A Hong Kong employee dismissed via WeChat while in hospital has been awarded substantial damages for pregnancy discrimination.
The claimant was a former employee of a logistics company. Between 2007 and 2011, she was employed by affiliated companies within the same group. From April 2011, she began working for the company under successive yearly contracts. Whilst employed by the company, she received recognition for and positive appraisals of her work. She was also awarded an end-of-year bonus each year during the period from 2011 to 2016.
In early March 2017, the company merged three of its 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 company of this. The following month, the company employed a new member of the sales department with the same responsibilities as the claimant.
In November 2017, the claimant was admitted to hospital due to complications with her pregnancy. Whilst she was still in hospital, the company 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 company refused to pay her an annual end-of-year bonus for 2017.
The claimant claimed that the Respondent discriminated against her as a pregnant woman by refusing to renew her employment contract and to pay her the yearly bonus she had received in other years, contrary to sections 8(a) and 11(2)(c) of Hong Kong's Sex Discrimination Ordinance.
At trial, the Respondent tried to justify the non-renewal of the employment contract. It put forward the following arguments:
- The bonus was discretionary in nature and the claimant was not entitled to it, and, in any case, the claimant did not perform her duties satisfactorily.
- The company had not been performing well financially since January 2017 and had had to eliminate four positions including the claimant's. Further, the company did not hire anyone as a replacement for the claimant.
- The claimant had failed to attract quality and new clients; failed to build a sales team; had unsatisfactory attendance; failed to adhere to leave procedures; and made private calls with her work phone without reimbursing the company.
The Court rejected the company's arguments and ruled that the dismissal was discriminatory. Given the proximity in time between the claimant informing the company of her pregnancy and the engagement of a new employee who took up her responsibilities, it could be inferred that the claimant's pregnancy was one reason—if not the main reason—for dismissing her, regardless of whether there might have been 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 damages for loss of income in the sum of HKD 306,680 (c. USD 40,000) and a year-end bonus of HKD 498,500 (c. USD 60,000), as well as interest on both amounts.
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