Dismissed after cancer diagnosis? HK court settles disability discrimination claim

A Hong Kong District Court recently dealt with a case involving allegations of disability discrimination, harassment, and unlawful termination of employment.

The case centred around a foreign domestic helper who was diagnosed with cancer and subsequently dismissed by her employer.

The court's decision highlighted several key issues relevant to employers and HR professionals, including the importance of clear communication, proper documentation, and fair treatment of employees with medical conditions.

Background of the case

The case involved a foreign domestic helper who had been employed by a family in Hong Kong since January 2015. She worked under two successive employment contracts, with the second contract dated December 2016.

The helper lived in the employer's residence, along with the employer's husband and their two adult children.

On March 5, 2017, the helper was hospitalised and diagnosed with cancer of the cervix uteri, along with several other serious medical conditions. She remained in the hospital until March 31, 2017, and was granted sick leave until April 28, 2017.

During her hospitalisation, she underwent various treatments, including the insertion of drainage tubes and daily radiotherapy sessions.

The helper returned to the employer's residence on March 31, 2017. On April 24, 2017, she was readmitted to the hospital for further treatment and discharged on April 28, 2017. The employer terminated the helper's employment on April 30, 2017, which led to legal proceedings.

The importance of contemporaneous evidence

The court placed significant weight on contemporaneous evidence, particularly WhatsApp messages between the employer and her family members. These messages played a crucial role in establishing the timeline of events and the employer's decision-making process.

The judge emphasised that "contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility."

This highlights the importance for employers to maintain clear and accurate records of workplace issues and decisions. Such documentation can be invaluable in defending against potential claims of discrimination or unfair dismissal.

Poor performance vs. disability-related issues

The court examined the reasons behind the employee's termination. The employer claimed that the decision to dismiss the helper was made before her cancer diagnosis, citing poor performance and inappropriate behaviour as the primary reasons.

The employer presented evidence of ongoing performance issues, including incidents where the helper had disobeyed instructions or neglected duties.

One significant incident that prompted the termination decision was the discovery that the helper had taken and posted photos of herself at the employer's residence on social media. The employer considered this a breach of privacy and a violation of the employment rules.

The judge accepted this explanation, finding that:

"On the totality of the evidence before me, I accept [the employer's] evidence that she had found [the employee's] performance unsatisfactory and the discovery of the taking and posting of photos at the residence during a working day was the final straw."

This finding underscores the importance for employers to clearly document performance issues and address them promptly, separate from any health-related concerns that may arise later.

Hearsay evidence in employment disputes

According to the court, the case was complicated by the fact that the helper had passed away by the time of the trial. Much of the evidence presented on her behalf came from friends who did not have direct knowledge of the events.

This included allegations that the employer had mistreated the helper after learning of her illness, such as not providing sufficient food and not allowing her to use the washing machine.

The helper's estate also claimed that the employer had installed CCTV cameras to monitor the helper and had communicated with her only in writing after her hospitalisation. However, the court found insufficient evidence to support these claims.

The judge noted the limitations of such evidence, stating:

"Given the various internal inconsistency in [the witness's] evidence, inconsistency with the contemporaneous documents produced by herself, the hearsay nature of her evidence and apparent motivation to embellish the claimant's case probably out of sympathy to [the employee's] predicaments, I do not find [the witness] a credible and reliable witness."

This emphasises the importance of first-hand evidence and consistent testimony in employment disputes. Employers should be aware that hearsay evidence may be given less weight in court proceedings.

Challenges in proving discrimination claims

The case highlighted the difficulties in proving discrimination claims, particularly when relying on indirect evidence. The helper's estate alleged that the employer's treatment of the helper changed after her cancer diagnosis, including claims of being ignored and monitored via CCTV. However, the court found insufficient evidence to support these claims.

The judge considered various factors, including the timing of the decision to terminate employment and the employer's conduct after learning of the helper's illness.

The court examined whether there was a suitable comparator to determine if the helper had been treated less favourably due to her disability. Ultimately, the court concluded that the helper's disability was not a real cause for her dismissal.

Following proper termination procedures

The court's decision highlighted the importance of following proper termination procedures, even in cases where an employer believes they have valid grounds for dismissal.

The judge noted:

"Given the evident care that [the employer] and her family took to ensure that termination was in accordance with law, it is likely that they also received advice on not discriminating against [the employee] on grounds of her disability. It is unlikely that they would not provide [the employee] with sufficient food or indeed do other acts of mistreatment such as harassing, not allowing her to use the washing machine or not making alternative sleeping arrangements for her if they were plainly unsuited to her conditions."

This observation underscores the importance of seeking legal advice and following proper procedures when terminating an employee, particularly one with a known medical condition.

The court accepted that the decision to terminate was made before the employee's illness was known, noting, "I find that on a balance of probabilities [the employer] had decided to terminate [the employee's] employment on 13 February 2017." This underscores the importance of addressing performance issues in a timely manner.

The judge said, "I accept [the employer's] explanations on why execution of the decision to terminate [the employee's] employment was deferred when she and her family were informed of [the employee's] illness."

This highlights the need for careful consideration and proper procedures when terminating an employee, especially one with a known medical condition.

Ultimately, the court found that the worker’s estate failed to establish its claims against the employer. It then dismissed the case accordingly.