An employer was found to have discriminated against a pregnant employee in breach of the Sex Discrimination Ordinance by deliberately imposing a 1-day gap between the 2 fixed-term employment contracts of the pregnant employees in an attempt to avoid paying the maternity leave payment.

Introduction

Employers in Hong Kong are encouraged to provide equal opportunities to job applicants and employees regardless of their sex, pregnancy, disability, family status and race by virtue of the various anti-discrimination ordinances such as the Sex Discrimination Ordinance (“SDO”), Disability Discrimination Ordinance, Family Status Discrimination Ordinance and Race Discrimination Ordinance. Therefore, employers have to be very careful when they conduct their recruitment, determine the terms of employment, make work arrangements and handle issues relating to termination of employment so as to ensure that they will not breach any of the anti-discrimination ordinances.

If an employer was found to have discriminated against an employee (in relation to the terms of employment offered) on the ground of her pregnancy, it has to pay various kinds of damages to the employee. Moreover, its reputation may be adversely affected. This is illustrated by a case decided by the Court in Lau Hoi Man Kathy v Emaster Consultants Limited DCEO 11/ 2012.

Facts of the case

The brief facts of Lau Hoi Man Kathy v Emaster Consultants Limited are as follows:

1.       The Plaintiff, Ms Lau Hoi Man Kathy was an employee of the Defendant.

2.       The Defendant, Emaster Consultants Limited is a human resources consultant company.

3.       The Plaintiff was employed under a fixed term employment contract from 24 November 2009 to 23 November 2010.

4.       On 25 October 2010, the Plaintiff’s employment contract was renewed and the commencement date of the “renewed” employment contract was 24 November 2010, i.e. immediately after the expiry of the existing employment contract.

5.       After signing the “renewed” employment contract, the Plaintiff submitted a “notice of pregnancy” to the Defendant.

6.       On 26 October 2010, the Defendant informed the Plaintiff that the “renewed” employment contract was cancelled because the Defendant took the view that the Plaintiff was “dishonest” by delaying the submission of the “notice of pregnancy” to the Defendant.

7.       The Plaintiff lodged a complaint with the Equal Opportunities Commission (“EOC”) against the Defendant, claiming that the Defendant had discriminated against her on the ground of her pregnancy.

8.       In order to resolve the complaint, the Defendant offered a “new” employment contract to the Plaintiff whereby the commencement date of the “new” contract was 25 November 2010, i.e. there was a 1-day gap between the expiry of the existing employment contract (24 November 2010) and the commencement of the “new” contract.

9.       In December 2010, when the Plaintiff applied for her maternity leave (to be taken from 25 January 2011 to 3 April 2011), the Defendant informed the Plaintiff that her maternity leave shall be unpaid because she did not satisfy the required period of continuous employment – an employee will be entitled to maternity leave payment only if she has been employed under a “continuous contract” (i.e. worked for 4 consecutive weeks or more with at least 18 hours each week) for at least 40 weeks immediately before the date of the commencement of her maternity leave.

10.    On 23 February 2011, the Plaintiff resigned.

11.    In March 2011, the Plaintiff lodged a complaint with the EOC against the Defendant, claiming that the Defendant had treated the Plaintiff less favourably by imposing a 1-day gap between her 2 fixed-term employment contracts in order to break the continuity of the employment so as to avoid the maternity leave payment which will otherwise be payable to her.

Decision of the Court

The Court found that imposing a 1-day gap between the expiry date of the existing employment contract and the “new” employment contract was clearly a discriminatory act that is prohibited under S. 11 and S. 8(a) of the SDO.

S. 11 of the SDO stipulates that “it is unlawful for a person, in relation to employment by him at an establishment in Hong Kong (i.e. the employer), to discriminate against a woman in the terms on which he offers her that employment.” Moreover, according to S. 8(a) of the SDO, “a person discriminated against a woman ……if on the ground of her pregnancy, he treats her less favourably than he treats or would treat a person who is not pregnant……”

The Judge commented that it was clear that the Defendant would not have “cancelled” the employment contract signed on 25 October 2010 nor impose a 1-day gap between the 2 fixed-term contracts if the Plaintiff was not pregnant.

The “cancellation” of the employment contract signed on 25 October 2010 and subsequently imposed a 1-day gap between the 2 fixed-term employment contracts shall be regarded as “less favourable treatment”.

In view of the above, the Defendant was ordered to pay damages to the Plaintiff for injury to feelings (HK$50,000), exemplary damages (for its deliberate discriminatory act) (HK$20,000), loss of income (for the 1-day gap between the 2 fixed-term employment contracts), maternity leave payment together with interest and legal costs.

Conclusion

Employers shall be very careful in handling the work arrangements and renewal of employment contracts of pregnant employees so as to ensure compliance of the SDO. Pregnant employees shall not be treated less favourably than other employees who are not pregnant. All employment related decisions shall be made without regard to the fact that the employee is pregnant.

At the moment, the EOC is conducting public consultation on “Discrimination Law Review” in order to modernize and improve the discrimination laws in Hong Kong. In this connection, the EOC suggested that the various anti-discrimination ordinances may be consolidated into one Discrimination Ordinance to make it more consistent and easier to understand.

Due to the intense interest of the public and that more time is required by a number of organizations to prepare their feedback to the EOC, the original consultation period has been extended to the end of October 2014.

It will take quite some time for the amendments and/or consolidation of the various anti-discrimination ordinances to come into effect. Nevertheless, we all look forward to seeing an improvement of the anti-discrimination ordinances because a harmonious working environment with equal opportunities to all people regardless of his/her sex, pregnancy, disability, family status and race will be beneficial to both the employers and the employees.