Ladies, Should We Put Our Family Planning on Hold? – Part Two

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We discussed that female employees shouldn’t be discriminated in employment on the grounds of gender as Article 8 states that everyone are equal before the law and entitled to equal protection of the law. Moreover, Malaysia ratified CEDAW in the year 1995 which is a treaty that spells out women’s rights and the need for national legislation to protect such rights. But do take note that Article 8 doesn’t prohibit any gender discrimination in employment of private sectors.

In other words, Article 8 only covers “contravention of individual rights by a public authority i.e. the State or any of its agencies” which means that it doesn’t cover any infringements of rights done by a private sector. The landmark case that can be referred is Noorfadilla binti Ahmad Saikin v Chayed bin Basirun and Ors [2012] 1 CLJ 769, where an offer to a government teacher was revoked and it was said to be a form of discrimination by the High Court. Clearly, this case denotes the sanctuary of female employees in government employment only under the security of Article 8. Whereas, in the case of AirAsia Berhad v Rafizah Shima bt Mohamed Aris [2014] MLJU 606 the Court of Appeal stated that the training agreement and bond which states the prohibition of being pregnant during the training period of 4 years did not discriminate against the rights of women.

Many contends that the current existing laws are leaving infinitesimal impact on the coverage of pregnant ladies since the Employment Act itself expressly states the prohibition for employers to terminate a female employee during maternity leave or after maternity leave if the employee is unable to return to work “as a result of illness certified by a registered medical practitioner to arise out of her pregnancy and confinement”.

Worry no more; rather worry less because the SUBTLE changes in the Employment Act 1955 this year might change female employees’ perspective on getting pregnant during their employment period. Rumour has it that employers are not permitted to terminate a pregnant female employee during pregnancy period. This possibly means that if you become pregnant during an employment, there is an indirect ‘guarantee of immunity’ from termination done by the Company for the whole one year (9 months pregnancy period plus the new maternity leave of 90 days, 3 months). The consideration for female employees to get pregnant is becoming more visible with such potential amendments. In the meantime, let’s wait for the confirmation on these expectations on changes to come to light officially. Pondering upon the title of this article, perhaps the ‘legal’ considerations shared may help you to decide on whether to push the ‘play’ or the ‘pause’ button!