Legal update: Indirect Discrimination in Hong Kong: claimants need to prove that they are disadvantaged and why

In the UK case of Home Office (UK Border Agency) and Shafic Essop and Others, the Court of Appeal (“CA”) decided that it is necessary for the claimant to show the reason why the provision, criterion or practice (“PCP”) which it is claimed constitutes indirect discrimination, has disadvantaged the group as a whole and also the individual claimant.

Background

The claimants are civil servants from black and minority ethnic (“BME”) backgrounds and over the age 35. They alleged that they had suffered indirect discrimination due to the imposition of a requirement to pass a Core Skills Assessment (“CSA”) in order to become eligible for promotion. It was accepted that the requirement for all candidates for promotion to pass the CSA was a PCP under the relevant provision of the Equality Act which deals with indirect discrimination.  The claimants relied on statistical evidence showing that BME candidates and those over age 35 were significantly less likely to pass CSA than white and younger candidates. But there was no particular personal factor specific to any individual claimant that explained why members of the BME group were disproportionately more likely to under perform.

Court of Appeal’s decision

The CA rejected the claimants’ argument that it is not necessary in indirect discrimination claims for the claimant to show why the PCP has disadvantaged the group and the individual claimant.

The CA held that it is conceptually impossible to prove a group disadvantage without also showing why the claimed disadvantage is said to arise. In this case, the claimants argued that they have answered the why question since the statistical evidence show the group to be disadvantaged as its members are disproportionately more likely to fail the CSA than comparators who do not share the same protected characteristics.

The difficulty in this case was explained as to whether and how each claimant can also discharge the burden under section 19(2)(c) of the Equality Act, namely to prove that the individual claimant personally suffered that disadvantage (i.e. the same disadvantage to which the group is subject). The statistical evidence only shows that BME candidates suffer a proportionately higher failure rate than the white and younger comparators. Under the above provision, a BME claimant must prove the reason(s) why those BME candidates who are more likely to fail are so disadvantaged as a group, and then prove that he too suffers from the same disadvantage.

For example, a female employee asserting that a fixed and full-time work PCP disadvantages female employees as a group must prove why that is the case (e.g. a higher likelihood of part time working due to child care responsibilities) and that the same disadvantages applies to her (i.e. she is disadvantaged due to her childcare responsibilities and need for a part time working requirement).

It is also important to note that in principle it is open to claimants to rely on the statistics as evidence that each claimant was personally disadvantaged by the PCP in the same way as the group was as a whole. Such statistical evidence may prove facts from which, in the absence of any other explanation, the employment tribunal could decide that the discrimination case is proved.

Relevance to Hong Kong

In Hong Kong, it is also unlawful to discriminate indirectly. Indirect discrimination in each of the anti-discrimination ordinances looks at the effect of a condition or requirement on a particular category of individuals having a protected attribute (Sex, Race, Disability and Family Status).  As under the UK laws considered in the above case indirect discrimination arises if a person, generally an employer, applies or imposes a requirement or condition which he applies or would apply equally but the proportion of persons who can comply with it is considerably smaller than the proportion of persons without the attribute and the employer cannot show it is justifiable.

The definition was modelled after UK law but is slightly different and more restrictive. The UK definition has been amended in response to European initiatives to include “PCP”  which is broader than condition or requirement (as it also includes informal practices) but is otherwise very similar.

Indirect discrimination is a developing area in Hong Kong that has been raised and relied on in only a small number of cases. For example:

1.    in Kan Che Sing v Lucky Dragon Boat (Belvedere) Restaurant Ltd [2012] HKEC 1130, the plaintiff succeeded in his indirect discrimination claim against his employer as he was required to help lift wheelchairs up the stairs to a restaurant (i.e. the condition or requirement) when the employer knew that the Plaintiff could only use his right hand to lift wheelchairs due to previous injuries, caused by lifting wheelchairs.

2.    In M v Secretary for Justice [2007] HKEC 1271, the plaintiff who worked as an Administrative Officer (“AO”) for the government, claimed indirect discrimination against the government for applying to him the same assessment criteria (i.e. the requirement or condition) to which all other AOs were subjected, without making allowance for his disabilities or giving special assistance and accommodation to enable him to comply with those criteria. The plaintiff ultimately failed in his claim because the government successfully argued that the application of the requirement or condition was justifiable due to the demanding nature of the work and as a structured system for the assessment of the AOs was required as a result.

Conclusion

Following the position in the UK case it appears that the claimant in an indirect discrimination claim under Hong Kong law has to show not only that the group appears statistically disadvantaged by a “condition or requirement”, but also why the condition or requirement has actually disadvantaged the group and also the individual claimant. This is favourable to employers in Hong Kong as it seeks to deter undeserving claimants.

Employers should consider these issues when introducing policies and practices and regularly review existing ones to ensure that they do not constitute indirect discrimination.

Russell Bennett

For further information, please contact:
Russell Bennett
Partner | Email

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.