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
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.
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