HK Rights - Unfair work conditions

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NewMommie

New member
I am about 12 weeks pregnant and have just had a really eye opening experience at my job. Long story short, my bosses do not have children, are not women (maybe this is irrelevant but I don't think they know a thing about pregnancy) and seem to completely disregard the fact that I cannot work odd hours, long hours, etc. The final straw was them forcing me to work several all nighters in a row when I specifically scheduled a vacation and told them specifically my doctor advised me to sleep more as my weight gain was not great at the last scan.

I am having my 12 week scan soon, and hope my recent stresses have not affected the baby. But beyond the physical stresses, the entire experience has me incredibly depressed, anxious, nauseated, etcetc and I know this cannot be good for my baby. I desperately want my doctor to assign me bed rest (I just read a thread on how that is awful, but that is how desperate I am because I have tried talking to my employers but they do not get it and give me a terrible attitude as if I am just trying to get out of work, so I feel all I can do is present them a doctor's note), but I know I cannot just get a doctor to agree for me to get bed rest without a physical reason.

I know that this would be completely unacceptable in my home country, but have no idea what HK laws regarding pregnancy as a medical disability (and therefore fair treatment of disabled employees w/o no retribution such as firing, demotion, etc) are. Does anyone know what I can do, or what the laws on this are in HK?

I'm working today (Sunday) and my bosses return to the office tomorrow, so I am dreading seeing them and want to be able to know my rights. Thanks so much!
 
Hi,

As far as I am aware, a HK employer cannot fire you for any reason while you are pregnant (unless they can show gross negligence). So, I think it is fine to present a bed rest certificate and not worry about losing your job. The doctors in HK are pretty easy going about issuing medical notes.

Also, I believe that for HK pregnant employees, you can claim as much sick leave as you need due to pregnancy. I'm not even sure you need to have a doctors note. You should check with the labor department website. This sick leave does not count towards your 6 weeks off, or whatever time you are entitled to under HK law.

I am familiar with this because as a small business owner, one of our employees was pregnant last year and I definitely gave her a lot of flexible options (like work from home, only come in when you need to, etc). Luckily, for me, her pregnancy was a very smooth and easy one, and she didn't end up taking very much sick leave.

Hope that helps.
 
Oops...actually, what I just said only applies if you have been working at the company for a specific period before becoming pregnant (like a year?) and have a continuous contract. You should definitely check with the labor department to be certain.
 
Thanks; that's very helpful. So it is OK for me to ask my doctor for a note indicating I need some bed rest (I feel like I could use it for at least a few weeks to normalize, then I would like a 'fair' working schedule). I feel weird asking a doctor to give me something. My doctor is one of the expat docs that works at Matilda; I am very aware the HK local doctors seem to always give prescriptions without any questions, but I figured expat doctors would be more strict...
 
there is nothing to be feeling bad about.

you are NOT in your normal state of health. you ARE carrying another soon-to-be human inside of you. YOU MUST take it easier. explaining the situation to your doctor is the first step. tell her how unreasonable your bosses are and ask for "advice"...maybe ask about "bedrest" for your condition... would it be out of line? i don't think so in the least.
 
All doctors will see physical and emotional stress as dangerous for your health and that of the baby. My OB (expat, works at Matilda also) focused a lot on my working conditions throughout my pregnancy and signed me off whenever necessary (and my situation was a lot less intense than yours).
 
Hi newmommie, I agree with the other posters that there is nothing wrong with going to your doctor to explain your situation- they'd probably ask why you haven't been to see them sooner! By way of a comparison, I work in a very demanding line of work myself, but during my pregnancies, my bosses (all men) have been pretty understanding and have been more flexible in their arrangements to me (within reason of course, not to be unfair to other employees). I think cancelling vacations and several all nighters in a row is definitely unfair, whatever the reason.

I have a friend who had the same experience during her first pregnancy but then managed to rest a lot during her second pregnancy. Her second pregnancy turned out to be easier on her than her first, and her second baby was a good deal larger than the first. It may be coincidence, but she swears that the additional rest made a whole lot of difference.

Your health is more important than working hard for bosses that don't really care about you as a person. Just my personal view having seen lots of the same thing around me.
 
There are restrictions (I think 4 weeks) for sick leave during pregnancy but the 4 consecutive days rule doesn't apply and I guess like normal sick leave, a doctor's note is required.

There is also protection about work conditions for pregnant employees.

A word of warning tho, employers can ask for an independent doctor to assess your condition and if you requested bed rest doctors note when you didn't medically need it then this could be constituted as "gross misconduct" which is the ONLY reason they can fire you when pregnant.

good luck, hope things go well.
 
I found this at http://www.tannerdewitt.com/media/publications/working-mothers.php:

Maternity Rights

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. The maternity benefits include:

1. Maternity leave of:
* 10 weeks leave;
* An additional time equivalent to the period between the expected date of birth and the actual date of birth; 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.
The 10 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 10 week 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 pay. This is payable for the 10 week period. The pay is at a rate of 4/5ths of the employee’s usual wage.
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 $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 previously.
 
however, slamdunk, if the employer is overworking the employee and the employee reports this to her doctor who then says she needs a period of bedrest THAT is NOT gross misconduct. it is making sure the pregnant employee is getting enough rest, something the employers don't seem to think she needs.
 
carang said:
however, slamdunk, if the employer is overworking the employee and the employee reports this to her doctor who then says she needs a period of bedrest THAT is NOT gross misconduct. it is making sure the pregnant employee is getting enough rest, something the employers don't seem to think she needs.
Click to expand...

Agree, but in this case it sounded like it was a personal request for bedrest, rather than a medical opinion (I may be wrong). Also, I am not sure what rest the poster was allowed after her all nighter (full rest?), and whether she was required to do the all nighters before she was pregnant (ie she was on night shift?) etc etc.. I am not saying it's right, but if it's just her request for bedrest and not really a medical need, it may be treated as gross misconduct. It's just something that should be considered.

I can understand at 12 weeks, it must feel terrible, but the extreme tiredness felt at the beginning of pregnancy will hopefully go away soon. Short of getting the requisite medical certificate, maybe you can negotiate with your boss that if you are required to work long hours that you be also given enough time to rest before the next day of work?
 
agree with AndreaY. ask for shorter or more regular hours or half time even, if available. being frustrated over going to work isn't worth it so work something out with the bosses. if that doesn't work, is there someone more senior to talk to? they can't fire you so you've got the 'upper hand' now.
 
Hi

I know what you are going through! In my first pregnancy, I worked over 90 hours in the week that I told my employers I was pregnant (at 12 weeks). I work in an industry which is very client driven and all nights, weekends and long days are unfortunately part of the job. I also spoke to my specialist as I could not (and would not) keep up those hours. He was very receptive to writing me something to say I could only work a maximum number of hours a week (I had suggested 40 odd). I never needed it as once I told them, they tried to limit my deal exposure so that helped a lot but nice to know that I had it in my back pocket just in case.

If you think you need bed rest now then I say go for it but maybe also raise with your doctor the possibility of having him set a reasonable number of hours to work in a week which you can present to your employers.

Do you mind me asking what industry you work in?

Good luck
SB2
 
All, thanks for the great advice. Sorry I hadn't been back on this forum for awhile because I ended up going to my doctor and while I did not ask for bed rest explicitly, I told her my situation. She thankfully said the baby looked fine, but that continuing conditions like the ones I was being put through would eventually be bad. So I got a note like starbucks2 which recommended a 40 hour week. I gave it to my HR person who then contacted my partners (I am an IPO lawyer) and they have been good about my schedule since.

As to whether limiting my hours in this way means I'm not performing, well, I think it is certainly true that all nighters and long hours are part of my job. If there are coworkers who resent me right now, so be it - I have more important concerns, and I do try to be efficient in the time I am at work. Quite simply, I busted my ass for this law firm for over 4 years now, survived the layoffs, put in countless hours and made them a lot of money, so I think they can deal with me giving them a 'normal' workday for a few months.

One interesting thing that happened was that when I first gave my note to the HR lady, she suggested I voluntarily go on part-time program and reduce my salary and benefits. I was surprised and said I had been reading up on US laws (my law firm is CA based and I originated in a CA office before being transferred to their HK office) and pregnancy is treated as a 'temporary disability' in which if the employee needs to take time off or limit hours temporarily, the government will compensate for the difference. The employee should not suffer a reduction in salary or benefits. That is exactly what happened to my coworker in one of the US offices when she had to take 2 full months of bedrest. I was only requesting a normal working day. I think in HK the rules are different and once I said that seemed discriminatory to me, she backed off and then asked the head of HR in the US who confirmed that I could just limit my hours to 8 a day without having a reduction in my salary. Of course, I have still gone above those hours on many days, but try to at least work from home when it gets past 8 hours.

On a separate note, I really don't see how anyone has a normal working schedule and raises children in HK in my industry with the kind of work ethic/expectations they have here. I know where I was from before, there are plenty of moms working full-time for slightly less pay but normal working hours at companies. HK is just special I suppose.
 
Hi NewMommie

I am a lawyer too so know EXACTLY what you are going through (hence my 90 plus hours in the week I told them I was pregnant). Your experiences sounded so similiar to mine that I wondered if you were also a lawyer!! I had my baby almost 18 months ago and now pregnant with number 2. Because I didn't want to keep those hours up when the baby came, I decided to change to a professional support lawyer role (which is great as it is also part-time). I could not see how I could do a transactional legal role working those crazy hours and still have input in raising my child. It could be different in a different team (like litigation for example) and/or a different firm if there was willingness on the part of the partners to be proactive and forward-thinking. A friend of mine is still working in corporate law on a 3 day a week basis and seems to work for her as she has buy-in from her bosses. The women in my team at work and I have countless discussions on this issue and none of us can see how a transactional legal role in our practice area is possible if you still want to be a hands on mum. It is a shame as I do miss parts of the client facing role and the deal work (maybe once the kids are at school ....)

Can't believe that they suggested that you take a part time position and resultant pay cut because you are pregnant - very cheeky - no wonder she backed off when questioned!! A colleague of mine who is still a fee earner is in her last 2 months of pregnancy and had to have a chat to them as well as she was working until midnight every night and all weekend for months. Not acceptable when you are pregnant. I also agree that you may feel that your colleagues begrudge your reduced hours but I'd ignore that. They may not feel like that and if they do, then it is no different to having a sick note for a different reason. No-one would question it if you were recovering from glandular fever or something and needed rest and reduced hours.

Hang in there and glad baby doing fine.

I suppose you are thinking about what to do when the baby comes? Will you go back to work? Any chance of part-time?

SB2
 
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Hi, my employer called me and my team and said he plans to reduce our salary as he feels he is paying above market value. Out of 4 of us- as per the clauses he stated only me and my other female colleague would be affected. When I said that I would not agree to a decrease in salary, he is threatining to fire me. I have been working for 1.5 years and served my pregnancy notice as well. It was very obvious he does not want to pay my maternity pay. I work in a sales job and has suddenly increased the targets to an unreasonable number. He is not able to cite anything on my performace so he is picking on me for things like- 10 mins late or joking with a colleague during office hours.
How would you deal with a boss who is stressing you so that you resign?
 
Q: What is pregnancy discrimination?

A: The following acts are considered pregnancy discrimination: -- an employer refuses to hire a pregnant woman;
-- an employer dismisses or transfers a pregnant woman into a lower paying position;
-- an employer dismisses a woman on her return from maternity leave.

this is what I found on the equal opportunities commission website....might have more information that is useful for you...

Sex Discrimination Ordinance and I
 
hang in there

hihi,

If one is able to produce results and show for it, that is perhaps the best defensive strategy. If your employer is close-minded and assumes that being pregnant means non-performance, then you would need to "show for" otherwise even if you decide to sue, you would not have an evidential hearing at the courts.

hang in there ! :bighug
 
Hi coolgirl

Sorry to hear about your work situation. Sounds like your employer is picking on women in the sales team and that is outright sex discrimination, not just pregnancy discrimination. Making life unpleasant for you at work is called "constructive dismissal" and is legally recognized as similar to unfair dismissal, however you must have strong proof.

In practical terms, you should keep a good diary of all the incidents that you are describing, of your boss picking on you: dates times, who said what. If your company has a practice of job reviews once or twice a year, that should be a good time to raise the problems that you are encountering. Outside of the job reviews, try to find the right time and place to speak to your boss about his behaviour. If this is not possible, you should keep documenting all the incidents to build up a strong case of unfair dismissal and discrimination. Obviously you do not want to fight the company now, but keep this for later, if you find yourself having to defend your position.

It is illegal for the company to fire you whilst you are pregnant. They must compensate you all the way up to the time you return from maternity leave. Not only that, it is a criminal offence for your company and directors to fire you, except for gross negligence. If you have been recognized as a good employee prior to your pregnancy, that is a plus point for you.

Also call up the EOC hotline and try to talk to an employment lawyer for suggestions on how to cope with your problems.

Good luck.
 
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