Background

On the 18th of January 2022, C v The Chinese University of Hong Kong [2022] HKDC 77 called on the District Court to consider the University’s decision to terminate the studies of a student suffering from depression and generalised anxiety disorder within the meaning of section 2 of the Disability Discrimination Ordinance, Cap 487 (“DDO“).

The student (‘C’), upon failing to meet graduation requirements, submitted a late application for an extension of the maximum study period (“MSP“) to complete the assignments she had previously failed to do. In support of her application, C  included medical  reports signed by her psychiatrist as supporting evidence that she had not been able to complete the assignments due to difficulties with her diagnosed mental health condition. However, the University rejected C’s application for an extension and discontinued her studies. C then commenced  proceedings at the District Court.  C claimed that the University’s decision to reject her application and terminate her enrolment had relied on her psychiatric condition to her disadvantage and was directly discriminatory.  Alternatively, C claimed that the inflexible application of the MSP was indirectly discriminatory against those with disabilities who required extended periods of leave.  C also complained of instances of harassment and victimisation as part of a broader pattern of discrimination arising from the absence of any policy framework to address the needs of students with disabilities at the University.

Ruling

The Court mainly focused on whether or not the University’s decision to reject the application was solely based on C’s mental illnesses. Not only did C plead that the University used her mental illness as a reason to reject her but also that the University used condescending, stereotyping and patronising language that supported this perception.

The Court was unable to find direct discrimination in the University’s decision, and found that the reference to C’s medical history was included in the Termination Letter to highlight that the pressure for C to complete the outstanding assignments in such a short period of time would not be in her best interests. As C expected the University to consider her medical condition, the University certainly “could and should have regard to the same”. It does not follow that any decision that the University subsequently made must be on the ground of her disability and hence directly discriminatory (§142).

The Court also rejected C’s claim of indirect discrimination. His Honour Judge Kent Yee held that on the balance of probabilities, there was no basis to find that a considerably smaller portion of students with a disability, including C’s disability can comply with the 4-year MSP applicable to her. The Court was satisfied that the 4-year MSP has a perfectly legitimate objective and the means to achieve the objective are reasonable. Further, the extensions expressly provided in the University’s regulations safeguard the rights of those students who, for whatever reasons, fail to complete the Master of Arts Programme within the 4-year MSP. The 4-year MSP is adequately justified and there is no proportionality issue (§173).

Notably, the Court held that so long as a claimant can prove the material facts for both direct discrimination required under section 6(a) of DDO and the material facts for indirect discrimination required under section 6(b) of DDO, he should succeed in both claims, and there is nothing conceptually wrong or objectionable for a claimant to make both claims in an action (§83).

The Court also dismissed C’s victimisation claim as being unfounded having found that her direct and indirect discrimination claims were unsustainable.

Takeaways

Although the present case centers on a claim brought by a student against an university, the judgment highlighted some important points for employers.  When dealing with an employee with a disability , employers would naturally take into account the employee’s disability in their decision making process, which the employee would expect them to do. Nevertheless, employers should carefully note that there is a fine line between taking the disability into account when making a decision and making a decision because of the disability (which could be discriminatory), unless it falls under the exception under section 12(2)(c)(i) and (ii) of DDO. The exception is if the employer finds that the employee, because of the disability, would be unable to carry out the inherent requirements of the particular employment, or if the accommodation required would create unjustifiable hardship for the employer. In the Disability Discrimination Ordinance Code of Practice on Employment published by the Equal Opportunities Commission, “inherent requirements” refer to the core requirements that are essential or intrinsic to a specific occupation (§5.8), and “reasonable accommodation” means the services or facilities that are needed for an employee with a disability to perform the inherent requirements (§5.18).   Therefore, employers should ensure that the reasons for taking any action or step that may be unfavourable to the employee are legitimate.  Employers should also properly document the reasons for such decision .

For details, the full judgment can be found here.