Section 15

Prohibition against termination of employment

對終止僱傭的禁止

Part VIII — Maternity Protection (生育保障)

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Statutory Text

(1) Subject to subsections (1A) and (1B)—

(a) after a pregnant employee has served notice of pregnancy on her employer, the employer shall not terminate her continuous contract of employment otherwise than in accordance with section 9 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 or the date of cessation of pregnancy (otherwise than by reason of confinement);

(b) if a pregnant employee has served such notice on her employer immediately after being informed of the termination of her contract of employment where the termination was made otherwise than in accordance with section 9 by her employer, the employer shall immediately withdraw the termination or notice of termination in which event the termination or notice of termination shall be treated as if it had not taken place.

(1A) Where in a contract of employment of a pregnant employee, whether in writing or oral, it has been expressly agreed that the employment is on probation, subsection (1) shall not prevent the termination by an employer of such contract for reasons other than pregnancy during the period of probation if the period does not exceed 12 weeks, or during the first 12 weeks of probation if the period of probation exceeds 12 weeks.

(1B) An employer who terminates the continuous contract of employment of a pregnant employee shall be taken for the purposes of subsection (1)(a) or (b) to terminate the contract otherwise than in accordance with section 9 —

(a) unless the contrary is proved; or

(b) subject to subsection (1C), unless the employer proves that—

(i) he purported to terminate the contract in accordance with that section; and

(ii) at the time of such termination, he reasonably believed that he had a ground to do so.

(1C) Subsection (1B)(b) shall not apply in the case of civil proceedings.

(1D) For the purposes of subsections (2)(b) , (2A) and (2B), wages ( 工資 ) includes any sum paid by an employer in respect of—

(a) a day of maternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee;

(b) a day of leave taken by the employee with the agreement of her employer;

(d) a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees’ Compensation Ordinance ( Cap. 282 ).

(2) An employer who contravenes subsection (1)(a) or (b) shall be liable to pay to the female employee—

(a) the sum which would have been payable if the contract had been terminated by the employer under section 7 provided that she has not received any such payment under that section;

(b) a further sum equivalent to the monthly average of the wages earned by the employee during—

(i) the period of 12 months immediately before the date of termination of the contract of employment; or

(ii) if the employee has been employed by the employer for a period shorter than 12 months immediately before the date of termination of the contract, the shorter period; and

(2A) In calculating the monthly average of the wages earned by a female employee during the period of 12 months or the shorter period—

(a) any period therein for which the employee was not paid her wages or full wages by reason of—

(i) any maternity leave, rest day, sickness day, holiday or annual leave taken by the employee;

(ii) any leave taken by the employee with the agreement of her employer;

(iii) her not being provided by her employer with work on any normal working day; or

(iv) her absence from work due to temporary incapacity for which compensation is payable under section 10 of the Employees’ Compensation Ordinance ( Cap. 282 ); and

(b) any wages paid to her for the period referred to in paragraph (a),

are to be disregarded.

(2B) For the avoidance of doubt, if the amount of the wages paid to a female employee in respect of a day specified in subsection (1D) is only a fraction of the amount earned by the employee on a normal working day, the wages and the day are to be disregarded in accordance with subsection (2A).

(2C) Despite subsection (2)(b) , if for any reason it is impracticable to calculate the monthly average of the wages earned by a female employee in the manner provided in that subsection, the amount may be calculated by reference to the wages earned by a person who was employed at the same work by the same employer during the period of 12 months immediately before the date of termination of the employee’s contract of employment, or, if there is no such person, by a person who was employed in the same trade or occupation and at the same work in the same district during the period of 12 months immediately before the date of termination of the employee’s contract of employment.

(3)

(4) Any employer who contravenes subsection (1)(a) or (b) shall be guilty of an offence and shall be liable on conviction to a fine at level 6.

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