China employment lawyersUnilaterally terminating a female employee in China, especially one who is pregnant, nearly always leads to the terminated employee bringing some sort of legal action. Though there are a few legally permissible grounds for an employer unilaterally terminating a pregnant employee without having to pay severance, those grounds are few and far between and the burden will always be on the employer to prove such ground: e.g., the employee failed to satisfy her conditions of employment during her probation period. Yet if everything from step one to the termination is done right, it is possible to legally terminate a pregnant employee during her termination.

A fairly recent case in Guangzhou illustrates this. The employee and the employer entered into a three-year fixed-term employment contract with a six-month probation period. The employer provided the employee with a document that set forth the recruitment requirements and provided that the employee would be considered to have failed to meet her recruitment requirements if she were late for work three times or more during her probation period. The employee signed off on this document and then right after starting her job informed the employer she was pregnant. Before the end of her probation period, the employer issued a notice to the employee terminating the employment relationship for being late for work four times during her probation period. The employee brought a labor arbitration claim demanding reinstatement. The employee argued she was only late a few minutes late each time and she had completed her work tasks and the employer violated the law protecting female employees. The employee lost at labor arbitration and appealed to the court and lost there again.

The court noted that the real issue was not whether the employer was aware that the employee was pregnant at the time of her termination, but rather whether the employer was justified in terminating the employee for failing to meet the recruitment requirements during her probation period. The attendance records proved the employee was late four times during her probation period and the employer was able to prove that it had provided the recruitment conditions to this employee in writing at the time of her hiring. The court held that for these reasons the employer had the right to terminate the employment contract and the employer’s requirements did not violate any mandatory law and therefore the termination was not unlawful. The court rejected the employee’s argument that the employer’s decision was unfair because other employees who were late more than three times were not terminated. The court also did not side with the employee on her claim that she had been terminated just because she was pregnant.

This case shows it is possible to terminate a pregnant employee without having to pay severance and without having to provide advance (30 days) notice, provided the employer can show there is a legally permissible ground for the termination decision.

It is possible to terminate a probationary employee for failing to meet recruitment requirements provided the employer is able to prove why the employee did not meet its requirements. For this to work, it is important the employer have a clear writing setting out its probationary employee’s conditions of employment and it get the employee to review and acknowledge receipt of such conditions. Furthermore, if a termination becomes necessary, the employer needs to have another clear writing documenting exactly how the employee failed to meet the specified conditions or requirements during the probation period. Note that the termination notice must contain the reason for the termination and the notice must be in writing.

The employer prevailed in this case because it met all these legal requirements. Would it have turned out differently had the termination happened after the employee had completed her probation period? The employer would have needed to rely on another legally permissible ground for the termination: e.g., employee’s serious breach of the employer’s rules and regulations. It would then depend on more factors, such as what the employer’s rules and regulations say regarding employee discipline in general and regarding the specific behavior at issue.

Nonetheless, this particular employer’s decision seems a bit harsh and even though it ultimately won, it no doubt lost substantial time and money defending itself in costly labor arbitration and litigation and now it is known to the outside world as the company who fired a pregnant employee just because she was late for work by a few minutes on a few occasions. Had this been my client I would have recommended against it instituting such draconian employment conditions in the first place and I would have most certainly recommended trying to quietly and expeditiously settle the claims before they blew up into full blown legal proceedings.

As a general matter, you should not implement an employer policy that you do not intend to strictly enforce. Also, for certain eligible positions it can make good sense to designate the employee to work flexible hours so he or she can focus on getting the job done and not worrying about being at the office from 9 to 6. These sort of nascent problems are what our China employment lawyers look for in our employer audits because in China — like most everywhere else — an ounce [gram] of prevention is worth a pound [kilo] of cure.