In discrimination cases, when a court finds that an individual has suffered discrimination, it may award damages for “injury to feelings”. This type of compensation differs from economic losses, such as lost wages or incurred expenses. It specifically recognizes the emotional harm, humiliation, and distress that an individual may suffer due to discrimination.
The Hong Kong courts utilise established guidelines to quantify such damages, often referred to as “Vento bands”, named after a landmark UK case. The Vento bands have been considered and accepted by the Court of Appeal in Hong Kong and provide a range of monetary compensation that is categorised as follows:
To ensure that compensation awards maintain their intended remedial value, the bands require periodically updates to reflect current economic conditions, including inflation.
It is also important to note that each case is unique, and the specific circumstances will always be taken into account when determining the appropriate level of damages. The court will consider factors such as the severity of the discrimination, its duration, and the psychological impact on the individual.
In the recent disability discrimination case in the District Court (陈詠琴 v 第一流行鋼琴教室有限公司 [2024] HKDC 2046), damages were awarded for “injury to feelings”. The Court took the opportunity to adjust the Vento scale bands for inflation as applied in Hong Kong.
The case involved a customer service officer at a piano learning centre who was dismissed due to her disability and related sick leave during her probation period, constituting an unlawful disability discrimination act under the Disability Discrimination Ordinance (“DDO“). The District Court ordered the employer to pay the employee HK$95,000 for injury to feelings and HK$48,000 for loss of income.
The Court’s Decision
The amount of damages for injury to feelings generally follows the scale established in the UK case of Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871, i.e.,:-
(a)Top Band: £15,000 – £25,000;
(b) Middle Band: £5,000 – £15,000; and
(c) Bottom Band: £500 – £5,000.
The District Court in this case took into account the impact of inflation in Hong Kong and adjusted the amounts as follows:-
(a) Top Band: HK$285,000 – HK$475,000;
(b) Middle Band: HK$95,000 – HK$285,000; and
(c) Bottom Band: HK$9,500 – HK$95,000.
The District Court ruled that the discriminatory behaviour in this case was the most serious at the bottom band, or the lowest at the middle band, and decided that the amount of damages for injury to feelings should be HK$95,000 for the following reasons:-
(a) the discriminatory act was one-off in nature;
(b) throughout her employment, the employee maintained a good relationship with her colleagues, performed satisfactorily, and received no complaints;
(c) the employer’s abrupt dismissal of the employee just days before the expiry of the probationary period appeared to be a deliberate attempt to circumvent the obligation to provide a one-month notice or compensation in lieu;
(d) there were only 8 days between the employee’s notification of her disability and her dismissal. Given that she had just been diagnosed, she was experiencing significant worry and anxiety, which compounded the employer’s discriminatory treatment during this vulnerable time;
(e) following her dismissal, the employee experienced emotional distress and stress, leading to disrupted sleep and hindering her rehabilitation progress; and
(f) the employer never issued an apology and has expanded its business after the claim was filed, as if rubbing salt in the employee’s wounds.
Takeaways
This decision reinforces the legal protections against disability discrimination and raises awareness among employers regarding their responsibilities under the DDO. Employers must recognize that dismissing an employee due to his or her disability is unlawful, regardless of whether the employee is on probation or not. The increase in compensation inevitably leads to greater potential liability for employers and other respondents in successful discrimination cases, depending on the applicable compensation band.
Employers are advised to seek legal advice to ensure compliance with the DDO and to understand their rights and responsibilities when it comes to managing employees with disabilities. Regular legal reviews can help mitigate risks associated with discrimination claims.
The court decision can be accessed here.