Zhang, the financial manager of a science and trade company in Beijing, suddenly notified him that his position was canceled after returning from maternity leave, and asked for a transfer. After Zhang refused, the company removed her from the work group, closed system permissions, and stopped paying wages. During the trial, the company argued that it was a normal management adjustment, but the Labor Arbitration Commission and the courts at both levels did not recognize it, finding that this series of behaviors was essentially an illegal termination of the labor contract during the lactation period. In the end, the company was sentenced to pay compensation, wage difference, overtime pay and maternity leave wage difference, totaling nearly 180,000 yuan.

This case is a reminder to all enterprises: the law has already built an indestructible protective barrier for female employees during pregnancy, childbirth and lactation. Whether the enterprise uses "business needs" and "organizational adjustment" as an excuse, or wants to transfer jobs in disguise, reduce salaries or even directly dismiss them, they will be strictly scrutinized by the judicial organs. Those seemingly "reasonable" management operations, as long as they touch the red line, are likely to lose everything.

1. The boundaries of the legal "umbrella": principles and exceptions

Many business managers will ask: Can pregnant female employees be fired? The answer is clear: in principle, no, with only one exception.

Article 42 of the Labor Contract Law clearly stipulates that female employees in the "third phase" are protected by law, and enterprises shall not unilaterally terminate the contract on reasons not the fault of the employee, such as "incompetent for work", "major changes in objective circumstances", "economic layoffs", etc. The original intention of the legislation is to ensure women's occupational stability in special physiological stages and prevent female employees from facing the risk of unemployment due to pregnancy and childbirth, which is an unshakable basic principle.

Of course, this protection is not "bottomless". The only situation in which a female employee can be dismissed is if the employee herself has made serious faults, which is in line with the provisions of Article 39 of the Labor Contract Law - such as serious violations of rules and regulations, serious dereliction of duty causing major losses, or being investigated for criminal responsibility in accordance with the law.

However, this exception has a very high threshold. To dismiss, enterprises must provide solid evidence: prove that the employee is indeed at fault and has reached the "serious" level, and at the same time ensure that the system is legal and the procedure is justified. In practice, many enterprises end up losing arbitration lawsuits due to imperfect systems, insufficient evidence, or inability to prove "serious" faults.

2. Common management misunderstandings and "high-voltage lines" of enterprises

Many labor disputes stem from the fact that enterprises have imposed the logic of managing ordinary employees on female employees in the "third phase". The following misunderstandings must be avoided:

Myth 1: Dismissal on the grounds of "incompetent work" or "layoff"

Due to the decline in performance of female employees after pregnancy, the dismissal process of "incompetent work" was initiated; or include "three phases" of female employees in the list when layoffs. These practices directly violate the law, and enterprises will undoubtedly lose.

Myth 2: Unilateral transfer on the grounds of "job cancellation"

In the previous case, the company unilaterally transferred the employee on the grounds of "job cancellation", and the employee removed the authority and stopped paying wages after refusing, thinking that he was exercising his management power, but in the court's view, the essence of this series of operations was to force the employee to resign and properly illegally terminate it.

It should be reminded that the judicial organs look at "substantive impact" rather than "superficial form". Even if the enterprise does not issue a written notice of termination, as long as the behavior substantially deprives the employee of the basic conditions for providing labor - such as taking away equipment, shutting down the system, and suspending wages, resulting in the inability to continue to perform the labor relationship, the court will find it as a "factual termination" and the enterprise will still be liable. For female employees in the "third phase", any unilateral operation that may affect job stability and remuneration will be strictly reviewed.

Myth 3: Disguised pressure to force employees to resign voluntarily

There is also a more hidden pitfall: disguised pressure to force employees to voluntarily resign. If there is no justifiable reason for job transfer or salary reduction, increase the work burden, or isolation and marginalization at work, employees cannot stay and take the initiative to resign. In practice, this kind of behavior is easily recognized by the court as "disguised illegal termination", and the enterprise still has to pay compensation.

3. Build a compliant and warm management path

In the face of the "third phase" female employees, the wisest choice for enterprises is not to test on the edge of "whether they can be dismissed", but to take the initiative to build a legal, reasonable and warm management process to avoid risks from the root.

1. Improve the internal system and make the rules clear

Formulate a clear and transparent management system to clarify the legal rights and company benefits of female employees in the "third phase", such as the leave application process, salary calculation method, and the principle of consultation when work needs to be adjusted for physical reasons. Adjustments involving the rights and interests of female employees must be negotiated on an equal footing, and written communication records must be kept to avoid subsequent disputes.

2. Respect physical differences and adjust positions flexibly

If female employees are temporarily unable to adapt to their original positions due to pregnancy and physical discomfort, enterprises should take the initiative to cooperate, give priority to negotiating and adjusting to positions with lower work intensity and safer environment, or provide flexible work systems and remote work convenience. In principle, the salary after the transfer shall not be reduced, and the legitimate rights and interests of female employees shall be effectively protected.

3. Negotiation and dissolution should be standardized and show sincerity

If both parties agree to terminate after full communication, be sure to standardize the process. The economic compensation plan should be reasonable and sincere, and it is recommended to moderately increase it on the basis of legal standards to reduce the possibility of disputes. A written "Negotiation and Termination Agreement" must be signed, clarifying the rights and obligations, the amount of compensation, the time of payment, and the bottom clause that "there will be no labor disputes between the two parties".

4. Dismissal under special circumstances must strictly follow the procedures

If a female employee in the "third phase" has to be dismissed for serious violations of discipline, procedural justice is crucial:

• Ensure that rules and regulations are legal and effective
• Investigate objectively and impartially, and collect complete evidence
• Perform the obligation to inform in accordance with the law and listen to defenses
• Make written records throughout the process

Even if the evidence is sufficient, it is recommended to give priority to negotiation and termination and reasonable compensation - this is the way to minimize legal risks and best reflect management wisdom.

Epilogue

The management of female employees in the "third phase" tests not only the compliance awareness of the enterprise, but also the governance level and cultural temperature of the enterprise. The strict boundaries set by the law are not to "bind" enterprises, but to guide enterprises to standardize management and protect the basic rights and interests of female employees.

Those companies that are willing to jump out of the limitations of "short-term costs", respect the law, and treat employees well seem to pay a little more energy and cost, but in fact they are making long-term investments - not only can effectively avoid legal risks, not be dragged down by high compensation, but also win the trust and loyalty of employees, and build a cohesive team and a good employer brand.

For enterprises, only by balancing the bottom line of compliance and humanistic care within the legal framework can they achieve a win-win situation for enterprises and employees, in order to go more steadily and long-term.