By Arthur Chan

Hong Kong, 3 May 2023: A study by the Equal Opportunities Commission (EOC) has revealed high levels of workplace discrimination against employees with mental health issues. Further, many such individuals are reluctant to speak out about their unfair treatment, even though they know they are protected by anti-discrimination legislation.

The EOC’s report, Study on Perceptions of Stigmatization and Discrimination of Persons with Mental Illness (PMIs) in the Workplace, offers some alarming statistics. Of the PMIs canvassed, 78.5% felt discrimination against them was prevalent. Some 71.3% said they had “few opportunities for promotion”, while 67.5% believed “not getting hired because of mental illness” was an issue. Other examples of prejudice included “being paid less than others because of mental illness” (65.5%) and “being assigned to job duties, work location or work shifts that are worse than other employees” (60.2%).

Tellingly, 81.7% of their colleagues – that is, employees not considered to have mental health issues – agreed that discrimination against PMIs in Hong Kong was either very or quite prevalent. Some 55.7% of those questioned were worried PMIs would harm others, 46.5% said they would try to keep a distance from such workmates and 43.4% admitted they were afraid of being alone with them.

Such matters are covered by the Disability Discrimination Ordinance (Cap 487) (the “DDO”), which the EOC is tasked with enforcing. The DDO ensures PMIs are protected against disability discrimination, harassment and vilification in prescribed areas of activities, including employment. A total of 310 complaints lodged under the DDO between 2018 and 2022 were about psychiatric conditions, with 75% of these related to employment.

The definition of disability under the DDO includes a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour, and includes disabilities which previously existed but no longer do. Thus, individuals who currently have, or previously had, some form of mental illness are equally as protected under the DDO as people with other types of disabilities.

There are two types of discrimination: direct, when a person is treated less favourably due to their disability; and indirect, when a condition or requirement is applied to everyone but, in practice, affects people with a disability more adversely. The DDO also forbids harassment, such as conduct on account of a person’s disability likely to cause them offence or humiliation, and vilification, which includes inciting hatred or ridicule towards people with disabilities.

The study also showed only 12.5% of the PMIs believed either their current or previous employers had provided sufficient mental health support. Further, 48.7% revealed they had not expressed their needs to employers or supervisors because they were afraid of being labelled or discriminated against. On this note, many of the employers and supervisors interviewed by the EOC researchers admitted they did not have a written anti-discrimination policy or a formal system for reporting and handling discrimination-related complaints.

The EOC makes five recommendations for the government, employers and community organisations to improve mental health support in the workplace:

• Public education initiatives to promote understanding of disability discrimination and the DDO.
• More resources and assistance from the government to facilitate the development of anti-discrimination policies and measures for supporting PMIs.
• More awareness from employers to provide a mental health-friendly workplace, including policies that enable PMIs to attend medical appointments and apply for sick leave.
• Training workshops by mental health professionals to debunk common myths, promote mental wellbeing and improve communication skills.
• Assistance programmes by employers that effectively provide “mental health first aid” for staff members experiencing personal, mental or emotional problems. The government could consider supporting such an initiative with subsidies.

While Covid-19 and its fallout – quarantine, isolation, social distancing and economic hardship, to name just a few – have undoubtedly raised awareness of mental health issues, the EOC report illustrates there is considerable room for improvement, especially in the workplace. Employers should recognise the need to adopt best practices that factor in mental health concerns and avoid discrimination pitfalls.

Here at BC&C, we have an experienced Employment Law team with an extensive track record of dealing with workplace issues. Whether you are an employer or employee, feel free to contact us if you have any queries.

Arthur Chan is a Senior Associate with BC&C. He deals with Criminal Matters while also covering Civil and Commercial Litigation and handles cases involving personal injury and employment issues. He can be contacted at Arthur@boasecohencollins.com.