Employment 2025

CHINA Law and Practice Contributed by: Linda Liang, Piao Liu, Chutian Wang and Xiangbo Lv, King & Wood Mallesons

7.5 Protected Categories of Employee An employer cannot unilaterally terminate the employ - ment of employees in the following circumstances (unless termination is based on Article 39 of the Employment Contract Law): • the employee is engaged in operations that expose him/her to occupational disease hazards and has not undergone a pre-departure occupational health check-up, or is suspected of having contracted an occupational disease and is being diagnosed or is under medical observation; • the employee has been confirmed as having lost (or partially lost) his/her working capacity as a result of contracting an occupational disease or sustaining a work-related injury with his/her current employer; • the employee has contracted an illness or sus - tained a non-work-related injury, and the statutory medical period has not expired; • the employee is a female employee on pregnancy, maternity or breastfeeding leave; or • the employee has been working for the employer continuously for at least 15 years and has less than five years before the statutory retirement age. In addition, if an employee falls into any of the above circumstances, the employment contract shall not be ended upon the expiration of his/her employment contract. Instead, the employment contract must be extended until the relevant circumstance ceases to exist (unless the employee has lost (or partially lost) his/her working capacity listed in the second situation above, in which case the end of his/her employment contract shall be in accordance with relevant regula - tions related to work-injury insurance). PRC employment laws also set some special dis - missal protections for certain trade union members and individuals elected for collective bargaining on behalf of employees (“Employee Bargaining Repre - sentative”). • Employment contracts for full-time presidents/vice presidents/committee members of the company trade union shall be automatically extended for a period equal to their term of office, and employ - ment contracts for part-time presidents/vice

• delivering the termination notice to the employee and making the statutory severance payment if needed (for grounds of unilateral termination by the employer); • registering the termination with the labour authori - ties if so required by local regulations, and assist - ing with the social insurance and housing fund transfer for the employee; and • issuing an employment termination certificate to the employee. 7.3 Dismissal for (Serious) Cause Under PRC employment laws, dismissal for serious cause is generally understood under Article 39 of the Employment Contract Law; see 7.1 Grounds for Ter- mination (Fault Termination: Unilateral termination by the employer). Among the circumstances listed, the one most commonly used in practice is “where the employee has seriously violated internal policies of the employer”. For an employer to successfully terminate an employee for serious violation of the employer’s internal policies, the following conditions must be met: • the burden of proof is on the employer to prove relevant disciplinary violation behaviour; • the company’s internal rules and regulations clearly stipulate that the behaviour is a serious violation of discipline, and the company consequently has the right to unilaterally terminate the employment contract; and • the above-mentioned internal rules and regulations fulfil the democratic and publicising procedures. The employer also needs to fulfil the procedural requirements summarised in 7.2 Notice Periods . 7.4 Termination Agreements Normally, a written termination agreement will be reached between both parties upon mutual termina - tion of the employment contract. There are no statu - tory requirements on the format or must-have terms regarding the termination agreement. According to judicial interpretations, the release clause shall be generally enforceable as long as it does not violate the mandatory provisions of laws and administrative regulations nor fall under fraud, duress or exploitation of an unfavourable position.

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