Traditional Chinese Simplified Chinese Email this article news.gov.hk
LCQ4: Dismissal of employees upon return from maternity leave
********************************************************

     Following is an oral reply by the Secretary for Labour and Welfare, Mr Matthew Cheung Kin-chung, to a question by the Hon Pan Pey-chyou on the dismissal of employees upon return from maternity leave in the Legislative Council today (November 5):

Question :

     Under the Employment Ordinance, if an employee who is employed under a continuous contract has served a notice of pregnancy on her employer, the employer shall not dismiss such employee during the period from the date on which her pregnancy is confirmed to the date on which she is due to return to work on the expiry of her maternity leave.  However, I have learnt that quite a number of employees were dismissed by their employers on the day of their return to work from maternity leave.  In this connection, will the Government inform this Council:

(a)  of the respective numbers of complaints received by the Labour Department (ˇ§LDˇ¨) in each of the past three years about employees being dismissed by their employers on the day of their return to work from maternity leave; and, among them, the number of cases in which LD instituted prosecutions against the employers concerned and the number of employers convicted;

(b)  whether it will extend the above period of employment protection enjoyed by pregnant employees so that employers may not unreasonably dismiss employees within the six months following the expiry of their employees' maternity leave; and

(c)  whether it will expand the functions of the Equal Opportunities Commission and empower the Commission to prosecute employers suspected of having violated the Sex Discrimination Ordinance or the Family Status Discrimination Ordinance, particularly those provisions relating to pregnancy discrimination?

Reply :

President,

     The purpose of the provisions on maternity protection under the Employment Ordinance (EO) is to accord protection to employees who become pregnant or who are on maternity leave to ensure that their employment rights, benefits and job security will not be affected because of their pregnancy or confinement during the period of their pregnancy and maternity leave.  According to the EO, a female employee employed under a continuous contract before the commencement of maternity leave is entitled to take such leave upon serving notice of pregnancy on her employer.  The employer shall not terminate her employment otherwise than in circumstances of her serious misconduct during the period 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 on the expiry of her maternity leave.  However, the said period does not extend beyond the expiry of her maternity leave.  We have consulted the Department of Justice and consider that this period does not include the day on which the employee returns to work.  The Labour Department (LD) does not tolerate employers breaching the law and will institute prosecution once there is sufficient evidence.

     In response to Dr Hon PAN's question, my reply is set out below.

(a)  From January 2005 to September 2008, LD has secured 11 convicted summonses against employers who have dismissed pregnant employees or employees taking maternity leave from the date of their confirmed pregnancy to the date on which they were due to return to work on the expiry of their maternity leave.  Although LD does not keep any statistical breakdown on the number of complaints relating to employees who are dismissed on the first day of returning to work upon the expiry of maternity leave, the Prosecution Division of LD handled one such case in the past three years.  Based on the legal advice of the Department of Justice, no prosecution was taken out in respect of that case.

(b) and (c) At present, it is already a criminal offence under the EO to dismiss an employee who is pregnant or on maternity leave.  Under the Sex Discrimination Ordinance, an employer who dismisses an employee when she resumes duty after her maternity leave may amount to pregnancy discrimination.  Discrimination against a pregnant woman is unlawful and the employee can lodge a complaint with the Equal Opportunities Commission or take legal action against her employer at the District Court, including making claims for monetary compensation or re-engagement.

     Therefore, we consider that existing legislation has provided pregnant employees with appropriate protection on various aspects including maternity leave and employment protection.  We have no plan to amend the provisions on maternity protection with regard to the prohibition of termination of employment.  Nevertheless, we will continue to promote actively the message of maternity protection under existing legislation to employers, employees and the public through publicity and promotional activities.

Ends/Wednesday, November 5, 2008
Issued at HKT 13:25

NNNN

Print this page