We As One
Dismissing an employee who was pregnant 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 not the issue.The EOC has resolved some cases where new mothers were fired after giving birth (i.e. after her pregnancy). The new mother can file the complaint if she believes that she was fired as a result of her pregnancy. Many employers thinks that as long as they filfull the requirements of the Employment Ordinance (ref. Website of Labour Department: http://www.labour.gov.hk/eng/faq/cap57h_whole.htm i.e. given 10 weeks paid maternity leave), they can fire the new mother. This is not necessarily so because employment law and the Sex Discrimination Ordinance operate separately. Employment law deals with maternity benefits, while the SDO deals with discrimination.
Under the anti-discrimination laws the Equal Opportunities Commission may decide not to conduct, or to discontinue, an investigation into a complaint where a period of more than 12 months has elapsed beginning from when the act complained of was done. If the complaint relates to something that happened more than 12 months ago, it may be rejected unless there are extenuating circumstances for the delay.If the complainant intends to institute legal proceedings, he/she has to do so within 24 months beginning from when the act complained of was committed, although the District Court may consider any claim which is out of time if, in all circumstances of the case, it considers that it is just and equitable to do so. The time which the EOC spends investigating into the complaint and attempting to conciliate it is discounted from the period of 24 months.
There is no legal obligation as such for women to tell their employers when they find they are pregnant. Usually staff will inform the employer of pregnancy so as to satisfy one of the criteria for enjoying maternity benefits i.e. the pregnant staff has to give proper notice to her employer such as by presenting a medical certificate confirming her pregnancy. Employees should consult the Employment Ordinance as to their responsibilities.
The amount of sick leave does not alter due to pregnancy.
No. Pursuant to the Sex Discrimination Ordinance, regardless of her marital status (e.g. married, single, separated, divorced or widowed), a pregnant woman should not be discriminated against.
There is no hard and fast rule in determining if maternity leave affects the level of year end bonus, as this would depend on the individual facts of each case and the basis upon which bonuses are calculated. For example, bonus pay based on the sales volume is different from calculation based on basic salary. Another consideration is whether the bonus is a contractual right or discretionary, and the terms of the contract or how the discretion is exercised.
Under the SDO, it would be unlawful if the dismissal is made on the ground of pregnancy. If the company goes bankrupt and all persons are dismissed, there would not be discrimination. However, if only some employees are dismissed, and one of the reasons for dismissing a particular female is her pregnancy, that could be unlawful discrimination. Similarly, in the case of reorganization or restructuring, pregnancy should not be a basis for dismissal. Therefore, we suggest employers should adopt a set of job related and non-discriminatory criteria for selection for dismissal.
Time factor is not the crux of the issue. If the dismissal is made on the ground of pregnancy, it would be an unlawful act under the SDO. If the dismissal is made on demonstrable reasons relating to poor performance it would not be an unlawful act under the SDO.
Clearly, if there is no knowledge whatsoever of the pregnancy, the ground of dismissal is unlikely to be pregnancy. However, it may be difficult for an employer to prove lack of knowledge, if there are indicators of the pregnancy and it can be inferred that the employer had constructive or actual knowledge. In other words, it does not matter if the employee actually tells the employer, as there may be other ways the employer becomes aware of the pregnancy.
This depends on the particular case. In certain instances, there may still be protection under the Sex Discrimination Ordinance, in other instances there may be protection under the Disability Discrimination Ordinance. It would depend on whether any less favourable treatment is connected to the fact that the employee had been pregnant, or the fact that she may have some form of disability.
Examples of other unfavourable treatment could be: less year end bonus, less salary increase, refusing training opportunities, etc.
Pregnancy discrimination can come in many forms and in many different instances of employment; hiring, promotion, firing, benefits, such as maternity benefits and more. The Sex Discrimination Ordinance passed in 1995 states that it is unlawful to discriminate against a woman on the ground of pregnancy. That is, an employer should not treat a pregnant woman less favourably or dismiss her because she is pregnant.
Investigation of a Complaint: The EOC will conduct an investigation into a complaint that falls within its jurisdiction. The EOC will also notify the respondent of the complaint and the respondent will be given the opportunity of responding to the allegations and providing information in support of the response. The response will be conveyed to the complainant for comments and further clarification from the respondent may be required. The EOC may also ask about witnesses or documentary evidence that support what the complainant or respondent has said.Conciliation: It is the primary objective of the EOC to effect a settlement between the complainant and the respondent by way of conciliation. The role of the EOC’s conciliation officer is to assist both parties to examine the issues that led to the complaint, identify any points of agreement and arrive at a solution in an attempt to resolve the complaint. Conciliation is free and is a voluntary process, less formal as compared to a court trial and less costly.
Under the Sex Discrimination Ordinance, employers should not dismiss or discriminate against an employee because of her pregnancy. However, dismissal is not unlawful under the SDO if the dismissal is based on justifiable reasons and the employer can provide proof to support the act.
Not to discriminate a pregnant employee by treating her less favourably.