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DCEO 9/2004
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IN THE DISTRICT COURT OF THE B

B
HONG KONG SPECIAL ADMINISTRATIVE REGION
C
C EQUAL OPPORTUNITIES ACTION NO. 9 OF 2004
-------------------- D
D
BETWEEN
E
E
SIU KAI YUEN Plaintiff
F
F and
G
G MARIA COLLEGE Defendant
-------------------- H
H

I
I Coram: Her Honour Judge C.B. Chan in Court
Dates of Trial : 2nd, 3rd and 4th February 2005 J
J
th
Date of Handing down of Judgment : 18 April 2005
K
K

JUDGMENT L
L

M
M 1. This action is brought under the Disability Discrimination Ordinance,
Cap. 487 against the Plaintiff’s former employer for unlawful N
N
discrimination against him being a person under disability protected by the
O
O DDO. The Plaintiff claims a Declaration, an apology and damages as
pleaded in the Statement of Claim. P
P

Q
Q Sections of the DDO relied on by the Plaintiff
2. Section 2 of the DDO provides that disability, in relation to a person, R
R
means:-
S
S

“(e) the malfunction, malformation or disfigurement of a part of T

T
the person’s body.”
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U

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B
B
3. The New Shorter Oxford English Dictionary explains the word
C
C “cancer” as “a malignant tumour or growth of body tissue that tends to
spread and may recur if removed; disease in which such a growth occurs.” D
D

E
E 4. It cannot be disputed that the Plaintiff, who had rectum cancer is a
person with a disability under section 2 of the DDO and is therefore a F
F
person protected by the Ordinance.
G
G

5. Section 72(1) of the DDO states: “A claim by or on behalf of any H

H
person (“the claimant”) that another person (“the respondent”) (a) has
I
I committed an act of discrimination against the claimant which is unlawful
by virtue of Part III or IV; may be made the subject of civil proceedings in J
J
like manner as any other claim in tort.” Hence, it cannot be disputed that
K
K
the claim by the Plaintiff in this case of unlawful disability discrimination

L
made under the DDO; it is a claim in tort. L

M
M
6. The Plaintiff’s claim is based on Section 6 of the DDO which provides
that: N
N

O
O
“A person discriminates against another person in any
circumstances relevant for the purposes of any provision of this P
P
Ordinance if –
Q
Q (a) on the ground of that other person’s disability he treats him
less favourably than he treats or would treat a person without
R
R a disability;
(b) he applies to that other person a requirement or condition S
S
which he applies or would apply equally to a person without
a disability but – T
T

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(i) which is such that the proportion of persons with a B

B
disability who can comply with it is considerably
smaller than the proportion of persons without a C
C
disability who can comply with it;
D
D (ii) which he cannot show to be justifiable irrespective of
the disability or absence of the disability of the E
E
person to whom it is applied; and
(iii) which is to that person’s detriment because he cannot F
F
comply with it.”
G
G

7. Section 8 of the DDO provides that: H

H

“A comparison of the cases of persons with or without a I

I
disability under section 6 shall be such that the relevant
J
J circumstances in the one case are the same, or not materially
different, in the other.” K
K

L
8. Section 11(2)(c) of the DDO provides that:- L

M
M “It is unlawful for the employer, in the case of a person with a
disability employed by him at an establishment in Hong Kong, to N
N
discriminate against that person – (c) by dismissing that person,
or subjecting him to any other detriment.” O
O

P
P 9. Section 6(a) of the DDO defines what we know as direct
discrimination. A person commits an act of discrimination against another Q
Q
person if he or she treats that other person less favourably on the ground of
R
R his or her disability. In this case, the Plaintiff seeks to prove that he was
terminated because of cancer, and he would not have been so terminated S
S
but for cancer. If the Plaintiff succeeds in proving this, disability
T
T discrimination is made out.
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B
B
10.Section 6(b) of the DDO defines what we know as indirect
C
C discrimination. Indirect discrimination occur when a person commits an
act of indirect discrimination against another person if he applies a D
D
condition or requirement equally to all people, which has a discriminatory
E
E
effect on persons with disability and a person with disability is subjected to

F
a detriment because he cannot comply with it. F

G
G
11.The Assistant Legal Advisor of Equal Opportunities Commission acting
for the Plaintiff in these proceedings (in short referred to as “Plaintiff’s H
H
Legal Representative”) submits that the Plaintiff’s claim of the indirect
I
I
discrimination is alternative to the claim of direct disability discrimination.
J
J It is the Plaintiff’s case that if the Court is satisfied that direct
discrimination is proved, there will be no need for the Court to consider K
K
indirect discrimination.
L
L

The Evidence M
M

N
N 12.The Plaintiff was a competent and diligent teacher employed by the
Defendant since 1 September 1988. He taught at the North Point School of O
O
the Defendant. In July 2002, he was diagnosed to have cancer of rectum.
P
P

13.On about 9 August 2002, the Plaintiff personally called Mr. Leung, the Q
Q
Administration Officer of the North Point School and informed Mr. Leung
R
R that he was diagnosed to have cancer of the rectum and would have to
undergo an operation on 13 August 2002 in treatment of the disease. S
S

T
T

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14.The Plaintiff was admitted to Queen Elizabeth Hospital on 12 August B

B
2002. He had an operation on the following day as scheduled.
C
C

15.The Plaintiff duly applied for sick leave and the Defendant paid him D
D
sickness allowance in accordance with the Employment Ordinance from
E
E
12 August 2002 onwards. All along, the Plaintiff was expecting to return

F
to work and according to the Plaintiff he had informed Mr. Leung that he F

could resume duty on 1 November 2002.

G
G

16.On late October 2002, the Defendant terminated the Plaintiff’s H

H
employment because of his cancer. It is the Plaintiff’s case that the
I
I
dismissal amounted to unlawful disability discrimination under the DDO.
J
J

17.It is the Plaintiff’s case that the dismissal caused injury to the Plaintiff’s K
K
feelings and the Plaintiff suffered damages.
L
L

18.The Plaintiff was diagnosed to have cancer of rectum on about 26 July M

M
2002. His disability is evidenced by various medical reports included in
N
N the Bundle of Documents and is not disputed.

O
O
19.The disability of the Plaintiff is not in dispute. But the Defendant
P
P denies it had knowledge of the kind of illness suffered by the Plaintiff.
Q
Q
20.The Defendant employed a supply Teacher Mr. Leung Man To, a
R
R geography teacher, on the 24th August 2002 to work for the whole
academic year, to replace the Plaintiff and to take up the Plaintiff’s duties. S
S
The Defendant’s witness the Principal of the Defendant stated that if the
T
T leave taken by the teacher were short, they would find a substitute teacher
U
U

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to take his place. Were the leave of absence long, they would employ a B
B
supply teacher employed on a contract of a year to substitute for him.
C
C

The Defence Case D

D

E
E
21.The Defendant denies the claim and pleads that on the facts, the

F
Plaintiff was not discriminated against within the terms of the DDO, and F

that the Defendant is accordingly not liable.

G
G

22.The disability relied on by the Plaintiff is carcinoma of the rectum. The H

H
Defendant admits this to be a disability. It is however denied that the
I
I th
Defendant was aware of the nature of the illness until 25 October when
J
J the medical certificate at Tab 25 page 93 of the Bundle of documents (BD-
D) was sent under cover of the leave application at Tab 23 page 78 of BD- K
K
D by the Plaintiff to the Defendant.
L
L

23.It is the Defendant’s case that whether or not the Defendant knew of the M
M
nature of the illness on the 21st October 2002 the Plaintiff was not being
N
N discriminated against on the grounds of his illness, particularly in view of
Section 8 of the DDO. O
O

P
P The Issues
Q
Q
24.(1) Whether the Defendant was told the nature and extent of the
R
R Plaintiff’s illness before 21 October 2002?
(2) Whether the Plaintiff was treated less favourably than S
S
others without a disability, on the ground of his
T
T disability?
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(3) Whether the conditions in the Plaintiff’s contract as to B

B
his attendance at work were justifiable for the purpose
C
C of DDO section 6(b)(i)?
(4) Whether the Defendant was entitled to terminate the D
D
Plaintiff’s contract, or whether the fundamental term
E
E
was void pursuant to DDO section 83 or Employment

F
Ordinance section 70? F

(5) The correct measure of damages (if any).

G
G

The 1st Issue H

H

I
I
25.The evidence of the Plaintiff is that he telephoned Mr. Leung who was
J
J the administrative officer of the North Point Branch of the Defendant on
about 9 August 2002. In the telephone conversation he informed Mr. K
K
Leung that he was diagnosed to suffer from rectum cancer. He also
L
L requested him to make arrangements because the month of August was the
period of enrolment of students from mid August to near the end of M
M
August. He has been assigned duties concerning enrolment for two or
N
N three days. He informed Mr. Leung that the doctor had arranged for him
to undergo an operation to cut away the cancerous rectum. He did not O
O
telephone the Principal to inform her of this because the normal practice in
P
P applying for leave is to inform the administrative officer.
Q
Q
26.After the operation whilst he was in hospital, Mr. Leung and a teacher
R
R Mr. Tung came to visit him in hospital. The Plaintiff said he showed them
the wound. They comforted him and asked him not to worry but to take a S
S
rest. Mr. Leung also advised him to get a formal medical certificate and
T
T report. During their visit, the Plaintiff told them the nature of his illness.
U
U

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B
B
27.On the 22nd August, he was issued a medical certificate, at page 90 of
C
C BD-D. He sent all his medical certificates to the Defendant by registered
mail to the Principal at the Kowloon City branch of the Defendant. D
D
Subsequently, he asked his younger brother to deliver a sick leave
E
E
application to the Principal. He sent all his medical sick leave certificates

F
to the school Principal by registered post. F

G
G
28.On or about 18 October 2002 he received a document from his doctor
dated 18 October 2002 at page 73 Tab 21 enclosing a Certificate at page 72 H
H
which state that the Plaintiff is currently under convalescence recovering
I
I
from surgical illness. It stated that he may return to his original post after
J
J full recovery.

K
K
29.The Plaintiff called a witness, Mr. Fu Siu Kit who stated that he was
L
L present when Mr. Leung telephoned the Principal to tell her that the
Plaintiff was suffering from cancer. It was on a Monday after Mr. Leung M
M
visited the Plaintiff in hospital. He knew it was the Principal on the other
N
N side because Mr. Leung informed him. It was his practice to report
everything to the Principal. O
O

P
P 30.On the Defendant’s part, the Principal Ms. Li Fung King gave evidence.
She denied that she had knowledge that the Plaintiff had cancer. She only Q
Q
knew he was sick. She stated that in August, Mr. Leung, the
R
R administrative officer of the North Point branch told her that he had
received a telephone call from the family of the Plaintiff. He told her that S
S
the Plaintiff was in hospital undergoing surgery. She had planned for the
T
T

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Plaintiff to come back for work in August but the Plaintiff was unable to B
B
do so. Mr. Leung did not mention the nature of the Plaintiff’s illness.
C
C

31.Towards the end of August, Mr. Leung informed her that the Plaintiff D
D
needed to take leave for a longer period of time. The Plaintiff allegedly
E
E
did not state that nature of his illness. He did not state when he could

F
return to work. Because the 1st September is the start of the new school F

year and the Plaintiff did not say when he could return to the school, she
G
G
told the School Supervisor that the Plaintiff needed to take longer leave.
Because of the fact that they must have a teacher by the 1st September, they H
H
employed Mr. Leung Man To to replace the Plaintiff. Mr. Leung Man
I
I
To’s contract was for one academic year.
J
J

32.On about 1st October, the School Supervisor informed her to find out K
K
when the Plaintiff could return to work. After a few days, Mr. Leung
L
L replied that the Plaintiff could not give an exact date when he could return
to work in the School. She stated that in all the sick leave certificates and M
M
medical report given to the school there was no mention of the nature of
N
N the illness of the Plaintiff. She stated that she knew the Plaintiff had
surgery and that he was sick and had an illness. When she was asked O
O
whether she was eager to know what was the nature of the Plaintiff’s
P
P illness, she did not reply directly but said that she did not ask. She stated
that no other staff had taken as long a period of leave as the Plaintiff. She Q
Q
said that it did not occur to her to ask what illness the Plaintiff was
R
R suffering from.
S
S
33.In my view it is unbelievable that Ms. Li as the school Principal did not
T
T ask the nature of the Plaintiff’s illness when the Plaintiff had taken leave of
U
U

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absence and she had to plan ahead for the school and its needs. B
B
Knowledge of the diagnosis of the Plaintiff’s illness and the purpose of the
C
C surgery and its prognosis would have helped her to assess whether the
leave of the Plaintiff is likely to be long or short. In my view, it is highly D
D
unlikely that she as a responsible Principal is totally unconcerned about the
E
E
nature of the Plaintiff’s illness as he has been working for the Defendant

F
since 1988 and was a good teacher. F

G
G
34.I therefore do not believe in her evidence in relation to his issue. I find
that she had been informed that the Plaintiff had suffered from rectum H
H
cancer and the operation was to remove the cancer in the rectum.
I
I

J
J The 2nd Issue

K
K
35.This issue relates to direct discrimination arising from the Plaintiff’s
L
L disability under section 6(a) of the DDO. The Plaintiff’s Legal
Representative submits that it is irrelevant whether the Defendant knew the M
M
nature and extent of the Plaintiff’s illness. It is sufficient that the
N
N Defendant knew the Plaintiff had some kind of disability or a
manifestation of a disability. She refers to the authorities X v. McHugh, O
O
Auditor-General for the State of Tasmania (1994) EOC 92-523, London
P
P Borough of Hammersmith & Fulham v. Farnsworth [2000] IRLR 691 in
support. In my view this must be so. Q
Q

R
R 36.The Plaintiff’s Legal Representative submits that the correct question to
ask is: “Whether the Defendant would be dismissed but for his disability?” S
S
The Plaintiff relies on the “but for” principle adopted by the CFA in
T
T Secretary for Justice and Others v. Chan Wah and Others [2000]
U
U

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HKCFAR 459 at 476. The material part of the decision is that which sets B
B
out the judgment from R v. Birmingham City Council ex p. Equal
C
C Opportunities Commission [1989] 1 AC 1155:
D
D
“There is discrimination under the statute if there is less
E
E favourable treatment on the ground of sex, in other words if the
relevant girl or girls would have received the same treatment as F
F
the boys but for their sex.”
G
G
37.I agree that the question to be asked is that submitted by the Plaintiff’s
H
H Legal Representative.
I
I
38.In considering this issue it is clear that section 6 of the DDO must be
J
J read together with Section 8, which clarifies the comparison process which
must be carried out under section 6. Section 8 provides: K
K

L
L “a comparison of the cases of persons with or without a disability
under section 6 shall be such that the relevant circumstances in M
M
the one case are the same, or not materially different in the
other.” N
N

O
O 39.The Defendant’s Counsel submits that it appears to be undisputed on
the facts that the Defendant took the absence of teachers generally very P
P
seriously, on the ground that prolonged absence has an adverse effect on
Q
Q the education of the pupils. This attitude towards teachers in general is
evidenced by: R
R

S
S (i) the standard form contract issued to teachers. The
Plaintiff’s contract i.e. at Tab 1 pages 25-26 BD-D and T
T
that of Leung Man To at Tab 16 page 54 of BD-D
U
U

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Clauses 1 and 2 of the Absence and Substitution B

B
provisions in Section B at Tab 1 at page 26 of BD-D
C
C were clearly designed to discourage absence for
whatever reason. It is not only directed towards D
D
teachers who are on sick leave.
E
E
(ii) the evidence of Fu Siu Kit, statement para. 10, that a

F
teacher who had taken too much leave was to be F

replaced (this was in fact another sickness case;)

G
G
(iii) the evidence of Li Fung King that the school authority
places heavy emphasis on the length of absence of a H
H
teacher. She refers to this in her witness statement, at
I
I
paragraph 4, in page 56 of the Bundle of Pleadings (BD-
J
J P). She elaborated on this in oral evidence-in-chief,
saying that the reason for this policy is to safeguard the K
K
interests of the students, whose studies would be
L
L adversely affected by changes in teachers.

M
M
40.Since the purpose of the school’s policy was to safeguard the interests
N
N of the pupils from the effects of prolonged absences by teachers, it is clear
that the school was concerned with absences by teachers for any reason, O
O
whether it is for sickness or absence for other reason. Thus it was
P
P submitted by the Defendant’s Counsel that the policy was not directed at
sick teachers, but against absent teachers. An absent teacher would not Q
Q
have his contract terminated on the grounds of his disability, but on the
R
R grounds of his absence.
S
S
41.Clauses 1 and 2 of Section B of the Conditions of Employment for
T
T Teachers at page 26 of Tab1 of BD-D state:
U
U

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B
B
“1. Teachers can be absent from service only if they have
C
C obtained permission from the College which shall arrange
for a substitute teacher. The substitution charge according to
D
D the prescribed scale for each class ($170) will be provided
by the teacher so absent. The substituting teacher will be E
E
remunerated in accordance with the same scale.
2. Teacher having taken leave of whatever reasons for more F
F
than 10% of his/her total number of classes in the month of
G
G leave shall be considered having acted in breach of the
fundamental term of his/her contract of service with the H
H
College.”
I
I
42.The Defendant’s Counsel illustrates this by the application of the
J
J necessary comparison pursuant to Section 8. In the present case it is
necessary to compare the Plaintiff, a person with a disability who was K
K
absent from about early August until 21st October and still could not return
L
L to work, with a person without a disability who was absent for the same
period. M
M

N
N
43.The Defendant’s Counsel submits that when this comparison is carried

O
out pursuant to the requirements of Sections 6(a) and 8, it is obvious that O

the Plaintiff was not being discriminated against on the ground of his
P
P
disability. Clearly a person who was absent for a similar period but did not
have a disability would also have his or her contract terminated. Q
Q

R
R
44.It is for this reason that the Defendant’s Counsel submits that there is
no direct discrimination of the Plaintiff for his disability. S
S

T
T

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U

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45.The reasoning of the Plaintiff’s Legal Representative is that from the B

B
facts, an irresistible inference could be drawn that the Plaintiff was
C
C dismissed as soon as the Defendant discovered that he had cancer. This is
because the Defendant employed Mr. Leung Man To for the whole D
D
academic year. This shows that the Defendant had the intention at that
E
E
point to dismiss the Plaintiff. The Plaintiff’s Legal Representative

F
submitted that the Defendant did not dismiss the Plaintiff at the time F

because it was uncertain whether to do so would contravene the

G
G
Employment Ordinance. Once the Defendant came to the conclusion that
the Plaintiff’s contract of employment was not a continuous contract of H
H
employment in October, the Defendant dismissed the Plaintiff.
I
I

J
J 46.The Plaintiff’s Legal Representative submitted that if the Court is
satisfied that the Defendant decided to dismiss the Plaintiff as soon as it K
K
was aware that he had cancer, and that a teacher without the Plaintiff’s
L
L disability would not have been so dismissed, direct discrimination is
established, on the basis that he was being treated less favourably on the M
M
ground of his disability. The correct comparator is simply a teacher who
N
N did not have the Plaintiff’s disability.

O
O
47.Even if the Court accepts the Defendant’s argument that the Plaintiff
P
P was dismissed because of his inability to return to work not because of his
disability, the Plaintiff submits that the comparison should be made Q
Q
between the Plaintiff and another teacher who is not able to return to work
R
R but who does not have the Plaintiff’s disability.
S
S
48.The Plaintiff’s Legal Representative presented a second limb of her
T
T argument and submitted that Ms. Li said that no other teacher has taken
U
U

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leave for a period as long as the Plaintiff has taken, in such circumstances, B
B
she argues that the court may choose a hypothetical comparator. The
C
C evidence from Ms. Li confirmed that the school would not have dismissed
a teacher who is on maternity leave, or is required to take leave to give D
D
evidence in court or to perform jury duty. In such circumstances, if the
E
E
Court accepts that the Plaintiff was dismissed because he was unable to

F
attend to work, the dismissal received by the Plaintiff was less favourable F

when compared with another teacher who did not have a disability and was
G
G
required to take leave for maternity or to give evidence. This is because
they would be allowed to take leave and would not be dismissed. The H
H
Plaintiff’s Legal Representative contends that on that basis, the Court
I
I
should have no difficulty finding that the Plaintiff would not have been
J
J dismissed but for his disability and that he was subjected to a less
favourable treatment on the ground of his disability. K
K

L
L 49.Having heard argument of the Plaintiff’s Legal Representative, I find
the 2nd limb of her argument in support of direct discrimination more M
M
convincing and I am not able to accept the first limb of her argument for
N
N direct discrimination. The reason is, I am of the view that it is not easy to
draw the inference that the Defendant had come to the decision to dismiss O
O
the Plaintiff as soon as the Defendant discovered that the Plaintiff had
P
P cancer at the time the Defendant employed Mr. Leung Man To.
Q
Q
50.Although no teacher had ever applied for as long a period of leave as
R
R the Plaintiff, Ms. Li’s evidence shows that if a teacher applied for
maternity leave or for jury duty, that teacher would not be dismissed. As S
S
regard jury duty the length of such leave depended on the length of the trial
T
T and in some cases trials could last long. As far as trials are concerned it is
U
U

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A

not easy to estimate the length of a long and complicated trial. It seems B
B
on the above basis, the Plaintiff has established direct discrimination on the
C
C basis of his disability.
D
D
51.The Plaintiff’s Legal Representative submitted further that the only
E
E
defence that the Defendant can rely on in respect of direct disability

F
discrimination is section 12(2) of the DDO. The Defendant has not F

pleaded section 12(2) of the DDO in its Defence, nor has it at any time in
G
G
these proceedings sought to argue that the Plaintiff, because of his
disability, would be unable to carry out the inherent requirements of his H
H
job, or that, in order to perform the inherent requirements of the job, the
I
I
Defendant has unjustifiable hardship in order to provide him with
J
J reasonable accommodation to do so. It is incumbent upon the Defendant,
in relying on this defence, to show what the inherent requirements of the K
K
job of a geography school teacher are, which one (or more) of these
L
L inherent requirements the Plaintiff was said to be unable to perform, or
what reasonable accommodation the Defendant could not provide. M
M

N
N 52.I therefore find that the Plaintiff has established direct discrimination
under section 6(a) of the DDO. O
O

P
P The 3rd Issue
Q
Q
53.In respect of this issue, the only argument advanced by the Defendant’s
R
R Counsel is that the principal reason why there was no discrimination under
Section 6(b) is because the relevant requirement or condition that is, the S
S
contractual terms in relation to absence in paragraphs 1 and 2 of Section B
T
T

U
U

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of the Conditions of Employment for Teachers were justifiable under S6(b) B

B
(ii) of DDO.
C
C

54.He submits that these terms were justifiable because: D

D

E
E
(i) the job of a teacher is a special job. It is wholly

F
different from a factory or office job because the F

teacher is involved in the education of children whose

G
G
education and future prospects can be damaged if there
is disruption or lack of continuity in the teaching H
H
process. The Plaintiff himself agreed with this
I
I
proposition, in general terms, when cross-examined.
J
J (ii) teachers are professional persons. High standards are
required of professional persons generally because they K
K
are entrusted with the interests of their clients (or
L
L students in the case of teachers) who in return must rely
on the skill, integrity and responsibility of the M
M
professional.
N
N (iii) The Plaintiff and his colleagues willingly entered into
contracts containing these terms, in the Plaintiff’s case O
O
on many occasions over many years. As teachers it can
P
P be assumed that they were intelligent and so understood
what they were committing themselves to. Q
Q
(iv) In considering to what extent teachers should be entitled
R
R to leave of absence, a balance must be struck between
the interest of the teacher and interest of his pupils. It is S
S
appropriate that the balance should be in the pupils’
T
T favour because:
U
U

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A

(a) they are more numerous; B

B
(b) they are more vulnerable;
C
C (c) the responsibility is owed more by teacher to pupil
than vice versa. D
D
(v) the fact that the terms might in some cases operate
E
E
harshly on a teacher does not detract from their overall

F
purpose, which is the protection of the pupils’ interests F

and the advancement of their education and not the

G
G
oppression of teachers.
(vi) The Plaintiff’s Legal Representative submits that the H
H
Defendant has satisfied the criteria set out in Board of
I
I
Governors of St. Matthias Church of England School v.
J
J Crizzle [1993] IRLR 472 at para. 25.

K
K
55.When considering these arguments it is necessary to consider the
L
L content of paragraphs 1 and 2 of Section B of the Conditions of
Employment for Teachers at page 26 of Tab 1 of BD-D (“the Absence and M
M
Substitution Terms”). In particular paragraph 2 thereof stipulate that:
N
N

“2. Teacher having taken leave of whatever reason for more than
O
O
10% of his/her total number of classes in the month of leave shall
be considered having acted in breach of the fundamental term of P
P
his/her contract of service with the College.”
Q
Q
56.This term effectively would give the College a right to dismiss teachers
R
R
who have to take sick leave beyond 10% of his/her total number of classes
in the month of leave owing to disability arising from illness. It is clear S
S
that teachers who are disabled from work because of illness do not have a T
T
choice but have to take leave of absence from teaching. It is clear that the
U
U

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V
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A

proportion of persons with a disability who can comply with this condition B
B
is considerably smaller than the proportion of persons without a disability
C
C who can comply with it. As submitted in Briggs v. North Eastern
Education and Library Board [1990] IRLR 181, in para 33 in the judgment D
D
the Northern Ireland Court of Appeal held that the Court can take into
E
E
account their own knowledge and experience and it is undesirable that

F
elaborate statistical evidence should be required before a case can be F

proved.
G
G

57.The Plaintiff’s Legal Representative referred to London Underground H

H
Ltd. v. Edwards (No. 2), even when there is only one person who is unable
I
I
to comply with the condition, unlawful indirect discrimination can still be
J
J established if the court is satisfied that the condition in question has
disparate impact between people with a particular disability and people K
K
without that disability.
L
L

58.I agree with the Plaintiff’s Legal Representative that it is common sense M
M
that people who are seriously ill cannot attend work. The requirement to
N
N attend work can clearly be an element of indirect discrimination.

O
O
59.As to whether the requirement related to attendance is justifiable, the
P
P Board of Governors of St. Matthias Church of England School v. Crizzle
[1993] IRLR 472, set out the factors that the Court should consider as Q
Q
follows:
R
R

“(1) Whether the objective was legitimate? S

S
(2) Whether the means used to achieve the objective are
T
T reasonable?
U
U

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V
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A

(3) Whether the conditions are justified when balanced on B

B
the principles of proportionality between the
C
C discriminatory effect upon the applicant’s racial group
and the reasonable needs of those applying the D
D
condition?”
E
E

F
60.I consider whether the objective to ensure that there should be little F

disruption to the teaching program and there should be continuity in the

G
G
process is legitimate. Even were the objective legitimate, the means used
to achieve the objective in the Absence and Substitution clauses appear to H
H
me to be unreasonable as they would cause those who have to take leave
I
I
for reasons beyond their control particularly those who have to take leave
J
J as a result of disability, to lose their employment.

K
K
61.In relation to the 3rd factor that has to be considered, it seems to me that
L
L the reasonable needs of the pupils could easily be satisfied by the
employment of a substitute teacher as in this case. Ms. Li gave evidence M
M
that if a teacher’s absence is temporary, his classes will be filled up by a
N
N supply teacher. If his absence is long, then a substitute teacher is needed to
replace him. Ms. Li gave evidence that as early as the 24 th August, she O
O
employed Mr. Leung Man To to be a substitute to teach the Plaintiff’s
P
P classes. Mr. Leung Man To was employed for an academic year on a
probation period of 3 months. Ms. Li stated that were the Plaintiff able to Q
Q
return to work within 3 months after the start of term in the beginning of
R
R September, the Defendant would dismiss Mr. Leung. At the time when
the Defendant dismissed the Plaintiff, the Plaintiff was expecting to return S
S
to work. The three months period of probation of Mr. Leung Man To was
T
T not due to end until 30th November. There is no evidence that there
U
U

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V
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A

would be great disruption to the students were Mr. Leung to resume duty at B
B
the end of his sick leave period. The Defendant had not waited to obtain
C
C more information on the Plaintiff’s diability, including the seriousness of
his illness and what accommodation she would require to carry out his job D
D
when he could return to work and the extent of his ability to carry out his
E
E
original duties.
F
F
62.Under cross-examination by the Plaintiff’s Legal Representative, Ms.
G
G
Li said that the school had not considered other alternatives before
dismissing the Plaintiff. The Defendant simply relied on the conditions H
H
imposed in the Conditions of Employment and dismissed the Plaintiff,
I
I
without giving any accommodation to him.
J
J

63.I agree with the Plaintiff’s Legal Representative that the conditions are K
K
not justified when balanced on the principles of proportionality between
L
L the discriminatory effect upon the Plaintiff’s group and the reasonable
needs of those applying the condition. M
M

N
N 64.I find therefore that the Defendant has not shown the Absence and
Substitution Terms to be justifiable. The Plaintiff has established indirect O
O
discrimination against him as a person with a disability.
P
P

The 4th Issue Q

Q

R
R 65.The Plaintiff’s Legal Representative submits that under cross-
examination, Ms. Li said that if any teacher has committed breach of S
S
contract, the Defendant would issue a warning letter. Ms. Li said the
T
T Defendant had not issued such a letter to the Plaintiff before he was
U
U

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V
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A

dismissed. Ms. Li also said that the ISO2002 requires the School to have B
B
proper documentation. I agree with the submission of the Plaintiff’s Legal
C
C Representative that the fact that there is no warning letter is inconsistent
with the Defendant’s case that there was a fundamental breach. D
D

E
E
66.Further, under sections 41 and 83 of the DDO, the Absence and

F
Substitution Terms are void and unenforceable. F

G
G
67.Reliance on contract by the Defendant is not a defence to claim of
unlawful discrimination. Non-compliance of contract by the Plaintiff is H
H
also not a defence.
I
I

J
J The 4th Issue

K
K
68.The Plaintiff’s case is brought in tort and not in contract. The Plaintiff
L
L claims damages being loss of income in the sum of HK$240,000 for the
period from 1 September 2002 to 31 December 2003. The Plaintiff’s case M
M
is that the Defendant had paid him sickness allowance up to 30 September
N
N 2002. However, in para. 32 of his witness statement he stated that the
sickness allowance paid to him in the sum of HK$21,000 had been O
O
deducted from his long service payment. In effect the Plaintiff was not
P
P paid any sickness allowance. There are two limbs of this claim for loss of
income, firstly, for sickness allowance during his sick leave period and Q
Q
secondly for loss of income arising from not being able to resume work
R
R because of the dismissal.
S
S
69.I shall first address the time when the Plaintiff would have been able to
T
T resume work.
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U

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A

B
B
70.It is the Plaintiff’s evidence that he had requested to return to work
C
C from 1 November 2002 and he would be physically capable of carrying on
the job as a teacher until end of December 2003. The Plaintiff should be D
D
able to earn a monthly income at HK$15,000 for this period had the
E
E
Defendant not discriminated against him.
F
F
71.From the evidence produced by the Plaintiff it would appear that the
G
G
Plaintiff was too optimistic in stating that he would have been able to
return to work from the 1st November 2002, even though he may have H
H
wanted to do so. He was still receiving radiation treatment until the end of
I
I
November 2002 (see page 80 of the BD-D). He was also receiving
J
J chemotherapy in November, December, some days in January, in
February, March and April 2003. He received a sick leave certificate to K
K
cover the period until 23rd November 2002. No doubt the Plaintiff was
L
L eager to return to work and would have made an attempt to do so in the
beginning of November 2002. To be realistic it would have been difficult M
M
for the Plaintiff to return to work until the end of November 2002 and
N
N thereafter he was still receiving intermittent treatment for several days each
month as can be seen in the medical records at pages 80 to 89 of BD-D. O
O
The treatment would have disrupted his working routine up to the
P
P beginning of April 2003. He stated that he could have arranged to have
the treatment at the end of the working day and go to work in the morning Q
Q
(see paragraph 30 of the Plaintiff’s witness statement). This may well
R
R have been the case. This may well be the case but as there is no medical
evidence in support of this I shall take a cautions approach. The Plaintiff S
S
was active in May 2003. It was then when he applied for help to the Equal
T
T Opportunities Commission to seek conciliation with the Defendant and at
U
U

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V
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A

the failure of this to file this claim. This supports his contention that he B
B
was fit and able to work at least from then if not earlier. In September
C
C 2003 he was well able to enrol in the Diploma in Finance course with the
HKU School of Professional and Continuing Education (see official D
D
receipts at pages 338-9 of BD-D). He stated in evidence that he did the
E
E
courses until the end of December when he suffered a relapse of the

F
illness. F

G
G
72.Having regard to the evidence aforesaid, to be fair to the Plaintiff and
the Defendant he would at least have been able to work for 8 months were H
H
it not for the dismissal namely from May until December 2003. The
I
I
Defendant’s Counsel stated that the Plaintiff’s contract of employment
J
J expired on the 31st July 2003 and therefore there was no obligation for the
Defendant to re-employ the Plaintiff beyond 31st July 2003. As the K
K
Plaintiff enrolled in the course at Hong Kong University on the 1 st
L
L September 2003 aforesaid, in all probability he was in good health at the
end of 31st July 2003 and in all probability is likely to be re-employed by M
M
the Defendant as he has worked for the Defendant since 1st September
N
N 1988 and his performance at work was good. Further, it would be
presumed that the Defendant would not discriminate against the Plaintiff O
O
on the basis of his having suffered from cancer of the rectum in its decision
P
P as to whether to re-employ him for the next academic year. Having
regard to the fact that this action is based on tort and not contract, and for Q
Q
the reasons aforesaid, I grant the claim of the Plaintiff for loss of income
R
R for the period that the Plaintiff would have been able to resume work from
1st May 2003 to 31st December 2003. I take the 31st December as the last S
S
date of the period when the Plaintiff could claim for loss of income. The
T
T reason is, the Plaintiff stated that he was able to continue his course of
U
U

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V
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A

studies at Hong Kong University until the end of December 2003 when he B
B
suffered a relapse (see paragraph 34 of the Plaintiff’s witness statement).
C
C That period is a period of 8 months. I grant the Plaintiff loss of income of
8 months at a salary of $15,000 per month. This comes to $120,000.00. D
D

E
E st
73.The Plaintiff claims for sickness allowance from 1 October 2002 for

F
the period when he was not able to return to work. In relation to this, F

there is some reference by the Defendant that the Plaintiff was not in
G
G
continuous employment because he did not teach more than 18 hours per
week. By the time of the Plaintiff’s dismissal, the Plaintiff was employed H
H
on his contract dated 15 March 2002. In this contract, it is stated that he
I
I
would work 30 periods per week. The evidence shows that each period
J
J has 35 minutes. 30 periods multiplied by 35 minutes comes to 17.5
hours. However, as we all know, a teacher’s working hours are beyond K
K
the actual number of hours in the classroom. Going from one class to
L
L another would take at least a few minutes between classes. Such time no
doubt would be time spent in the school. It is common knowledge that a M
M
teacher’s job includes lesson preparation before each class. Paragraph 10
N
N of the Conditions of Employment For Teachers at page 26 of BD-D state
that, “Teachers shall participate in and prepare in advance notes to O
O
students.” Such time and time to mark papers must be part of the working
P
P time of a teacher. In the case where the Conditions of Employment
require the teachers to prepare lesson notes in advance for students, such Q
Q
time spent in the preparation of lesson notes must be time of work of the
R
R teacher. In my view, it is entirely debatable that the hours of the
Plaintiff’s work each week are less than 18 hours per week. In view of the S
S
aforesaid, I find that the Defendant could not substantiate that the
T
T Plaintiff’s contract of employment as at the date of his dismissal was not a
U
U

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V
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A

continuous contract of employment. The evidence shows that the contract B

B
of employment of the Plaintiff dated 22nd March 2002 on the balance of
C
C probability is a continuous contract of employment.
D
D
74.In the closing submission of the Defendant’s Counsel that there is no
E
E
dispute that the Plaintiff would have been entitled to sickness allowance

F
were the Defendant found liable. He submitted that the damages due to F

the Plaintiff would be 4/5ths of the Plaintiff’s monthly salary from October
G
G
2002 to July 2003. The Defendant’s Counsel contended that the
Defendant was not liable to pay damages beyond 31 st July 2003. The H
H
issue as regards the period in which the Defendant has to pay damages for
I
I
loss of income to the Plaintiff has been addressed above.
J
J

75.On the basis that the contract of employment is a continuous contract of K

K
employment, sections 33 and 35 of the Employment Ordinance applies to
L
L this contract. Section 33(2) of the Employment Ordinance states that the
maximum number of paid sickness days that can be accumulated is 120 M
M
days. The Plaintiff would only be entitled to 4/5 of 120 days of sickness
N
N pay. The period from 1st September2002 to 30th April 2003 exceeded 120
days. As the Defendant had deducted the sickness pay received by the O
O
Plaintiff when computing the Plaintiff’s long service pay paid to the
P
P Plaintiff, the effect of this is that the Plaintiff has not received any sickness
pay. Q
Q

R
R 76.I therefore assess compensation for loss of income in respect of
sickness pay at 4/5 x 120/30 x $15,000 = $48,000. S
S

T
T

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U

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A

77.In relation to the head of damages for injury to feelings, in the case of B
B
Vento v. Chief Constable of W. Yorkshire Police [2002] EWCA Cir. 1871
C
C para 681.2, it was observed that three broad bands of compensation for
injury to feelings could be identified. These are: D
D

E
E
1. The top band should normally be between 15,000 to

F
25,000 pounds. Sums in this range should be awarded F

in the most serious cases, such as where there has been

G
G
a lengthy campaign of discriminatory harassment on the
ground of sex or race. Only in the most exceptional H
H
case should an award of compensation for injury to
I
I
feelings exceed 25,000 pounds.
J
J 2. The middle band of between 5,000 pounds and 15,000
pounds should be used for serious cases, which do not K
K
merit an award in the highest band.
L
L 3. Awards of between 500 pounds and 5,000 pounds are
appropriate for less serious cases, such as where the act M
M
of discrimination is an isolated or one off occurrence. . .
N
N

78.The Defendant’s Counsel submits that the Plaintiff’s contract was not O
O
terminated when he first became ill. The Defendant waited until 21 st
P
P October 2003. Throughout the period from early August the Defendant
had no indication as to when or whether the Plaintiff would return to work. Q
Q
Not only did the Defendant comply with its statutory obligations by paying
R
R the Plaintiff sickness pay for September, and HK$108,000 as a long
service payment, but it also paid the discretionary bonus for August 2002. S
S

T
T

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U

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V
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A

79.The Defendant’s Counsel submits that the Defendant did attempt to B

B
conciliate with the Plaintiff. The attempts were however unsuccessful.
C
C The Defendant’s Counsel submitted that the damages for injury to feelings
should be at the lowest band of between the Hong Kong Dollar equivalent D
D
of 500 to 5000 pounds. It is noted that despite the conciliatory process,
E
E
the Defendant has still not put into place an equal opportunities policy.

F
The Defendant did not pay sickness pay to the Plaintiff as such sickness F

pay as they rendered were deducted from the Plaintiff’s long service pay
G
G
(see paragraph 32 of the Plaintiff’s witness statement). From the
Plaintiff’s perspective the Defendant denied knowledge of his illness and H
H
maintained that the contract was void because he had failed to perform the
I
I st
contract on 1 September 2002. There is no dispute that the Plaintiff had
J
J been a loyal and dedicated teacher and the Plaintiff stated that he felt
betrayed. K
K

L
L 80.I accept the contention of the Defendant’s Counsel that damages should
be at the lowest band aforesaid. On the basis of all the factors referred to M
M
me by the Defendant’s Counsel aforesaid, and the facts of this case, I find
N
N that the damages for injury to feelings should be in the sum of HK$30,000.

O
O
81.The Plaintiff also applies for a declaration pursuant to secton 72(4)(a)
P
P of the Ordinance. I grant this application and make a declaration that the
Defendant has committed an unlawful act of disability discrimination by Q
Q
dismissing the Plaintiff.
R
R

82.In relation to the application for an apology, it is obvious from the S

S
submission of the Defendant’s Counsel that this is not a case where the
T
T

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U

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A

Defendant is willing to offer an apology. In such cases, Li CJ in Ma Bik B

B
Yung and Ko Chuen state in para 52 of the judgment the following:
C
C

“Before an order for an apology could be made against an D

D
unwilling defendant, s.72(4)(b) requires the court to be satisfied
E
E that an apology is a reasonable act for the defendant to perform
in the circumstances of the case in question. The requirement of
F
F “reasonable” in the provision may not necessarily lead to the
conclusion that an order for an apology can never be made G
G
against an unwilling defendant. With an unwilling defendant, it
may well be that an apology, which will be an insincere one, H
H
would usually not be a reasonable act for him to perform. In this
I
I context, it must be borne in mind that there are many other
remedies at the court’s disposal which could be considered. But
J
J there may be rare cases where the court could be satisfied that an
apology, albeit insincere, would be a reasonable act for the K
K
defendant to perform. Further, in these rare cases, enforcement
could not be said to be futile or disproportionate and contrary to L
L
the interests of the administration of justice. The circumstances
M
M in these rare cases, including the degree of gravity of the
defendant’s unlawful conduct as well as the nature and extent of N
N
the plaintiff’s loss and damage, would have to be exceptional.”
O
O
83.Having considered the fact that the Defendant was not contrite and
P
P repentant and had never indicated that it was, an apology would therefore
be an empty gesture. I am of the view that this is not such a rare case Q
Q
where an apology should be extended in the circumstances aforesaid. By
R
R this judgment and decision of the Court, the discrimination against the
Plaintiff that had caused the distress to the Plaintiff has been condemned S
S
and the conduct of the Defendant has been outlawed. The community has
T
T made clear that such conduct is not to be tolerated in our society.
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U

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V
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A

B
B
84.The damages and the Declaration made by this Court go some way to
C
C alleviate the injury to feelings caused to the Plaintiff.
D
D
85.Judgment for the Plaintiff against the Defendant in the sum of
E
E
$198,000.00 together with interest thereon from date of Writ to date of

F
judgment at judgment rate and thereafter until payment at judgment rate. I F

make a Declaration pursuant to section 72(4)(a) of the Ordinance that the

G
G
Defendant has committed an unlawful act of disability discrimination by
dismissing the Plaintiff. I make no order for costs as it is a claim brought H
H
under the Disability Discrimination Ordinance.
I
I

J
J

K
K

L
L

C. B. Chan M
M District Judge
N
N

Representation: O
O
Miss Wendy W.Y. Lee, assistant Legal Adviser of Equal Opportunities
P
P
Commission for the Plaintiff.
Mr. A. Bell instructed by Messrs. Tang, Wong & Cheung for the Q
Q
Defendant. R
R

S
S

T
T

U
U

V
V