K AND OTHERS v. SECRETARY FOR JUSTICE

K AND OTHERS v. SECRETARY FOR JUSTICE

The court held that the defendant's refusals/dismissal were unlawful discrimination under s11 DDO because the departments failed to establish that the associate's disability produced a real, job-related risk to safety sufficient to bring the case within the s12(2) exception; a mere genetic risk or blanket policy excluding first-degree relatives was insufficient without individualised assessment (including multifactorial risk modelling and prodromal examination); where individualised assessment showed low adjusted risk (and no prodromal signs) the exemption did not apply and discrimination remained unlawful; accordingly declarations, damages and costs were awarded to the plaintiffs.

Citation
K AND OTHERS v. SECRETARY FOR JUSTICE
Parties
Plaintiff: K; Plaintiff: Y; Plaintiff: W; Defendant (sued on Behalf of Fire Services Department and Customs and Excise Department): Secretary for Justice
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
27 September 2000
Case Number
DCEO7/1999
Procedural Posture
Disability Discrimination in Employment (district Court Equal Opportunities Actions) / Judgment After Trial
Outcome
Judgment for plaintiffs K, Y and W. Court declared the departments' acts unlawful and awarded damages and costs.
Legal Topics
Definition of Disability and Associate Liability, Imputed and Future Disabilities, Section 12 Exceptions (genuine Occupational Qualification / Inherent Requirements), Genetic Risk Assessment, Burden of Proof and Individualised Assessment, Remedies and Quantum of Damages, Mitigation of Loss, Costs
Source Language
EN
Disability Discrimination Employment Law Administrative Law Human Rights Tort (compensatory Damages) Definition of Disability and Associate Liability Imputed and Future Disabilities Section 12 Exceptions (genuine Occupational Qualification / Inherent Requirements) +5 more

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Parties

K

Plaintiff

Y

Plaintiff

W

Plaintiff

Secretary for Justice

Defendant (sued on Behalf of Fire Services Department and Customs and Excise Department)

Procedural Posture

Disability Discrimination in Employment (district Court Equal Opportunities Actions) / Judgment After Trial

Legal Issues

  1. 1 Whether plaintiffs were discriminated against on the ground of their own disability or the disability of an associate
  2. 2 Whether a genetic risk constitutes a disability imputed to the applicant or a disability that 'may exist in the future' within the statutory definition
  3. 3 Whether the statutory exemption in s12(2) DDO applies because the associate's disability renders the applicant unable to meet the inherent requirement of safety

Ratio Decidendi

The court held that the defendant's refusals/dismissal were unlawful discrimination under s11 DDO because the departments failed to establish that the associate's disability produced a real, job-related risk to safety sufficient to bring the case within the s12(2) exception; a mere genetic risk or blanket policy excluding first-degree relatives was insufficient without individualised assessment (including multifactorial risk modelling and prodromal examination); where individualised assessment showed low adjusted risk (and no prodromal signs) the exemption did not apply and discrimination remained unlawful; accordingly declarations, damages and costs were awarded to the plaintiffs.

Court Disposition

Judgment for plaintiffs K, Y and W. Court declared the departments' acts unlawful and awarded damages and costs.

Orders

  • Declaration that Fire Services Department unlawfully refused to offer K employment as ambulance man on 25 March 1998 contrary to s11(1)(c) DDO
  • Declaration that Fire Services Department unlawfully refused to offer Y employment as fireman on 14 October 1997 contrary to s11(1)(c) DDO