Hong Kong Ordinances

EMPLOYMENT ORDINANCE - SECT 15

Prohibition against termination of employment

(Past version on 12/04/2001).
(Past version on 30/06/1997).

(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. (Replaced 7 of 2001 s. 5)

(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. (Replaced 73 of 1997 s.
7)

(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. (Added 7 of 2001 s. 5)

(1C) Subsection (1B)(b) shall not apply in the case of civil proceedings.
(Added 7 of 2001 s. 5)

(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;

   (c)  a normal working day on which the employee is not provided with work;

   (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). (Added 7 of 2007 s. 7)

(2) An employer who contravenes subsection (1)(a) or (b) shall be liable to
pay to the female employee- (Amended 7 of 2001 s. 5)

   (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; (Amended 73 of 1997 s.
        7)

   (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 (Replaced
               7 of 2007 s. 7)

   (c)  where the employee is or would have been entitled to maternity 
        leave pay, maternity leave pay for 10 weeks. (Added 22 of 1981 s. 5)

(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. (Added 7 of 2007 s. 7)

(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). (Added 7 of 2007 s. 7)

(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. (Added 7 of 2007 s. 7)

(3) (Repealed 7 of 2007 s. 7)

(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. (Replaced 7
of 2001 s. 5) “wages” (工資)