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Can an employer dismiss an employee who is on long-term sick leave?

2021-09-29

Can an employer dismiss an employee who is on long-term sick leave?


Introduction


Under the Employment Ordinance (Cap. 57), save for summary dismissal, it is unlawful for an employer to dismiss an employee who is on paid statutory sick leave. This does not apply during periods of unpaid sick leaves, where an employer dismisses an employee by paying the normal compensation for termination, and in addition, any statutory sickness allowance to which the employee is entitled. However, in both circumstances, an employer may encounter the risk of disability discrimination claims. In the recent decision of Lee Chi Bun v Novartis Pharmaceuticals (HK) Ltd [2021] HKDC 1101, the District Court considered this position.



Background

 

The claimant employee (“Employee”) was a sales supervisor of the respondent employer company (“Employer”) since August 2004. The Employee took sick leave on 14 December 2015. He was diagnosed with end-stage renal failure and/or chronic kidney disease and had to undergo transplant surgery.

 

On 8 January 2016, the Employee returned to work after being discharged from the hospital.  The HR manager informed him that he had scored unsatisfactorily in his 2015 performance review and gave him an option to resign. The Employee claims that prior to this occasion, he had not received any notification from the Employer that his performance was unsatisfactory, and that he had in fact won several awards for performance. Subsequently, the Employee took sick leave for the whole of 2016; his paid sick leave was until 24 April 2016. On 23 December 2016, while the Employee was still on unpaid sick leave, the Employer terminated his employment on the ground of redundancy. The Employee brought proceedings against the Employer under sections 6 (Discrimination against persons with disability, etc.) and 11 (Discrimination against applicants and employees) of the Disability Discrimination Ordinance (Cap. 487) (“DDO”).

 

 

The law: direct disability discrimination under DDO

 

Under section 11(2)(c), it is unlawful for an employer to discriminate against an employee with a disability. Section 6(a) requires the court to compare the treatment of the complainant and that would be received by another person without disability. This type of discrimination under section 6(a) is often referred to as “direct discrimination”.

 

DDO section 6(a) is substantially similar to Sex Discrimination Ordinance (“SDO”) section 5(1)(a). The Court applied the four-step approach laid down by the Court of Final Appeal in Leung Kwok Hung (Long Hair) v Commissioner of Correctional Services [2020] HKCFA 37 in determining whether there was sex discrimination under SDO section 5(1)(a) in the context of DDO section 6(a):

 

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 claimant bears the burden to prove discrimination on the balance of probabilities. If the court is satisfied that the claimant is able to show from the primary facts that inferences could be drawn from the circumstances that disclose a possibility of discrimination, the burden is then passed to the respondent to put forward evidence to the contrary. If there is no reasonable or satisfactory explanation, the court would be entitled to infer discrimination as a matter of common sense.

 

 

The decision

 

After considering the evidence put forward by both sides, the Court found in favour of the Employer and made the following main findings:

 

1.     In mid-August 2016 while the Employee was on sick leave, a decision had been made by the Employer to eliminate the Employee’s role as a result of the Employer’s ophthalmology business unit being integrated with another company. Despite the redundancy, the Employer explained the reason why Employee was only terminated until 23 December 2016 (almost one year after Employee was diagnosed with sickness), which was to enable him to continue to receive medical insurance coverage.

 

2.     The Employee’s immediate supervisor’s role was also made redundant in the business integration, and he had resigned voluntarily. The treatment given to the Employee and his supervisor was the same.

 

3.     The review process of the Employee’s 2015 performance review happened before the Employer’s knowledge of the Employee’s sickness. As such, the Employee’s illness was not and could not have been a factor in the assessment of his unsatisfactory rating.

 

4.     The Employee was told of his unsatisfactory performance in 2015 and the Employer had concerns on his performance before knowing the Employee’s medical condition.

 

5.     The Employer offered other positions to the Employee before the Employee’s termination but the Employee did not follow up the matter.

 

 

Takeaway

 

When employers decide to terminate the employment contract of an employee who is on long-term sick leave, extra caution should be exercised. Employers should bear in mind that good reasons are needed to justify the termination when it is apparent from the primary facts that inferences could be drawn from the circumstances that disclosed a possibility of discrimination. If an employee is able to demonstrate this, the court will look to the employer for an explanation. If the employer is unable to provide a reasonable or satisfactory explanation, then the court would be entitled to infer discrimination as a matter of common sense.  



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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.

Published by ONC Lawyers © 2021


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