At the Legislative Council sitting in Moving Committee Stage Amendments
I move the amendments to the clauses read out just now, as set out in the paper circularized to Members.
2. Under the original clauses 5 and 8, employers who terminate the contract of a pregnant employee or an employee on paid sick leave shall be deemed to have done so otherwise than in circumstances where summary dismissal is justified, unless the contrary is proved. To protect employers who had acted in good faith but the dismissal was later found to be wrongful by the court, we proposed to allow as a defence for the employer being prosecuted to prove that, at the time of terminating the contract, he reasonably believed that he had a ground to do so.
3. When the Bill was deliberated at its Bills Committee, some Members expressed concern about the "deeming provision" described above. They were worried that employers might be subject to frivolous prosecution, irrespective of whether they genuinely believed they had a case to dismiss a pregnant employee or an employee during paid sick leave.
4. We have explained to Members that it is the prosecutions policy not to take out a prosecution unless there is sufficient evidence to establish the offence charged and that there is a reasonable prospect to secure a conviction. Since a defence exists in this case for employers who have acted in good faith, it is highly unlikely that prosecution would be initiated against an employer who genuinely believed he had good grounds to initiate summary dismissal.
5. However, to address Members' concern, we have recast the presumption clause - by making it clear that the presumption will not be triggered for the purpose of criminal proceedings if the employer can prove that he purported to dismiss the employee summarily and he reasonably believed that he had a ground to do so. The new clauses 5 and 8 should provide reasonable protection to employers who have acted in good faith.
6. I would like to add that in civil proceedings, the original "deeming provision" still applies. This means that an employer who dismisses a pregnant employee or an employee on paid sick leave will have to prove, if challenged, that he terminated the contract in circumstances where summary dismissal is justified. Otherwise, he shall be liable to pay compensation to the employee.
7. The rest of the amendments are purely textual in nature. For instance, Members of the Bills Committee were of the view that the original clause 4 could be expressed in a manner which is easier to read by using less double negatives in the construction of the clause. We have amended the clause accordingly.
8. The Department of Justice has advised that Schedule 3 to the Sex Discrimination Ordinance (Cap. 480) had already expired. Clause 16 is thus redundant and can be deleted.
9. All the Committee Stage Amendments have been agreed with the Bills Committee after detailed discussion. I hope Members will support and pass these amendments. Thank you, Madam Chairman.