[Direct answer]In principle, it is possible to demand continued performance of the contract. Article 42 of the Labor Contract Law of the People's Republic of China (amended in 2012) stipulates that during the pregnancy, childbirth, and lactation periods, the employing unit shall not terminate the labor contract in accordance with the provisions of Articles 40 and 41. Article 48 stipulates that if the employing unit illegally terminates the labor contract, and the employee requests to continue performing the labor contract, the employing unit shall continue to perform it. If the employee does not request to continue performing the contract or the labor contract can no longer be performed, the employing unit shall pay compensation in accordance with Article 87.

1. Problem background and typical scenarios

In practice, pregnant female employees are often dismissed on grounds such as unsatisfactory performance, job reassignment, or business downsizing, or are persuaded to sign resignation agreements. Common scenarios include: being immediately reassigned to a lower-paying position after learning of the pregnancy; being dismissed on the grounds of excessive absences; being required to sign voluntary resignation documents; or being dismissed on the grounds of failing to meet the recruitment conditions during the probationary period. When adjudicating such cases in Beijing, the court will focus on reviewing the specific provisions on which the dismissal is based and the employer's evidence. It should be noted that such disputes often involve both factual determination and procedural requirements. Relevant materials are often scattered among both parties, and given the short timeframes and high level of professionalism involved, the earlier the evidence is systematically organized, the clearer the timelines and legal basis become, the greater the options for subsequent negotiation or litigation, and the more likely it is to avoid losing favorable positions due to procedural errors. During the specific analysis, it is recommended to take the timeline as the main line, and to correspond contractual documents, receipts, communication records, and relevant legal basis one by one, forming a clear processing framework to facilitate the determination of the chronological order and feasibility of various claims.

II. Key points of dispute

First, whether the termination is based on Article 39 or Articles 40 and 41. Second, the determination of the pregnancy, childbirth, and lactation periods and their timeframes. Third, the pros and cons of the worker choosing to continue the contract or opting for compensation. Fourth, whether the employer can terminate the contract on the grounds that the worker failed to meet the requirements during the probationary period. Fifth, the scope of back payments for wages and social insurance after an unlawful termination. Sixth, whether the parties asserting rights are qualified and whether any necessary counterparties or jointly liable parties have been omitted. Seventh, the integrity of the evidence and the allocation of the burden of proof will directly affect the outcome. Eighth, whether relevant deadlines and procedural requirements have been complied with, and whether claims can still be made after the deadline. Ninth, the scope of losses, causality, and the degree of the parties' own fault must be identified and proven based on specific materials. In addition, attention should be paid to whether the evidence is legal, whether key facts can corroborate each other, and the differences in cost, time, and feasibility of different handling solutions. On this basis, a priority path for advancement can be determined.

III. Professional analysis by Henglue Lawyers

The practical experience of Henglue Lawyers is that the key to such cases lies in the qualification of the grounds for termination. If the employer invokes provisions such as the employee's inability to perform the job, major changes in objective circumstances, or economic layoffs, which are prohibited during the three-month period, the termination will constitute an illegal act; if the employer claims that the employee has committed serious disciplinary violations, the employer must bear the full burden of proof, including the basis of the system, factual evidence, and the handling procedures. In terms of remedies, choosing to continue the employment contract can result in the restoration of the employment relationship, the payment of back wages, and the reinstatement of social insurance, but it is necessary to consider whether the position still exists and whether the relationship between the parties can be repaired; choosing compensation will settle the matter once and for all, with the standard being twice the amount of economic compensation. In practice, attention should also be paid to whether the employer has fulfilled the trade union notification procedures at the time of termination and whether the employee has been given the opportunity to defend himself/herself. Procedural defects will also affect the legality of the termination. It is recommended that employees immediately express their objections in writing after receiving the termination notice to avoid being regarded as voluntarily leaving upon signing the resignation documents.

IV. Practical suggestions and legal basis

Action list: First, keep the pregnancy certificate, prenatal checkup records, and the notice of termination from the employer; Second, express your objection to the termination in writing and do not sign the resignation agreement easily; Third, clearly choose whether to continue to perform the contract or claim compensation; Fourth, check the salary and the situation of interrupted social insurance payments; Fifth, apply for labor arbitration in time and pay attention to the one-year statute of limitations. For labor disputes during pregnancy, you can refer to the relevant provisions.Labor arbitration and work-related injury compensationFor issues related to the protection of female workers' rights and interests, you can refer to the following materials for reference.Divorce litigation and family disputesLegal basis: Article 39, Article 40, Article 41, Article 42, Article 43, Article 48, and Article 87 of the Labor Contract Law of the People's Republic of China (amended in 2012); Article 5 of the Special Provisions on the Labor Protection of Female Employees (promulgated and implemented on April 28, 2012). The specific application shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglu Law Firm's Reminder

Firstly, employees cannot be dismissed under the incompetence or layoff clauses during the first and third periods. Secondly, once the voluntary resignation document is signed, it will be much more difficult to claim that the dismissal was illegal. Thirdly, there are advantages and disadvantages to continuing to perform the contract and accepting compensation, and the choice should be based on the position. Fourthly, the arbitration statute of limitations is one year, calculated from the date when the employee knows that his rights have been infringed. For disputes and claims involving dismissal during pregnancy, the employee can seek legal redress through the following channels:Labor arbitration and work-related injury compensationThe service is supported, and it can be combined with family property and child arrangement issues.Divorce litigation and family disputesFor reference, you can check the section related to the enforcement of the adjudicated paymentCreditor's rights and debts, and enforcementColumn.

VI. Frequently Asked Questions

Q1: Can I ask to continue working if I'm fired while pregnant?

Yes. If the employer unlawfully terminates the labor contract and the employee requests to continue the performance of the contract, the employer shall continue to perform the contract and pay the corresponding wages and make up for the social insurance; if the employee does not request to continue the performance of the contract or the labor contract can no longer be performed, the employee may claim compensation at twice the standard of economic compensation. The cases vary greatly in terms of evidence form, liability ratio, and procedural nodes. Relevant claims are usually subject to statutory time limits. It is recommended to fix written evidence as soon as possible, claim rights in a timely manner, and keep records of reminders, communication, and service delivery to avoid the result being affected by insufficient evidence or the expiration of the time limit. The specific plan should be determined by a professional lawyer after evaluating the complete materials.

Q2: Is it absolutely forbidden to dismiss employees during pregnancy?

This is not an absolute rule. During the three-stage period, the employer may not terminate the employment relationship based on the provisions of non-fault dismissal and economic layoffs. However, if the employee seriously violates the rules and regulations, commits serious dereliction of duty, or is held criminally liable according to law, the employer may still terminate the employment relationship in accordance with the law and shall bear the burden of proof. The cases differ greatly in terms of evidence form, responsibility proportion, and procedural nodes. The relevant requests are usually subject to statutory time limits. It is recommended to fix written evidence as soon as possible, claim rights in a timely manner, and keep records of reminders, communication, and service delivery to avoid the results being affected by insufficient evidence or the expiration of time limits. The specific plan should be determined by a professional lawyer after evaluating the complete materials.

Q3: How to choose between continuing to perform the contract and paying compensation?

Continue to fulfill the obligations of restoring labor relations, back-paying wages, and reinstating social insurance benefits, which is suitable for situations where the position still exists and the employee wishes to return to work. Offer a one-time compensation equal to twice the amount of economic compensation, which is suitable for situations where the employee no longer wishes to return to the workplace. Employees should choose based on their own circumstances and the attitude of the employer. Individual cases vary greatly in terms of evidence form, liability ratios, and procedural milestones. Relevant requests are usually subject to statutory time limits. It is recommended to fix written evidence as soon as possible, assert rights in a timely manner, and keep records of reminders, communications, and service delivery to avoid outcomes being affected by insufficient evidence or expired time limits. Specific solutions should be determined by professional lawyers after evaluating the complete materials.

Q4: How long does the arbitration process take?

Labor arbitration generally issues a ruling within 45 days from the date of acceptance, and the time limit can be extended according to law for complex cases. If the parties are not satisfied with the ruling, they may file a lawsuit with the people's court within 15 days from the date of receiving the ruling. Individual cases vary greatly in terms of evidence form, liability ratio, and procedural milestones, and related requests are usually subject to statutory time limits. It is recommended to fix written evidence as soon as possible, assert rights in a timely manner, and keep records of reminders, communication, and service to avoid the outcome being affected by insufficient evidence or the expiration of the time limit. Specific solutions should be determined by professional lawyers after evaluating the complete materials.

Q5: Can I still claim unlawful termination even after signing the resignation agreement?

This is quite challenging. If the agreement is voluntarily signed and its content is clear, it will usually be deemed valid; if there is fraud, coercion, or a major misunderstanding, the party may request its revocation. It is recommended to consult a lawyer before signing the agreement to avoid unnecessarily giving up rights. Individual cases vary greatly in terms of evidence forms, liability ratios, and procedural stages, and related requests are typically subject to statutory time limits. It is recommended to secure written evidence as soon as possible, assert rights in a timely manner, and keep records of reminders, communications, and service notifications to avoid outcomes being affected by insufficient evidence or the expiration of time limits. Specific solutions should be determined by professional lawyers after evaluating the complete materials.

The above content is based on the compilation of judicial practices in the Beijing area. The facts of individual cases and the jurisdiction of the court may affect the conclusions. Welcome to consult Henglu Law Firm about specific situations.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with evidence materials to avoid missing the statutory time limit. →Labor arbitration legal services·Beijing Henglue Law Firm

Disclaimer: This article is compiled based on current effective laws and regulations and publicly available adjudication rules, and is provided for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. In the event of a dispute, please consult a practicing lawyer in a timely manner.