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Discrimination


Article exclusively contributed by Johnson Stokes & Master

Pregnancy and family status discrimination

by Hong Tran, Solicitor, Employment and Employee Benefits Group, Johnson Stokes & Master

Ms Lam, who had been employed as secretary to a director of Y T Cheng (Chingtai) Limited (YTC) since May 2001, gave birth to a son in August 2002. On 23 September that year, while she was still on maternity leave, Ms Lam was told by Mr Fung, YTC's human resources officer, that the director was concerned about her health and did not want her to continue to work. There had been complications during the pregnancy, and the director was suggesting she should stay at home to rest and take care of her son.

YTC proposed to pay seven days' wages in lieu of notice plus 10 weeks' maternity allowance, when Ms Lam reported for duty after her period of leave. After considering this, she pointed out that an employee whose contract was terminated during maternity leave was entitled to additional benefits. Mr Fung replied that her termination was "not an official one", and that he was merely telling her off the record what might happen.

On returning to work, Ms Lam was moved to a new workstation with no email access, printer or stationery. She was not asked to resume her original duties. When she asked Mr Fung if YTC did indeed plan to terminate her contract, he told her, again unofficially, that she should only expect to be there until the end of the week.

The next day, he added that if she was willing to submit her resignation, she would receive seven days' wages in lieu of notice and a good reference letter. Ms Lam refused to agree and, shortly afterwards, Mr Fung informed her she was to be dismissed because a customer had complained about her performance.

Ms Lam commenced proceedings in the District Court with the assistance of the Equal Opportunities Commission for damages under the Sex Discrimination and the Family Status Discrimination Ordinances. The latter ordinance concerns cases where someone has responsibility for the care of an "immediate family member".

In order to establish that discrimination had taken place as a result of her pregnancy and the birth of her son, Ms Lam had to show that she had been treated less favourably compared with a person who was not pregnant or had a different family status. The test for unlawful discrimination is "but for" the relevant attribute (here, pregnancy and family status), would Ms Lam have been treated in the way she was treated?

On a balance of probabilities, the Court decided that it was a "foregone conclusion" that Ms Lam's employment would be terminated soon after her return from maternity leave. Further, this happened because YTC's director apparently thought it was better that she did not continue to work. There was no doubt that Mr Fung was speaking in his capacity as the officer in charge of human resources when he originally told Ms Lam why her contract was to be terminated.

The Court found that Ms Lam had been unlawfully discriminated against in breach of the Sex Discrimination Ordinance and the Family Status Discrimination Ordinance. She was awarded damages of HK$75,000 for injury to feelings and HK$88,500 for loss of income. The Court did not explain how it arrived at the amount of HK$75,000 for injury to feelings. As to loss of income, the Court determined that she should be entitled to four and a half months' wages being the period it took for her to find another job plus the difference in salary between her job with YTC and her new job for a period of three months.

Q & A Unlawful discrimination
Q1 Can an employer terminate the contract of someone who is pregnant or is on maternity leave?
A1 The Employment Ordinance says that after an employee has given notice that she is pregnant, her contract of employment cannot be terminated, other than by way of summary dismissal. This applies from the date of notification until the end of her maternity leave or the date of cessation of pregnancy (other than by reason of birth). An employer is, however, entitled to terminate a pregnant employee's contract during the first 12 weeks of a probation period for reasons other than pregnancy.

Q2 Are all forms of discrimination unlawful in Hong Kong?
A2 No. Currently, only discrimination on the basis of disability, sex, pregnancy, marital status, family status and certain types of trade union activities is unlawful. Discrimination on the basis of any other attributes (e.g. race, religion or age) is not unlawful.

Q3 How long can I wait before making a complaint of unlawful discrimination?
A3 Proceedings for unlawful discrimination must be commenced within two years of the alleged discriminatory act.


Taken from Career Times 23 June 2006

(Last review date: 23 August 2013)


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

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