The Claimant asserted that China Travel (Cargo) Logistics Centre Limited (the “Company“) engaged in direct discrimination against her as a pregnant woman, treating her less favourably due to her pregnancy and/or maternity leave. This discrimination was manifested through the Company’s refusal to (i) renew her employment contract and (ii) pay her the yearly bonus she had been receiving, contrary to sections 8(a) and 11(2)(c) of the Sex Discrimination Ordinance (Cap. 480).
For discrimination claims, the burden is on the claimants to prove discrimination on the balance of probabilities. Since direct evidence is rare, the claimants may rely on inferences from primary facts. If employers can provide genuine, albeit unjustified reasons without showing discrimination, the inference of unlawful discrimination is usually not made.
The Court determined that the Company’s claims of “organizational restructuring” and “business downsizing” to justify denying the Claimant’s contract renewal in November 2017 lacked evidence. Documents revealed the Company urgently hired a new employee in April 2017, after the Claimant informed them of her pregnancy in March 2017, potentially to replace the already pregnant Claimant. Additionally, while the Company did experience a decline in profits, they failed to demonstrate that this decline was a result of the Claimant’s poor performance. These factors indicated that the non-renewal of the contract was due to the Claimant’s pregnancy, constituting discrimination. The Court also ruled that refusing the year-end bonus was further pregnancy discrimination.
The Court ordered the Company to pay the Claimant a total of HK$306,680 for lost income and HK$498,500 for the year-end bonus, along with interest and legal fees. Additionally, damages for injury to feelings were assessed at HK$130,000, and if the Company fails to issue a written apology or reference letter to the Claimant, the Court may impose exemplary damages.
The Claimant also requested that the Company establish an internal anti-discrimination policy and to handle complaints. However, the Court acknowledged the complexity of the matter and instructed both parties to negotiate and report back to the Court on whether a consensus could be reached.
In conclusion, this case emphasizes the importance of eliminating pregnancy discrimination in employment and urges employers to promote inclusive workplaces.
For further details, the full judgement can be found here.