Regardless of whether there might be other reasons, an employer can still be held liable for discrimination against an employee if dismissing her due to her pregnancy.
Pregnancy discrimination occurs when an employer treats a woman less favourably on the ground of her pregnancy than he treats or would treat a person who is not pregnant. Under the Sex Discrimination Ordinance (Cap.480) (“SDO”), it is unlawful for an employer to discriminate against a pregnant employee by dismissing her or subjecting her to any other detriment.
In a recent case, Hong Kong's District Court considered whether a pregnant employee was discriminated when her employer refused to renew her contract and pay her yearly bonus that she had received in the years prior.
From September 2007 to March 2011, the Claimant was employed by affiliated companies within the group and was later employed by the Respondent in April 2011 under successive yearly contracts. During her employment from 2011 to 2016, the Claimant continuously received positive appraisals of her work as well as the annual year-end bonuses.
In March 2017, the Respondent merged its four business units into one single unit and appointed the Claimant as the responsible personnel for the integrated unit. Shortly after the integration, the Claimant became pregnant and gave notice of the pregnancy to the Respondent.
In November 2017, the Claimant was admitted to hospital for her obstetric condition. While she still admitted, the Respondent informed the Claimant, via WeChat, that the Company would not renew her employment contract and refused to pay the Claimant the year-end bonus for 2017 (“Bonus”).
The Respondent argued that:
1. The Claimant was dismissed due to business reduction and restructuring reasons;
2. The Bonus was discretionary; and
3. She was not entitled to the Bonus due to her unsatisfactory performance.
The Court ultimately held that the Claimant’s dismissal was discriminatory.
After considering the specific circumstances of the case, including the proximity in time between the Claimant informing the Respondent of her pregnancy and the Respondent hiring a new employee to replace her, the Court inferred that the Claimant’s pregnancy was one of the Respondent’s reasons for dismissing her, regardless of whether there might be other reasons.
Therefore, the Court concluded that the Respondent was liable for discrimination against the Claimant by dismissing her due to her pregnancy. As the refusal to pay the Bonus was consequential on the Claimant being dismissed, the Court also concluded that such refusal to pay was discriminatory in nature.
As such, one key takeaway is for employers to ensure that it does not discriminate against any employee who is pregnant.
About the authors
This article has been co-authored by
- Felda Yeung, Partner, Gall Solicitors
- Tanya Parmanand, Trainee Solicitor, Gall Solicitors
Note to readers - This case is specific to Hong Kong, but the findings are meant to be relevant reading for employers across Asia; however, this does not constitute any legal advice.
This was first published on the Gall website and then re-shared with HRO.
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