Mistakes to avoid when transferring pregnant employees

By Alex Xing, Labour Consulting (LABOURS)

Chinese couples are now allowed to have three children as China has gradually relaxed its birth policy in recent years to cope with an ageing population, putting an end to the one-child policy that continued for more than three decades. Childbirth, however, continues to bring unfair pressure on female employees, with common concerns that pregnancy may compromise their career prospects, or even cost them their jobs entirely.

From the perspective of companies, one of the biggest headaches is whether PML employees – an acronym for “pregnancy, maternity and lactation period” that originates in article 42 of the Labour Contract Law – if unfit for their current posts, can be transferred to other positions.

Some employers hope to arrange a job transfer on the grounds of incompetence/significant changes in objective circumstances, but the managerial challenges can be massive.


Ms Zhang joined a company as an administrative supervisor under a three-year employment contract in writing. One year later, she became pregnant, informed her employer of the matter, and continued to work as usual. After one month, Ms Zhang received a notice of job transfer from the company, in which the employer stated that she had failed to meet the job requirements, prompting the company decision to transfer her to the post of administrative clerk and reduce her salary by nearly 70%.

transferring pregnant employees
Alex Xing
Labour Consulting (LABOURS)
Tel: +86 10 8225 5618
E-mail: xingguang@laibei.com

Ms Zhang believed that the employer severely impaired her legitimate rights and interests by altering the employment contract without her consent and transferring her to a less-paid position during her pregnancy. Therefore, she initiated labour arbitration with the local arbitration committee for labour disputes requesting that the employer revoke its decision on the job transfer and salary reduction, and pay all due income as originally agreed.

The labour contract made no mention of the right to transfer Ms Zhang, and the employer failed to provide any evidence of her alleged incompetence. In the final arbitral award, the employer was ordered to revoke its transfer decision and pay the difference in salary as per the original rate during the arbitration. The employer may not arbitrarily alter the posts of PML employees, and salary reduction without negotiation was an even worse offence.


Under the Labour Contract Law, the employer is allowed to change an employee’s post in four circumstances:

  1. The employee has agreed to the transfer after negotiation;
  2. If the employee suffers from illness or non-work-related injury, and is unable to perform duties after prescribed medical treatment, the employer may transfer him/her to a position befitting his/her health conditions;
  3. If the employee is incompetent in his/her job, the employer may unilaterally transfer them;
  4. If the objective circumstances relied on at the time of conclusion of the employment contract have changed significantly, the employer may propose an option to negotiate a change, which usually involves transfer to another position.

According to article 6 of the Special Rules on the Labour Protection of Female Employees adopted by the State Council in 2012, where a female employee becomes unsuitable for her original work due to pregnancy, the employer should, based on the certificate issued by a medical institution, reduce her workload or offer an appropriate alternative post. This rule may have contributed to the misconception that employers may transfer pregnant employees at its discretion.

Where they tend to be mistaken is that the term “unsuitable”, as applied in the above-mentioned provision, is not equivalent to “incompetent” in our common understanding. Instead, “unsuitable” refers to temporary unsuitability for the original post due to pregnancy, mainly for physiological reasons that cease to apply after childbirth. Incompetent, on the other hand, means an employee’s working ability cannot meet the job requirements, an objective mismatch that can be remediated through training or job transfer.


How, then, should an employer approach an “unsuitable” position? First, while not specifically provided under the Labour Law, requests for protection from miscarriage should be granted based on hospital-issued certificates for such a necessity. If any job transfer or salary adjustment is necessary, it should be done ethically and with reasonable care, and only after obtaining the employee’s consent through negotiation.

If the employee continues to report to the office but her work suffers in quality, the employer should observe and determine if it is due to any underlying ill intent or physical unsuitability, and collect evidence where necessary. In the case of ill intent, the employer may apply their usual disciplinary methods to manage this.

However, if the employee’s physical condition makes them unsuitable for their current duties, the employer should, in a compassionate and reasonable manner, attempt to negotiate with the employee for the transfer to a more fitting role.

In a fiercely competitive market, some employers may be tempted to cut labour costs resulting from PML employees. In response to these situations, the central government has introduced numerous policies to eliminate employment discrimination and protect women’s equality in the workplace. The rights of female employees are protected by such mechanisms as job security, overtime work restriction, maternity leave and paternity leave.

In the “three-child” era, management of PML employees is expected to remain a major challenge for employers. Taking shortcuts for short-sighted benefits, or management negligence in this respect, will likely incur greater legal risks, and public outrage. Below is the author’s labour management advice on the matter:

  • Thoroughly review internal and external recruitment advertisements and literature, and delete all content suspected of gender discrimination. If recruitment writings have not been updated for some time, they should be reviewed as soon as possible.
  • Lawfully formulate corporate policies and protocols, and negotiate flexible work arrangements, flexible leave and other such approaches, so as to not only protect the legitimate rights and interests of PML employees, but to also enhance people-oriented management. On the other hand, if the PML employee seriously violates company protocols, the employer can accordingly take action.
  • Improve maternity insurance to protect the interests of PML employees, which to some extent also reduces the employer’s burden.
  • After negotiation, switch the employee’s post and enter into a written agreement. If the employee is unwilling to move, but there is sufficient evidence that she is unable to perform satisfactorily in its original position, the employer may unilaterally enforce a job transfer or reduce her workload in accordance with the law.

Alex Xing is a partner at Labour Consulting (LABOURS). He can be contacted by phone at +86 10 8225 5618 and by email at xingguang@laibei.com

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