Can a female employee who has an unplanned birth be dismissed?

Employers may dismiss female employees who give birth unplanned.

Article 42 of the Labor Contract Law stipulates that if a female employee is pregnant, giving birth or breastfeeding, the employer shall not terminate the labor contract in accordance with Articles 40 and 41 of the Law. When a female employee meets the requirements of Article 39 of the Labor Contract Law, the employer may still unilaterally terminate the labor contract. From the analysis of the circumstances listed in Article 39 of the Labor Contract Law, firstly, the female employee who gives birth unplanned is only a violation of the law, not a crime, and will not be investigated for criminal responsibility, and the employer cannot terminate the labor contract in accordance with the provisions of Item 6 of the first paragraph, and secondly, whether the second provision is applicable, that is, the rules and regulations of the employer are seriously violated, and the Population and Family Planning Law requires the enterprise to assist in family planning work, Article 42 of the Law also gives employers the power to impose disciplinary sanctions on female employees who give birth unplanned.

Therefore, the employer can formulate discipline to urge female employees to abide by the Population and Family Planning Law, and if the Population and Family Planning Law is violated, it can be specified as one of the circumstances of serious violation of the rules and regulations, and then unilaterally terminate the labor contract. However, there are three prerequisites for the application of this discipline: first, through a democratic process; the second is to inform and publicize; Third, it does not violate the mandatory provisions of laws and administrative regulations.

The most important of these is Article 3, which does not prohibit employers from dismissing female employees who are pregnant, giving birth or breastfeeding, so employers can dismiss female employees who give birth unplanned.

No, if dismissal is illegal.

If an employee violates the family planning policy, as long as the employee does not have any of the circumstances stipulated in Article 39 of the Labor Contract Law, the termination of the labor contract by the employer is considered to be an illegal termination, and the employee may request the employer to pay compensation. The severance shall be paid to the worker according to the number of years of service in the employer, and the standard of 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.

Financial compensation is twice the amount of compensation. Article 39 of the Labor Contract Law The employer may terminate the labor contract if the employee 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 47 Economic compensation shall be paid to the worker according to the number of years he or she has worked in the unit 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 and economic compensation.

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 severance shall be paid to him at the rate of three times the average monthly wage of the employee, and the maximum period of payment of severance 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. 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.

This should be done differently for different business environments. But when some of my friends have seen conflicts between promotion and having children, most of their promotions have been affected. Women have the right to have children in accordance with the relevant provisions of the State, and they also have the freedom not to have children.

A few suggestions for women in the workplace:1Choose the right company from the start.

Now the competition in enterprises is fierce, different companies have different views on women having children, as an employee, at the beginning of the choice of the company to be cautious, from the attitude towards this matter, it can be seen to change the culture of the company. For start-ups, they do not want to hire female employees due to labor costs and other reasons, and they are worried that they will delay their work due to giving birth not long after they come in. As a woman who wants to have children, she should choose carefully, and it is best to work in a company with a more mature development and a sound system in all aspects.

2.Cultivating core competencies.

If you want to be promoted in the workplace, whether it is a woman or a man, you must speak with your ability, if you can create value for the enterprise, have your own core competitiveness, and are not easy to be replaced by others, you can get promoted, so strive to accumulate experience and speak with strength is the king. If you are a talent that the company wants to retain, having a child will not affect your promotion, and the company will give you the treatment you deserve, hoping that you will return to work as soon as possible. 3.

Children are more important than promotions.

If you have a baby, don't make a decision that you regret for fear of delaying work, the child is a gift from God to us.

To sum up, having children is not the key factor affecting women's career promotion, and improving their core competitiveness is the king.

Legal analysis: The company cannot dismiss a female employee no matter how long after giving birth. The circumstances under which a company cannot dismiss an employee include the following:

1. Workers who are engaged in operations that are exposed to occupational disease hazards have not undergone a pre-departure occupational health examination, or are suspected of being an occupational disease patient during the period of diagnosis or medical observation;

2. Suffering from an occupational disease or being injured at work in the unit and confirmed to have lost or partially lost the ability to work;

3. Sick or non-work-related injury, within the prescribed medical treatment period;

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

5. Those who have worked in the unit for 15 consecutive years and are less than five years away from the statutory retirement age;

6. Other circumstances stipulated by laws and administrative regulations.

Legal basis: Article 20 of the Labor Contract Law of the People's Republic of China provides that the employer may terminate the labor contract if the employee falls under any of the following circumstances:

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

2) Serious violation of labor discipline or the rules and regulations of the employer;

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

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

According to Article 5 of the Special Provisions on the Labor Protection of Female Employees, "an employer shall not reduce the wages of a female employee, dismiss her, or terminate her labor or employment contract because she is pregnant, giving birth, or breastfeeding." This provision does not limit whether a female employee's pregnancy, childbirth, or breastfeeding complies with the provisions of the family planning policy, so our general understanding is that even if a female employee's pregnancy or childbirth does not comply with the provisions of family planning violations, the employer shall not terminate the labor contract on this ground.

However, in accordance with the provisions of the rules and regulations of the employer, the employer may take disciplinary action against the female employee who violates the family planning policy.

With regard to the maternity protection of female employees, China's "Provisions on the Labor Protection of Female Employees" and the "Labor Law" stipulate special treatment and dismissal protection policies during pregnancy, childbirth, and lactation. However, there should be a premise for the full application of maternity protection benefits to female employees; That is, the birth of the female employee is in line with the national family planning policy. At present, there are two basic principles of China's family planning policy:

First, childbirth is premised on marriage; The second is that a couple can only have one child, unless they meet the local conditions for having a second child. Anyone who violates these two principles should be considered a violation of the family planning policy. In accordance with Article 15 of the Provisions on the Protection of Female Employees:

Where female employees violate the relevant national regulations on family planning, their labor protection shall be handled in accordance with the relevant national regulations on family planning, and these provisions shall not apply. Many people, and even some lawyers, believe that female employees who violate the family planning policy do not enjoy any relevant labor protection treatment.

In fact, from the relevant provisions of the Labor Contract Law, the Provisions on the Labor Protection of Female Employees and the Law on the Protection of Rights and Interests of Women, it is not difficult to see that the law's dismissal protection for female employees in the third period does not specifically distinguish what causes the pregnancy, and whether it violates the state's family planning policy.

In addition, unmarried pregnancy and unmarried childbirth are two different concepts, as long as a female employee has gone through the marriage registration and obtained the birth permit and other relevant legal procedures before the birth of the child, she does not violate the national family planning policy and should enjoy all relevant labor protection treatment.

No. The Law on the Protection of Rights and Interests of Women, the Labor Law, the Labor Contract Law, the Provisions on the Labor Protection of Female Employees and other laws and regulations stipulate that an employer shall not terminate a labor contract with a pregnant female employee, but these provisions do not distinguish whether the pregnancy of a female employee is married or unmarried, whether it is in line with family planning or in violation of family planning, as long as the female employee is pregnant, she enjoys the right to employment security stipulated by laws and regulations (public institutions, ** organs, etc. are exceptions). If a female employee violates the family planning policy, the local family planning authority will impose corresponding punishments, which basically have nothing to do with the employer. Therefore, there is no legal basis for terminating an employee's employment relationship on the grounds that he or she has violated the family planning policy.

Look at each unit, if it is a more strict unit will be. Not necessarily in the case of the private sector.

If, at the time of signing the contract with the enterprise, the employee has clearly known that the enterprise has taken the violation of family planning regulations and giving birth out of wedlock or without family planning as a serious violation of the rules and regulations, and the employee still violates the family planning policy, the enterprise may dismiss the employee based on the provisions of paragraph 2 of Article 39 of the Labor Contract Law. If the employee does not regard the violation of family planning as a violation of the rules and regulations when the employee signs the contract with the enterprise, then it is illegal for the enterprise to fire the employee.

Article 26 of the Law of the People's Republic of China on the Protection of Women's Rights and Interests stipulates that: "No employer may dismiss a female employee or unilaterally terminate a labor contract on the grounds of marriage, pregnancy, maternity leave, breastfeeding, etc." ”

Article 4 of the Provisions on the Labor Protection of Female Employees stipulates that "the basic salary of a female employee shall not be reduced or the labor contract shall be terminated during the period of pregnancy, childbirth or breastfeeding." Article 7 stipulates: "Pregnant female employees who undergo prenatal examinations during working hours shall be counted as working hours."

Article 15 stipulates: "If a female employee violates the relevant state regulations on family planning, her labor protection shall be handled in accordance with the relevant state regulations on family planning, and these provisions shall not apply."

Article 4 of the Ministry of Labor's "Answers to Questions on Labor Protection Provisions for Female Employees" stipulates that "no enterprise or individual may terminate the labor contract of a female employee under the labor contract system on the grounds of pregnancy, childbirth or breastfeeding if the contract period has not expired."

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.