Working Mothers: Maternity Rights under Hong Kong Law03Mar2021
New mothers have many things to worry about. Those who are working can also face additional problems in terms of maternity rights and difficulties when returning to work. The law provides several protections for working mothers in such situations.
Under Hong Kong Law a pregnant woman is entitled to maternity benefits from her employer, provided she is employed under a “continuous contract”. That requires employment of over 18 hours per week, for four or more consecutive weeks. The maternity benefits include:
1. Maternity leave of:
- 14 weeks* leave to be taken continuously;
- An additional time equivalent to any period of time between the expected date of birth and the actual due date where delivery occurs after the expected due date; and
- Up to 4 weeks additional leave in the event of illness or disability related to the birth or pregnancy. This is in addition to the entitlement to sick leave.
* With effect from 11 December 2020, the Hong Kong Employment (Amendment) Ordinance 2020 increased the length of statutory maternity leave from 10 weeks to 14 weeks for all female employees who give birth on or after 11 December 2020.
The 14 weeks leave would start 4 weeks before the expected date of birth, unless the employer and employee can agree a date, which would usually be between 4 and 2 weeks before the birth. If the baby is born early, and prior to the agreed commencement date, the 14 weeks maternity period will start on the date of the birth.
The pregnant employee will need to have given notice of her pregnancy and intention to take maternity leave to the employer.
2. If the woman has been employed for over 40 weeks and has given the employer a certificate of pregnancy and of the expected due date, she is also entitled to maternity leave pay. This is payable for the 14 week period. The pay is at a rate of 4/5ths of the employee’s average daily wages. Maternity leave pay for the additional 4 weeks period is subject to a total cap of HK$80,000 for each employee.
The Labour Department announced in December 2020 that employers, after payment of 14 weeks’ maternity leave pay, may apply for reimbursement of the cost of the additional 4 weeks of statutory maternity leave pay through its Reimbursement of Maternity Leave Pay Scheme (“RMLP Scheme”). Employers wishing to apply for reimbursement are required to keep records including:
- employers’ payment records of the 14 weeks’ statutory maternity leave pay (e.g. salary slips, bank transaction records, etc.);
- wage records of the 12 months preceding the commencement of maternity leave; and
- proof of pregnancy provided by the employee to the employer (e.g. medical certificates specifying the expected dates of confinement, medical certificates or certificates of attendance for medical examinations in relation to pregnancy).
The Labour Department has stated that the RMLP Scheme, including a one-stop online portal to facilitate electronic submission of applications by employers, will be implemented as soon as practicable in the first half of 2021.
Maternity leave pay does not extend to any additional maternity leave due to late delivery and/or illness or disability related to the birth or pregnancy. The female employee may however take sick leave in these circumstances and may be entitled to sickness allowance. In this regard, the Hong Kong Employment (Amendment) Ordinance 2020 provides that a certificate of attendance issued by a registered medical practitioner, nurse or midwife (as opposed to the previous requirement of a medical certificate issued by a registered medical practitioner) is now acceptable documentary proof for the purposes of entitling a pregnant employee to sickness allowance for any day on which the employee has attended a medical examination in relation to her pregnancy.
3. A valuable protection is the prohibition on termination of employment. Unless the employee is summarily dismissed for gross misconduct, the employer is barred from terminating the employment of an employee who has given notice of her pregnancy.
Under Hong Kong law it does not matter whether the reason for the dismissal is linked to the pregnancy or not. The prohibition is absolute. Indeed, even if the employer is unaware of the pregnancy and gives notice, the employer must withdraw the notice if the employee gives immediate notice of the pregnancy.
If the employer terminates the employment in breach of this law, then they must pay the employee all of her wages and maternity pay up to the date on which the maternity leave would have ended. In addition, the employer commits a criminal offence and is liable for the following additional sums:
- An additional month’s wages; and
- For employees with over 2 years of service, they may also be entitled to additional benefits of up to HK$150,000.
4. A pregnant employee who has given a medical certificate cannot be assigned to perform hazardous and strenuous work which may cause a risk to the pregnancy. If her job involves that type of work, then the employer must change the employee’s duties within 14 days of the certificate being presented.
Pregnant women who wish to utilise these rights need to make sure that the proper notices are served and also that their employers are aware of these rights. It is possible for employers to agree more generous maternity rights and even include these in the employment contract. Indeed many employers, especially international firms, have consistent maternity benefits irrespective of the location and the local law, with many employers offering maternity leave of 6 months or more. However, in the absence of agreement the only entitlement is to the benefits and rights set out above.
Part Time Working
As mentioned above, to take advantage of the maternity benefits under the Employment ordinance an employee must be employed under a “continuous contract”.
However it is not only the maternity rights which are dependent upon this. Many of the rights under the Employment Ordinance are dependent upon the employee qualifying for those rights by having a “continuous contract”.
In effect this requires employees to work over 18 hours every week. Many mothers returning to work may wish to change their working hours and work part time or on some other schedule, such as alternate weeks or some other “job-share” arrangement. The employee must ensure that she meets the requirement of 18 hours every week in order to qualify for many of the protections under the Employment Ordinance. If she does not the employee will often fail to qualify as being employed under a continuous contract and will lose much of the protection under the Employment Ordinance, including to:
- Sickness leave and sick pay;
- Statutory Paid leave;
- Employment Protection; and
- Severance and Long Service Pay.
Mothers returning to work on changed hours and working arrangements should take care to make sure that they are not inadvertently waiving many of their statutory rights.
Many mothers returning to work also face the risk of discrimination against them by their employers. This may be for many reasons such as resentment at the claiming of maternity benefits, a perceived reduction in commitment or flexibility, or a preference for a temporary replacement who performed the job while the employee was on maternity leave.
However, no matter what the reason the law provides protection against discrimination on the grounds of sex, pregnancy and family status. Employers are not entitled to discriminate against employees on the grounds of their pregnancy or sex or family status or treat them less favourably than the employer would treat someone who was not in the same position.
Forms of discrimination include termination, other detriment and the denial of opportunities which would have been available but for the discrimination, as well as direct discrimination where the employer deliberately places an employee at a disadvantage because of their sex, or pregnancy. The law also prohibits indirect discrimination.
Therefore if an employer, for example, treats the part-time employees less favourably, this may have the indirect effect of discriminating against women and mothers if the majority of part–time workers are in that category.
A good example of discrimination is the case of Lam Wing Lai vs Y.T. Cheng (Chingtai) Limited on 23rd December 2005. In that case a secretary to the Directors went on maternity leave. She had also had several periods of Sick Leave due to pregnancy complications. She was replaced during her maternity leave by a temporary secretary.
On returning to work, she suspected her employers wished to terminate her employment and she enquired as to their intentions. After a short period they made allegations of poor performance and terminated her employment. The Court reviewed the evidence and decided that one of the reasons for the dismissal was discrimination on the grounds of her pregnancy, sex and family status.
The employee was awarded compensation for loss of income of HK$88,500 and injury to feelings of HK$75,000. Her salary had been HK $15,800pm.
Another more recent discrimination case is 秦秀清 對 長鴻鋁窗裝飾工程有限公司 CHUN SAU CHING v CHEUNG HUNG ALUMINUM WINDOW DECORATION WORKS LTD) –  2 HKC 146. In that case, an employee employed for over two years was asked to resign (which she refused) notwithstanding that she had informed the company of her pregnancy. She subsequently suffered a miscarriage prior to receiving her notice of termination. The employee lodged a complaint with the Equal Opportunities Commission which filed an action at the District Court on her behalf. At trial, the company alleged that the employee was dismissed due to her poor work performance. However, the Court found her to be a credible witness and determined that her employer had terminated her employment on the grounds of her pregnancy.
The employee was awarded compensation for injury to feelings of HK$90,000, loss of income of HK$33,000 as well as HK$10,000 exemplary damages. Her monthly salary had been HK$11,000.
Parties in discrimination proceedings usually bear their own legal costs. In this case however the Court considered the company’s conduct in the proceedings to be unreasonable and ordered the employer to pay the employee’s legal costs.
Mothers returning to work should be aware that discrimination on the grounds of their position and status as mothers or by reason of them having taken maternity leave, is unlawful. The discrimination can also be indirect and unintentional. Nevertheless such conduct by the employer will be unlawful if it places employees in that protected category in a less favourable position than the one they would have been in but for their sex or status.
(This article is updated as of 3 March 2021 from an earlier version posted in February 2006)
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Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.