Web view Managing Disability Related Workplace AbsenceManaging Disability Related Workplace Absence

download Web view Managing Disability Related Workplace AbsenceManaging Disability Related Workplace Absence

If you can't read please download the document

  • date post

    02-Sep-2020
  • Category

    Documents

  • view

    0
  • download

    0

Embed Size (px)

Transcript of Web view Managing Disability Related Workplace AbsenceManaging Disability Related Workplace Absence

DISABILITY DISCRIMNINATION ORDINANCE

Code of Practice on Employment (2011)

This Code is published in accordance with:

1. Government Notice No. 2159 of 2011; and

2. Resolution of the Legislative Council passed on 1 June 2011 and published in the Gazette on

3. June 2011 (Government Notice No. 3470 of 2011)

Foreword

The right to equality and non-discrimination in employment is a fundamental human right. To be able to work without discrimination is pertinent to persons with disabilities’ full and effective participation in the society.

On the basis of our enforcement experience accumulated for more than a decade, the Equal Opportunities Commission has now revised the Code of Practice on Employment under the Disability Discrimination Ordinance to provide more detailed explanation on the key legal concepts in the Disability Discrimination Ordinance (DDO), with abundant case illustrations to help readers understand its practical application.

We hope that the Code will serve as a useful tool and reference for employees and employers alike, enriching understanding of each other’s rights and responsibilities under the DDO.

Lam Woon-kwong

Chairperson, Equal Opportunities Commission

Table of Contents

Paragraphs

Chapter 1: Introduction 1.1 - 1.11 Purpose of the Code 1.2 Status of the Code 1.3 - 1.4 Application of the Code 1.5 - 1.7 Examples in the Code 1.8 - 1.11 Chapter 2: Application of the DDO in Employment 2.1 - 2.16 The scope of employment under the DDO 2.2 - 2.8 Working wholly or mainly outside Hong Kong 2.5 - 2.7 “In the course of employment” 2.8 Other employment related matters 2.9 - 2.16 Commission agents 2.9 Contract workers 2.10 - 2.12 Employment agencies 2.13 - 2.16 Chapter 3: Definition of Disability under the DDO 3.1 - 3.5 Defining disability under the DDO 3.3 - 3.5 Persons who do not have a disability currently 3.4 ≤ Past disability 3.4.1 ≤ Future disability 3.4.2 ≤ Imputed disability 3.4.3 Associates 3.5 Chapter 4: Discrimination under the DDO 4.1 - 4.28 Overview 4.1 - 4.11 Disability discrimination 4.1 - 4.2 Disability harassment and vilification 4.3 - 4.5 Discrimination by way of victimisation 4.6 - 4.7 Special measure 4.8 - 4.11 Direct discrimination 4.12 - 4.22 “On the ground of” – causal linkage 4.14 “But-for” Test 4.15 Act done for two or more reasons 4.16 Motive and intention not relevant 4.17

i

Disability Discrimination Ordinance

iv

Code of Practice on Employment

· Comparator in relevant circumstances and how comparison is made

4.18 - 4.20

· “Less favourable treatment” – concept of detriment 4.21 - 4.22

· Indirect discrimination 4.23 - 4.28

· Same requirement or condition 4.25

· Proportion of people who can comply 4.26

· Whether the requirement or condition is justifiable 4.27 - 4.28

Chapter 5: Inherent Requirement, Reasonable Accommodation and Unjustifiable Hardship

5.1 - 5.21

· Inherent requirement 5.3 - 5.14

· Capacity of the person in relation to the job – Consideration of all relevant factors

5.5 - 5.7

· “Inherent requirement” of a job 5.8 - 5.14

· Unjustifiable hardship 5.15 - 5.17

· Reasonable accommodation 5.18 - 5.21

Chapter 6: Managing Recruitment 6.1 - 6.39

· Consistent Selection Criteria 6.3 - 6.4

· Recruitment in general 6.5 - 6.11

· Analysing the nature of a job 6.8 - 6.10

· Genuine Occupational Qualification 6.11

· Advertising 6.12 - 6.14

· Accessible application process 6.15 - 6.20

· Shortlisting 6.21

· Arranging interviews 6.22 - 6.24

· Tests 6.25 - 6.28

· Interviewing 6.29 - 6.32

· Medical test and health screening 6.33 - 6.36

· Infectious disease 6.37 - 6.39

Chapter 7: Managing Disability Related Workplace Absence 7.1 - 7.44

· Absence and disability 7.4 - 7.6

· Employers’ right to administer sick leave 7.7 - 7.18

· Trends and patterns in taking sick leave 7.9 - 7.11

· Reasonable length of absence 7.12 - 7.16

· Sick leave certificates 7.17 - 7.18

· Medical examinations and reports 7.19 - 7.25

· Obtaining medical reports 7.22 - 7.25

· Health and safety considerations 7.26 - 7.36

· Infectious diseases 7.32 - 7.34

· Restricted duties and light work 7.35 - 7.36

· Workplace absence and disability harassment 7.37 - 7.44

· Managing resentful colleagues 7.37 - 7.39

· Sensitivity issue 7.40 - 7.44

Chapter 8: Managing Promotion, Transfer and Dismissal 8.1 - 8.21

· Terms of employment 8.3 - 8.8

iii

Disability Discrimination Ordinance

iv

Code of Practice on Employment

· Equal pay for equal work and equal pay for work of equal value

8.5

· Employee insurance benefits 8.6 - 8.8

· Promotion and transfer (access to opportunity and other benefits)

· Good practices for promotion (or transfer consideration)

· Dismissal (including any other forms of termination of employment)

8.9 - 8.14

8.13 - 8.14

8.15 - 8.19

· Guidelines on performance appraisal free of bias 8.20 - 8.21

Chapter 9: Disability Harassment and Vilification 9.1 - 9.18

· Disability harassment 9.3 - 9.9

· Determining unwelcome conduct 9.5 - 9.8

· “Reasonable Person” test 9.9

· Vilification 9.10 - 9.13

· Serious vilification 9.12 - 9.13

· Employee’s responsibility for disability harassment 9.14 - 9.16

· Employer’s and manager’s responsibilities 9.17 - 9.18

Chapter 10: Liabilities under the DDO and “Reasonably Practicable Steps”

10.1 - 10.16

· Employee’s liability 10.3 - 10.4

· Employer’s liability - Vicarious Liability 10.5 - 10.12

· “In the course of employment” 10.7

· “Reasonably practicable steps” as a defence to liability 10.8 - 10.12

· Principal’s liability 10.13 - 10.16

· Authority 10.15 - 10.16

Chapter 11: Being an Equal Opportunities Employer 11.1 - 11.29

· Avoid stereotypical assumptions about persons with disabilities

· Seek better communications with employees with disabilities

11.3 - 11.4 11.5 - 11.6

· Seek professional advice 11.7 - 11.10

· Equal Opportunities Policy 11.11 - 11.18

· Employee’s rights and responsibilities 11.18

· EO training 11.19 - 11.22

· Grievance handling procedures 11.23 - 11.25

· Person(s) appointed to handle discrimination issues 11.26

· Embracing workplace diversity 11.27 - 11.29

Chapter 12: Equal Opportunities Commission 12.1 - 12.19

· Role and functions 12.2

· Investigation of complaints 12.3 - 12.11

· Conciliation of complaints 12.9 - 12.11

· Legal assistance 12.12 - 12.17

· Right to file civil lawsuits 12.18 - 12.19

Sample Policy on Disability Equality

CAP 480

CAP 487

CAP 527

CAP 602

S 65 (1) & (11)

S 65 (12)

1.1 The Equal Opportunities Commission (EOC) is a statutory body responsible for the regulation and implementation of the anti-discrimination ordinances, namely the Sex Discrimination Ordinance, the Disability Discrimination Ordinance (DDO), the Family Status Discrimination Ordinance and the Race Discrimination Ordinance. Section 62 of the DDO stipulates the EOC’s primary function to work towards the elimination of disability discrimination, harassment and vilification. Pursuant to Section 65 of the DDO the EOC is vested with the authority to issue or revise codes of practice on areas where it deems appropriate for better performance of its function and where applicable to assist employers to take reasonably practicable steps to prevent discrimination in the workplace.

1

Chapter One

Introduction

Purpose of the Code

1.2 The DDO has been in effect for over ten years since 1996. In the past years, as the public gains better and broader knowledge of the provisions in the DDO, there have been developments in legal jurisprudence and an increase in the number of complaints lodged with the EOC in relation to the DDO. Relevant facts from complaints handled as well as cases decided in court reveal trends in certain human resources management practices common in the Hong Kong workplace, such as sick leave management and work injury issues. It is, therefore, timely to revise the code of practice on employment so that it continues to encourage and nourish a healthy partnership between employers and employees (and other concerned parties) on working towards an equitable workplace for all. The revised code interprets important concepts in the DDO in greater details and instills good practice suggestions for employers and employees to better understand their

2

Code of Practice on Employment

1

Disability Discrimination Ordinance

respective rights and responsibilities under the DDO and thus in turn respect and refrain from infringing the rights of others.

Status of the Code

1.3 This Code of Practice (Code) replaces the previous Disability Discrimination Ordinance: Code of Practice on Employment published by the EOC in January 1997.

1.4 Although the Code is not in itself an authoritative statement of the law and it does not create legal obligations, it is a statutory code that has been laid before the Legislative Council to provide recommendations for good employment procedures and practices. Non- c