Can the company fire pregnant female employees?

On August 20 12, when A applied for an administrative clerk in a company, A filled in "None" in the column of family status on the application form. There is also a line at the bottom of the form: If the personal information filled in above is false, the company can immediately terminate the labor contract without any legal responsibility. Signing indicates clear agreement.

A was hired as an administrative clerk by the company, and signed a labor contract after the first trial and second interview. A suddenly asked for leave to go to the hospital for a checkup one month after joining the company. The company was very surprised. After investigation, it was learned that A was pregnant for three months when she applied, and had been examined in a maternity hospital before applying.

The company believes that A knew that she was pregnant when she applied for the job, and deliberately concealed the fact of pregnancy, and terminated the labor contract with A on the grounds of fraud when A joined the job. Later, A applied for labor arbitration, claiming that the company illegally terminated the labor contract, demanding to restore labor relations and compensate for the loss of wages.

Lawyer's view

1. Can female employees be dismissed as fraudulent employees?

According to Article 39 of the Labor Contract Law, if a worker enters into a labor contract against his true meaning by means of fraud or coercion or by taking advantage of the danger of others, the employer may terminate the labor contract.

In this case, when applying for the position of administrative clerk in the company, A deliberately concealed her pregnancy information from the company, and promised that if the personal information filled in was untrue, the company could immediately terminate the labor contract. Therefore, it seems that there is nothing wrong with the company to terminate the labor contract on the grounds that A has committed fraud. However, whether candidates conceal relevant information when applying for and joining the job is fraudulent or not should be analyzed in detail:

First of all, the enterprise has the right to know the basic information directly related to the labor contract, and the applicant shall truthfully explain it (Article 8 of the Labor Contract Law). "Information directly related to the labor contract" generally includes the applicant's skills, work experience, education, etc.

What candidates conceal when applying for or joining the job is exactly what they must truthfully explain according to law, which is directly related to the labor contract. For example, it can be considered that it is reasonable and legal for an employee to sign a labor contract with an enterprise by fraudulent means, and the enterprise to terminate the labor contract between the two parties according to the provisions of Article 39 of the Labor Contract Law.

If the positions recruited by the enterprise are taboo or unsuitable for pregnant women, and the enterprise has informed them of the nature of the positions, female candidates should truthfully explain whether they are pregnant or not according to the requirements of the enterprise. Otherwise, it is also in line with the law that the applicant conceals the fact of pregnancy to apply for the job, and the enterprise will terminate the labor contract in accordance with the above practices in the future.

Secondly, if the position recruited by the enterprise is not taboo or unsuitable for pregnant women, whether a female applicant is pregnant or not belongs to her personal privacy, and the applicant has the right not to provide or inform relevant information. Although this concealment is dishonest, it can only be evaluated morally, but not legally, that is, it cannot be punished as fraud. In other words, concealing pregnancy does not necessarily invalidate the labor contract.

In this case, the position applied for by A is an administrative clerk, not a position prohibited by pregnant women, nor a position unsuitable for pregnant women. Although it is wrong for A to conceal the fact of pregnancy when applying for a job, it is not enough to constitute the legal reason for the company to terminate the labor contract according to law. Therefore, the dissolution of the labor contract by the company is considered as illegal.

Second, what should I do if I don't want to recruit pregnant or pregnant female employees?

When recruiting, you can ask female employees whether they are pregnant or not, and whether they have any pregnancy plans in the near future. And clearly inform the female employees that our company requires female employees to take chest X-rays in the physical examination. Then HR will tell the female employees who are interested in hiring the physical examination requirements and the consequences of taking a chest X-ray. Answer on the spot or afterwards, those who are unwilling to take a chest X-ray can be eliminated, because others may have pregnancy plans or are pregnant.

So, is it really necessary for enterprises to require female employees to take chest X-rays?

We suggest not to, because many times pregnancy is really just an accident. At any time, don't bet your child's health.

3. What should I do if I want to fire a female employee who is pregnant or pregnant soon after joining the company?

Employers' dismissal can be roughly divided into the following categories:

First, the negotiation is terminated (Article 36 of the Labor Contract Law), and the consequence is to pay economic compensation N;

Second, the fault of the laborer is lifted (Article 39 of the Labor Contract Law), and the consequence is that there is no need to pay economic compensation;

3. If the laborer terminates the labor contract without fault (Article 40 of the Labor Contract Law), and the consequence is that he has not given a written notice one month in advance or N+ months in advance, he shall pay economic compensation N+ 1 in lieu of notice;

Four, economic layoffs ("Labor Contract Law" Article 465438 +0), the consequence is to pay economic compensation n;

Five, illegal termination (Article 48 of the Labor Contract Law), the consequence is to continue to perform the labor contract or pay compensation (2N).

Obviously, when an enterprise meets three female employees, no-fault termination and economic layoffs are not applicable, otherwise it is illegal dismissal.

So there are only two categories left: negotiation termination and worker fault termination.

For female employees based on hidden pregnancy, the employment period is relatively short. If they can be persuaded, the negotiation will be terminated first, because the economic compensation is half a month's salary.

However, this is the difficulty. In this case, half a month's salary can hardly convince female employees, and most female employees will ask for extra salary at the end of the third period, which is basically unacceptable to most employers.

Therefore, there are only six situations (Article 39 of the Labor Contract Law), that is, the probation period does not meet the employment conditions, which seriously violates the rules and regulations of the employer. In fact, these six situations are not only aimed at the third-phase female employees, but also at all employees.

Therefore, in the final analysis, if a unit wants to legally and effectively dismiss a pregnant female employee or a female employee who is pregnant soon after joining the company, it still needs to standardize its own employment process and management operation.