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Discrimination


Article exclusively contributed by Allen & Overy

Discrimination against a pregnant employee

by Judith Wong, consultant, Employment Law Group, Allen & Overy

In a recent pregnancy discrimination case, the Court of First Instance held that once an employee had established the primary facts of her claim, it was up to the employer to give a satisfactory explanation for any alleged mistreatment. A failure to do so might lead to a finding that pregnancy discrimination had occurred.

In this case, Ms Chan, who had been an account manager with a printing services company for more than three years, put forward evidence to show that her performance at work had been highly regarded before she became pregnant. However, she contended that the work environment changed and became difficult after her employer became aware of her pregnancy.

As examples, she said that she had been transferred from a profitable team to one with fewer and less important clients and, subsequently, was told to work on her own. This adversely affected her commission income. Instead of taking her pregnancy into account, the boss had apparently concluded that Ms Chan had performed poorly because she was pregnant, had regularly taken sick leave and, therefore, had failed to achieve sales comparable to the previous year. Ms Chan was later transferred to a division which focused on China, Macau and Taiwan. However, soon after her transfer, that division was closed down and Ms Chan was dismissed.

In total disregard of Ms Chan's health during pregnancy, the employer had even required her to report for duty when she was on sick leave after a near miscarriage. She was expected to work late hours when already eight months pregnant, and previously approved leave was cancelled without prior warning or notification, even when black rainstorm warnings were in effect. No other employee was treated the same way.

The Court held that the only reasonable inference to be drawn was that the employer wanted Ms Chan to experience particular pressure because of her pregnancy. The employer could adduce no evidence to show that other members of staff had been required to return to work when on sick leave. Ms Chan, though, was able to show that other employees were allowed time off during black rainstorm warnings and been able to take their annual leave without problem. The employer failed to provide an explanation for the difference in treatment.

The Court also found that the employer had victimised Ms Chan by putting unfair pressure on her after she said she would be making a complaint to the Equal Opportunities Commission (EOC). When she was transferred against her wishes, she had nevertheless filed the usual daily activity reports in the new department. The employer tried to use this as evidence that she accepted the transfer, when the case first came before the Labour Tribunal. As a result, Ms Chan stopped making written activity reports, but instead continued to make informal oral reports. The employer later used this as one of the reasons for dismissing her.

The Court found the employer guilty of both pregnancy discrimination and victimisation. Ms Chan was awarded total damages of HK$544,156.15. These represented loss of earnings of HK$164,505.20 for the time she was transferred to other departments and had lower income; loss of future earnings (the Court estimated that Ms Chan should be able to find alternative employment within six months) at HK$179,650.95; and injury to feelings at HK$200,000.

Q & A on pregnancy discrimination
Q1 My company operates sales counters in department stores and would never intentionally discriminate against pregnant employees. However, all staff must generate sales and if someone is off work when pregnant, their sales figures are inevitably affected. Would it be lawful for us to transfer pregnant staff to less busy counters?
A1 Even though an employer may not have intentionally discriminated against a pregnant employee, if an action amounted to less favourable treatment, it might be regarded as discrimination. Transferring staff to less busy counters when pregnant is likely to constitute discrimination irrespective of the employer's motive.

Q2 Since I became pregnant, my boss has started to criticise me for meeting clients before coming to the office in the morning. This has always been a common practice in our company, but the boss said the staff handbook makes it clear we should obtain prior approval. Is this discrimination against me?
A2 It may well be discrimination if the rule in the staff handbook has not been followed in the past and other employees have not been criticised. It may go to show that, but for your pregnancy, the employer would not enforce the provision in the staff handbook against you.

Q3 I would like to lodge a complaint of discrimination but I don't have money to fight it out in court. Will the EOC help me financially with legal proceedings?
A3 The EOC has the discretion to provide legal assistance. Sometimes, after considering the merits of a case, the EOC may refer it to law firms which may be willing to take it on for no charge and assist in obtaining legal aid.


Taken from Career Times 01 September 2006

(Last review date: 23 August 2013)


Disclaimer: The opinions expressed in this article are those of the contributor

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