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Global HR Lawyers

No place for pregnancy discrimination at the workplace in Hong Kong

04 September 2023

The Claimant was a former employee of the Respondent, a logistics company. Between 2007 – 2011, the Claimant was employed by affiliated companies within the same group. From April 2011, the Claimant began working for the Respondent under successive yearly contracts. Whilst employed by the Respondent, the Claimant received various recognition and appraisals for her work. She was also awarded an annual end-of-year bonus for each year during the period from 2011 to 2016.

In early March 2017, the Respondent merged three business units into one. The Claimant headed this new integrated unit as well as the Sales Department. Shortly after the integration, the Claimant became pregnant and informed the Respondent of the same. In the following month, the Respondent employed a new member of the Sales Department who had the same overlapping responsibility as the Claimant.

In November 2017, the Claimant was admitted to the hospital due to complications with her pregnancy. Whilst she was still in hospital, the Respondent informed her via WeChat that they would not renew her employment contract in 2018, which would have commenced on 1 January 2018, due to the company’s restructuring and business downsizing. The Respondent refused to pay her an annual end-of-year bonus for 2017.

The Claimant claimed that the Respondent discriminated her as a pregnant woman by refusing to renew her employment contract and to pay her the yearly bonus she has been receiving in years, contrary to sections 8(a) and 11(2)(c) of the Sex Discrimination Ordinance.

At trial, the Respondent tried to justify the non-renewal of the employment contract/dismissal. It put forward the following arguments:

a. The bonus was discretionary in nature and the Claimant was not entitled to the same. Further, the Claimant did not perform her duties satisfactorily;

b. The Respondent did not perform well financially since January 2017 and had to eliminate four positions including that of the Claimant’s. Further, the company did not hire anyone as a replacement for the Claimant; and

c. The Claimant had (a) failed to attract quality and new clients; (b) failed to build a sales team; (c) had unsatisfactory attendance; (d) failed to adhere to leave procedures; and (e) made private calls with her work phone without reimbursing the company.

The Court rejected the Respondent’s arguments and ruled in favour of the Claimant that the dismissal was discriminatory. Given the proximity of time between the Claimant informing the Respondent of her pregnancy and the Respondent’s new hire who took up her responsibilities, it could be inferred that the Claimant’s pregnancy was one, if not the substantial reason for dismissing her, regardless of whether there might be other reasons. As the refusal to pay the bonus was consequential upon the dismissal, the refusal to pay was also discriminatory.

The Claimant was awarded loss of income in the sum of HK$306,680, a year-end bonus in the sum of HK$498,500, and interest on both amounts.

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