How to compensate the company for dismissal during pregnancy

Unless there is a mistake on the part of the individual, the employer cannot dismiss a pregnant employee. When the company illegally terminates the labor contract of an employee who is pregnant during pregnancy, the employee has two rights protection schemes: first, the employee can request to continue to perform the contract and pay the loss of wages until the contract continues to be performed. If the employment contract expires during the course of the case, the arbitration or court will revoke the employer's decision to terminate the employment contract, determine that the employment contract between the parties has been terminated, and require the employer to pay wages and severance up to the date of termination of the employment contract.

Second, if the employee does not request to continue to perform the contract and requests the employer to pay compensation for illegal termination, the employer shall pay two months' wages for each year of service. As for which method the employee chooses, it depends on the length of the employee's unfulfilled employment contract and the length of his or her employment with the employer. If the working years are long, the second way can better protect the rights and interests if the compensation is double the number of years of service due to illegal termination.

If the dismissal is legal, there is no compensation; If it violates the law, pay compensation.

During pregnancy, the employer can unilaterally terminate a female employee only if she is at fault as stipulated in Paragraphs 2 to 6 of Article 39 of the Labor Contract Law.

Where the employer's termination of the contract is unlawful, and the female employee requests continued performance of the labor contract, the employer shall continue to perform it; If a female employee does not request to continue to perform the labor contract or the labor contract can no longer be performed, the employer shall pay two times the severance payment, that is, two months' salary for each year of the working years of the employer.

Legal basis. Labor Contract Law

Article 42 Under any of the following circumstances, the employer shall not terminate the labor contract in accordance with the provisions of Articles 40 and 41 of this Law:

4) Female employees are pregnant, giving birth, or breastfeeding;

Article 39 The employer may terminate the labor contract if the worker falls under any of the following circumstances:

1) During the probationary period, it is proved that they do not meet the employment requirements;

2) Seriously violating the rules and regulations of the employer;

3) Serious dereliction of duty, malpractice for personal gain, causing major damage to the employer;

4) The worker establishes labor relations with other employers at the same time, causing a serious impact on the completion of the work tasks of the employer, or refuses to make corrections upon the employer's request;

5) The labor contract is invalid due to the circumstances specified in Item 1, Paragraph 1 of Article 26 of this Law;

6) Those who have been pursued for criminal responsibility in accordance with law.

Article 48 Where an employer dissolves or terminates a labor contract in violation of the provisions of this Law, and the worker requests to continue to perform the labor contract, the employer shall continue to perform it; If the employee does not request to continue to perform the labor contract or the labor contract can no longer be performed, the employer shall pay compensation in accordance with Article 87 of this Law.

Article 87 Where an employer dissolves or terminates a labor contract in violation of the provisions of this Law, it shall pay compensation to the worker in accordance with twice the standard of economic compensation provided for in Article 47 of this Law.

Generally, the company cannot dismiss a female employee who is pregnant, but it also depends on the situation. 1. If a pregnant female employee is legally at fault, i.e., under Article 39 of the Labor Contract Law, the employer may unilaterally terminate the labor contract without paying severance payments. 2. If there is no statutory fault on the part of the pregnant female employee, it is an illegal termination and compensation shall be paid

Twice the severance payment. Severance payment: calculated according to the number of years the employee has worked in the employer.

One month's salary is paid for each full year. if it is more than six months but less than one year, one month shall be paid; If it is less than six months, half a month shall be paid. Article 5 of the Special Provisions on the Labor Protection of Female Employees states that "an employer shall not reduce the wages of a female employee, dismiss her, terminate her labor or hire her due to her pregnancy, childbirth, or breastfeeding".

Article 87 of the Labor Contract Law stipulates that if an employer dissolves or terminates a labor contract in violation of the provisions of this Law, it shall pay compensation to the employee in accordance with twice the standard of economic compensation stipulated in Article 47 of this Law.

If you are dismissed by the company during pregnancy, the compensation standard will depend on the situation

1.If a pregnant woman is dismissed for the following reasons, the employer will not compensate her:

1) It is proved that they do not meet the employment conditions during the probationary period;

2) Serious violation of the rules and regulations of the employer;

3) Serious dereliction of duty, malpractice for personal gain, causing major damage to the employer;

4) The employee establishes labor relations with other employers at the same time, which has a serious impact on the completion of the work tasks of the employer, or refuses to make corrections after being proposed by the employer;

5) The labor contract is concluded due to fraud or coercion, making the labor contract invalid;

6) Those who have been investigated for criminal responsibility in accordance with law.

2.If a pregnant woman is dismissed without fault, it is an illegal termination of the labor contract, and the employer should pay the pregnant woman personal compensation, that is, double the economic compensation. Severance shall be paid to the worker according to the number of years of service in the employer and one month's salary for each full year.

Where it is more than six months but less than one year, it is calculated as one year. If it is less than six months, the worker shall be paid half a month's salary.

3.If an employer dismisses a pregnant employee before the maternity leave, it shall pay the maternity leave salary and pay the corresponding social insurance.

Legal basis.

Article 47 of the Labor Contract Law stipulates that severance shall be paid to the employee according to the number of years of service in the employer, and the employee shall be paid one month's salary for each full year. Where it is more than six months but less than one year, it is calculated as one year. If it is less than six months, the worker shall be paid half a month's salary.

If the monthly wage of a worker is three times higher than the average monthly wage of the employee in the previous year announced by the people of the municipality directly under the Central Government or the city divided into districts where the employer is located, the standard of economic compensation to be paid to him shall be three times the amount of the average monthly salary of the employee, and the maximum annual period of economic compensation shall not exceed 12 years.

The term "monthly wage" mentioned in this article refers to the average salary of an employee in the 12 months prior to the termination or dissolution of the labor contract.

Legal analysis: If a woman is pregnant, in order to protect the rights and interests of the woman, the employer cannot dismiss the pregnant woman and needs to grant a certain amount of maternity leave.

Legal basis: Labor Contract Law of the People's Republic of China

Article 37 A worker may terminate a labor contract by notifying the employer in writing 30 days in advance. The employee may terminate the labor contract by notifying the employer three days in advance during the probationary period.

Article 38 Under any of the following circumstances, the employer may terminate the labor contract if the employee repents:

1) Failure to provide labor protection or working conditions in accordance with the provisions of the labor contract, (2) Failure to pay labor remuneration in full and in a timely manner, (3) Failure to pay social insurance premiums for laborers in accordance with the law, (4) The rules and regulations of the employer violate the provisions of laws and regulations and harm the rights and interests of laborers, (5) The labor contract is invalid due to the circumstances specified in Paragraph 1 of Article 26 of this Law, and (6) Other circumstances in which the labor contract may be terminated by laws and administrative regulations.

If an employer forces an employee to work by means of violence, threats or illegal restriction of personal freedom, or if the employer violates rules and regulations and forces the employee to perform risky work that endangers the employee's personal safety, the employee may immediately terminate the labor contract without prior notice to the employer.

Article 39 The employer may terminate the labor contract if the worker falls under any of the following circumstances:

1) During the probationary period, it is proved that the employee does not meet the employment requirements, (2) he seriously violates the rules and regulations of the employer, (3) he or she seriously neglects his duties, engages in malpractice, and causes major damage to the employer, (4) the worker establishes labor relations with other employers at the same time, which has a serious impact on the completion of the work tasks of the employer, or refuses to make corrections after being proposed by the employer, (5) the labor contract is invalid due to the circumstances specified in Item 1, Paragraph 1 of Article 26 of this Law, and (6) the employee is investigated for criminal responsibility in accordance with law.

Article 40 Under any of the following circumstances, the employer may terminate the labor contract after notifying the employee in writing 30 days in advance or paying the employee an additional month's salary:

(2) The worker is incompetent for the job and is still incompetent for the job after training or job adjustment after the expiration of the prescribed medical treatment period, (2) the worker is incompetent for the job, and after training or job adjustment, he is still incompetent for the job, (3) the objective circumstances on which the labor contract is based have changed significantly, making it impossible to perform the labor contract, and the employer and the employee have failed to reach an agreement on changing the content of the labor contract after consultation.