Legal update: Can an employer be liable for disability discrimination without knowing the disability suffered by an employee?

18Nov2019

It is not uncommon for the personal health situation of an employee to adversely affect his or her work performance. When this happens, however, the underlying reason may not always be immediately apparent or known to the employer. Despite this, the employer may have taken action to address the performance issues of the employee, which might attract the allegation of discrimination if the employee has a disability. In these circumstances, the employer’s knowledge of the employee’s condition or disability (or lack of knowledge) may determine its liability for unlawful discrimination. A recent decision from the Employment Appeal Tribunal of the United Kingdom, has highlighted the difficulty in ascertaining such knowledge in the context of discrimination law:

  1. In the case of A Ltd v Z (UKEAT/0273/18/BA), an employee, who was suffering from depression, was dismissed by her employer due to poor attendance and lateness. The employee claimed against the employer for disability discrimination. Even though the employee did not actually inform the employer about her psychiatric condition (and in fact misrepresented that she had other health problems), the Employment Tribunal found that the employer knew and was aware of the ‘low mood’ of the employee and was provided with medical certificates citing “mental health and joint issues”. As such, the Tribunal was of the view that the employer had ‘constructive’ knowledge (i.e. ought to have known) of the employee’s condition and disability and had acted discriminatorily.
  2. On appeal by the employer, the Employment Appeal Tribunal considered that the symptoms shown by the employee were unremarkable and unsurprising to normal life events and the employer could not reasonably be expected to know of the employee’s condition. The Court therefore decided that employer had not in fact discriminated against the employee by dismissing her because of (or partially because of) her condition.
  3. The issue of constructive knowledge was an important focus in the above case because the Equality Act in the United Kingdom provides a defence to a discrimination claim if the alleged discriminator did not have actual or constructive knowledge of the victim’s disability at the time of the alleged act of unfavourable treatment.
  4. By contrast, the anti-discrimination legislations in Hong Kong are silent on this issue but the same concept of “constructive” knowledge was considered by the Hong Kong Court of Appeal’s case of M v Secretary for Justice [2009] 2 HKLRD 298.
  5. In that case, an administrative officer was asked to resign due to his poor work performance. At around the same time, he was diagnosed with adjustment disorder and provided medical certificates to his employer, the Government. He then claimed that the Government’s attitude and treatment of his past work performance, which he claimed had been affected by his disability, amounted to unlawful discrimination against him.
  6. One of the main disputes of the case was whether the Government was aware of the officer’s disability and thereby could have treated him less favourably on account of that disability. The issue was, therefore, whether actual or constructive knowledge of the disability is required to establish the liability of disability discrimination. The Court’s answer to the question was that an employer did not need to be aware of the employee’s actual disability to be liable and it would be sufficient if the employer is aware of the manifestation of that disability.
  7. In other words, if an employer treats an employee less favourably due to his behavior which was caused by his disability, such act will be enough to constitute discrimination even though the employer does not know that the cause of such behavior or that the behavior itself is a disability. On this basis, and accepting that it was the officer’s disability which caused his poor work performance, the Court found that the Government’s treatment of him was on the ground of his disability.
  8. Notwithstanding the above finding of the Court, the officer’s discrimination claim was unsuccessful as the Court found that he was not treated less favorably by the Government when compared to other non-disabled employees who were not performing. The Court also considered that the legal defence that the officer was unable to perform the core duties of his job due to his disability would have been available to the Government had the officer’s complaint of discrimination been made out.
  9. At first glance, it would appear that the legal issues of knowledge in discrimination law was resolved without much difficulty in the case of M. On closer examination of the judgment, however, the Court seems to have only tackled the question of the subject matter the alleged discriminator needs to have knowledge of (i.e. the manifestation of disability would have been sufficient) but not the degree of knowledge (i.e. actual or constructive) the discriminator should possess to establish liability in discrimination claim.
  10. It remains unclear from M how the knowledge of an employer will be ascertained in the context of discrimination law whether it is with regard to an employee’s disability itself or its manifestation. There may be a possibility that the Hong Kong courts will follow the concept of constructive knowledge in the Equality Act of the United Kingdom and the reasoning in A Ltd. v Z. above. If so, the difficulty posed by such concept in situation where the employee is exhibit equivocal symptoms, or suffering from an equivocal form of disability may similarly arise.

Given the above uncertainties, both employers and employees should not only maintain good communications with each other, but both parties should also approach any work performance issues with prudence so as to avoid any unnecessary discrimination disputes.

Russell Bennett / Mark Chiu

The above is not intended to be relied on as legal advice and specific legal advice should be sought at all times in relation to the above.

If you would like to discuss any of the matters raised in this article, please contact:

Russell Bennett
Partner | E-mail

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.