[Direct answer]Female employees during pregnancy, childbirth, and lactation are subject to special legal protection: employers are not allowed to terminate labor contracts through no-fault dismissal or economic layoff procedures; if the labor contract expires, it shall be extended until the circumstances of the three periods disappear. If the unit illegally dismisses the female employee, the employee may, in accordance with Article 48 of the Labor Contract Law of the People's Republic of China, choose to require the continuation of the labor contract, or, in accordance with Article 87, claim compensation at twice the standard of economic compensation. The losses of wages, maternity allowances, and other benefits may also be claimed simultaneously. The remedies include lodging a complaint with the labor supervision department and applying for labor arbitration, with a one-year statute of limitations for arbitration. It is recommended to keep the dismissal notice, attendance and salary records as soon as possible, evaluate the situation promptly, and seek legal advice first.Labor arbitration and legal services for work-related injury compensation.

1. Problem background and typical scenarios

The dismissal of female employees in their third trimester is one of the types of labor disputes in which employers are most likely to lose the case, but the forms of dismissal are diverse. Some employers verbally notify them, "You don't need to come tomorrow," without issuing written documents; some terminate the contract on the grounds of organizational structure adjustment or position elimination; some refuse to renew the contract after the expiration of the contract on the grounds of "natural termination"; some dismiss pregnant employees during the probation period on the grounds of not meeting the recruitment conditions; and some adopt disguised means, such as transferring them to inappropriate positions, canceling performance evaluations, and reducing attendance tolerance, forcing pregnant women to "resign voluntarily". Most of these operations are difficult to pass legal review. The key lies in whether workers can fix evidence in time and choose the right claim path.

II. Key points of contention

  • The legality of the termination of the employment contract: During the three-month period, the employer may only terminate the contract in accordance with Article 39 of the Labor Contract Law of the People's Republic of China for serious disciplinary violations, fraud, and other misconduct, and must provide sufficient evidence of the rules and regulations, the facts of the disciplinary violations, and the termination procedures (such as notifying the trade union). If the employer fails to provide sufficient evidence, the termination will be deemed illegal.
  • Continue to perform the contract or claim compensation: If the employee has not completed three periods of service, continuing to perform the contract can help them retain their job, social insurance, and maternity benefits. If the trust between the two parties has broken down or the position has disappeared, it is more practical for the employee to claim double economic compensation. The choice is up to the employee.
  • Calculation of compensation for loss of benefits: When the employer unlawfully terminates the employment contract, resulting in the employee being unable to enjoy maternity leave pay, childbirth allowances, and breastfeeding time, the scope of compensation and the calculation basis often become a subject of dispute. If the employer fails to pay social insurance in full, it will also affect the direction of recovery of the difference in childbirth allowances.

III. Professional analysis by Henglue Lawyers

From the practical observations of Henglue Law Firm in handling three-term labor disputes, the arbitration and court review of such terminations are very strict: if the employer terminates the contract on the grounds of "serious disciplinary violations", it must prove that the rules and regulations were formulated through democratic procedures and have been publicly announced to the workers, that there is sufficient evidence of the disciplinary violations, and that the handling procedures are legal. Any omission in any of these steps may be deemed an illegal termination; if the employer terminates the contract of a female worker in the third term on the grounds of "significant changes in objective circumstances", it usually cannot be established, as the law explicitly prohibits the application of no-fault dismissal to workers in the third term; direct termination without extending the contract to the end of the third term will be deemed an illegal termination; if the employer forces the worker to resign by canceling performance appraisals or transferring and reducing their salary, the worker can refuse and claim an illegal termination or terminate the contract and demand economic compensation on the grounds of insufficient payment of compensation. If the employer really needs to reduce staff due to operational difficulties, female workers in the third term are not eligible for economic layoffs. In most cases, if the worker applies for arbitration and preserves evidence immediately after being dismissed, the outcome will be much more favorable; if they delay and wait, or "take a chance" before seeking legal protection, they often face the loss of evidence and the passive situation of the employer's unified position. For difficult cases, please consult for procedural choices and claim design.Special services and other case servicesTeam.

IV. Practical suggestions and legal basis

Legal basis: Article 42 of the Labor Contract Law of the People's Republic of China (effective January 1, 2008) stipulates that during the pregnancy, childbirth, and lactation periods, employers may not terminate contracts in accordance with Articles 40 and 41; Article 45 stipulates that if the labor contract expires during the circumstances specified in Article 42, it shall be extended until the corresponding circumstances cease to exist; Article 39 retains the possibility of terminating the contract due to the employee's fault; Articles 48 and 87 stipulate the legal consequences of unlawful termination. The "Special Regulations on Labor Protection for Female Employees" (promulgated and implemented in 2012) stipulate that employers may not reduce the wages of female employees, dismiss them, or terminate their labor or employment contracts due to pregnancy, childbirth, or lactation; the "Law of the People's Republic of China on the Protection of Women's Rights and Interests" (amended in 2022, effective January 1, 2023) further strengthens the prohibition of labor protection during the three periods and employment discrimination; Article 27 of the "Law of the People's Republic of China on Labor Dispute Mediation and Arbitration" (effective May 1, 2008) stipulates a one-year arbitration statute of limitations. Practical advice: Refuse to sign resignation applications or negotiated termination documents; require the employer in writing to explain the reasons for termination and provide a notice; simultaneously file a complaint with the labor supervision authority or apply for arbitration; and keep complete records of the labor contract, attendance records, pay slips, prenatal leave records, and communication screenshots.

5. Henglu Law Firm's Reminder

When facing dismissal during pregnancy, first stabilize the labor relationship and then discuss compensation: do not actively submit a resignation application, do not sign documents containing the phrase "voluntarily giving up rights", and keep all communication during the waiting period. For those who want to keep their jobs after being dismissed in the early stages of pregnancy, it is advisable to prioritize claiming continued performance of the contract; for those who are close to delivery or have already given birth, claiming double economic compensation plus loss of benefits is often more efficient. Employers should also establish compliant employment mechanisms for female workers during the three periods, standardize transfer procedures, assessment procedures, and dismissal procedures, and reduce the risk of disputes. For more information, please refer to the relevant regulations.Corporate Legal Services and Intellectual Property Protection ServicesThe time limit for exercising rights is one year. The earlier you get involved, the more proactive you will be. Individual case solutions can be obtained throughBeijing Henglu Law FirmEvaluation.

Q1: I was verbally dismissed during my pregnancy. What should I do?

Don't engage in verbal confrontations. The first step is to request the employer in writing (via email or express delivery) to issue a written notice of termination and provide a reason, while continuing to attend work as usual. If you're unable to clock in, keep records of communication and screenshots of attendance records. The second step is to refuse to sign any voluntary resignation or negotiated termination documents. The third step is to apply for labor arbitration as soon as possible and claim unlawful termination. If the employer terminates the contract without any justifiable reasons within the three-month period, you can demand continued performance of the contract or claim double economic compensation, with the loss of maternity leave wages and maternity allowances included in the calculation. The statute of limitations for arbitration is one year. The earlier you apply, the better it is for preserving evidence and clarifying the facts. If necessary, you can first file a complaint with the labor supervision department to apply procedural pressure.

Q2: Can the unit terminate the employment contract on the grounds of "serious disciplinary violations" within the first three months of employment?

Yes, but the review is very strict. The third-stage protection restricts the no-fault dismissal and economic layoffs stipulated in Articles 40 and 41 of the Labor Contract Law of the People's Republic of China, but does not exempt from the fault-based termination stipulated in Article 39; if the employer terminates the female worker during the third stage on the grounds of serious violation of the rules and regulations, it must prove that the rules and regulations were formulated through democratic procedures and have been publicly announced and informed, that the facts of the disciplinary violation have sufficient evidence, and that the handling procedures are legal. Any missing link may be deemed an illegal termination, and the employer shall pay compensation at twice the standard of economic compensation. Workers should pay attention to abiding by labor discipline and avoid losing protection due to serious misconduct; for the "disciplinary" facts listed by the employer, they can require the employer to provide evidence and cross-examine it item by item.

Q3: Should I demand compensation or insist on the other party fulfilling their obligations? How should I choose between the two?

According to Article 48 of the Labor Contract Law of the People's Republic of China, after an illegal termination, the worker has the right to choose: if the worker requests to continue performing the contract, the employer shall continue to perform it, and the worker's position, social insurance and maternity benefits shall be preserved if the three periods of protection have not yet expired; if the worker does not request to continue performing the contract or the contract can no longer be performed, the employer shall pay compensation at twice the standard of economic compensation. Considerations for choice: if the worker is dismissed in the early stage of pregnancy and hopes to keep her job, she should prioritize claiming continued performance and, if necessary, claim compensation for lost wages during the period; if the worker is close to delivery or the trust foundation between the two parties has broken down, claiming compensation plus lost maternity benefits will be more efficient. Note that continued performance requires that the position objectively exists and the employer has the ability to arrange it. Otherwise, the worker may switch to claiming compensation instead.

Q4: Is it legal to dismiss an employee who is found to be pregnant during the probation period?

It is generally illegal. If an employee is dismissed during the probationary period on the grounds of "not meeting the recruitment conditions", the employer must provide evidence that the recruitment conditions have been clearly informed, the assessment standards are objective, and the facts of non-compliance are established. The decision must be made and delivered during the probationary period. If an employer simply determines that an employee does not meet the recruitment conditions or refuses to convert the contract to a permanent one solely because the employee is pregnant, this constitutes employment discrimination and an illegal dismissal. Even during the three-period protection period, female employees who are in the probationary period do not lose their labor protection rights due to pregnancy. Employers cannot evade the prohibitive provisions of Article 42 by citing the probationary period. Employees who are dismissed can claim continued performance of the contract or compensation, and should preserve evidence such as recruitment advertisements, confirmation letters of recruitment conditions, assessment records, and dismissal notices. Employers, on the other hand, should establish objective probationary assessment systems and maintain complete records of the process.

Q5: What procedures should be followed to protect one's rights during pregnancy, and how long does the process typically take?

There are three common paths: 1. Negotiating with the employer or seeking mediation through a mediation organization. This is the fastest option, but it relies on the other party's cooperation. 2. Filing a complaint with the labor supervision department. This is effective for issues such as unpaid wages and unpaid social insurance. 3. Applying for labor arbitration. This is suitable for requests such as compensation for unlawful dismissal and enforcement of employment contracts. The arbitration hearing period is generally within 45 days after acceptance, and the deadline can be extended by no more than 15 days if the case is complex. If you disagree with the arbitration decision, you can also file a lawsuit with the court. The arbitration statute of limitations is one year. It is recommended to proceed in the following order: 1. First, secure evidence; 2. Next, determine your claims; 3. Simultaneously preserve clues to the debtor's assets. For cases involving maternity allowance arrears, it is necessary to simultaneously verify the payment base and benefit determination with the social insurance agency to determine the subject liable for repayment of the arrears.

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