- A Case of Unlawful Disability Discrimination in the Workplace
- January 12, 2013 | Authors: Duncan A. W. Abate; Anita W. C. Lam; Hong Tran
- Law Firm: Mayer Brown JSM - Hong Kong Office
In Kan Che Sing v. Lucky Dragon Boat (Belvedere) Restaurant Limited, the Plaintiff, Mr. Kan Che Shing (Kan), sued his former employer, Lucky Dragon Boat (Belvedere) Restaurant Limited (the Defendant), for direct and indirect disability discrimination. Although the Defendant made no explicit remarks about Kan’s disabilities in terminating his employment, the Court found that the reason for Kan’s dismissal was due to his injuries. On this basis, the Court ruled in favour of Kan and awarded damages for injury to his feelings and loss of income.
Kan was employed by the Defendant as a waiter in its Chinese restaurant. Whenever a wheelchair-bound customer entered or left the restaurant, Kan was required to help lift the right side of the wheelchair using his left hand together with three other waiters.
On 21 April 2007, Kan sustained an injury to the left side of his body while assisting a wheelchair-bound customer. The Employees’ Compensation (Ordinary Assessment) Board assessed that Kan had suffered a 1 percent loss in earnings capacity as a result of that injury.
Kan alleged that the Defendant had engaged in unlawful disability discrimination in breach of the Disability Discrimination Ordinance (DDO) on the grounds that:
- The Defendant delayed or defaulted in reimbursing medical expenses to Kan;
- Mr. Kong (Kong), a manager of the Defendant, displayed a ferocious facial expression to Kan. Kong was dissatisfied when Kan asked to hold the left side of the wheelchair (instead of the right side) due to his injury;
- Mr. Leung (Leung), a director of the Defendant, had expressed dissatisfaction at Kan over his taking sick leave. He showed a disparaging facial expression to Kan, yelled at him and directed him to go away because of his inability to use his left hand to carry the wheelchair; and
- The Defendant dismissed Kan with 7 days’ wages in lieu of notice without giving any reason.
The Defendant denied the allegation of unlawful discrimination. It argued that Kan had already recovered from his injuries at the material times, and sought to base Kan’s dismissal on his poor work performance.
The Court held that the complaints made against Kan’s work performance were unsubstantiated because:
- No written warning had been issued about Kan’s poor performance issues;
- No record of Kan’s attendance had been produced by the Defendant to show that Kan had deliberately chosen the busiest dates on which to take leave;
- Kan’s salary had been increased by 2.5% in March 2008; and
- As Kong was the person who carried out Kan’s dismissal, and as he was in the best position to comment on Kan’s alleged poor performance, the Court found it inconceivable that the Defendant would choose not to ask Kong to give evidence on this point during the trial.
The circumstances indicated that the reason for Kan’s dismissal was not his poor performance, but the soured relationship between the parties after Kan sustained his injury. Despite the fact that no remarks were made by Kong or Leung that pointed directly at Kan’s disabilities, the Court concluded that the hatred they directed against Kan arose as a result of the work injuries Kan had sustained.
There was also evidence to show that the Defendant had promptly reimbursed medical expenses to another of its employees who had suffered work injuries in November 2007. As such, it was possible to infer that Kan had been treated less favourably by the Defendant, through Kong and Leung, because of the delay in the reimbursement of his medical expenses.
The Court held that the Defendant had acted in breach of the DDO and awarded damages to Kan of HKD$101,181.70 (comprising HK$50,000 for injury to Kan’s feelings, and HK$51,181.70 for his future loss of earnings).
It is unlawful to treat an employee less favourably on the grounds of the employee’s disability. An employer does not need to have made any explicit remarks about an employee’s disability to engage in unlawful disability discrimination. As such, an employer needs to be careful about how it treats an employee who has a disability or who may have suffered an injury.