Hong Kong court examines if medical condition led to job loss
A District Court in Hong Kong recently dealt with an employment discrimination case examining whether terminating an employee on sick leave constituted disability discrimination.
The case involved a senior executive who received a termination notice while on medical leave for General Anxiety Disorder (GAD).
The worker filed a claim under Hong Kong's Disability Discrimination Ordinance (DDO), arguing that his termination was directly linked to his medical condition.
The timing of events - receiving the termination notice just two days after submitting his medical certificate - became a central point of the legal proceedings.
The employer sought to have portions of the worker's claim struck out, arguing this was purely an employment matter that belonged in the Labour Tribunal rather than the District Court. This led to a detailed examination of how discrimination and employment laws intersect.
The worker's employment history showed he started as a program director in April 2018 and was promoted to global executive vice president commercial in November 2019. He claimed that during his employment, he faced working conditions that affected his health, including excessive hours and inability to take annual leave.
On 7 December 2022, he submitted a medical certificate diagnosing him with GAD and prescribing 14 days of sick leave. The employer issued a termination notice on 9 December 2022, while he was still on paid sick leave.
The CEO maintained they had decided to terminate the worker's employment in mid-November 2022 due to performance issues, stating they had verbally communicated this to him on 22 November 2022, before receiving his medical certificate.
The court addressed whether the District Court had jurisdiction over the case. The judgment stated: "It is correct that pure claims of breach of employment contract are within the exclusive jurisdiction of the Labour Tribunal. However, it is clear to me that in the present case [the worker's] claim goes further than a simple claim based on breach of employment contract."
The court explained why discrimination claims require different treatment: "Claims founded on tort are excluded by virtue of paragraph 3 of the Schedule to the Labour Tribunal Ordinance, Cap 25."
The worker sought various remedies, including damages for lost earnings and retention of his Phantom Equity Stock Option (PESO) benefits. The court found these claims were properly brought as part of the discrimination case.
The court rejected the employer's application to strike out portions of the claim, stating: "Reading the [notice of claim] as a whole and properly understood, in essence, [the worker] claims that the decision to terminate his employment after he was suffering from a disability amounted to constructive dismissal and a discriminatory act contrary to DDO."
Regarding the PESO benefits claim, the court noted: "If [the worker] succeeds in his claim based on disability discrimination in that the termination of his employment was contrary to s.11 of DDO, it is at least arguable that [the worker's] employment with [the employer] would have continued and he would have been entitled to his PESO entitlement."
The court ordered both parties to bear their own costs, noting there was no evidence the application was brought maliciously or frivolously. The case was allowed to proceed to a full hearing on its merits.
