New mothers have a lot of worries. Those in work may also have additional issues related to maternity rights and difficulties getting back to work. The law provides several protective measures for working mothers in such situations.
Maternity rights
Under Hong Kong law, a pregnant woman is entitled to maternity benefit from her employer if she is employed on a “permanent contract”. This requires employment of more than 18 hours per week for four or more consecutive weeks. The maternity benefits include:
1. Maternity leave from:
- 14 weeks * uninterrupted vacation;
- An additional time equal to the amount of time between the expected date of birth and the actual date of birth; and
- Up to 4 weeks of additional leave in the event of illness or disability in connection with childbirth or pregnancy. This applies in addition to the entitlement to sick leave.
* With effect from December 11, 2020, the Hong Kong Employment (Amendment) Ordinance 2020 increased the length of statutory maternity leave for all employees giving birth on or after December 11, 2020 from 10 weeks to 14 weeks.
The 14-week vacation would start 4 weeks before the expected date of birth, unless the employer and employee can agree on a date that is usually between 4 and 2 weeks before the birth. If the baby is born early and before the agreed start, the 14-week maternity period begins on the date of birth.
The pregnant employee must have notified her pregnancy and the intention to grant the employer maternity leave.
2. If the woman has been employed for over 40 weeks and has provided the employer with a certificate of pregnancy and the expected due date, she is also entitled to maternity leave. This is payable for a period of 14 weeks. The pay is 4/5 of the average daily wage of the employee. Maternity leave allowance for the additional 4 weeks is capped at HK $ 80,000 per employee.
The Ministry of Labor announced in December 2020 that employers, after paying 14 weeks of maternity leave, could request reimbursement of the cost of the additional 4 weeks of statutory maternity leave through the maternity leave reimbursement system (“RMLP scheme”). Employers wishing to request a reimbursement must keep records including:
- 14-week statutory maternity leave payment records of employers (e.g., pay slips, bank transfer records, etc.);
- Wage records for the 12 months prior to the start of maternity leave; and
- Proof of pregnancy, which the employee presents to the employer (e.g. medical certificates stating the expected delivery dates, medical certificates or certificates of attendance for medical examinations in connection with the pregnancy).
The Ministry of Labor has stated that the RMLP program, including a one-stop online portal to facilitate electronic filing of applications by employers, will be implemented as soon as possible in the first half of 2021.
The maternity leave allowance does not extend to additional maternity leave due to late childbirth and / or illness or disability related to childbirth or pregnancy. However, under these circumstances the employee can be on sick leave and be entitled to sickness benefit. In this regard, the Hong Kong Employment (Amendment) Ordinance 2020 provides that a certificate of attendance issued by a registered doctor, nurse or midwife (as opposed to the previous requirement for a medical certificate issued by a registered doctor) is now acceptable as evidence of Purposes of a pregnant employee’s entitlement to sickness benefit for each day that the employee has undergone a medical examination related to her pregnancy.
3. A valuable protection is the prohibition of the termination of the employment relationship. Unless the employee is dismissed prematurely for gross misconduct, the employer is prohibited from terminating the employment relationship with an employee who has announced her pregnancy.
Under Hong Kong law, it does not matter whether the reason for the discharge is related to pregnancy or not. The ban is absolute. Even if the employer does not know about the pregnancy and cancels it, the employer must withdraw the termination if the employee cancels the pregnancy immediately.
If the employer terminates the employment relationship in violation of this law, he must pay the employee all of her wages and maternity allowance up to the date on which the maternity leave would have ended. In addition, the employer commits a criminal offense and is liable for the following additional amounts:
- An additional monthly wage; and
- Employees with more than 2 years of service may be eligible for additional benefits of up to HK $ 150,000.
4. A pregnant worker who has a medical certificate cannot be assigned dangerous and strenuous work that could pose a risk to the pregnancy. If their job involves this type of work, then the employer must change the employee’s duties within 14 days of the submission of the certificate.
Pregnant women who wish to exercise these rights must ensure that the correct notices are received and that their employers are aware of these rights. Employers can agree on more generous maternity rights and even include them in the employment contract. Indeed, regardless of location and local laws, many employers, especially international companies, have uniform maternity benefits, with many employers offering maternity leave of 6 months or more. In the absence of an agreement, the only entitlement to the above benefits and rights exists.
Work part time
As mentioned above, an employee must be employed under a “permanent contract” in order to be able to claim maternity benefit under the Labor Regulations.
But not only maternity rights depend on this. Many of the rights under the Labor Regulations depend on the employee qualifying for these rights through a “permanent contract”.
In fact, employees have to work more than 18 hours a week. Many mothers returning to work may want to change their working hours to work part-time or on a different schedule, e.g. B. after alternating weeks or after another “job-share” agreement. The worker must ensure that she meets the 18 hours per week requirement in order to qualify for many of the protections in the Employment Regulations. If this is not the case, the worker often does not qualify as an employee under a permanent contract and loses much of the protection under the Labor Regulations, including:
- Sick leave and sick pay;
- Statutory paid vacation;
- Osh; and
- Severance payment and long service pay.
Mothers returning to work with changed working hours and conditions should be careful not to inadvertently forego many of their statutory rights.
Discrimination
Many mothers who return to work are also at risk of being discriminated against by their employers. This can be for many reasons, such as: B. Resentment against the use of maternity allowance, an alleged reduction in commitment or flexibility or the preference for a temporary replacement who carried out the work during the employee’s maternity leave.
Regardless of the reason for which the law provides protection against discrimination based on gender, pregnancy and marital status. Employers have no right to discriminate against workers based on pregnancy, gender or marital status, or to treat them less favorably than the employer would treat someone who was not in the same position.
Forms of discrimination include dismissal, other disadvantages and denial of opportunities that would have been available without the discrimination, as well as direct discrimination when the employer deliberately discriminates against an employee because of her gender or pregnancy. The law also prohibits indirect discrimination.
For example, if an employer treats part-time workers less favorably, this can indirectly lead to discrimination against women and mothers if the majority of part-time workers belong to this category.
A good example of discrimination is Lam Wing Lai v YT Cheng (Chingtai) Limited on December 23, 2005. In this case, a secretary to the directors went on maternity leave. She had also had several periods of illness due to pregnancy complications. She was replaced by a temporary secretary during her maternity leave.
When she returned to work, she suspected that her employers were about to terminate her employment and asked about her intentions. After a short time, they blamed their poor performance and quit their job. The court examined the evidence and ruled that one of the grounds for dismissal was discrimination based on pregnancy, gender and marital status.
The employee was awarded HK $ 88,500 in compensation for loss of income and HK $ 75,000 in emotional injury. Her salary had been HK $ 15,800pm.
Another recent case of discrimination is Qin Xiuqing against CHUN SAU CHING against CHEUNG HUNG ALUMINUM WINDOW DECORATION WORKS LTD. [2020] 2 HKC 146. In this case, an employee who had been employed for more than two years was asked to resign (which she refused to do) even though she had informed the company of her pregnancy. She subsequently miscarried before being given notice. The employee filed a complaint with the Equal Opportunities Commission, which filed a complaint on her behalf with the district court. At the trial, the company alleged that the employee had been fired for poor job performance. However, the court found her a credible witness and found that her employer had terminated her employment due to her pregnancy.
The employee received HK $ 90,000 in emotional harm compensation, HK $ 33,000 in lost income, and HK $ 10,000 in exemplary damage. Her monthly salary was HK $ 11,000.
Parties in discrimination proceedings usually bear their own legal costs. In this case, however, the Court found the company’s conduct in the proceedings to be inappropriate and ordered the employer to pay the worker’s legal costs.
Returning mothers should be aware that discrimination based on their position and status as a mother or on maternity leave is unlawful. Discrimination can also be indirect and unintentional. However, such conduct on the part of the employer is unlawful if it places workers in this protected category in a less favorable position than what they would have been in without their gender or status.
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