Even routine China employee terminations are usually challenging and pretty much always require preparation and care. Throw in an employee pregnancy and you increase the complexity and the risk exponentially. Our China employment lawyers have in the last few years increasingly had to resolve situations where a pregnant employee seeks to revoke her termination decision (sometimes by demanding reinstatement of her position), no matter how or why her employment contract is terminated — even when the termination was mutual and even when the termination was with cause. And as is true of just about everything having to do with employment law in China, the laws and the rulings on these things will depend on the facts and on where the employer is located.
Suppose the employer and the employee mutually terminated their employment relationship and after the employee’s departure, the employee finds out she is pregnant. The employee goes back to the employer and asks for her old job back. Recent cases seem to suggest that if the mutual termination was done correctly, the parties’ agreement will be deemed enforceable and the employer does not have to take the employee back. By “correctly,” I mean the following:
- The termination is documented in writing and the employer has preserved good hard copy evidence. Note that emails and social media do not constitute good hard copy evidence.
- The employer and its former employee executed a proper mutual termination agreement in Chinese. Note that we do all of ours in both Chinese and in English: the Chinese so that it will actually work and the English so that our client fully understands what they are signing.
- There is nothing to suggest the former employee was coerced or deceived into signing her termination agreement.
Now suppose the employee’s departure was voluntary at first and the employee resignation was handled correctly. That is, the employer has proper documentation showing the employee resigned voluntarily and there was no employer wrongdoing. But before the separation process was entirely completed, the employee learned she was pregnant and wanted to withdraw her resignation. Does the employer have to take her back? The answer is likely no. First, Chinese laws give the employee the right to unilaterally terminate a labor contract by giving 30 days written notice, and the employer cannot make it more difficult for the employee to quit. In other words, once an employee gives his or her written notice, the employment relationship will be terminated once the 30-day period has passed. On the flip side, once an employee quits, he or she cannot revoke this decision unless the employer agrees. Under this scenario, the decision to leave was of the employee’s own free will and since the employer does not want to revoke the employee resignation, forcing the employer to take the employee back would be both unjust and unlikely to happen.
It gets a lot trickier if the employee’s departure is a result of her employer unilaterally terminating her. In that situation, if the employer’s termination was lawful it probably will not be ordered to rehire the now pregnant ex-employee. But if the employer did not correctly terminate this employee, the employer will almost certainly be required to rehire the now-pregnant employee. In fact, the employer would probably be required to rehire this employee even were she not pregnant. However, in the case where the employee is pregnant, it means the employer must not only reinstate that employee, it means it will also now need to treat her with extra care and afford her more protections and benefits than other regular employees. It also means the employer must give the employee paid maternity leave of 128 days, more depending on the location.
Regardless of the reasons for having to rehire an employee, you will need to do that correctly as well. Among other things, this usually means you should execute a new employment contract since the last thing you want is to find yourself in a situation where you employ someone without a written employment contract — especially someone you wanted to terminate.This article was written by Grace Yang and published on China Law Blog. Original Post: http://www.chinalawblog.com/2017/04/china-employee-terminations-and-pregnant-employees.html