Ss 8, 11 of SDO

The Complainant (C) was offered a job as a beauty consultant with a beauty service provider (R). Shortly after the interview, C realized that she was pregnant. C informed the human resources manager of R of her pregnancy, and was confirmed that she would still be hired if she could withstand the pressure. C then resigned from her previous employer.

C alleged that the manager of R had tried to persuade her to work on a freelance part-time basis on the day she attended R’s office to sign the employment contract. The manager explained that they worried if C could handle the work pressure.

C lodged a complaint for pregnancy discrimination against R. The complaint was settled through early conciliation after R to offer C a full time position.

Remarks

It is unlawful for an employer to discriminate against a job applicant on the ground of her pregnancy by changing the terms of employment.

Ss 8, 11 of SDO

When the Complainant (C) was offered a position with a company, R, she was promised to enjoy a 14-month remuneration package, including one month bonus and one month double pay, and yearly increment. C found herself pregnant in her first month of employment with R and passed the probation 3 months later.

C was told by her colleagues that R had delayed in paying bonus and confirming increment that year shortly before she proceeded on maternity leave. When she resumed duty from the maternity leave, she enquired with the administration of R about her bonus and increment arrangement. She alleged that she was told that she was not entitled to any bonus or increment as she had been pregnant during the period under review.

C said she did not have any performance issues, and as all other colleagues had received bonus and got increments, including one who joined R a few months later than C, C resigned and lodged a complaint of pregnancy discrimination against R.

The complaint was resolved through early conciliation after R agreed to pay C a monetary sum to show their care.

Remarks

It is unlawful to treat an employee in less favourable way than others on the ground of her pregnancy.

Ss 8, 11 of SDO

The Complainant (C) was offered a position as a manager with a financial company (R). She was requested to undergo a medical examination. On the day C went to R’s office to collect the notice of medical examination, she disclosed that she was pregnant. C alleged that R withdrew the offer consequently. Although R informed the agent which arranged for the recruitment later that the recruitment had been suspended, C did not believe it as she found R advertised for a similar job position after the withdrawal of the offer.

C lodged a complaint against R for pregnancy discrimination with the EOC. The case was settled through early conciliation after R agreed to pay C about two month’s basic salary of the job position she applied for.

Remarks:

It is unlawful for an employer to discriminate against a job applicant on the ground of her pregnancy by withdrawing a job offer to her.

Ss 5 and 11 of SDO

The Complainant (C) saw an advertisement for part-time beer promoters. He was interested in the job but the advertisement specified that the positions were open to female only.

C lodged a complaint with the EOC for sex discrimination against the company (R) recruiting the promoters. The case was settled through conciliation after R agreed to input C’s relevant personal information into its database of candidates for job matching purpose.

Remarks:

It is unlawful for employers or agents of employers to discriminate against job applicants on the ground of their sex, except where sex is a genuine occupational qualification of the job as prescribed by the SDO.

Ss 8, 11 of SDO

The Complainant (C) had worked for a trading company (R) as a merchandiser for a couple of years when she was pregnant. C suffered from threatened miscarriage and had taken some sick leave in the first few months of pregnancy. She alleged that R first suggested her to take no pay leave, as her absence had affected the business operation, which she refused. About one month later, R told her to take leave again. After negotiation, C agreed to take leave at 4/5 salary until the commencement of maternity leave.

C was transferred to another section when she resumed duty from maternity leave. C did not get any pay rise or bonuses as usual that year, and was terminated later. Her supervisor told her that he found her not suitable for the job and difficult to communicate with. The supervisor also told her that some customers had complained against her, but he did not provide further details about that.

C lodged a complaint with the EOC alleging R had discriminated against her due to her pregnancy by not giving her pay rise, bonuses and eventually dismissed her. R denied the allegations and explained that C was dismissed because of her performance. Both parties, however, agreed to settle the complaint through early conciliation. R agreed to pay C a sum approximately equal to 3/4 of her monthly salary.

Remarks:

It is unlawful for an employer to discriminate against an employee on the ground of her pregnancy by dismissing her or subjecting her to other detriments.

Ss 8, 11 of SDO and Ss5, 8 of FSDO

The Complainant (C) had been employed by a trading company (R) as a merchandiser for over 5 years when she was dismissed.

C alleged that since she informed R of her pregnancy, her colleagues had started making things difficult for her. She had talked to the director who took no heed of her complaints and seemed to condone the behavior of her colleagues.

At the end of her maternity leave, C applied for no-pay leave, as there was no one to take care of her new born if she resumed work. Her domestic helper could only report for duty 2 months later, and her mother had sustained a fall and injured her lower back. The director of R approved her application.

On the day C was supposed to resume work, the director sent her a message very early in the morning to tell her not to go back to the office as he would be leaving for a business trip the following day, and that business situation was not good at all. C did not see the message and returned to the office. The director saw her later on that day, and queried if she had read the message. He told C that there was no work for her that day as her previous job duties had all been assigned to other colleagues, which C disputed as a colleague had already handed over a client she previously handled back to her. He also said that business had declined and that C had caused him to lose a client. C did not agree with this, as the client in question was not lost due to C’s mistake but changes in its senior management. C offered to work part-time for the company until business improved, but was declined by the director. C was told to go home. The director said he would call her a few days later, which he never did. Finally, C received a message from the director to terminate her employment with R due to downfall in business. C did not agree that business had declined, as she knew that all employees got a pay rise that year. Although a client did not place orders anymore, the loss was made up by another client who had actually placed more orders. C also queried why she was chosen for dismissal but not other colleagues who had actually got less purchase orders than before.

C said that she was the first pregnant employee in the company since its establishment, and was the first merchandiser being dismissed.

She disagreed that she had any performance issues; otherwise she would have been dismissed before taking maternity leave. She said she got bonus as well as pay rise in the past two years, proving that she had no performance problems. C alleged that she had been dismissed because of her pregnancy and the responsibility to take care of her baby.

C lodged a complaint with the EOC against R for pregnancy and family status discrimination. The case was settled through early conciliation after R agreed to provide a reference and pay her a sum equivalent to about 1.2 months’ basic salary of C.

Remarks:

It is unlawful for an employer to discriminate against an employee on the ground of her pregnancy and/or family status by subjecting her to any detriment. The protection of the Sex Discrimination Ordinance extends beyond the period of pregnancy. Whether the employee is dismissed during the pregnancy or maternity leave period is not a main consideration. If pregnancy is a reason for the less favourable treatment, the act would be unlawful.

Ss 5 & 11 of SDO

The Complainant (C) had been employed as a bakery assistant in the bread production section of a fast food and bakery shop (R) for about two years when she was dismissed. There were two female workers in the bread production section when she was first employed. C became the only female worker in the bread production section a year later as the other female worker was transferred to the packaging section after work injury. Four months after being the only female worker in the section, C was dismissed. A manager told C that only male workers were needed for the bread production section. R also pointed out that C was un-cooperative, which was disagreed by C who said she had never had any problems with her colleagues.

C lodged a complaint with the EOC against R for sex discrimination. The case was settled through early conciliation after R agreed to pay C a sum equivalent to two months’ salary of C.

Remarks:

It is unlawful for an employer to discriminate against an employee by dismissing him/her on the ground of sex under the Sex Discrimination Ordinance.

Ss 8. 11 of SDO

The Complainant (C) was pregnant after she had been employed by the Respondent (R) as a salesperson for two months. Two days after she notified the manager verbally of her pregnancy, she suffered threatened miscarriage and took sick leave for about two months. She was terminated by R when she was about to resume duty. The manager initially explained that she was no longer needed as the company had sufficient manpower but later on told her that it was because her performance did not meet with the expectation of the company during the probation period. C disputed with the reason for her dismissal as she had not committed any major mistakes nor received any warning during the period.

C lodged a complaint with the EOC against R for pregnancy discrimination. The case was settled through early conciliation after R agreed to pay C a sum approximately equivalent to two months’ salary of C as terms of settlement for both her claims made under the Employment Ordinance and Sex Discrimination Ordinance.

Remarks:

It is unlawful under the Sex Discrimination Ordinance for an employer to discriminate against an employee on the ground of her pregnancy by dismissing her.

Ss 8, 11 of SDO

The Complainant (C) had worked for a bank (R) as an Assistant Manager for about four years when she was pregnant. She alleged that after notifying R of her pregnancy, she was presented with a poor performance appraisal with which she disputed. During the performance review meetings with her supervisors, she was repeatedly queried about her working ability during her pregnancy period, and requested to consider her career development. As a result of the poor appraisal, she did not get salary increment and year-end bonus.

C lodged a complaint with the EOC against R for pregnancy discrimination. The case was settled through early conciliation after R agreed to pay her a sum equivalent to three months’ salary of C. R also agreed not to disclose the job performance and the performance records of C to any persons or organisations without her consent nor communicate any disparaging or derogatory statements concerning C to anyone.

Remarks:

It is unlawful for an employer to discriminate against an employee on the ground of her pregnancy by subjecting her to detriment. Employers should adopt good management practice to prevent discrimination and promote equal opportunities in the workplace.

Ss 8, 11 of SDO and Ss5, 8 of FSDO

The Complainant (C) had been employed by an insurance company (R) responsible for car insurance sales at the counter for more than 12 years when she informed R of her pregnancy. She was posted to a clerical position five months later, which was close to the end of the year. The reason given by R for the re-posting being that since staff members at the counter were required to distribute calendars to customers, she might not be suitable to do the job as she was heavily pregnant. Although C disagreed that distribution of calendar was a physically demanding duty, she accepted the re-posting. Her income, however, was greatly reduced as she no longer earned commission, the amount of which was usually more than her monthly salary.

C was arranged to perform data entry duty after she returned to work from maternity leave. She was told that she was not suitable for sales work at the counter as she had gained weight. C had reservation about that as a person’s weight should have nothing to do with the performance of sales duties. Furthermore, there was a co-worker at the counter who was of a big build too.

C managed to lose some weight a month later, and expressed her wish to get back to counter sales job again. R refused the request as C might need to take leave to look after her baby, and not able to cope with the physically demanding sales duties. C was told that the company would consider her request one year later when her baby was older. C disagreed as she had never been absent from work since she resumed duty.

C felt being discriminated and resigned.

C lodged a complaint with the EOC against R for pregnancy and family status discrimination. The case was settled through early conciliation after R agreed to provide a written apology and pay her a sum equivalent to about three and a half months’ basic salary of C.

Remarks:

It is unlawful for an employer to discriminate against an employee on the ground of her pregnancy and/or family status by subjecting her to any detriment. Management decisions based on stereotyping may lead to unlawful discrimination and should be avoided.

Ss5, S6, S11 of SDO and Ss4, 10 of RDO

The Complainant (C) is an Indian man. He saw an advertisement for a job responsible for reception and sales published by a fitness service provider (R), and submitted an on-line application to R.

C received an email the same day from a director of R supposedly to her business partner but wrongly copied to him. In that email the director remarked that she could not imagine “an older Indian man fitting in”. C did not get the job which he believed was attributable to his race and sex.

Remarks:

C lodged complaints of race and sex discrimination with the EOC against R. The cases were settled through early conciliation after R agreed to pay C HK$ 5,000 as terms of settlement for both the complaints.

Ss 8 of SDO

The Complainant (C) worked as a beautician under training at a beauty and fitness company (the Respondent – R). One day, C was asked to try out a new beauty treatment machine. Out of the concern that the machine might have adverse physical effect on her, C informed her supervisor that she was pregnant. On the same day after lunch, C was dismissed by R. C’s manager told her that it was because of a customer complaint against her received a few days ago. . However, C felt that the dismissal was on the ground of her pregnancy instead of performance because other beauticians had occasionally been complained by customers but none of them were dismissed.

C lodged a complaint of pregnancy discrimination with the EOC against R. The case was settled through fast track conciliation after R agreed to give C a monetary sum equivalent to 1 month of C’s training allowance.

Remarks:

The Sex Discrimination Ordinance makes it unlawful for an employer to subject a woman to a detriment including dismissing her on the ground of her pregnancy.

Ss 5 & 11 of SDO

The Complainant (C) was a nurse of a hospital (the Respondent – R), working in the operation theatre on probation for three months. In the mid of the probation period, C was informed by R that he would be dismissed on the completion of his probation. C was told that since most of the patients undergoing surgeries were female, a male nurse would cause embarrassment to the patients as well as difficulties in assigning duty rosters to R.

C lodged a complaint of sex discrimination with the EOC against R. Although R disputed that sex was the reason for the dismissal, R agreed to settle the complaint through fast track conciliation. R agreed to give C a lump sum monetary payment approximately equivalent to C’s two month’s salary and a reference letter.

Remarks:

The Sex Discrimination Ordinance makes it unlawful for an employer to discriminate against a job applicant or an employee on the ground of sex, except where sex is a genuine occupational qualification for the job. To claim the exception, employers must prove that the job can only be done by a particular sex under circumstances set out by the SDO, e.g. to preserve decency and privacy.

Ss 5 & 11 of SDO

The Complainant (C), in response to a job advertisement by a paging operator company (“company”), applied for the job by providing his resume and personal information including his sex.

C went to the company to enquire for his application a few days later, and a staff member told C that they would only hire females for this post. C felt that he was refused the interview opportunity because he was a male.

C lodged a complaint of sex discrimination with the EOC against the company. The case was settled through fast track conciliation after the company agreed to offer C an interview and undertook not to refuse male applicants for such post in the future.

Remarks:

The Sex Discrimination Ordinance makes it unlawful for an employer to discriminate against a job applicant or an employee on the ground of sex. However, if a person's sex is a genuine occupational qualification (GOQ) for the job, it is then not unlawful. That is, if the job can only be done by a male or a female. This is not the same as the employer thinking that males are not suitable as clerks or women as managers. The GOQ must show that the job can only be done by a particular sex for essential reasons. For example, a retirement home may want to hire female attendants to help with providing intimate care to female retirees.

Ss 8 of SDO

The Complainant (C) was employed as the Recruitment Manager for the Respondent (R). One week after C commenced her employment with R, C informed R that she was 7 weeks pregnant. C was dismissed one week later with immediate effect. R reasoned that C’s pregnancy made her unsuitable for the job which required business traveling to the Mainland for around 25% of C’s working time. This is despite of C’s reassurance to R that her health condition was good enough for such traveling.

C lodged a complaint of pregnancy discrimination with the EOC against R. The case was settled through fast track conciliation after the company agreed to give C a monetary sum equivalent to 3.5 month of C’s salary.

Remarks:

The Sex Discrimination Ordinance makes it unlawful for an employer to subject a woman to a disadvantage or dismiss her on the ground of her pregnancy.

Ss 8 of SDO

The Complainant (C) worked as a health assistant of an elderly residential home (R) for more than two years. In August, C verbally informed her employer that she was pregnant. In the following February, C was informed that her contract would not be renewed. R reasoned that the non-renewal of contract was due to C’s past performance issues as well as C’s earlier indication that she would not like to renew the contract, for C needed to take care of her baby. C felt that the non-renewal of contract was on the ground of her pregnancy and she disputed the reasons given by the employer. C alleged that R had remarked that it would be dangerous for C to continue to do her job during her pregnancy. C denied that she had indicated she would not like to have her contract renewed.

C lodged a complaint of pregnancy discrimination with the EOC against R. Parties’ attempt to settle the case through fast rack conciliation was not successful and investigation was conducted into the case. After investigation, EOC recommended that the case be resolved by way of conciliation as there were disputes of facts. Parties finally settled the case after the employer agreed to give C a monetary sum equivalent to 1.5 month of C’s salary.

Remarks:

The Sex Discrimination Ordinance makes it unlawful for an employer to subject a woman to a disadvantage or dismiss her on the ground of her pregnancy.

Ss 8 & 13 of SDO

The Complainant (C) was a contract administrative assistant employed by a bank (the principal - R) recruited through a contractor (her direct employer) on a contract renewable every six months. C served her pregnancy notice towards the end of the second contract period, and her contract was renewed for another six months. However, at the end of the third contract period while she was about to start her maternity leave, C was informed by her direct employer that R had decided not to renew her contract. C was further informed that R needed to have a replacement to cover C’s position during her maternity leave, and if her contract was to be renewed, R would have two headcounts for one position during that period of time.

C lodged a complaint of pregnancy discrimination with the EOC against R, the principal. The case was settled through fast track conciliation after the principal agreed to give C a monetary sum equivalent to approximately 9 month of C’s salary.

Remarks:

The Sex Discrimination Ordinance makes it unlawful for a principal to terminate the service of a contract worker on the ground of her pregnancy.

S8 of SDO

The Complainant (C) is a part-time tutor at a language learning centre. Since C notified the Respondent (R), C’s employer, of her pregnancy, her arranged working hours were decreased gradually and dropped to none in a few months time. During this period of time, there were parents requesting C to give their children classes and C claimed to have notified R on such requests every single time. R dismissed C finally, claiming that the dismissal was due to various reasons including the diminishing of business and C’s breach of non-competition clauses in her contract. Meanwhile, R started a recruitment exercise for a new tutor. C felt her dismissal was on the ground of her pregnancy instead of the reasons given by R.

C lodged a complaint of pregnancy discrimination with the EOC against R. The case was settled through fast track conciliation after the company agreed to give C a monetary sum equivalent to 1.5 month of C’s salary.

Remarks:

The Sex Discrimination Ordinance makes it unlawful for an employer to subject a woman (including an employee employed on a part-time basis) to a disadvantage or dismiss her on the ground of her pregnancy.

S8 of SDO

The Complainant (C) worked for Respondent (R) as a merchandiser. C alleged that R treated her unfairly during her pregnancy and dismissed her right after her maternity and annual leave.

C lodged a complaint of pregnancy discrimination with the EOC against R. The case was settled through conciliation after R agreed to issue apology and reference letters, and to provide monetary compensation equivalent to C's two months' salary and six-month bonus pay.

Remarks:

The Sex Discrimination Ordinance (SDO) makes it unlawful for an employer to subject a woman to a disadvantage or dismiss her on the ground of her pregnancy.

S11 of SDO

The Complainant (C) worked for Respondent (R), a cleaning services company. C alleged that R dismissed her on the ground of her sex because the company wanted to hire a male cleaner.

C lodged a complaint of sex discrimination with the EOC against R. The case was settled through conciliation after R agreed to provide monetary compensation equivalent to C's two months' salary, calculated based on the new salary level after the statutory minimum wage came into effect.

Remarks:

The Sex Discrimination Ordinance (SDO) makes it unlawful for an employer to subject a person to a disadvantage or dismiss him/her on the ground of the individual's sex.

S8 of SDO

The Complainant (C), a health care assistant, alleged that the Respondent (R), her employer, refused to award her bonus pay for 2009 because of her pregnancies over the previous years. C had taken maternity and pregnancy-related sick leaves for her last pregnancy.

C lodged a complaint of pregnancy discrimination with the EOC against R. The case was settled through conciliation after R agreed to back-pay her 2009 bonus and transfer C to another clinic.

Remarks:

The Sex Discrimination Ordinance (SDO) makes it unlawful for an employer to subject a woman to a disadvantage or dismiss her on the ground of her pregnancy. Discretionary bonus pay can be controversial in complaint cases. In assessing whether the refusal to award discretionary bonus pay amounts to discrimination, the EOC will assess the rationale and justifiability of the criteria for the bonus pay, and that the rationale for bonus pay should be based on merit and not on one’s sex, pregnancy, and marital status.

S8 of SDO

The Complainant (C) worked for the Respondent (R) and became pregnant during the course of her employment. During her pregnancy, C alleged that R subjected her to unfair treatment on the ground of her pregnancy with the aim of forcing her to resign. These treatments included the cancellation of existing allowance and benefits, requests to travel to Mainland China and Macau without proper arrangements, comments of ridicule in emails, and requests to perform heavy duty tasks despite her pregnancy.

The case was settled through conciliation after R agreed to issue a reference letter for C and to arrange for C’s supervisor to issue a personal letter of apology.

Remarks:

The Sex Discrimination Ordinance (SDO) makes it unlawful for an employer to subject a woman to a disadvantage or dismiss her on the ground of her pregnancy.

S8 of SDO

The Complainant (C) worked for the Respondent (R) as a restaurant manager. C alleged that R terminated her employment after her maternity leave due to her pregnancy.

C lodged a complaint of pregnancy discrimination with the EOC against R. The case was settled through conciliation after R agreed to compensate C with a sum equivalent to five months’ salary for C.

Remarks:

The Sex Discrimination Ordinance (SDO) makes it unlawful for an employer to subject a woman to a disadvantage or dismiss her on the ground of her pregnancy. While the dismissal of employees during their pregnancy may be an obvious form of discrimination, the dismissal of women upon their return from maternity leave is less obvious. However, if the staff would not have been dismissed had she not been pregnant and gone on maternity leave, then the dismissal may be unlawful.

S11 of SDO

The Complainant (C) worked for the Respondent (R), a cosmetic company, as a perfume consultant. C alleged that, following the company’s new staffing policy, perfume consultant posts were to be held only by male colleagues. Accordingly, she was transferred to a new role as a beauty advisor, in which she received less commission. As a result, C resigned from R.

C lodged a complaint of sex discrimination with the EOC against R. The case was settled through conciliation after R clarified that C’s job transfer was not based on the consideration of her gender. R offered to re-hire C, but C turned down the offer with thanks.

Remarks:

The Sex Discrimination Ordinance (SDO) makes it unlawful for an employer to subject a woman to a disadvantage or dismiss her on the ground of her sex, except when a person's sex is a genuine occupational qualification (GOQ) for the job. Since the essential job nature of being a perfume consultant does not call for a specific sex, the use of GOQ as a reason for claiming exception is not valid.

S11 of SDO

The Complainant (C) alleged that a frontline staff member of the Respondent (R) had refused to accept his application for the post of salesperson at a branch of R on the ground of his sex. R is a food product company with a few branches in different districts in Hong Kong.

C lodged a complaint of sex discrimination with the EOC against R. The case was settled through conciliation after R agreed to apologize and to remind its frontline staff members of the relevant provisions under the SDO about recruitment.

Remarks:

It is unlawful under the Sex Discrimination Ordinance (SDO) for employers to single out men only, or women only, for a job. They can only do so in exceptional circumstances where being a man or being a woman is a genuine occupational qualification (GOQ) for a particular job. GOQ applies only when the essential nature of the job requires a person of a particular sex for reasons of physiology, or in dramatic performances or to preserve privacy and decency. Since the job nature of a salesperson in R’s branch calls for no specific sex, GOQ would not be a valid reason for rejecting someone because of their sex.

S8 of SDO

The complainant (C) worked at a manufacturing company (R) for 12 years. She enjoyed a good working relationship with everyone in the office and never faced any problem with the management during her service. However, when C returned from maternity leave she was dismissed from her job. She also recalled that her boss had once commented that she looked like a pig when she was pregnant.

When C confronted her boss about the dismissal, he cited economic downturn as the reason for her dismissal and denied it had anything to do with her pregnancy. However, her boss refused to accept other options suggested by her and her colleagues, such as retaining her for reduced salary or by accepting the resignation of another staff of same level, or reducing the salary of all staff.

Later C lodged a complaint of pregnancy discrimination against R with the Equal Opportunities Commission (EOC). The case was resolved through early conciliation after R agreed to pay one year’s salary to C.

Remarks:

The Sex Discrimination Ordinance (SDO) makes it unlawful for an employer to subject a woman to a disadvantage or dismiss her on the ground of her pregnancy. While the dismissal of employees during their pregnancy may be an obvious form of discrimination, the dismissal of women upon their return from maternity leave is less obvious. However, if it is clear that the staff would not have been dismissed had she not been pregnant and gone on maternity leave, then the dismissal may be unlawful and a complaint can be lodged.

S11 of SDO

The Complainant (C), a general worker of a restaurant (R), resigned from her job after six years of employment. She was later re-employed by R. But her employment was terminated after three months, and R recruited a man in her place. When asked, her supervisor told C that she was dismissed because of the Head Chef’s refusal to have female staff in the kitchen.

C lodged a complaint with the EOC alleging sex discrimination. The case was resolved through early conciliation. R agreed to reinstate C into her previous position with changes in duty hours but C declined the offer and demanded monetary compensation instead. The case was settled after R agreed to pay C an amount equivalent to C’s half-month salary.

Remarks:

It is unlawful for a person, in relation to employment, to discriminate against an employee on the ground of his/her sex by dismissing him/her or subjecting him/her to any other detriment. A person who makes the discriminatory decision or instructs others to carry out an act of discrimination is personally liable under the law.

S8 of SDO

The Complainant (C) was an assistant merchandiser in a company (R). R terminated C’s employment a few days after she returned from her maternity leave citing business slowdown. She was also not provided with the bonus payment, which was given to her colleagues. When C asked her supervisor, she was informed that her bonus payment was deducted for taking maternity leave and other frequent leave related to antenatal checkups.

C lodged a complaint of pregnancy discrimination with the EOC. The complaint was resolved through early conciliation after R provided monetary compensation in a sum equivalent to C’s one and a half months’ salary.

Remarks:

According to the Sex Discrimination Ordinance (SDO), pregnancy discrimination occurs if a person treats a woman less favourably because of her pregnancy. Under the SDO, it is unlawful for an employer to subject a woman to a disadvantage such as not offering pay rise or bonus consistent with what other employees receive, or dismissing her upon return from maternity leave. Employers can prevent pregnancy discrimination by having clear and consistent policies on prenatal checkup and maternity leave, staff recruitment, transfers, performance appraisals, pay rises and bonus system.

S8 of SDO

The Complainant (C) used to work for a furniture manufacturer (R). She informed R about her pregnancy and took three months’ maternity leave. A week after she resumed work, C was handed over the letter of redundancy and dismissed from work.

C claimed R did not have any need for redundancy programme and lodged a complaint with the EOC alleging R of pregnancy discrimination. The case was settled through early conciliation after R agreed to provide a good reference letter and a monetary compensation which was equivalent to C’s half-month’s salary.

Remarks:

According to the Sex Discrimination Ordinance (SDO), pregnancy discrimination occurs if a person treats a woman less favourably because of her pregnancy. Under the SDO, it is unlawful for an employer to subject a woman to a disadvantage such as not offering pay rise or bonus consistent with what other employees receive, or dismissing her upon return from maternity leave. Employers can prevent pregnancy discrimination by having clear and consistent policies on prenatal checkup and maternity leave, staff recruitment, transfers, performance appraisals, pay rises and bonus system.

S11 of SDO

The Complainant (C) joined a company (R) as a clerk. But soon after, she was informed by her supervisor that the employer wanted to hire a male clerk and dismissed her. Upon her dismissal, C learned from her former colleagues that R had recruited a male clerk in her place.

C lodged a complaint of discrimination on the ground of sex with the EOC against R. Although C admitted during conciliation that she had refused to perform accounting tasks as requested by her supervisor, she claimed that she believed the primary reason for her dismissal was her sex. The case was settled through conciliation after R agreed to provide C with a letter of apology.

Remarks:

It is unlawful under the Sex Discrimination Ordinance to discriminate against an employee by dismissing him/her or subjecting him/her to any other detriment on the ground of that person’s sex. Although there could be many reasons for dismissal, if sex is one of the reasons for a less favourable treatment, it could constitute sex discrimination.

S8 of SDO

The Complainant (C) worked as a senior administrator at a company providing security systems (R). When C went on maternity leave, R recruited another administrator to take up C’s responsibilities during her absence. C claimed that when she resumed work after maternity leave, she was asked to resign and get a good reference letter in return, or be dismissed since R could not afford to keep two administrators.

C lodged a complaint of pregnancy discrimination with the EOC against R. The case was settled through early conciliation after R agreed to pay a sum almost equal to C’s two months’salary.

Remarks:

It is unlawful under the Sex Discrimination Ordinance (SDO) to discriminate against a woman by dismissing her on the ground of her pregnancy. Employers have to be able to provide performance evaluation if an employee is dismissed on the ground of poor performance. Employers should maintain proper performance evaluation records.

S11 of SDO

The Complainant (C) was in lookout for a job when he saw a recruitment advertisement seeking a female candidate posted outside a shop (R). Since the advertisement mentioned female candidates specifically, C claimed that he could not apply and was thus deprived of the opportunity of a job interview.

C lodged a complaint with the EOC alleging sex discrimination against R. The case was settled through early conciliation after R agreed to provide walk-in interview opportunity to C. Both sides were clear that the interview opportunity did not guarantee the job.

Remarks:

It is unlawful under the Sex Discrimination Ordinance (SDO) for employers to single out men only, or women only, for a job. They can only do so in exceptional circumstances where being a man or being a woman is a genuine occupational qualification (GOQ) for a particular job. GOQ applies only when the essential nature of the job requires a person of a particular sex for reasons of physiology, including physical strength or in dramatic performances, or to preserve privacy and etc.

S8 of SDO

The Complainant (C) worked as a clerk at a shipping company (R1). Since C’s direct supervisor was based outside Hong Kong, a manager of R’s sister company (R2) was responsible for dealing with C on human resources matters. A year after joining office, C was made permanent staff. Seven months becoming permanent, C informed R2 about her pregnancy. Around the same time she made a mistake at work. C claimed that since then R2 began picking up on her mistakes and also digging her past mistakes. Although C agreed that she had made mistakes before pregnancy, she said she was never warned by R1 or R2.

C alleged that R2, on behalf of R1, asked her to sign on new contract documents which divided her employment into two periods with the second contract ending after her maternity leave. R2 told her that her contract would not be renewed upon the conclusion of the second contract. C refused to sign on the new contracts and went on maternity leave. A day after C resumed work, she was made redundant and dismissed from work. C lodged a complaint with the EOC alleging of pregnancy discrimination. The case was resolved through early conciliation after R1 agreed to provide monetary compensation worth 6 months’ salary, a reference letter and a letter of apology.

Remarks:

According to the Sex Discrimination Ordinance (SDO), pregnancy discrimination occurs if a person treats a woman less favourably because of her pregnancy. Employers have to take note of their different practices in handling staff prior to and after pregnancy. Any unfavourable treatment meted to pregnant staff could be inferred as unlawful pregnancy discrimination.

S8 of SDO

The Complainant was formerly a site clerk with the Respondent, a building contractor. She alleged that the Respondent had discriminated against her on the ground of her pregnancy by (a) rejecting her application to join an overseas company trip while she was pregnant; and (b) terminating her employment immediately after her return from maternity leave on a shorter notice period than the contractual terms.

The Respondent denied the allegations and claimed the overseas trip was a team-building exercise with limited vacancies. It involved a lot of physical activities that were considered unsuitable for pregnant woman, and the Respondent was able to show that it did make enquiries with the travel agent and the airline regarding the Complainant's suitability to travel given her condition at the time. The Respondent also claimed the Complainant did not have adequate annual leave balance to cover the trip and was not selected to go together with a few others. However, the Respondent could not explain satisfactorily why three employees with insufficient annual leave balance were allowed to participate. As for the dismissal, the Respondent claimed it was due to the completion of a project and that the Complainant had agreed to a shorter notice period. The Complainant disputed this and claimed other site clerks remained employed despite the reduced volume of work.

The parties agreed to settle their dispute through conciliation. The Respondent apologised in writing for any misunderstanding concerning the overseas trip and paid the Complainant a nominal sum to compensate for the shorter dismissal notice and for causing injury to feelings.

Remarks:

Under the Sex Discrimination Ordinance, it is unlawful to treat a pregnant staff less favourably than those who are not pregnant. When designing company activities, the selection criteria for employees to participate should be made known and consistently applied.

S8 of SDO

The Complainant joined the Respondent, an electronic manufacturer, as merchandiser in 1997. She took maternity leave between July and September 2004 and during this period, a temporary staff was hired to take up her duties. On the first day the Complainant resumed duty from maternity leave, the Respondent dismissed her without giving any reasons and the temporary staff took up the Complainant's position. The Complainant alleged that the dismissal was based on her pregnancy.

The Respondent claimed that the performance of the Complainant fell short of expectation and she did not have good working relationship with other colleagues. They had planned to terminate her but would be in breach of the labour law since by then the Complainant had served her pregnancy notice. The termination was hence postponed until the Complainant returned from maternity leave. The temporary staff was found to be more capable and retained to replace the Complainant. The Respondent had never given any warnings to the Complainant regarding her work and was not able to demonstrate her performance problems. Both parties agreed that work-related clashes between different sections were not uncommon.

The parties agreed to settle their dispute through conciliation. The Respondent agreed to pay two months' salary to the Complainant as settlement term.

Remarks:

Under the Sex Discrimination Ordinance, it may be unlawful to dismiss an employee on the first day of her resumption of duty from maternity leave if the reason for dismissal can be attributed to her pregnancy. Whether the employee is pregnant at the time of the dismissal may be immaterial.

Register Ref: SDO/1/May/2003

S11 of SDO & S11 of DDO

The Complainant (C) had worked as a waitress for the Respondent Club (R1) for almost 9 years before she was summarily dismissed in January 2003. C alleged that her supervisor (R2) frequently scolded her for her inability to perform heavy duties. R2 also insisted that C clean dirt on the floor with pieces of cloth in a squatting posture instead of using broom. As she needed to wear a skirt at work, C found it unacceptable to expose her thigh in carrying out the duty. The instruction was considered denigrating to C as a female. C's request to wear trousers at work was refused. C considered R2 subjected her to detriment on account of her sex. On one occasion, her request to take leave for medical treatment for work injury was also rejected. C considered that R1, being the employer of R2, should be vicariously liable for the alleged discriminatory acts done on account of C's disability.

Rs denied the allegations of sex and disability discrimination. Although there were arguments between C and R2 over the moving of heavy objects and methods of cleaning, the issue of sex discrimination was not raised. C was not barred from seeking treatment. C was dismissed for misconduct.

The matter was settled by conciliation in May 2003. R1 agreed to pay C $15,000 as full and final settlement of the complaints. R2 gave a verbal apology for distress caused to C, if any.

Remarks:

What seems to be even-handed work instructions and dress code for both sex may expose staff of a particular sex to detriment in a disproportionate manner. They should be set with consideration given to the impact on staff of different genders'.

Register Ref: SDO/6/April/2003

S11 of SDO

In March 2003, the Complainant (C) read a recruitment advertisement for a senior security officer by the Respondent (R), a security services company. When C telephoned R to arrange for a job interview, a staff member of R told C that only male applicants would be accepted for the post without telling her any reason.

R expressed willingness to attempt early conciliation with C during the investigation.

It was agreed that R would offer C a job interview regarding the post of supervisor. Agreement was reached in April 2003.

Remarks:

It is unlawful to discriminate against a person on the ground of his / her sex, unless the requirement of a particular sex is a genuine occupation requirement of the job. Employers are encouraged to adopt a set of consistent selection criteria in recruitment consisting of relevant and essential personal requirements, such as education, experience, knowledge, skills and abilities.

Register Ref: SDO/4/April/2003

S11 and S12 of SDO

In February 2003, the Complainant (C) read a recruitment advertisement for a property officer by the Respondent (R), a security services company, in the office of the Labour Department. When C telephoned R for details of the post, a staff member of R told C that R only accepted male applicants without giving her any explanation.

R was willing to attempt early conciliation with C during the investigation. A job interview regarding the post of property officer was offered to C and C accepted it as the term of settlement. A conciliation agreement was reached in April 2003.

Remarks:

Unless the essential nature of the job was for a person of a particular sex for reasons of physiology, authenticity, presentation or decency or privacy, and other reasons set under S12 of Sex Discrimination Ordinance, it is unlawful for employers to refuse or deliberately omit to offer a woman the chance of an interview for reason of her sex. Employers are encouraged to adopt a set of consistent selection criteria consisting of relevant and essential personal requirements, such as education, experience, knowledge, skills and abilities, in recruitment.

Register Ref: SDO/1/April/2003

S8 of SDO

The Complainant (C) had worked as a marketing executive of a plastic materials trading company (R1) for three years. A few days after she resumed duty from maternity leave, she was dismissed. The reason provided by R1 was to cut cost. However, the male replacement employed to take up C's duties during her maternity leave continued to work at R1. The decision to dismiss C was made by two directors (R2 & R3) and implemented by R3.

Rs denied the allegations. They claimed that C had been dismissed due to decline in business and C's unsatisfactory performance. They claimed that C had been given a few verbal warnings in the past.

The complaints were resolved in April 2003 whereby Rs provided C monetary compensation amounting to about $43,000 (roughly equals to 5 months' salary of C).

Remarks:

Having a substitute permanently replace an employee who was on maternity leave may be regarded as evidence of pregnancy discrimination. It is unlawful for an employer to dismiss an employee on the ground of her pregnancy. Whether the discriminatory act takes place during the employee's pregnancy is immaterial.

Register Ref: SDO/4/March/2003

S8 of SDO and S11 of DDO

The Complainant (C), a pregnant graphic designer, worked for almost two years for the Respondent (R), a wholesaler of decorative items. She alleged that R discriminated against her on the ground of her pregnancy and for her sick leave due to enteritis. R imposed unrealistic deadlines on her and publicly humiliated her for taking sick leave by circulating memos with offensive words relating to her. R also reprimanded her in a staff meeting for hindering the progress of others. The Merchandizing Manager also treated her badly with verbal abuses and throwing objects at her.

R and C entered into early conciliation. Parties mutually agreed to terminate their employment relationship with immediate effect. R paid C a sum of $56,000, equivalent to 4 months' salary of C, as settlement. The payment was effected in March 2003.

Remarks:

Imposing standards on a pregnant staff that were obviously beyond her ability to accomplish due to her physical condition could amount to indirect discrimination.

Register Ref: SDO/3/March/2003

S8 of SDO and S11 of DDO

The Complainant (C) was a sales coordinator of a technology company (R1). A few days after she joined R1, she occasionally took sick leave due to fever, bronchitis and rashes. In less than a month's time after her employment with R1, she was found pregnant and informed R1 accordingly. The next day, she was hospitalized because of threatened abortion. The Deputy Sales Manager, who was C's supervisor (R2), visited her in the hospital. He suggested that C resign or take no pay leave. She chose the latter. She continued to be on sick leave because of unstable physical condition. While C was still on sick leave, R2 called her and told her that R1 had decided to dismiss C with immediate effect due to her frequent sick leaves.

Rs claimed that C was dismissed due to inappropriate conduct (smoking in the office), inability to carry out her duties faithfully and properly (sick leave frequency) and habitual neglect of duties (sick leave pattern).

The complaints were resolved in March 2003 whereby R1 provided C with a monetary compensation amounting to $16,000 (roughly equal to 2 months' salary of C) and R2 provided C with a written apology for having accused her of inappropriate conduct, inability to carry out her duties faithfully and properly and habitual neglect of duties.

Remarks:

If an act is done for two or more reasons, it is sufficient for one of the reasons to be unlawful under the anti-discrimination ordinances, to render the act unlawful for that reason. Taking sick leave by itself cannot constitute a ground of dismissal unless performance is affected or the staff cannot perform the inherent requirement of the job even with reasonable accommodation.

Register Ref: SDO/2/March/2003

S7 of SDO

The Complainant (C) was a teacher of the Respondent School (R1). When she joined R1, she was single. She was later married to a fellow teacher working in the same school. Her husband had three children by his former marriage. According to R1's policy, in the event of marriage between its two employees, the benefits accorded to both should be reviewed and one should be deemed the dependant of the other. After marriage, C gave birth to two children. R1 denied C's new-born baby, her second child and the fifth in the family, medical benefits because the scheme in C's husband's employment contract covered up to four children. C alleged that R1 had discriminated against her on the ground of her marital status. She claimed that had she not been married to R1's employee, her new-born baby would not have been deprived of the medical benefits, which was part of her benefits as an employee. She also claimed that the Human Resources Manager (R2) had aided R1 to discriminate against her.

The complaints were resolved by early conciliation in March 2003 whereby R1 allowed C's new-born baby to enjoy the medical benefits.

Remarks:

Employers, when deciding on the terms and conditions of employment, should note that differential treatment on grounds of one's marital status may be discriminatory. Under the school medical scheme, C would not have lost the medical benefit to her second daughter if she was single.

Register Ref: SDO/6/January/2003

S7 of SDO

C was a job seeker. Through an employment agent, it was arranged for him to attend a job interview with a trading company (R1). He alleged that R1 and its director (R2) discriminated against him on the ground of his marital status (single) by rejecting his application for the post of a salesperson. C claimed that in the recruitment interview, R2 asked him about his marital status.

The complaints were resolved by early conciliation in January 2003 whereby Rs provided C with a letter of apology. In addition, R1 undertook to take measures to prevent acts of marital status discrimination in future.

Remarks:

Only questions relevant to work requirements should be asked at job interviews. Decision to hire should be based on the assessment of one's capability in fulfilling the job requirements.

Register Ref: SDO/5/January/2003

S8 of SDO and S11 of DDO

The Complainant (C) was a transport supervisor of a Respondent Company (R2), a logistics company. A few days after she notified R2 and the General Manager cum shareholder (R1) of her pregnancy, she took a few days' sick leave due to gastro-enteritis and cystitis. Immediately after she resumed duty from sick leave, she was dismissed. The reasons for dismissal stated in the dismissal letter included unsatisfactory performance, insubordination and not properly reporting to the management or providing proof for absence from duty during her sick leave. C had never received any verbal or written warning about her performance in the past. She had submitted the medical certificates in relation to her sick leave to R2. She believed the actual reasons for her dismissal were her pregnancy and disabilities.

In the course of the EOC's complaint handling, it was noted that R2 requested R1 to step down from the post of General Manager. In addition, R2 ceased operation during our investigation handling due to financial difficulties. Notwithstanding its status, R2 was willing to attempt early conciliation with C. The complaints against R2 were resolved in January 2003 whereby R2 provided C compensation of $46,000 (C's monthly salary was $7,000). C withdrew the complaints against R1.

Remarks:

Although an employer may state certain reasons for an employee's dismissal a reasonable inference may be drawn from of the circumstances and previous performance records and requests for post change may provide indications.

Register Ref: SDO/4/January/2003

S8 of SDO and S11 of DDO

The Complainant (C) used to be the account & administration manager of a garment trading company (R2). The Regional Manager was her immediate supervisor (R1). C applied for sick leave because she needed to attend a prenatal check-up, R1 required her to take annual leave instead, commenting that C had already taken too many sick leaves (due to upper respiratory infection, vertigo and back pain) in the past. C was dismissed three days after resuming duty from maternity leave. C alleged that her dismissal was due to her pregnancy and pregnancy-related sickness.

Rs claimed that there had been an internal restructuring and C's position no longer existed. Nonetheless, C's substitute employed during C's maternity leave was offered an extension of contract after C's departure.

The complaints were resolved by early conciliation in January 2003 whereby Rs provided C monetary compensation of $50,000, roughly equaled to 2.5 months' salary.

Remarks:

Having a substitute permanently replace an employee who was on maternity leave may be regarded as evidence of pregnancy discrimination. It is unlawful for an employer to dismiss an employee on the ground of her pregnancy. Whether the discriminatory act takes place during the employee's pregnancy is immaterial.

Register Ref: SDO/6/December/2002

S8 and S11 of SDO

The Complainant (C) was a clerk in a shipping company (R1). She alleged that after she served the pregnancy notice to R1, her manager (R2) became picky on her work. She was given more work and a lower salary increase as compared to another non-pregnant shipping clerk. On the first day of resuming duty from maternity leave, C was dismissed.

Rs denied the allegations. They explained that C was dismissed because of inability to meet the job requirements, poor work attitude and customer relationship her. C had a workload similar to the other colleague. As salary increase was performance-based, the lower pay rise reflected C's unsatisfactory performance.

The complaints were resolved in December 2002 whereby R1 provided C with a reference letter and monetary compensation of $25,000 (roughly equals to 2 month salary of C).

Remarks:

It amounts to pregnancy discrimination if a pregnant staff is treated less favourably when compared with other staff who are not pregnant. Comparison of less favourable treatment needs to be made between persons who are pregnant and those who are not and takes into consideration all relevant circumstances.

Register Ref: SDO/5/December/2002

S8 and S11 of SDO

The Complainant (C) joined a trading company (R1) as a trading executive. After working for half a year, she was found pregnant. She informed the Director (R2) accordingly. R2 made a remark, "How terrible". Thereafter, R2 was picky on C's performance. C was the only staff in R1 not paid any bonus for that year although she got it in the previous year. No warning on performance was received before her notification of pregnancy. She was dismissed on the first day she resumed duty from maternity leave.

Rs denied the allegations. They explained that C did not get the bonus and was subsequently dismissed because of poor performance. R2 did not remember what exactly was said to C when she was informed about C's pregnancy. In any event, she did not mean anything negative.

The matter was resolved in December 2002 whereby Rs provided C with a reference letter and monetary compensation of $20,000 (roughly equals to a month's salary).

Remarks:

It is unlawful to discriminate against a person on the ground of her pregnancy. Inference of pregnancy discrimination can be drawn from a series of events, such as adverse comments, less favourable treatment and dismissal. Discriminatory act is not confine to one single incident but can take place over an extended period of time.

Register Ref: SDO/4/December/2002

S7 of SDO

The Complainant (C) was a printing worker of a printing company, the Respondent (R). She got married after having satisfactorily passed the 3-month probation period. One month after, R went through an internal restructure and all printing workers were asked to list their preference of work in order to reassign them to three different teams. C listed a particular team as her favorite. C's supervisor, the Manager, refused to assign her to the preferred team telling her that, being a married female, she was not suitable for that team. Two months after, C was dismissed. The Manager told C that since she is a married woman, the job was not suitable for her as it required night shifts and strenuous duties. All printing workers had to perform night shift on a rotational basis.

C claimed that R discriminated against her on the grounds of her sex and marital status by not assigning her to the team in accordance with her preference and dismissing her. R, on the other hand, claimed the dismissal was due to substandard performance, lack of initiative and need for close supervision. Her supervisor was on a 9 to 5 shift and this made close supervision difficult.

Case was conciliated in December 2002 with the provision of a sum of $2,000 paid as gesture of good will, "letters of regret" from R and her supervisor and a reference letter of her service.

Remarks:

Adverse treatment and making assumptions regarding suitability of a job based on a person's marital status or sex may amount to unlawful discrimination..

Register Ref: SDO/3/December/2002

S8 of SDO

The Complainant (C) had worked as a tutor in an education centre (R2) for four years. Her employment contract was renewed on an annual basis. She informed a director (R1) of her pregnancy in mid June. R1 suggested her taking a rest for two months after her contract expired in end of June. R1 believed that she would not be able to help organize the summer activities due to her pregnancy. R1 also told her that R2 wanted to get someone to replace her because it was anticipated that she would take a lot of leave during her pregnancy. Her employment contact was subsequently not renewed upon expiry.

R1 admitted having told C that she could take more rest and did not need to help organize the summer activities. However, she claimed that it was C who proposed to take two-month no pay leave for a rest. In response to C's questions on whether R1 would expect her (C) to take leave frequently due to her pregnancy, R1 only said that a substituting tutor would be hired if C needed to take leave. R1 denied having said that she would find someone to replace C because of her pregnancy. Rs explained that C's employment contract had not been renewed because of R2's financial difficulties and C's unsatisfactory performance.

The complaints were settled in December 2002 by way of conciliation whereby Rs provided C a reference letter and $5,000.

Remarks:

References in the Sex Discrimination Ordinance to the dismissal of a person from employment include references to the termination of that person's employment by the expiration of any period. Accordingly, non-renewal of employment contract on the ground of an employee's pregnancy amounts to pregnancy discrimination.

Register Ref: SDO/6/November/2002

S8 and S11 of SDO

The Complainant (C) joined the Respondent advertising company (R1) as the Art Director. After working for six months, she took a few days' sick leave. About the same time, she was found pregnant. She notified her supervisor, a Senior Art Director (R2), and two Directors (R3 and R4) accordingly. Thereafter, Rs transferred her assistant to another department and removed her access to equipment that was necessary for performing her work. She was accused of unpunctuality and failing to complete her tasks. She was not paid extra salary as previously agreed.

Rs denied the allegations. R1 explained that the staff deployment was reasonable in view of the workload.

Rs were willing to attempt early conciliation and the complaints were resolved in November 2002. The supervisor and one director provided C with written apologies for the inconvenience caused by the removal of computer access. The other director provided C with monetary compensation of $4,000 and the company paid C $60,000 (roughly equal to one month's salary in total). In addition, R1 and C mutually agreed to cease their employment relationship and R1 would provide C with a good reference letter.

Remarks:

It is unlawful for an employer to treat a staff less favourably on the ground of her pregnancy and/or disability. Individuals involved in discriminatory acts are personally liable and the employer is vicariously liable for the unlawful acts of the employee.

Register Ref: SDO/3/November/2002

S8 and S11 of SDO & S5 and S8 of FSDO

The Complainant (C) had worked as a customer service manager in a communications company (R1) for a few years. She got pregnant twice during the period. When she informed the division manager and her supervisor (R2) of her second pregnancy, R2 remarked that he felt astonished at the short duration between the two pregnancies. Shortly afterwards, R2 suggested to C to change from fixed monthly salary to commission-based remuneration. C refused. R1 later asked C to consider taking up a position left vacant by another manager. C declined the offer because the new position required outdoor duties which she considered not suitable for her in view of her physical condition. Three days after C resumed duty from her second maternity leave, R2 asked how C was coping with her family needs such as taking care of her children. In the same meeting, R2 told her that she would be made redundant due to company downsizing. Though other staff were also made redundant a few months later, C was the only staff made redundant at that time. C was of the view that she was discriminated against due to pregnancy and her family status in having to take care of her children.

Rs denied the allegations. They claimed that other managers were also urged to alter the basis of remuneration. R2 denied having made the alleged remarks on C's second pregnancy. The vacant position C was asked to consider was a promising one. C's employment was terminated because of business downturn.

The complaints were resolved in November 2002 whereby Rs provided C with monetary compensation of $35,000 (roughly equals to one month salary of C).

Remarks:

Decision to dismiss on the ground of an employee's family responsibility such as, having to take care of a new born child can amount to both pregnancy and family status discrimination.

Register Ref: SDO/1/November/2002

S8 of SDO

The Complainant (C) was an accounting clerk of a trading company (R2). Three to four months after she had joined R2, she informed R2 of her pregnancy. A few months later (before she took maternity leave), she was dismissed. The Administration Manager (R1) told her that she was not suitable for the job. In addition, as R2 would have to hire a replacement when she took maternity leave, R2 preferred dismissing her sooner. She had not been given any warning about her performance in the past.

Rs denied the allegations. R1 said he had only acted upon R2's instruction to dismiss C. R2 explained that C was dismissed because of unsatisfactory performance and no improvement was shown despite repeated requests having been made.

The complaints were resolved in November 2002 whereby R1 provided C with a written apology for not being aware of the anti-discrimination ordinance when dismissing her and thus causing C distress. In addition, R2 provided C $5,000 (roughly equivalent to half month salary of C).

Remarks:

An employer discriminates against an employee if it dismisses her on the ground of her pregnancy. Staff taking part in the dismissal may be held personally liable for the discriminatory act even if she / her was carrying out an order from the employer.

Register Ref: SDO/2/September/2002

S8 of SDO

The Complainant (C) had worked as a clerk in a cleaning company (R2) for seven years. Shortly after she had informed R2 of her pregnancy, upon the recommendation of her supervisor (R1), R2 forced her to clear her leave balance in a month's time. According to her, other staff were not asked to clear their leave balance. In addition, C had taken an average of four to five days of pregnancy-related sick leave in the first three months of her pregnancy. R1 criticized her for taking frequent sick leaves. On the second day of her resuming duty from maternity leave, C was dismissed. The reason given by Rs was C's poor performance. C had not received any warning about her performance in the past.

Rs denied the allegations. They explained that C was dismissed because of poor attitude and performance. The complaints were resolved by early conciliation in September 2002 with Rs paying C $5,000. In addition, R2 withdrew the letter of termination of employment and undertook not to say anything on C's past performance to any prospective employers of C.

Remarks:

Adverse treatment of a pregnant staff may amount to pregnancy discrimination under law. Acts of employer which do not breach the pregnancy-related provisions under the Employment Ordinance can nevertheless be unlawful under the Sex Discrimination Ordinance. An employer should formulate a standard leave policy for general application to staff to maintain consistency in clearing employees' leave balances.

Register Ref: SDO/1/September/2002

S8 of SDO

The Complainant (C) was an Accounts Clerk at the Respondent Company (R), a printing company. She was dismissed on the second day after she resumed duty from maternity leave. R told her that this was because R had been facing financial difficulties and C was highly paid. The two clerks who were employed to take over her work during her maternity leave continued to work at R after her dismissal.

The complaint was resolved by early conciliation in September 2002 whereby R provided C monetary compensation of HK$100,000, approximately 7 months' salary. In addition, R provided C with a reference letter. In return, parties agreed to state in the Conciliation Agreement that C accepted R's explanation that her dismissal was due to restructure.

Remarks:

A discriminatory act amounts to pregnancy discrimination if it was done by reason of an employee's pregnancy, irrespective of whether the employee was pregnant at the material time.

Register Ref: SDO/6/August/2002

S5 and S11 of SDO

The Complainant (C) was the only female security guard working in a property management company (R). She had worked alongside ten male security guards in an industrial building for two years. She alleged that R had transferred her alone to another industrial building. She was told that the Chairperson of the Incorporated Owners of the building she used to work with disliked female guards. As the result of the transfer, she spent more time and money traveling to the new work place.

R was willing to resolve the matter through early conciliation. The complaint was resolved in August 2002 whereby R undertook to transfer C back to the original post.

Remarks:

It is unlawful to discriminate against a staff on the ground of his/her sex by subjecting him/her to any other detriment, which could include longer travelling time and higher travel cost. A person who makes the discriminatory decision or instruct others to carry out an act of discrimination is personally liable under the law.

Register Ref: SDO/5/August/2002

S8 and S11 of SDO

The Complainant (C) was a quality inspector who had worked for a few years in a plastic manufacturing company (R). After she notified R of her pregnancy, R issued two warning letters to her. On the first day she resumed duty from maternity leave, she was dismissed. The reason provided by R was unsatisfactory performance.

R denied the allegations. It explained that the business downturn attributed to the redundancy. C was chosen to be laid off because of her unsatisfactory performance, negative attitude towards fellow colleagues and poor attendance record since the beginning of her employment with R. C was warned for insubordination and poor manner towards supervisor.

The complaint was resolved in August 2002 whereby R provided C with monetary compensation of $12,000 (roughly equals to 1.5 month's salary) and a reference letter. In addition, R was to retract the two warning letters from C's personal file.

Remarks:

Dismissing a pregnant employee on the first day of her resuming duty from maternity leave can amount to unlawful discrimination if the reason for dismissal can be attributed to her pregnancy. Whether the employee is pregnant at the time of dismissal is immaterial.

Register Ref: SDO/3/August/2002

S8 of SDO

The Complainant (C) was a purchasing clerk having been working for a trading company (R) for three years. On the first day of resuming duty from maternity leave, she was dismissed. R told her that the reason for dismissal was unsatisfactory performance. A male replacement who was hired to take up C's duties during her maternity leave continued to work at R.

R denied the allegation. It stated that C was dismissed because of consistent unsatisfactory performance despite repeated warnings having been given to her. Notwithstanding the above, R was willing to attempt early conciliation with C. The complaint was resolved in August 2002 whereby R provided C monetary compensation of HK $28,000 as full and final settlement of all claims.

Remarks:

Having a substitute permanently replace an employee who was on maternity leave may be regarded as evidence of pregnancy discrimination. It is unlawful for an employer to dismiss an employee on the ground of her pregnancy. Whether the discriminatory act takes place during the employee's pregnancy is immaterial.

Register Ref: SDO/1/August/2002

S11 of SDO

A Representative Complainant (RC) learned from a female friend ,who had worked for a health product company (R), that R was hiring staff to distribute promotional leaflets. RC accompanied her younger brother (AP) to R's office for a recruitment interview. RC and AP were however told by an employee of R that the job was not open to men.

The complaint was resolved by early conciliation in August 2002 whereby R provided AP with an apology letter and $300. In addition, R had taken disciplinary action against the employee in question. It also undertook to review its recruitment policy to enforce fair selection of new staff.

Remarks:

Formulation of consistent selection criteria relevant to the job requirements is advisable. Training of staff responsible for recruitment process on the anti-discrimination law can help avoid discriminatory practices.

Register Ref: SDO/3/July/2002

S8 of SDO

The Complainant (C) worked as a marketing manager for the Respondent (R), a retailer of shoes. R had operation in Hong Kong and Mainland China. On the day she informed R of her pregnancy, the Deputy Managing Director suggested her to resign. C alleged that, a few days later, she was told by the Executive Director to travel to the Mainland on business. She was warned that action would be taken against her if she refused to leave the company of her own accord. C had made occasional business trips to the Mainland China in the past. In the following few days, she took sick leave because of threatened abortion and the doctor advised her that she was not fit for traveling. When she resumed duty from sick leave, the Executive Director asked her to travel to the Mainland again and told her that she would be regarded as absent from duty if she refused to make the trip. According to C, the trip was to do market research without a specified objective. She had not been assigned of work of this nature previously. She refused. Shortly after that, she was asked to move out of her room because she had to stay in China on a long-term basis and all her original duties were assigned to another staff. Since then, she had not been given any work and her newly assigned workstation was not provided with a computer or telephone. Finally, she could not tolerate the acts of R anymore and left R, considering herself constructively dismissed.

C claimed that R discriminated against her on the ground of her pregnancy. R, on the other hand, attributed C's dismissal to poor performance.

Parties agreed to early conciliate and came to a settlement in July 2002. A reference letter was issued in addition to monetary compensation of $170,000 as full and final settlement of all claims.

Remarks:

Treating a woman less favourably on ground of her pregnancy amounts to direct pregnancy discrimination. Less favourable treatments include asking employees to resign, causing hardship or providing adverse treatment.

Register Ref: SDO/1/July/2002

S8 of SDO

The Complainant (C) joined an engineering company (R2) as Secretary. About a month later, she resigned because she found the job unsuitable for her. The director of the company (R1) told her that she had been performing quite well and asked her to stay. She did stay. A week passed, she was certified pregnant and informed Rs of the news. Another month or so later, R1 informed C that she was dismissed with immediate effect because of poor business encountered by R2.

The complaints were resolved by early conciliation in July 2002 whereby Rs provided C monetary compensation amounted to $16,000 (C's monthly salary was $8,000).

Remarks:

Although the employer did not expressly state that the reason (or one of the reasons) for dismissal was the employee's pregnancy, a reasonable inference may be drawn on the basis of the circumstantial evidence.

Register Ref: SDO/3/June/2002

S8 of SDO

The Complainant (C) joined the Respondent Company (R), operator of a karaoke chain, as a receptionist. While she was still on probation, she was certified pregnant. In a staff meeting held just before C notifying R of her pregnancy, she was assigned to handle additional duties as one of her colleagues would soon leave the service of R. After the meeting, C informed her supervisor and the Human Resources (HR) Manager of her pregnancy and then submitted a doctor's certificate. Two days later, the HR Manager told C that, because of the reorganization of the company, she was made redundant. After the dismissal, C's ex-colleague told her that R had recruited a new employee to take up her duties. The HR Manager emphasized that the decision to terminate her employment was unrelated to her pregnancy. It was due to C's inability to carry out certain functions, such as operating digital equipment and computers.

The case was conciliated in June 2002 with R paying C monetary compensation of $8,000.

Remarks:

Although the employer did not expressly state that the reason (or one of the reasons) for dismissal was the employee's pregnancy, a reasonable inference may be drawn on the basis of the circumstantial evidence.

Register Ref: SDO/1/May/2002

S8 of SDO and S11 of DDO

The Complainant (C) was a salesperson of the Respondent (R), a retailer of pens and writing instrument. C informed R of her pregnancy. Thereafter, she had taken sick leave intermittently for three months because of threatened abortion and gastritis. She was dismissed upon her return from maternity leave. She was given a warning letter at the time she was dismissed. Allegedly, she was considered having disobeyed reasonable orders of R and failing to submit medical certificates as requested. C claimed that the dismissal amounted to discrimination on ground of her pregnancy and disability. R, on the other hand, claimed that C had not reported her sick leave as early as expected. As a small shop, he needed to arrange for a replacement worker on the days when C fell sick. R also claimed that medical certificates were not submitted as requested. C claimed that she was admitted into hospital in emergency situations and reporting to employers was not possible.

Parties agreed to early conciliate and came to a settlement in May 2002 with a monetary compensation of $45,000 and service certificate provided by R to C.

Remarks:

It is unlawful to terminate an employee on ground of her pregnancy or pregnancy-related disability. Reasonable accommodation should be given to employees who are sick, in particular under emergency situation. For efficient operation, it is advisable to have prior agreement on leave application and procedures to deal with unexpected events, such as sick leave, adverse weather, accidents, etc.

Register Ref: SDO/2/April/2003

S4 and S11 of SDO

The Complainant (C), who was the purchasing officer of a company (R1) that handled orders of cosmetic products placed by Japanese customers, alleged that he was dismissed on the ground of his sex. He said that the company director (R2) told him that he was dismissed because R1 considered it was more appropriate for a woman who could speak Japanese to take up the post. R1 did employ a Japanese-speaking woman to replace C after his departure.

R1 and R2 denied the allegations of sex discrimination and they explained that C was dismissed because of his poor performance, his inability to communicate in Japanese and his misconduct in handling cash purchase and customers' data.

The case proceeded to conciliation and was concluded in April 2003 with R1 giving C monetary compensation of $5000 as full and final settlement of the claims.

Remarks:

If an act is done for two or more reasons and one of the reasons is the sex of a person (whether or not it is the dominant or a substantial reason for doing the act), for the purpose of the Sex Discrimination Ordinance, the act is taken to be done on the ground of sex. In this case although poor performance, misconduct and inability to speak Japanese might have contributed to the dismissal of C by R1, if one of the reasons for the dismissal was his sex, it would still amount to sex discrimination.