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3 conditions to prove direct and indirect discrimination
3 conditions to prove direct and indirect discrimination
2019-02-26
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A domestic helper alleged that her former employer had discriminated against her in contravention of the Disability Discrimination Ordinance (DDO). The claimant had a congenital deformity, since the three middle fingers of her right hand were partially fused together and were incomplete.
The claimant was summarily dismissed after two months of employment where she received no wages in arrears or in lieu of notice. The claimant said that the employer's family had subjected her to ill treatment and torture because of the deformity. She commenced proceedings for unlawful disability discrimination alleging direct and indirect discrimination.
The judge said that intention or motive is an unnecessary condition of liability and that it makes no difference whether the discriminatory treatment is applied deliberately or thoughtlessly.
Most importantly, he added that a dismissal is not discriminatory if summary dismissal is justified. In other words, summary dismissal can provide a complete defence in an action for discrimination if it is justified.
3 factors contributing to direct discrimination
The judge said that to prove direct discrimination the disabled employee must identify the following factors:
- the alleged discriminatory treatment;
- prove that it was on the grounds of disability;
- show that the treatment was less favourable than that given to another real person or a notional person without a disability or with the same disability.
3 factors contribution to indirect discrimination
The judgesaid that indirect discrimination occurs if three conditions are satisfied when an employer applies to a disabled employee a requirement also applied to a person without a disability:
- the employee must show that the proportion of people with a disability who can comply with the requirement is considerably smaller than the proportion of those without one;
- if the employer cannot show it is justifiable to apply the requirement to an employee irrespective of disability;
- the requirement is detrimental to the employee in that he or she cannot comply with it.
After analysing the credibility of the witnesses, the judge found on the evidence that the claimant's failure to pick up the employer's daughter from ballet class and from school was a serious breach of the contract of employment and justified summary dismissal. Accordingly, the employer's actions were not connected to or on account of the disability.
The claimant had alleged indirect discrimination because the employer made no allowance for her disability in requiring clothes to be hung on a drying rack outside the flat instead of in the kitchen. The judge found that it was not difficult to hang clothes outside and that nothing suggested only a small proportion of persons with a disability could perform this task. He also ruled that the requirement to hang clothes on the drying rack was justified and reasonable. Consequently, the claimant's case was dismissed.
Disclaimer: This article serves as the provision of general information and reference only. It is not intended to be served or interpreted as any legal advice in any occasion, at any cost. Please seek professional help if you have any relevant legal issue.
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