In the recent District Court case of Kan Che-sing v Lucky Dragon Boat (Belvedere) Restaurant Ltd, a restaurant owner was found guilty of discriminating against Kan – one of his waiters – on the basis of his disability and made to pay almost a year’s wages in compensation.
One of Kan’s duties was to assist (with three other waiters) with carrying wheelchair-bound clients and their chairs up and down a 13-step staircase.
On April 21, 2007 (just three days after he started work), Kan sustained an injury on the left side of his body while carrying a customer down the stairs. It was later diagnosed as a mild compression fracture on his thoracic spine. He had to take 30 days’ leave from work and incurred medical expenses.
On returning to work, Kan asked his employer for reimbursement of his medical expenses, as he was entitled to under the Employees’ Compensation Ordinance (Cap. 282). Despite repeated demands, the employer delayed paying most of the medical expenses until Kan was forced to obtain a judgment against the employer in the Small Claims Tribunal to obtain reimbursement.
Having reported the incident to the Labour Department, the Employees’ Compensation (Ordinary Assessment) Board assessed Kan as having suffered a 1-per-cent loss of earning capacity. The employer was notified about this assessment. Kan and his employer eventually reached a global settlement on Kan’s employee compensation claims.
On Kan’s return to work, he alleged that he was treated badly by his managers and that, despite his injury, he was still made to do his usual work. When he asked to use his right side to carry the chairs, he said his manager displayed a “ferocious facial expression” but acceded to his request.
One time, when Kan was carrying a chair on his right side, he said his manager showed him a “disparaging facial expression” and yelled at him to go away. Kan was then dismissed with seven days’ wages in lieu of notice. He was not given any reasons for his dismissal.
Kan brought a claim against the restaurant for disability discrimination. He alleged that he was disabled due to his injury, rendering him unable to lift heavy objects with his left hand, and that, due to his disability, he had been harassed, treated poorly and then eventually dismissed. He also alleged that he had been treated less favourably than a non-disabled employee.
The employer argued that it had not discriminated against Kan but that he had been dismissed for poor performance. No evidence was given to support this allegation. And the manager accused of treating Kan badly and who reportedly made the decision to dismiss him, did not turn up in court to give evidence.
The court found that the employer was guilty of discriminating against Kan on the grounds of his disability. There had been no evidence to substantiate that he was a poor performer – he had not been given any prior warnings as to his performance and his salary was even raised in 2008. The court found that the reason for his poor treatment and dismissal was due to the “soured relationship” between the parties following Kan’s injury. The court awarded him HK$101,181.70 in damages – HK$50,000 for injury to his feelings and HK$51,181.70 for loss of earnings.
This case is a reminder that an employee can be “disabled” as defined in the Disability Discrimination Ordinance without having an obvious disability. An employer can be found guilty of disability discrimination even if no overt comments are made about an employee’s disability. Hence, employers should take care in how they treat their disabled employees and, if an employer needs to discipline or dismiss a disabled staff for a non-disability-related reason, it should follow the right procedure and keep written records of its actions.
Kan’s employer did contact the Labour Department to find out if it could dismiss Kan. The department apparently confirmed that Kan could be dismissed after the compensation assessment had been finalised. Employers should not rely on the Labour Department as a substitute for taking legal advice.
Herbert Smith Freehills has 2,800 lawyers and 460 partners in over 20 offices globally. It advises on dispute resolution and employment, among other areas.
Gareth Thomas is head of the Hong Kong commercial litigation team and responsible for the Greater China employment practice.
Tara Grossman is a senior associate in the employment practice and has a wide range of experience in employment matters.
EDITOR’S NOTE: The information in this article should neither be relied on as legal advice nor be regarded as a substitute for detailed advice in individual cases. If advice concerning individual problems or other expert assistance is required, the service of a competent professional adviser should be sought.