What If Employer Fires Pregnant Woman?

According to Article 42, Item 4 of the Labor Contract Law, it is generally not permissible for employers to terminate the labor contracts of female employees during the pregnancy, childbirth, and lactation periods, also known as the “three periods.” This means that non-fault-based terminations and economic layoffs are strictly prohibited during this sensitive period. Therefore, any attempts by employers to reassign, reduce the salary, or directly dismiss a female employee during the three periods would be considered illegal termination of the labor contract.

In the unfortunate event that a female employee is unlawfully dismissed during the three periods, she has certain rights and recourse available to her. Firstly, she can seek reinstatement to her original position, requesting the employer to revoke the decision or notice of termination of the labor contract. However, it is important to note that in practice, some courts may find that the lack of trust between the parties involved in legal proceedings could hinder the continuation of the employment relationship. In such cases, the court would confirm the illegality of the termination, and the employee can separately claim compensation for the illegal termination.

Alternatively, if the labor contract cannot be continued or if the employee chooses not to continue working for the same company, the employer is obligated to provide compensation. As per Article 87 of the Labor Contract Law, the employer should pay double the amount of severance pay to the employee. In other words, if the termination is deemed illegal, the employer must pay the employee twice the amount of severance pay as a form of redress.

Now, let’s address the question of whether an employee should be entitled to receive wages for the three periods if she is dismissed unlawfully. It is important to note that the Labor Contract Law does not provide specific regulations on this matter, leading to differing viewpoints in practice.

One viewpoint suggests that when the contract is not continued due to an illegal termination and the employer has already paid severance pay, there is no obligation to pay wages for the three periods.

On the other hand, another viewpoint argues that when the contract is not continued due to an illegal termination, it is considered a mutual agreement between the employee and the employer. However, the termination is considered to occur at the legally prescribed time, which extends until the completion of the three periods. During this time, the employer should pay wages accordingly. If the three periods are completed, but the labor contract has not yet expired, the employer should still pay for severance pay.