Can a Pregnant Employee Really Never Be Fired? 100% Protection?
Breaks down the six statutory exceptions under Article 39 of China's Labor Contract Law that allow employers to legally terminate pregnant employees, clarifying that the three-periods protection is not absolute immunity.
In the workplace, many people believe that “as long as you’re pregnant, the company absolutely cannot fire you,” even treating pregnancy as a workplace “amulet.”
In reality, although the law provides倾斜 protection for female employees during pregnancy, it is not an unconditional “absolute defense.”
Under specific circumstances, employers can still legally terminate labor contracts.
So, what exactly does the law say?
In which situations might a pregnant employee lose this protection?
This article will analyze each scenario.
*This article represents only the author’s personal views and is not intended as legal advice or opinion.
I. Basic Legal Protection for Pregnant Employees
Article 42 of the “Labor Contract Law” clearly stipulates that during a female employee’s pregnancy, childbirth, and nursing periods (collectively “three periods”), the employer shall not terminate the labor contract under Article 40 (termination without fault) or Article 41 (economic layoffs).
Article 42: Where a worker has one of the following circumstances, the employer shall not terminate the labor contract in accordance with Articles 40 and 41 of this Law: … (4) Female workers during pregnancy, childbirth, and nursing periods; …
This means that a company cannot casually dismiss a pregnant employee on grounds such as “employee is not competent for the job,” “business adjustment,” or “financial difficulties.”
For example, if a company decides to lay off employees due to market contraction, if an employee is pregnant, even if her position is within the scope of layoffs, the company has no right to include her on the list. If the contract is forcibly terminated, the employee can apply to a labor arbitration institution for reinstatement or compensation.
This protection reflects the law’s care for vulnerable groups, aiming to safeguard the labor rights of female employees during special physiological stages and prevent unfair treatment due to pregnancy.
II. But There Are Exceptions: Pregnant Employees Can Still Be Legally Dismissed
Although female employees in the “three periods” enjoy倾斜 legal protection, this does not mean they have an absolute “get out of jail free card.” Under specific circumstances, employers can still terminate labor contracts according to law, and the most common legal basis is Article 39 of the “Labor Contract Law,” which states:
Article 39: Where a worker has one of the following circumstances, the employer may terminate the labor contract: (1) Proved not to meet the recruitment conditions during the probation period; (2) Seriously violates the employer’s rules and regulations; (3) Serious dereliction of duty, engaging in malpractice for personal gain, causing major damage to the employer; (4) The worker simultaneously establishes labor relations with another employer, which seriously affects the completion of their work tasks, or if they refuse to correct the situation after the employer raises the issue; (5) The labor contract is invalid due to the circumstances specified in Article 26, Paragraph 1, Item 1 of this Law; (6) Subject to criminal liability according to law.
The following explains how these circumstances apply to female employees during pregnancy:
(A) Failure to Meet Recruitment Conditions During Probation
If a pregnant employee’s performance during the probation period does not meet job requirements, such as consistently failing skills assessments or being unable to perform basic duties, the company can terminate the contract pursuant to Article 39(1).
The key to applying this clause is that the company must provide clear recruitment conditions and objective assessment evidence, such as multiple written evaluations during the probation period showing non-compliance, training records indicating no improvement, or failure to meet specific capability requirements listed in the job description.
In practice, “recruitment conditions” should be clearly agreed upon at the time of hiring and directly related to the position, and typically must be established before the company learns of the employee’s pregnancy. If the company temporarily raises standards or adds additional assessment requirements after learning of the pregnancy, such as adjusting responsibilities, increasing job duties, or raising capability standards, the court may deem this discriminatory and rule the termination illegal.
Therefore, companies must ensure the assessment process is fair and transparent and maintain complete written evidence to prove the assessment content was based on mutually agreed standards.
(B) Serious Violation of Company Rules and Regulations
If a pregnant employee commits serious disciplinary violations, such as long-term unauthorized absences, leaking core business secrets, falsifying attendance records or expense reports, or fabricating sick leave for pregnancy—the company can terminate the labor contract pursuant to Article 39(2).
However, this requires that the company’s rules and regulations are legal, reasonable, formulated through democratic procedures (such as discussion and approval by the employee representative congress), and publicly notified to employees. If the system itself has procedural flaws or fails to fulfill the notification obligation, the dismissal may be deemed invalid.
Additionally, companies cannot create targeted provisions using excuses like “pregnancy affects discipline,” “morning sickness causes too much time away from work,” or “prenatal checkups exceed leave limits,” as this would be illegal.
In practice, the “seriousness” usually needs to reach a certain level to be supported, such as consecutive absences exceeding a certain number of days, or leaks causing significant financial losses. Furthermore, the company must provide direct evidence of the disciplinary violation, such as surveillance records, written warnings, or third-party certifications, to ensure the legality of the termination.
(C) Serious Dereliction of Duty Causing Major Damage
If a pregnant employee causes major losses to the company through serious dereliction of duty or engaging in malpractice for personal gain, the company can terminate the contract pursuant to Article 39(3).
“Serious dereliction of duty” typically refers to gross negligence or intentional acts within the scope of responsibilities, not ordinary work mistakes. For example, a project manager who knowingly hides critical information, leading to substantial financial losses for the company, may be immediately dismissed regardless of pregnancy.
“Major damage” must reach a certain level, typically involving direct financial losses, reputational damage, or legal liability, and the company must provide specific evidence such as financial statements, audit reports, or third-party investigation conclusions.
In judicial practice, minor consequences resulting from simple work errors are insufficient to constitute grounds for termination. The company must submit sufficient evidence to prove the employee’s subjective fault and a direct causal relationship with the resulting damage.
(D) Simultaneously Establishing Labor Relations with Other Employers
If a pregnant employee, without the company’s consent, establishes labor relations with another employer and this seriously affects the performance of her primary job, the employer can terminate the labor contract pursuant to Article 39(4) of the “Labor Contract Law.”
“Serious impact” usually refers to obvious delays or quality degradation in the primary job due to divided attention or scheduling conflicts. For example, an employee secretly takes on another high-intensity part-time job outside of full-time work, causing multiple project deadlines to be missed.
To apply this circumstance, two conditions typically need to be met: first, the company expressly prohibits dual labor relations in advance (such as in the labor contract or employee handbook); second, after being asked to correct the situation, the employee still refuses to terminate the other labor relationship.
The company must provide evidence, such as work records or written warnings, to prove the severity of the impact. If there is merely a dual labor relationship without affecting the primary job, it may not be sufficient grounds for termination.
(E) Entering into a Contract Through Fraud
If a pregnant employee, through fraud, coercion, or taking advantage of the company’s vulnerable position, induces the company to sign a labor contract against its true intentions, the employer can declare the contract invalid and terminate it pursuant to Article 39(5) of the “Labor Contract Law.”
For example, an employee who falsifies academic credentials or professional qualifications to obtain a key technical position, or conceals significant health issues during recruitment (which must be proven directly relevant to job requirements), may render the contract legally invalid.
Applying this clause requires proof that the fraudulent behavior directly affected the hiring decision and that the company was unaware. In judicial practice, the company needs to submit evidence of false materials, a comparison with job requirements, interview records, and other relevant evidence to prove the employee’s fraud.
Note: Concealing pregnancy during an interview or promising not to get pregnant after employment does not constitute “fraud” and does not apply to this circumstance.
(F) Subject to Criminal Liability According to Law
If a pregnant employee is held criminally liable according to law for illegal acts, the employer can immediately terminate the labor contract pursuant to Article 39(6) of the “Labor Contract Law.”
For example, if an employee is convicted by a court for theft, fraud, intentional injury, etc., the labor relationship can be terminated regardless of pregnancy.
Application only requires a valid criminal judgment; the company does not need to prove additional fault or loss. However, if the individual is merely suspected of a crime but has not yet been convicted by a court—such as being released on bail pending trial—the company cannot terminate based on this provision (but may consider Article 39(2) instead).
Note: Exemption from prosecution, exemption from criminal punishment, probation, and fines only are all considered “subject to criminal liability according to law,” but if the procuratorate decides not to prosecute, it does not count.
III. Legal Consequences of Illegal Dismissal
If a company forcibly terminates a labor contract without legal justification, solely because of an employee’s pregnancy, it will constitute an illegal act with potentially serious consequences.
According to Articles 48 and 87 of the “Labor Contract Law,” a dismissed pregnant employee has the right to demand continued performance of the labor contract. If the company refuses to reinstate the position, it must pay compensation equal to twice the economic severance, calculated as two months’ wages for each full year of service (i.e., 2N), with less than half a year counting as half a year and less than one year counting as one year.
In judicial practice, courts tend to provide strong protection for female employees during pregnancy. If a company lacks sufficient evidence or proper procedure, it often faces the risk of losing the case.
Companies should be particularly cautious when dealing with employees in the “three periods.”
It is recommended that before terminating a contract, companies fully evaluate the legal basis to ensure the reason falls under Article 39 or other statutory circumstances, while also perfecting the chain of evidence (such as disciplinary records) and strictly following the notice and consultation procedures.
IV. Conclusion
The law has clear bottom lines for protecting female employees during pregnancy, but this is not an “unconditional immunity card” for being pregnant.
Employers must comply with the “Labor Contract Law” to provide adequate employment protection for employees in the “three periods,” or else bear serious legal consequences. At the same time, employees should also recognize that the rigor and fairness of the law aim to balance the rights of both parties, not to provide a tool for anyone to seek improper benefits. Using “three periods” protection to deliberately slack off or abuse rights may not only lose legal support but also damage workplace trust.
For enterprises, when dealing with pregnant employees, they should combine compliance with human care, resolving issues through reasonable communication—both protecting business interests and demonstrating social responsibility.
For working women, understanding their rights and protecting them according to law is key, but they also need to perform their duties in good faith to jointly build a fair working environment.
The meaning of law lies in setting rules rather than creating opposition. Only when both parties respect its boundaries can workplace relations achieve harmony and stability.
