Covid as a disability in Hong Kong

In the recent landmark case of Burke v Turning Point Scotland, a Scottish Tribunal confirmed that "long Covid" amounted to a disability under the UK Equality Act 2010.

While the Scottish decision is not binding on the Hong Kong Court, it is one of the first decisions which looks at Long Covid through the lens of disability discrimination in the workplace and provides guidance to employers operating in the post-Covid world. 

Facts 

Mr Burke was employed by Turning Point Scotland until 2021 when he was dismissed for his continuing absence from work. He contracted Covid-19 in November 2020 with mild "flu like" symptoms initially, but subsequently developed severe headaches and symptoms of fatigue, which resulted in disturbed sleep, aches in the body, and inability to concentrate over an extended period, i.e. Long Covid. 

Mr. Burke lodged a claim against his employer for unfair dismissal and discrimination on the ground of disability and age. As Courts had not tested whether Long Covid amounted to a disability, it was agreed that the Tribunal would first consider in a preliminary hearing whether or not Mr Burke was, by reason of Long Covid, a disabled person under section 6 of the UK Equality Act 2010.

Section 6 of the UK Equality Act 2010 defines "disability" as follows:

A person has a disability if (a) that person has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on the person's ability to carry out normal day to day activities. 

Further, "substantial" means more than minor or trivial, and "long-term" means that the impairment has lasted for at least 12 months or is likely to last for at least 12 months. 

Given the narrow definition of what constitutes disability, the Tribunal had to review the evidence and decide whether each element of the definition is made out, i.e. that Mr. Burke suffered from a physical impairment, that the impairment had an adverse effect on his ability to carry out normal day to day activities (e.g. shopping, reading, watching TV, getting washed and dressed, preparing food, walking, travelling and social activities), and that such adverse effect is both substantial and long-term. 

In this case, the Tribunal decided on the evidence that Mr. Burke's long Covid conditions satisfied all of the elements, and therefore he was a disabled person under section 6 of the UK Equality Act. 

Covid or long Covid as a disability in Hong Kong 

It is worth noting that the definition of "disability" under the Hong Kong Disability Discrimination Ordinance (Cap. 487) ("DDO") is much wider than in the UK. Following the Australian regime, it covers:

a) total or partial loss of the person’s bodily or mental functions;
b) total or partial loss of a part of the person’s body;
c) the presence in the body of organisms causing disease or illness;
d) the presence in the body of organisms capable of causing disease or illness;
e) the malfunction, malformation or disfigurement of a part of the person’s body;
f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

It also includes a disability that (i) presently exists; (ii) previously existed but no longer exists; (iii) may exist in the future; or (iv) is imputed to a person. 

Against that background, the Hong Kong definition of disability could very well cover the kind of Long Covid symptoms experienced by Mr. Burke, without the need to show that those symptoms in fact affected his ability to perform day to day activities or were long-term or substantial. 

Although it has yet to be tested before the Hong Kong courts, there are strong arguments that contraction of Covid-19 could constitute a disability under the DDO, being "presence in the body of organisms causing or capable of causing disease or illness in the body".

On that point, the Equal Opportunity Commission ("EOC") issued two sets of Covid-19 related discrimination proceedings this year in the District Court on behalf of employees who were allegedly refused offer of employment / terminated due to Covid-19 infections. Those decisions will shed further light on treatment of Covid-19 as a disability in the Hong Kong context. 

What does this mean for employers managing employees with Covid / Long Covid?

The decision in Burke and the EOC's proceedings reinforce the need for employers to adopt a cautious approach when it comes to managing employees with Covid or Long Covid. 

As with any other sickness, employers in Hong Kong must not terminate an employee suffering from Covid / Long Covid on their sickness days in respect of which statutory sickness allowance is payable, other than for reasons justifying summary dismissal.  In addition, employers should take note of the effect of the Employment (Amendment) Ordinance 2022, which offers, inter alia, statutory protection to employees who are absent from work by reason of compliance with compulsory testing notice or compulsory testing order. We have written about the Amendment Ordinance here.

Bearing in mind that Covid / Long Covid is potentially a "disability" on top of a sickness, employers can potentially fall foul of anti-discrimination obligations if they treat an employee or potential employee infected with Covid-19 or suffering from long Covid less favourably than they would treat an employee who does not have Covid-19. Discriminatory acts may include:

• Withdrawing an offer of employment upon learning that the incoming employee is infected;
• Excluding the infected employee from training sessions or promotion opportunities;
• Dismissing the infected employee on the ground of his/her illness.

While there is a statutory caveat that the employers can discriminate where the discriminatory act is reasonably necessary to protect public health (s.61, DDO), the burden falls on the employer to show that this is the case.

Employers should keep their policies on treatment of employees or potential employees infected with Covid-19 under review to avoid being in breach of anti-discrimination obligations. Failing to do so can open themselves to costly litigation, damage to reputation, and damages payable to employees by way of compensation for all loss or damage suffered (including injury to feelings).

Our team at RPC are widely recognized as leading employment lawyers in Hong Kong. We are one of the few specialist employment law practices in Hong Kong and we act for both employers and employees on contentious and non-contentious matters.

Please do not hesitate to contact our Partner and Head of the Employment Practice in Hong Kong, Andrea Randall (andrea.randall@rpc.com.hk / +852 2216 7208) for any queries regarding the issues raised in this article or any employment law related queries you may have. 

All material contained in this article is provided for general information purposes only and should not be construed as legal, accounting, financial or tax advice, or as opinion to any person or specific case. RPC accepts no responsibility for any loss or damage arising directly or indirectly from action taken, or not taken, which may arise from reliance on information contained in this article. You are urged to seek legal advice concerning your own situation and any specific legal question that you may have.