Introduction

The Disability Discrimination Ordinance (Cap. 487) (“DDO”) prohibits discrimination on the basis of disability. There are two kinds of disability discrimination: direct disability discrimination and indirect disability discrimination. Direct disability discrimination occurs when a person is treated less favourably than another person because of his disability. Indirect disability discrimination occurs when a condition or requirement, which is not justifiable, is applied to everyone but in practice adversely affects persons with disability.

The DDO covers a range of activities in the public domain and includes employment, education, provision of goods, services and facilities, disposal or management of premises, eligibility to vote for and to be elected or appointed to advisory bodies, participation in clubs and sporting activities, and activities of the Government.

Obviously an employer may not make discriminatory decisions that treat employees with disabilities less favourably than a person without disabilities. That said, is the disability of an employee such a taboo that an employer may never consider that employee’s disability in a decision making process?

In a recent judgment of C v The Chinese University of Hong Kong [2022] HKDC 77, the District Court had provided some useful guidelines.

Background

C, the plaintiff, a part-time postgraduate student of the Chinese University of Hong Kong (“University”) studying Master of Arts in Gender Studies Programme (“Programme”). All students of the Programme were subject to the University’s General Regulations Governing Postgraduate Studies (“General Regulations”), which required students to complete all requirements for graduation within the maximum period of studies (“MSP”), failing which students would be required to discontinue studies. The MSP applicable to C was 4 years, extendable in special circumstances.

At all material times, C suffered from depression and generalized anxiety disorder (“Disabilities”). C was as such granted 2-year leave from January 2013 to December 2014. By 31 July 2015, the last day of C’s MSP, C still had not finished 4 outstanding assignments that formed the major part of her graduation requirements. On 14 August 2015, C submitted her application for further extension of the MSP for 2 months so that she may fulfil her graduation requirements. In her application, C specifically referred to her Disabilities to justify her failure to meet the MSP, enclosing her medical certificate as proof. The University refused her application and C was required to discontinue her studies (“Decision”). In a letter terminating her studies, the University sets out the following grounds:

1.       As the outstanding assignments had been due for a long period, the University did not consider C capable of finishing them by the proposed new deadline (“Ground 1”).

 

2.       Considering C’s recent medical history, the pressure to complete all the outstanding assignments in such a short period of time would not be in her best interests as a student (“Ground 2”).

 

C lodged a complaint on direct and indirect disability discrimination with the Equal Opportunities Commission.

Issues

In relation to her direct discrimination claim, C pleaded that by referring to her medical history, the University clearly had taken her Disabilities as a ground of the Decision. The Decision further was or involved stereotyping, in that the University made an incorrect and unfair assumption about the pressure of completing her outstanding assignments, which was patronizing and offensive.

C’s claim on indirect discrimination is premised on the University’s application of the General Regulations on all the students studying the Programme including her. C asserted that a considerably smaller portion of people with a disability could comply with the General Regulations, which constituted indirect discrimination.

Decisions

Direct discrimination

The Court was of the view that in considering whether to grant a MSP extension, the University is bound to consider whether the applicant can complete the graduation requirements within the extended period applied for. If not, the University is entitled to refuse the application. As 3 out of C’s 4 outstanding assignments had been late for more than 2 years, the University firmly concluded that C may not be able to complete them by her proposed new deadline. It is incumbent on C to support her MSP extension application with all the relevant information, including her progress of the outstanding assignments and her plan to complete them if she argued otherwise.

The Court did not agree with C’s assertion as it was within common sense that completing her outstanding assignments within 2 months could not be insignificant to any students without any illness, let alone C with the Disabilities. The University’s reference to her medical history was just to highlight that such pressure would be particularly hurtful to C given her medical condition, instead of forming any part of the grounds of the Decision. The University never suggested that other students without the Disabilities should be able to cope with such pressure.

Notably, C had taken the initiative to provide the University with her medical certificates in support of her MSP extension application. The Court considered that as C expected the University to consider her medical conditions in light of the supporting document, the University certainly could and should have regarded to the same. It does not strictly imply that the University rendered the Decision on the grounds of her Disabilities.

Indirect discrimination

C submitted that it was indirect discrimination to apply to her the General Regulations which applied equally to persons with and without a disability, but which a considerably smaller portion of people with a disability can comply with.

The Court ruled that for C to make out the claim of indirect discrimination, she has to prove on balance of probabilities that a considerably smaller portion of students with a disability, including C’s Disabilities can comply with the 4-year MSP applicable to her. C however failed to convince with statistical evidence that it is the case. The extensions provided under the General Regulations also safeguard the rights of students who anyhow fail to complete the Programme within the MSP.

The Court ruled that the Decision was not discriminatory. C’s claims were accordingly dismissed.

Takeaways

Whilst C v The Chinese University of Hong Kong is in relation to education, the judgment had provided some useful guidelines in the employment context.

Care should always be taken in decision making that involves considering an employee’s medical conditions. Generally speaking, acknowledging an employee’s disability alone in a decision making process would not render the employer’s decision discriminatory. That is, of course, provided that the employer’s real reason for making the decision has nothing to do with the employee’s disability. That said, the law in this area is not so straightforward and can often be complex. When in doubt, it is always prudent to obtain legal advice.

For enquiries, please feel free to contact us at:

E: employment@onc.hk                                                    T: (852) 2810 1212 W: www.onc.hk                                                                    F: (852) 2804 6311 19th Floor, Three Exchange Square, 8 Connaught Place, Central, Hong Kong

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 © 2022