Is it Legal to dismiss a China Female Employee in Three Periods?
China’s law prohibits employers from unilaterally terminating the employment contract of a female employee during pregnancy, childbirth, or nursing period (which lasts until the infant is one year old). The only exception to this is that the female employee may be unilaterally terminated due to the employee’s wrongdoings.
According to the Employment Contract Law of the PRC, unilateral termination of an employee (including a female employee during pregnancy, childbirth, or nursing period) is possible under one of the following circumstances:
(1)
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The employee does not satisfy the requirements for employment during the probation period.
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(2)
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The employee materially breaches the employer’s rules and regulations.
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(3)
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The employee commits a serious dereliction of duty or practices graft, causing substantial damage to the employer.
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(4)
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The employee has established an employment relationship with another employer that materially impacts completion of her tasks with her existing employer, or she refuses to terminate her employment relationship with the other employer after being required to do so by her existing employer.
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(5)
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The employee uses deception or coercion, or takes advantage of the employer’s difficulties, to cause the employer to conclude the employment contract, or to make an amendment thereto, that is contrary to the employer’s true intent.
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(6)
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The employee has criminal liability imposed against her.
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Meanwhile, the Employment Contract Law of the PRC stipulates that the employer shall not reduce female employees in their three periods (pregnancy, childbirth or nursing period) in mass layoffs.
In addition to the above, China’s law also prohibits an employer from ending the employment contract with a female employee in three periods. If employment contract expires during the forgoing periods, the term of the employment contract shall be extended until the end of the nursing period of the female employee.
However, China’s law does not prohibit an employer to terminate the employment contract with a female employee in three periods through consultation in accordance with the law. If the employer and the female employee in three periods reach a mutual agreement to terminate the employment contract through equal consultation and there is no means of fraud, coercion or taking advantage of the counterparty’s unfavourable position, the agreement shall be considered as legal and binding on both parties.
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