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ALLEN & OVERY
Article exclusively contributed by Allen & Overy

Pregnancy discrimination

by Judith Wong, Senior Associate, The Employment Law Group, Allen & Overy

Yuen Wai-han v. South Elderly Affairs Limited (2002) was the second pregnancy discrimination court case in Hong Kong. The first case, Chang Ying Kwan v. Wyeth (HK) Limited 2001, was reported by Career Times in November 2001. Once again, the employer has been found guilty of having treated the pregnant employee less favourably than it would have done if the employee were not pregnant.

Are you obliged to employ a pregnant job applicant?

Ms Yuen went for an interview with Mr Chan of South Elderly Affairs Limited for the post of part-time social worker. During the interview, she told Mr Chan that she was four months' pregnant. She was given the job and started working for the defendant.

Two weeks later, Mr Chan asked Ms Yuen if she was interested in the position of supervisor and if she knew how to handle applications for social welfare allowances on behalf of the home for the elderly's residents. She told him that she had not handled such applications before but understood the procedures. She was eventually offered the job but, just before reporting for duty, her contract was rescinded by the defendant.

Mr Chan said that the main reason for rescinding the contract was that Ms Yuen was inexperienced and did not know how to handle social welfare allowance applications. Furthermore, as a supervisor, she would have to take the lead in moving tables and chairs on a regular basis and that this position was therefore unsuitable for a pregnant woman.

Ruling and reasoning

The judge came to the conclusion that Ms Yuen's lack of knowledge in relation to social welfare allowance applications could not have been a factor or the only reason for the defendant to rescind the employment contract. This was mainly because, according to Mr Chan, the supervisor only had to explain social welfare allowances to the elderly and their families; the procedural matters would be handled by a clerk. Moreover, applications for social welfare allowances were not included in a supervisor's job duty list.

The judge found that, on balance, pregnancy was at least one of the reasons for the termination of the contract with Ms Yuen. The "but for" test is used to decide whether discrimination existed - in other words, whether or not a pregnant woman would have received the same treatment as others "but for" her pregnancy. The defendant's intention or motive to discriminate is not a necessary condition for liability.

Q & A on pregnancy discrimination
Q1 If it was genuinely believed that (a) some experience of handling social welfare allowance applications was crucial to the post of supervisor and (b) a pregnant employee would not be suitable for carrying out the physical aspect of the job, how could the defendant have avoided being guilty of pregnancy discrimination?
A1 The defendant should have compiled a list of selection criteria before undertaking any interviews and should have consistently applied these criteria to all job applicants. If undertaking physical work had genuinely been an important part of a supervisor's job, this should have been one of the clearly-stated selection criteria. During the interview stage, all applicants should have been asked to state their immediate availability to undertake all aspects of the job - including the physical aspect.
Similarly, if some experience of handling social welfare allowance applications was required for the job, it should have been included in the selection criteria. As the plaintiff would not have scored well against these consistent selection criteria, the defendant could have legitimately decided not to offer her the post.

Q2 Can I claim compensation for injured feelings?
A2 Yes, compensation for the monetary loss suffered by a claimant can include compensation for injury to someone's feelings. Damages for injured feelings may also be increased if the wrongdoer refused to mediate or settle in a timely manner. In addition, the court has the power to grant other remedies, including:
* Making a declaration that the wrongdoer has engaged in conduct that is unlawful and ordering him not to repeat or continue this behaviour;
* Ordering the wrongdoer to perform whatever acts are reasonable in order to redress any loss or damage suffered by the claimant;
* Ordering the wrongdoer to employ or re-employ the claimant;
* Ordering the wrongdoer to promote the claimant;
* Ordering the wrongdoer to pay the claimant punitive or exemplary damages; and
* Declaring that any agreements made in contravention of the anti-discrimination ordinance(s) are void.

Q3 Can an employer defend a discrimination case by showing that he did not intend to discriminate?
A3 No. It is perfectly possible to imagine a case where an employer did not intend to discriminate but is still found guilty of discrimination. For example, an employer could be guilty of pregnancy discrimination if he took an employee's pregnancy into account when he offered to transfer her to a "less stressful" position with fewer duties. Intention to discriminate would, at most, only affect the amount of damages awarded.


Taken from Career Times 25 July 2003

(Last review date: 23 August 2013)


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

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