Introduction

In this hustle and bustle city, people easily get stress from their daily work. Psychological or psychiatric illnesses have become more and more common among Hong Kong people which lead to an increasing number of claims on disability discrimination regarding mental illness in recent years.   But how can an employer notice an employee is suffering from a mental illness? Is knowledge of the mental illness necessary to prove disability discrimination? Is it sufficient to prove disability discrimination if the employer only notices some of the symptoms?

Background

In the recent case of Cheung Hoi Ling v Triumph International Overseas AG unreported, DCEO 6/2013 (27 November 2015), the District Court has provided an answer to the questions.  The claimant in the case was a factory worker for needlework.  At the material times, the claimant was diagnosed with obsessive-compulsive disorder (“OCD”) and depression and hence was with “disability” under the wide definition in Disability Discrimination Ordinance (Cap 487) (the “Ordinance”).   After being dismissed, she sued her former employer for (1) unlawful dismissal and (2) discrimination and harassment because of her disability.  On the other hand, the defendant (employer) claimed that the dismissal was based on the breakdown of relationship and loss of mutual trusts between the parties.  The defendant also denied knowledge about the disability of the claimant.

Issues before the Court

At trial, the District Court has to decide on:

1.       whether the defendant has knowledge of disability of the claimant;

2.       whether the claimant was discriminated or harassed by the defendant; and

3.       if the claimant was discriminated or harassed, whether the discrimination, harassment and/or dismissal were due to the disability of the claimant.

Court’s ruling on the issue of knowledge of disability

Regarding the first issue, the judge referred to and adopted the principles established in the case M v Secretary for Justice [2009] 2 HKLRD 298.

M v Secretary for Justice involves a similar situation that an employee with mental illness took action against his former employer for disability discrimination.  At the material times of employment, the employee was suffering from generalised anxiety disorder (“GAD”), which led to his poor work performance.  However, both parties, including the employee himself, did not know that he was suffering from GAD at the material times.  On the question of whether the employer discriminated the plaintiff on the ground of disability, the Court of Appeal ruled that it is not necessary that an employer knows of the existence of the disability.  According to Honourable Mr Justice Robert Tang VP at §72, “knowledge of the manifestation of a disability is knowledge of a disability itself” (emphasis added).  Upon the Court’s reasoning, human beings may have subconscious discrimination or even benevolent discrimination and therefore, there is no need to prove that the alleged discriminator was consciously unfair.

Following M v Secretary for Justice, the judge found that the defendant did not know about the exact mental illness (OCD and depression) of the claimant, however, the defendant did notice some manifestations, such as the fact that the claimant had particularly fluctuating emotions and was prone to overreact (including suicidal tendency).  The judge found that these manifestations are the symptoms of OCD and depression which are sufficient to show that the defendant has knowledge of the claimant’s disability.

On finding knowledge of disability, the District Court went on to consider the second issue, namely, whether the claimant was discriminated or harassed by the defendant.  The Court found that there was no less favourable treatment against the claimant compared to another person without such disability or any harassment.  The dismissal was indeed due to the breakdown of relationship and loss of mutual loss between the parties.  Therefore, the claim on disability discrimination was dismissed.

Conclusion

To conclude, in relation to the issue of “knowledge”, ignorance of the disability of an employee is not a defence for disability discrimination. An employee only needs to satisfy a low threshold that the employer knows of the manifestation of his/her illness.  After all, employers are reminded that they shall not dismiss an employee without a valid reason amongst those set out in the Employment Ordinance (Cap 57), such as by reason of the employee’s conduct, capability or qualification, irrespective of the mental illnesses of the employee.