Hong Kong Maternity and Paternity Leave: Statutory Rights Under Cap 57

Hong Kong Maternity and Paternity Leave Statutory Rights

The Employment Ordinance (Cap. 57) sets out statutory maternity leave and paternity leave for employees in Hong Kong. Getting hong kong maternity and paternity leave statutory rights wrong exposes an employer to claims for unlawful dismissal and back pay. The entitlements, eligibility conditions, pay rates and protections are fixed by the ordinance. No discretion.

Hong Kong Maternity Leave Entitlement

A female employee under a continuous contract is entitled to 14 weeks of maternity leave. The 4-18 rule defines a continuous contract: employed continuously by the same employer for four weeks or more, working at least 18 hours in each week.

The leave splits into two parts. Ten weeks immediately following the commencement of maternity leave. Four weeks immediately after that first 10-week period. An employee may begin maternity leave no earlier than four weeks before the expected date of confinement, as certified by a medical practitioner.

To claim, the employee gives notice of her pregnancy and the expected date of confinement. The employer may request a certificate of pregnancy from a registered medical practitioner or a registered midwife confirming the pregnancy and stating the expected date of confinement. Keep that certificate on file.

Hong Kong Paternity Leave Law

A male employee under a continuous contract is entitled to five days of paternity leave. The entitlement arises when the employee’s child is born, or when the employee’s spouse or partner gives birth.

The leave must be taken within 10 weeks immediately following the date of the child’s birth. The employee notifies the employer of the expected date of confinement or the actual date of birth. The employer may require a certificate of confinement or a declaration confirming the birth.

The five days may be taken as a continuous block or on separate days. The employee gives notice at least three months before the expected date of confinement, or as soon as practicable after the birth. Late notice is permitted only where the birth occurs earlier than expected.

Hong Kong Parental Leave Cap 57

The Employment Ordinance (Cap. 57) governs both maternity leave and paternity leave. It does not use the term “parental leave” as a single category. It provides separate statutory entitlements, as described above.

The ordinance also covers leave related to miscarriage or termination of pregnancy. A female employee who has a miscarriage or undergoes a termination of pregnancy is entitled to maternity leave, subject to the same continuous contract requirement. The length of leave depends on the stage of the pregnancy, as certified by a medical practitioner. Do not assume the 14-week entitlement applies here.

The Labour Department administers and enforces the Employment Ordinance. Employers and employees can seek guidance from the Labour Department on the application of these provisions.

Maternity Leave Pay and Paternity Leave Pay

Both maternity leave pay and paternity leave pay are calculated at four-fifths of the employee’s average daily wages. Average daily wages are based on wages earned in the 12-month period immediately preceding the leave, or the period of employment if shorter.

For maternity leave pay, the employee receives payment for the full 14 weeks provided she has been employed under a continuous contract for at least 40 weeks immediately before the expected date of confinement. If employed for less than 40 weeks but at least 26 weeks, she is entitled to maternity leave pay for the first 10 weeks only. That is the statutory floor.

For paternity leave pay, the employee receives payment for the five days provided he has been employed under a continuous contract for at least 40 weeks immediately before the first day of paternity leave.

The employer must pay maternity leave pay and paternity leave pay in the normal pay period following the leave. If the employer fails to pay, the employee may claim the amount through the Labour Department or the Minor Employment Claims Adjudication Board. Both routes are available.

Protection Against Dismissal During Maternity Leave

An employer may not dismiss a female employee who is pregnant or on maternity leave, except in cases of summary dismissal for gross misconduct. The protection is strong and automatic.

Dismissal in contravention of this protection is unlawful. The employee may claim reinstatement or re-engagement, or compensation. The Labour Department may assist in conciliation. The employee may bring a claim to the Labour Tribunal.

The protection applies from the date the employee gives notice of pregnancy and continues throughout the maternity leave period. The employer must not reduce the employee’s wages or change her terms and conditions of employment during this period, except as permitted by the ordinance. Any such change is void.

Interaction with Other Leave Types

Maternity leave and paternity leave interact with rest days, statutory holidays, annual leave, and sickness allowance.

If a rest day or statutory holiday falls within the maternity leave period, the employee is entitled to an additional rest day or statutory holiday in lieu. The maternity leave period extends by the number of rest days and statutory holidays that fall within it. Calculate the extension before confirming the return date.

If a sickness allowance period coincides with maternity leave, the employee is entitled to the higher of the two payments. The employer pays the difference between the sickness allowance and the maternity leave pay if the maternity leave pay is higher.

Annual leave accrued during the maternity leave period continues to accrue. The employee takes annual leave after the maternity leave ends. The employer must not require the employee to take annual leave during the maternity leave period.

The Labour Department provides detailed guidance on these interactions. Consult the Labour Department or seek legal advice to confirm compliance with the Employment Ordinance.