Introduction

Pregnancy discrimination in Hong Kong workplace has long been one of the most received complaints by Equal Opportunities Commission (“EOC”) under the Sex Discrimination Ordinance (“SDO”) (Cap.480). While female employees constitute nearly half of our labour pool in Hong Kong, pregnant women and working mothers are often discriminated against during their pregnancy, maternity leave, and/or within the first year after returning to work from giving birth.

Current legislation

Currently, discrimination on the grounds of pregnancy is prohibited by various legislations. Since gender and pregnancy are protected categories under the SDO and family status is protected under the Family Status Discrimination Ordinance (“FSDO”) (Cap.527), it is unlawful to terminate an employee’s contract of employment on the grounds of one of the protected categories under these Ordinances. Common examples include pregnant women being deprived of certain benefits which other employees are awarded with, or where a mother is not being considered for a promotion because the company thinks that having a child will make her less committed to her work.

Beside the aforementioned ordinances, the Employment Ordinance (“EO”) (Cap.57) also makes it unlawful to terminate a female employee who has served notice of her pregnancy. Under s.15 of EO, from the date on which her pregnancy is confirmed by a medical certificate to the date on which she is due to return to work after her maternity leave (10 weeks) or the date of the cessation of the pregnancy other than by reason of giving birth (i.e. by miscarriage or abortion), that female employee is protected from dismissal other than in circumstances justifying a summary dismissal (S.15 (1)(a) EO).

Current situation

A “Study on Pregnancy Discrimination and Negative Perceptions Faced by Pregnant Women and Working Mothers in Small and Medium Enterprises (SMEs)” published by the EOC in May 2016 has revealed that over one in five (22%) employee respondents reported that they were being discriminated during pregnancy, maternity leave, and/or within the first year after returning to work from giving birth. Unfavourable treatments during female employee’s pregnancy and the first 12 months after their return include absences from work due to pre-natal or post-maternity medical check-ups not being counted as sick leave, and being treated impolitely by the employer / colleagues because of pregnancy. Additionally, one in five of working mother respondents said they encountered difficulties in applying for leave to take care of their young children. These unfavourable treatments can be attributed to the concerning attitudes and prevalent negative stereotypes: 15% of respondents in the employer survey claimed that employees getting pregnant have a negative impact on the organization. Employers tend to think that women are normally less concentrated and less committed at work after having babies, and that they usually do not consider a self-declared pregnant applicant when hiring new staff.

Case study

In the case of Li Pui Ha v Wong So Kee Transportation Ltd, the Plaintiff was employed by the Defendant as a data processing officer earning $11,000 per month between 29 August and 20 October 2011. On 16 October 2011, the Plaintiff was hospitalised and notified the Defendant that she had been diagnosed with an umbilical hernia. On 17 October 2011, the Plaintiff learnt that she was pregnant and informed Defendant of the same. The Plaintiff was discharged on 19 October 2011 and granted sick leave until 22 October 2011. On 20 October 2011, she was informed that the Defendant had terminated her employment with seven days’ salary in lieu of notice. On 26 October 2011, the Plaintiff suffered a miscarriage. She had been unemployed since.

The Plaintiff brought proceedings against the Defendant claiming damages under the Disability Discrimination Ordinance (Cap.487) (“DDO”) and SDO. Judgment was entered against the Defendant who was held to be in breach of the DDO and SDO (s8(a) and s11 (2)(c)). A total of $126,000 was awarded to the Plaintiff being damages for injury to feelings and loss of earnings.

Conclusion

This type of negative perception regarding pregnancy deserves no place in the 21st century workplace in Hong Kong, a rapidly ageing society with dwindling workforce. The Government should consider reviewing the existing anti-discrimination Ordinances by introducing a statutory right for women to return to their previous work position after maternity leave. Expressed reference could be included in the Ordinances to protect pregnant women from discrimination during maternity leave.

At the same time, employers should be refrained to discriminate its staff on the ground of pregnancy or any other grounds of discrimination. Employers are not allowed to refuse to hire a woman because of pregnancy; limit a worker’s transfers or training options because she is pregnant; fire or force a worker to leave because she is pregnant; fire a woman on return from maternity leave or take away credit for service because of maternity leave. Beyond doubt is that pregnancy discrimination has to be eliminated from the Hong Kong workplace if our city is to enjoy continued growth and development.