Guangdong’s first equal opportunity judgment issued

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Guangdong’s first equal opportunity judgment issued
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The first equal opportunity employment case in Guangdong province was concluded in 2022, with a judgment ordering the employer to pay compensation and apologise in writing to the employee.

On 5 January 2019, a female employee joined a real estate management company in Zhuhai. Soon after, she discovered that she was pregnant and informed the company’s manager of the news. To her surprise, she received a notice from the company on the same day which said: “You don’t have to come in anymore.” The company then refused to let her into the office.

The employee subsequently applied for employment dispute arbitration, claiming amounts such as double salary for the lack of a signed written employment contract and compensation for illegal termination of her employment contract. In July of the same year, the parties reached a mediated agreement concerning their employment dispute. The agreement required the company to pay the employee RMB6,000 (USD880).

Meanwhile, the employee also instituted a civil action, the cause of which being an equal employment rights dispute. She alleged that the company had dismissed her due to her pregnancy, thereby infringing her equal employment rights and causing her to suffer losses from being unable to go to work, as well as from mental distress. She demanded that the company compensate for her losses and apologise.

In its defence, the company stated that the case concerned an employment dispute rather than an equal employment rights dispute. Her contract had not been terminated because of her pregnancy, but because she had frequently arrived late and left early during her probation period, thus seriously violating company regulations and failing to comply with conditions for employment.

The court ruled that the employee was dismissed during the performance of the employment contract by reason of her pregnancy, which constituted discrimination against her. It also ruled that violation of her equal employment rights was a separate cause of action from the employment claims she had previously brought, which were covered by the settlement agreement.

The court ordered the company to apologise to the employee in writing and to pay her RMB2,064 for lost salary during her pregnancy, RMB1,875 for lost maternity leave salary and RMB10,000 as damages for mental distress.

An equal employment rights dispute is a cause of action independent from an employment dispute. Employees who suffer discrimination may institute a civil action for an equal employment rights dispute while simultaneously filing an application for employment-related arbitration.

Therefore, if an employer reaches a settlement agreement with an employee who is protected under anti-discrimination legislation (female employees who are pregnant, confined or nursing, disabled persons, etc.), the waiver and release clause of the settlement agreement should not only cover all employment claims, but also any civil claims under anti-discrimination legislation, so as to avoid being subject to another claim for damages after reaching the settlement agreement.


Business Law Digest is compiled with the assistance of Baker McKenzie. Readers should not act on this information without seeking professional legal advice. You can contact Baker McKenzie by e-mailing Howard Wu (Shanghai) at howard.wu@bakermckenzie.com

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