On June 3, 2011 the Equal Opportunities Commission (EOC) issued a revised Code of Practice on Employment (the Code) under the Disability Discrimination Ordinance (DDO). This updated code is derived from experience gained by the EOC since the original publication of the Code in January 1997.
The Code operates to protect persons with disabilities from discrimination and harassment (i) when applying for a job and (ii) in employment, and offers practical guidance to employers when implementing anti-discrimination measures in the workplace. It states how employees with disabilities should be managed and the accommodation that should be made to allow such employees to enjoy equal employment opportunities. It also assists individuals with disabilities, making them aware of their rights under the DDO, clarifying what constitutes direct and indirect discrimination, and stating how the EOC can help.
While the Code provides recommendations for good employment procedures and practices, it is not legally binding and failure to comply with the Code does not constitute a legal offense.
The introduction of case illustrations in the Code assists employers when creating a disability equality policy to implement in their workplace. For instance, the Code outlines a situation where it would be reasonable to expect an employer, when carrying out recruitment tests, to substitute a written test for an oral test. Further, the Code illustrates when it would not be reasonable to expect the employer to alter the form of assessment, in view of the inherent requirements of the job.1 Such examples help employers establish how far internal measures should go towards accommodating employees with disabilities — limiting the possibility of claims arising.
In addition, the case illustrations should also assist an employer in its pre-litigation negotiations following an allegation of discrimination. For instance, under the DDO, the statutory defense for an employer held to be vicariously liable for the unlawful acts of its employees is that it took "reasonably practicable steps" to prevent the unlawful act of discrimination or harassment from occurring, but the Code does not specify what constitutes "reasonably practicable steps."2 The Code supplements the DDO by stipulating general principles that employers may use in assessing whether the defense has been made out:
- Introduction and implementation of comprehensive and up-to-date policies on discrimination and harassment
- Provision of appropriate and adequate training to staff at all levels on their rights and responsibilities
- Introduction and implementation of appropriate grievance procedures
- Designation of appropriate personnel capable of dealing with matters arising from discrimination and harassment3
These general principles are based on established case law, and allow an employer to bring such information to the attention of the other party, potentially causing the claim to be dropped.
The Code also helps to clarify certain provisions within the DDO. As a result of the introduction of the Minimum Wage Ordinance (the MWO) in Hong Kong (as mentioned in the October 2010 issue of The Working World), it is lawful for an employer to:
- Only assess the degree of productivity of persons who hold a valid Registration Card for People with Disabilities
- Pay, in accordance with the MWO, a minimum wage to a person with a disability that is less than that payable to a person without such a disability
- Dismiss a person with a disability on account of the outcome of an assessment made under the MWO4
The Code states that such provisions are to ensure that the DDO conforms to the principle of equal pay for equal work (EPEW) and equal pay for work of equal value (EPEV). It explains that pay should be determined on the basis of established job value and employers should apply consistent criteria when developing and implementing good practices on EPEW and EPEV. As a result, employers should maintain the principles of EPEW and EPEV between those employees who may have a disability and those who do not.
Following the publication of the revised Code, the Judiciary has released a review paper asserting that anti-discrimination statutes constitute social legislation designed to protect civil rights and that equal opportunities claims brought under these statutes should be adjudicated in a quick and inexpensive manner. The Chairperson of the EOC has stated that he hopes this recognition will lead to the implementation of the EOC's recommendation to establish a special Equal Opportunities Tribunal to simplify the adjudication process and to make it more user-friendly.
1 Chapter 6.28 of the Code.
2 Section 48 of the DDO.
3 Chapter 10.9 of the Code.
4 Schedule 5 of the DDO.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.