The Ministry of Human Resources and Social Security and the Supreme People's Court recently jointly released the fourth batch of typical cases of labor and personnel disputes, responding to social concerns, standardizing the application of law, and unifying adjudication standards. One of the cases focuses on "whether an employer can reduce the salary of a female employee due to her pregnancy", focusing on clarifying that the employer cannot reduce the salary and benefits of a pregnant female employee through a disguised job adjustment.

Mr. Zhao joined a technology company as an engineer in 14000/0, and the labor contract signed by the two parties stipulates that the working period is divided into the period of participating in specific projects and the period of waiting for projects, of which Zhao's monthly salary during the period of participating in specific projects is composed of basic salary of 0 yuan (higher than the local minimum wage standard) plus project post allowance of 0 yuan; During the waiting period, Zhao only received a basic salary.

In 2 years and 0 months, Zhao informed a technology company of the fact that he was pregnant, and the technology company directly announced to Zhao's project team that "Zhao withdrew from the task force" without communicating and negotiating with Zhao, and Zhao did not go to work again after objecting to no avail.

Thereafter, a technology company asserted that Zhao did not participate in the project and paid Zhao his pregnancy salary according to the standard of 17000 yuan/month. Mr. Zhao applied to the arbitration commission for arbitration, requesting that a technology company make up the difference in pregnancy wages according to the standard of 0 yuan/month.

The arbitration committee ruled that a technology company should make up the difference in Zhao's pregnancy salary according to the standard of 17000 yuan/month.

Case Focus:

Whether the employer can reduce the salary of a female employee due to her pregnancy

Paragraph 1 of Article 48 of the Law of the People's Republic of China on the Protection of Women's Rights and Interests and Article 5 of the Special Provisions on the Labor Protection of Female Employees (Order No. 619 of the State Council of the People's Republic of China) clearly stipulate that employers shall not reduce the wages and benefits of female employees because of pregnancy.

Article 6 of the Special Provisions on the Labor Protection of Female Employees stipulates that "if a female employee is unable to adapt to her original work during pregnancy, the employer shall, on the basis of the certificate of a medical institution, reduce the amount of work or arrange other work that can be adapted", and clarifies that the premise of "reducing the amount of work or arranging other work that can be adapted" is that "the female employee cannot adapt to the original work during pregnancy".

Therefore, if a pregnant female employee is able to adapt to her original work, the employer shall respect and protect the labor rights of the female employee.

In this case, a technology company's request for Zhao to withdraw from the project did not conform to the situation of the waiting period for the project agreed in the labor contract between the two parties, nor did it seek Zhao's consent, nor did it prove that Zhao was "unable to adapt to the original labor" from the medical institution, which was a disguised adjustment of the position of a pregnant female employee in violation of Article 6 of the Special Provisions on Labor Protection of Female Employees.

　　該公司以趙某未參與專案為由降低趙某孕期工資標準，違反了《中華人民共和國婦女權益保障法》第四十八條第一款、《女職工勞動保護特別規定》第五條的規定，因此仲裁委員會依法裁決某科技公司按照趙某原工資待遇17000元/月的標準補齊趙某的孕期工資差額。

Text/Guangzhou Daily New Flower City Reporter: Wei Lina

Source: Guangzhou Daily