’s disability he is unable to carry out those requirements.

• When identifying the inherent requirements of the employment, it is the requirement of that particular employment, not requirements of some other different employments, which must be considered. One should look at the key characteristic or requirement of the employment instead of those peripheral ones. A practical method is to ask whether the employment would be essentially the same if the requirement were dispensed with.

• Such defence does not impose an obligation on the employer to alter the nature of the particular employment to accommodate the disabled employee. However, to help an employee to fulfill the inherent requirements, the employer must provide services or facilities to the employee, provided that it will not impose an unjustifiable hardship on the employer (known as “reasonable accommodation”).

Applying the above principle to the facts of this case, the Court held that the even if the Defendant were guilty of discrimination against the Plaintiff (which is not the present case), the Defendant would be entitled to rely on the above defence as the Plaintiff was unable to fulfill the inherent requirements of an AO because of his disabilities.

Further Case Development

The Plaintiff appealed to the Court of Appeal against the above Judgment of the District Court. However, the appeal was dismissed. See here for details.

DCEO 3/2004

Background Facts

The Claimant was a Filipino domestic helper employed by the Respondent from 17th October 2003 to 26th December 2003. The Claimant has a congenital deformity in her right hand. She alleged that, upon discovery of the Claimant’s disability after the commencement of her employment, the Respondent committed various discriminatory acts on the ground of her disability, such as verbal abuse and ill-treatment, with a view to force her to resign. She alleged that the Respondent had allegedly fabricated 3 warning letters, contents of which were relied on by the Respondent to summarily dismiss the Claimant on 26th December 2003.

The Respondent denied liability of discrimination and contended that the dismissal was made as a result of the Claimant’s unsatisfactory performance solely.

The Claimant brought proceedings against the Respondent under DDO.

Court’s Decision

On assessment of evidence, the Court found that the Claimant was unable to prove the ill-treatment and torture suffered at the hands of the Respondent or her family as alleged. The Court also dismissed her evidence in respect of her claim of fabrication of 3 warning letters.

Although the Court strongly disapproved some verbal abuse made by the Respondent to the Claimant, and some very oppressive conduct by the Respondent’s husband towards the Claimant, the Court, applying the “but-for” test, found that these matters were not connected to or on account of her disability, but to her repeated serious breaches of duty, habitual neglects, and failure to follow the Respondent’s reasonable instructions.

The Court held that, in the circumstances (in particular the Respondent’s character), the Respondent would have treated any other domestic helper without a disability or without the same disability as the Claimant in the same way had that other domestic helper made the same mistakes, i.e. the Claimant was not treated less favourably when comparison was made with a comparator who was also a domestic helper but without a disability or without the same disability as her.

In view of these repeated mistakes, the Respondent was justified to dismiss the Claimant summarily, and her summary dismissal provided the Respondent with a complete defence to the Claimant’s discrimination claim.

The Claimant’s claim was dismissed accordingly.

DCEO 7/2003

Background Facts

The Plaintiff had been employed by a hospital, the Defendant, as a clerk since 1997. He suffered from heart disease in 1998. He was being transferred to work at different departments at different hours later, and was eventually dismissed in 2002. He claimed that he was unlawfully discriminated by reason of his disability. As a result, he lodged a complaint with the EOC. He further claimed that he was unlawfully victimized by the Defendant, as he believed his work performance was being downgraded in his appraisal report because of his complaint lodged.

The Plaintiff brought proceedings against the Defendant under the DDO.

Court’s Decision

The Court, after examining all the evidences, concluded that the Plaintiff’s disability or his previous complaint lodged with the EOC were not one of the reasons leading to the Defendant’s above acts. Therefore, both the Plaintiff’s discrimination and victimization claims were dismissed.

The rationale behind and legal principles established in this case are important and relevant to all discrimination cases. In determining whether there is less favourable treatment on the prohibited ground, apart from applying the “but-for” test, another essential question is to ask: in all the factual circumstances of the case, what is the real and effective cause of the act complained of? In other words, to show causal connection, the causative factor must be an effective cause which is more than a background event, though it needs not be the only or predominant cause.

Besides, regarding the evidential burden of proof, the Court stated clearly that it does not shift to the defendant at any stage. However, since it is sometimes difficult to have direct evidence of discrimination, once the plaintiff has established the relevant primary facts on the balance of probabilities (the standard of proof required in civil cases), the Court will have to draw appropriate inferences from them, and consider and weigh the explanation given by the defendant, if any.

DCEO 3, 4 and 7/1999

Background Facts

There were three Plaintiffs in this case, namely K, Y and W. Each of them applied for the posts of ambulance man, fireman and customs officer respectively in the Fire Services Department and the Customs and Excise Department. In all three cases, the Plaintiffs’ offers of employment were either withheld or terminated following offers of conditional employment because they had a parent with mental illness.

It was both Departments’ policies that job applicants with a first degree relative with a history of mental illness of a hereditary nature would be rejected. The Departments defended such policy by arguing that the safety to fellow employees and members of the public was an inherent job requirement, and as the Plaintiffs were unable to fulfill such inherent job requirement, the Departments’ above decisions were not unlawful.

Court’s Decision

It was held that the two Departments had discriminated against the Plaintiffs on the ground of the mental illness of their relatives, i.e. disability of an associate under s. 6(c) of the DDO.

It was further held that the Departments could not rely on the inherent job requirement exemption under s. 12(2) of the DDO. In the Court’s view, the safety to fellow employees and members of the public was agreed to be an inherent job requirement for all the three positions above. Nevertheless, the Departments failed to provide sufficient evidence to establish that the Plaintiffs’ inability to meet such requirement was because of their parents’ mental illness, as there was no information showing the Plaintiffs’ risk to the mental illness was higher which would pose a real risk to safety. Hence, the Departments’ discriminatory acts could not be exempted and hence were unlawful.

Regarding the assessment of damages, the Court tried to put the Plaintiffs into the position they would have been if there were no unlawful discriminatory acts, as far as money could do it. Taking into account the injury to feeling caused to the Plaintiffs, which had been prolonged by the defence and attitude of the Departments, the loss of earnings as well as other benefits if the Plaintiffs were able to work in the Departments, the damages awarded to each of them could be summarized as follows:

DCEO11/1999

Background Facts

The Plaintiff was a former employee of the Defendant employer who alleged unlawful disability and sex discrimination by the Defendant. The Plaintiff’s claim was found at trial to be completely without merit and was dismissed. The issue before the Court in this proceeding was whether to award costs to the Defendant.

Court’s Decision

The general rule in discrimination claims is that each party bears its own costs. However, a court can award costs to a party if it is established that the proceedings were brought maliciously or frivolously, or that there are special circumstances which warrant the award.

In determining whether a claim was brought maliciously or frivolously, a court has to apply both a subjective and objective test: subjectively, whether the claimant knows there is no substance in his claim and is bound to fail, and objectively, whether the case is plainly without foundation and has no prospect of success. The court is given wide discretion in determining whether there are special circumstances that warrant the award of costs, with the aim of acting as a check on the ability of plaintiffs to bring unmeritorious claims.

Here, the Court awarded costs to the Defendant, finding that the Plaintiff’s claim was brought frivolously. The Plaintiff brought very serious allegations against the Defendant but could not provide even a hint of evidence to substantiate her complaints. Additionally, the Court found that there were special circumstances which would also warrant the award of costs in this case as the award would serve to deter the filing of unmeritorious claims.