Whether a female employee on maternity leave could get the performance-based salary?
Ms. Wong worked as a Business Manager in a company. Her labor contract stipulated that her salary consisted of a basic salary and a performance-based salary. The performance-based salary was CNY1,500 per month during the probation period and CNY2,500 per month after the probation period expired. She found the company had not paid the performance-based salary during the maternity leave, then filed an application for labor arbitration. The labor arbitration commission, the court of first instance and the court of second instance all ordered the company to make up the difference in the performance-based salary (see details in the Judgment No. (2019) Yue 03 Min Zhong No. 29214).
In June 2018, Ms. Lin signed a labor contract with a company. The contract stipulated that her pre-tax basic salary was CNY13,043, and the performance-based salary would be determined separately in accordance with the relevant systems for performance assessment and salary management. In May 2020, she took 128 days of maternity leave and received maternity allowances during this period. After the contract was terminated in June 2021, Ms. Lin filed an application for labor arbitration, claiming that the company should make up the difference in the performance-based salary. The labor arbitration commission, the court of first instance and the court of second instance all held that, in accordance with the company’s regulations, the performance-based salary should be paid based on performance assessment, since Ms. Lin did not provide labor services during her maternity leave, she was not entitled to claim the difference in the performance-based salary (see details in the Judgment No. (2023) Hu 01 Min Zhong No. 16395).
Article 5 of the “Special Provisions on the Labor Protection of Female Employees” stipulates: “Employers shall not reduce the salaries of female employees, dismiss them, or terminate labor contracts or employment contracts with them due to pregnancy, childbirth or breastfeeding of the female employees.” However, it does not stipulate whether the “salary” specified in this article includes the performance-based part.
Without considering the regional factors, the performance-based salary could be determined in the following aspects:
| Factors | Tentative Conclusion | ||
| The performance-based salary is a fixed amount （similar to Case 1 at the beginning） | It should be paid. | ||
| The performance-based salary is variable | The performance assessment criteria are absent. | It should be paid. | |
| The performance assessment criteria are not actually implemented. | It should be paid. | ||
| The performance assessment criteria are actually implemented. | The criteria are only linked to attendance | Generally, judicial authorities may order the employer to pay such salary. ※Maternity leave is generally deemed as normal attendance. | |
| The criteria are clear, and it is clearly stipulated that employees who failed to participate in the assessment or had no performance would not receive the performance-based salary. | Judicial authorities may support the employer to reject such payment. | ||
In the implementation of the above tentative conclusion, the regional factor is also very important.
Currently, Guangdong province is the most favorable region for female employees on maternity leave. Paragraph 2 of Article 13 of the “Measures for the Implementation of the Special Provisions on the Labor Protection of Female Employees in Guangdong Province” stipulates: “The original salary standard of a female employee refers to the average monthly salary of the female employee in the 12 months prior to the maternity leave or family planning surgery leave in accordance with the law. The average monthly salary in the previous 12 months shall be calculated based on all labor remuneration that the female employee is entitled to, including hourly wages or piece-rate wages, as well as monetary income such as bonuses, allowances, and subsidies.” Therefore, in principle, enterprises in Guangdong province are required to pay (the performance-based salary during maternity leave). The only exception is that where a company suffering losses, and it does not pay any performance-based salary to all employees, if it refuses to pay performance-based salary to female employees on maternity leave, the judicial authorities may support the company’s decision.
In other regions, such as Shanghai (as seen in the second case at the beginning), Beijing, Sichuan and other cities, if a company has set the performance assessment standards, in addition with the qualification requirements, such as employees who have not participated in performance assessment or have no performance results are not entitled to obtain the performance-based salary, the courts may tend to support the implementation of such internal rules.
In general, since the specific assessment content, standards, and other factors vary, whether a female employee on maternity leave could get the performance-based salary shall be decided case by case.