On the one hand, Hong Kong law affords pregnant employees important statutory and anti discrimination protections designed to prevent unfair treatment and pregnancy related detriments. On the other hand, employers are sometimes faced with difficult questions about whether, and to what extent, pregnancy affects accountability. Can pregnancy reduce, excuse, or “shield” an employee from the consequences of negligent performance, serious errors, or professional misconduct?

The recent High Court decision in Diagcor Bioscience Incorp Ltd v Chan Wai Hon Billy & Ors [2026] HKCFI 488 provides a helpful lens through which to examine these issues. While the case arose in the context of high-stakes commercial litigation, it highlights a broader and recurring practical concern. Notwithstanding the legitimacy of maternity protections, employers may encounter situations where employees seek to rely on pregnancy as a reason for excusing or deflecting scrutiny of genuine performance failures.

The judgment underlines that, whilst statutory maternity protections and anti-discrimination principles are powerful, they are not a blanket immunity from legitimate accountability where there is genuine negligence or professional failure.

Background facts

The dispute arose in the biotech sector following the departure of several senior employees from Diagcor and the subsequent emergence of competing businesses. Diagcor alleged that their former employees, associates, and the companies they established misappropriated confidential information and trade secrets relating to its prenatal genetic test to launch a rival product within months, giving rise to claims for breach of confidence.

In parallel, Diagcor brought claims against a former Associate Laboratory Manager, Ms Fang for negligence and breach of contract after a junior technician misread a genetic test result as normal when, in fact, it showed a genetic mutation. Ms Fang overlooked the error and signed off the draft report with the wrong test result. Ms Fang in cross examination admitted that the incorrect result was a mistake due to carelessness but put forward a defence that she was pregnant at that time with her second child and her workload was extremely heavy.

Decision

The Court’s approach reinforces that pregnancy is not, in itself, a legal defence to negligence or professional failure. Where an employee is entrusted with a “gatekeeper” function, particularly in regulated, safety-critical, or high-risk settings, the assessment of their conduct will typically be anchored to an objective standard, what a reasonably competent person in that role would have done.

This does not mean pregnancy is irrelevant. It may be relevant to the employer’s obligations (e.g.: around workload, adjustments, and risk management), and it may be relevant to causation or determination of the appropriate relief. But the key point is that pregnancy does not automatically lower the standard of care expected of an employee performing their core duties, nor does it prevent a Court or an employer from concluding that genuine negligence occurred.

Key takeaways

First, pregnancy is a protected characteristic, but it is not a “get out of jail free card”. Hong Kong’s statutory protections are aimed at preventing dismissal or adverse treatment because of pregnancy, and at safeguarding maternity-related rights. They are not designed to excuse negligence, nor to prohibit employers from taking proportionate steps to address genuine performance or misconduct issues—provided the reason for action is lawful and properly evidenced.

Second, employers should avoid collapsing two separate questions into one: (i) whether the employee is pregnant and entitled to maternity protections; and (ii) whether the employee’s work has met the required standard. Treating pregnancy as synonymous with “no action can be taken” creates real risk. It can lead to operational harm, and it can also generate legal exposure if other staff are treated inconsistently or if decisions are made on assumptions rather than evidence.

Third, Diagcor is a reminder that the courts are willing to hold individuals to objective standards of competence where their role demands it. In practice, this means employers should be especially cautious in roles involving safeguarding, approvals, quality control, compliance sign-off, data handling, or other “gatekeeper” functions.

Practical advice for employers

Employers should document the real reason for any disciplinary or performance process and keep it distinct from pregnancy-related matters. If performance concerns arise during pregnancy, the record should show that the employer’s focus is on specific acts or omissions and the impact on the business, rather than on pregnancy itself.

Managers should be trained to handle pregnant employee issues with discipline and care. In practice, the biggest litigation risk is often not the underlying performance issue but the way it is communicated and managed, e.g. careless remarks, inconsistent / discriminatory treatment, or poorly framed decisions.

Where the role is safety-critical or otherwise high risk, employers should take a structured approach to support and risk management. That may include reviewing workload allocation, supervision, escalation routes, and whether temporary adjustments are appropriate. These steps can protect the employee and the business at the same time. However, adjustments are not the same thing as removing accountability. If an employee remains in post and continues to perform core functions, the expectation remains that they exercise reasonable care and skill.

Final comment: The implied duty of reasonable care remains central

Stepping back from maternity protections, the wider employment law point is straightforward: as a general principle, employees owe their employers an implied duty to exercise reasonable care and skill in performing their work. That implied duty sits alongside express contractual duties and workplace policies and applies across roles, although what “reasonable care” requires will depend heavily on the nature of the job, the employee’s seniority and the risks the role is designed to control. Pregnancy does not switch off that implied duty. A better way to frame the issue is that pregnancy may affect the context in which employers should manage work, risk and support, but  it does not rewrite the standard by which negligent performance is assessed.