In our October 2010 e-bulletin we reported on recommendations by the Equal Opportunities Commission (EOC) for an Equal Opportunities Tribunal (EOT) in Hong Kong. The EOC has since refined its recommendations and passed them to the Hong Kong government. The Hong Kong judiciary has undertaken a review of how discrimination claims are handled. Importantly, the judiciary has rejected the EOC's key proposal that an independent EOT be set up to hear discrimination claims. Without the support of the judiciary it is fair to say that this proposal has stalled and is (for now) unlikely to come to fruition.
In March 2009 the EOC made recommendations to establish an EOT (the 2009 Recommendations). The crux of the 2009 Recommendations were as follows:
- the establishment of an EOT, presided over by current or former District Court judges, to deal with discrimination claims brought under anti-discrimination laws (for example, race, gender, disability and family status);
- the commencement of discrimination claims using specific and simplified claim forms and points of claim (rather than detailed statements of case);
- the greater promotion of conciliation in discrimination cases; and
- the implementation of new statutory rules to bring about an EOT with new procedural rules.
Besides the 2009 Recommendations, another impetus for reform came from a District Court judge in the case of Sit Ka Yin v Equal Opportunities Commission, unreported, Action No.11 of 1999 (27 October 2010). In that case the judge made constructive comments about the need to streamline discrimination claims and how they are drafted.
The EOC's Refined Recommendations
In the early part of 2011 the EOC refined its recommendations (the Refined Recommendations). It is fair to say that the Refined Recommendations appear to do little more than finesse the 2009 Recommendations; there are few significant changes.
The Judiciary Review
On 1 September 2011 the judiciary released a detailed report and consultation document titled: "Review on adjudication of equal opportunities claims by the District Court" (the Judiciary Review). The Judiciary Review makes a number of recommendations and is open for consultation until 31 October 2011. The Judiciary Review is a comprehensive review of how discrimination claims are dealt with in the District Court. It is also, perhaps, something of an "establishment" response to the EOC's Recommendations.
In short, the Judiciary Review supports simplifying how discrimination claims are prepared and greater case management of those claims at an earlier stage. Crucially, on the issue of the creation of a separate EOT within the judiciary, the judiciary is not supportive. The following quotes from the Judiciary Review are apt:
"1.7...While the Judiciary agrees that there is still room for improvement regarding the procedural rules and practice in the adjudication of Equal Opportunities claims in the District Court, the Judiciary objects to the proposed establishment of a specialized tribunal within the Judiciary to adjudicate Equal Opportunities cases." (emphasis added)
"3.53 As a matter of principle, the Judiciary does not support a proliferation of tribunals...(c) Specialized tribunals should only be established under very special circumstances. Exceptionally strong grounds need to be put forward in justifying the setting up of any specialized courts and tribunals within the Judiciary."
"4.1...We consider that the institutional framework works smoothly and we do not support the establishment of a specialized tribunal within the Judiciary to hear Equal Opportunities cases."
Comment – "a long shot?"
While the EOC receives hundreds of discrimination complaints, official statistics suggest that on average only ten discrimination claims a year have been filed in the District Court over the last five years. At present, such claims are dealt with by the designated judge in charge of the Equal Opportunities List of the District Court.
The 2009 Recommendations were made by the EOC just before the civil justice reforms (the CJR) to the High Court and District Court Rules came into effect in Hong Kong in April, 2009. The Judiciary appear to be of the view that many of the EOC's Recommendations can be and/or have been satisfactorily resolved by the CJR; in particular, better case management.
There does appear to be general support for the proposal that formal pleadings (statements of case) are not best suited to discrimination claims and should be replaced by more informal claim forms and response forms; in this regard, the Judiciary proposes to set up a Working Party. We can see this recommendation taking effect, together with the adoption of a Practice Direction for the case management of the early stages of discrimination cases.
Interestingly, few appear to question the right to legal representation in discrimination cases, irrespective of the forum; a right we (of course) support. Such cases can raise difficult points of law or evidence and carry significant reputational risk.
For those who wish to read the Judiciary Review and comment by 31 October 2011 it can be found at www.judicary.gov.hk (under the "What's New" link). The Judiciary Review is a fine piece of work but it is likely to disappoint the EOC. The EOC Chairperson is a former government "insider" and of late has been a constructive critic. Revealingly, in an interview with the "Hong Kong Lawyer" (the solicitors' official journal) published in August 2011 the Chairperson is reported to have said:
"... An Equal Opportunities Tribunal will help anti-discrimination work considerably. Even if it is a long shot, I will give it a go ..."
In light of the Judiciary Review an EOT is a "longer shot". However, as we wrote in our October 2010 e-bulletin, discrimination claims often arise in an employment context and employers still need to focus on claims prevention through good human resources policies and procedures (including staff training).
With or without an EOT, some discrimination claims are already receiving a high profile in Hong Kong. Witness court challenges on behalf of certain Mainland spouses of Hong Kong men to hospital obstetric charges and on behalf of certain domestic helpers with regard to the right of abode in Hong Kong; challenges that sooner or later are probably headed for the Court of Final Appeal (and, in the case of the latter, may be even "higher").
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