In C v The Chinese University of Hong Kong  HKDC 77, the Hong Kong District Court (Court) dismissed claims of unlawful disability discrimination based on a university’s discontinuance of a disabled student’s studies. Although this case relates to a claim in the education field, the judgment provides important lessons for employers.
The claimant, C, was a part-time postgraduate student studying at the Chinese University of Hong Kong (University). A University rule required a student to complete their programme within its “maximum study period” (MSP), which was four years in C’s case, subject to any extension the University might grant in special cases.
After the MSP expired, C applied for a two-month extension on the grounds of her disabilities, namely depression and generalised anxiety disorder.
Refusing the extension, the University, wrote a "Termination Letter" to C saying that, since the four outstanding assignments were long overdue (for periods ranging from three years to three months), it was not convinced she would be able to finish them by the new deadline.
The Termination Letter also said "pressure to complete all these assignments in such a short period of time, considering your recent medical history, would also not be in your best interests as a student.". The University discontinued C’s studies.
C claimed against the University under the Disability Discrimination Ordinance (DDO) for:
- Direct disability discrimination by discontinuing C’s studies;
- Indirect disability discrimination by applying the MSP rule to C;
- Victimisation by discontinuing C’s studies after she accused the University of disability discrimination;
- Direct discrimination by delaying in registering her on some courses;
- Disability harassment; and
- Breach of the Code of Practice on Education (COPE) by failing to formulate anti-discrimination policies and grievance procedures, etc.
The Court dismissed all the claims.
Regarding the discontinuance of C’s studies, the University contended that direct and indirect discrimination are mutually exclusive. The Court said a claimant can claim for both in the same action as long as they can prove the facts for both. But the issue did not arise in this case because the two claims actually relied on different facts.
In relation to the claim of direct disability discrimination in discontinuing C’s studies, the Court did not adopt the two-step approach in M v Secretary for Justice  2 HKLRD 298, namely, determining (a) first whether the complainant was treated less favourably than a suitable comparator, and (b) whether less favourable treatment was on the grounds of the complainant’s disability. In this case, the two questions were intertwined, while identifying a suitable hypothetical comparator was difficult and would unnecessarily complicate the matter.
So, the Court instead followed Shamoon v Chief Constable of the Royal Ulster Constabulary  ICR 337 and first answered why C was treated as she was. It found that the discontinuance of C’s studies was not because of C’s disabilities, but solely because the University considered that C would not be able to complete the outstanding assignments even within the extended deadline C had applied for.
The Court determined that the reference to C’s medical history in the Termination Letter was not a reason for terminating C’s studies. It merely highlighted that the pressure would particularly hurt C given her disabilities, not saying that C’s disabilities would make her unable to withstand such pressure to complete the assignments by the new deadline. The reference was not an additional reason but more like a consolation.
C also failed to establish the MSP rule was indirect discrimination. She adduced no statistics that the proportion of disabled students who could comply with the rule was considerably smaller than non-disabled students.
Neither could the Court reach that conclusion from its own knowledge and experience, because the four-year MSP already allowed two more years above the normal study period, and students unable to finish even within four years were also accommodated. Also, the rule was a reasonable means to achieve legitimate objectives, such as accommodating future students.
Having concluded that C's direct and indirect discrimination were unsustainable, the Court determined C's victimisation claim was also unfounded.
As for the delay in registration, it was not due to C’s disabilities, but additional time required to specially approve C’s enrolment in two courses, which were originally unavailable to her. There was no direct discrimination.
The Court also found no evidential basis for the harassment claim. The Court did not explicitly explain the result of the COPE claim, but cited a DDO provision that breach of the COPE was not itself unlawful, although the Court must consider the COPE, where relevant, in determining any question.
Lesson for Hong Kong Employers
The DDO contains a "deeming" section that provides that if an act is done for two or more reasons – one of which is the disability of a person, whether or not the dominant or substantial reason for the act – then the act is to be taken to be done for the disability of the person.
So, when dealing with an employee with a medical history (e.g., taken extended sick leave), employers should ensure that the sole reason for taking action or a step that may be detrimental to the employee is a legitimate reason. In some circumstances, it may pay to proactively set out and document these reasons (e.g., in a termination letter).
The full judgment is available here: https://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=141809&QS=%2B&TP=JU.