9. One week after serving the notice of pregnancy, my employer fired me. Has he violated the law?
An employer is prohibited from dismissing a pregnant employee from the date on which she is confirmed pregnant by a medical certificate to the date on which she is due to return to work upon the expiry of her maternity leave if:
- the employee has been employed under a continuous contract, and
- she has served a notice of pregnancy to her employer.
If a pregnant employee is dismissed by her employer before she has served a notice of pregnancy, then she may serve such notice immediately after being informed of her dismissal. Under such circumstances, her employer must withdraw the dismissal or the notice of dismissal.
However, employers are not prohibited from dismissing pregnant employees under the following circumstances:
- the employee is summarily dismissed due to serious misconduct; or
- where it has been expressly agreed that the employment is on probation, the employee is dismissed for reasons other than pregnancy during the probation period of not more than 12 weeks.
The judgment from the Court of Final Appeal in the case of Hong Kong Ming Wah Shipping Company Ltd v Sun Min also mentioned that a pregnant employee has the right to remain in her employment and, subject to certain conditions, to receive the prescribed payments during the period of protection. The judgment further explained that there is no basis for cutting down this protection by pointing to an offer of an alternative employment under a new contract with some other entity (company/business organisation), albeit an entity which is a member of the same group of companies.
Offences and Penalties
Except for the circumstances provided above, it is an offence for employers to dismiss pregnant employees. Employers who do so are liable to prosecution and, on conviction, to a fine of $100,000. Employers are also required to pay the following sums of money to the dismissed employee within seven days after the day of termination:
- wages in lieu of notice;
- a further sum equivalent to one month's wages; and
- 10 weeks' maternity leave pay if, but for the dismissal, she would have been entitled to such a payment.
You can also claim remedies/compensations against your employer if you were dismissed other than for a valid reason as specified in the Employment Ordinance (please refer to the Q&A for "unreasonable and unlawful dismissal" ).