Dismissal of a pregnant woman

A pregnant woman working in an organization, enterprise or private entrepreneur always creates certain difficulties for employers. Therefore, they try in every possible way to terminate the employment contract with such an employee. However, dismissal of a pregnant woman is prohibited by law, since the state protects the interests of motherhood.

Let's consider which articles of the Labor Code prohibit the dismissal of a pregnant woman at the initiative of the employer, as well as exceptions that allow her dismissal, and determine the procedure for this process, including in the case of work under a fixed-term contract. We will also consider situations when a woman quits of her own free will and by agreement of the parties.

Legislation on the peculiarities of labor activity of pregnant women

The expectant mother should know her rights in order to defend them in case of conflict situations with the employer. They are set out in the Labor Code of the Russian Federation. At the initiative of the management of the enterprise, the dismissal of employees is allowed on the basis of the reasons set out in Article 81 of the Labor Code.

However, Article 261 prohibits employers from dismissing women for the reasons specified therein if they are pregnant, except in circumstances that prevent them from maintaining their jobs.

The article also defines the legal actions of the employer and employee upon termination of a fixed-term employment contract during her pregnancy.

While carrying a child, a woman is entitled to certain relaxations in her work, which she should be aware of. Thus, according to Articles 93 and 96 of the Labor Code, she can work part-time and be released from work at night. During pregnancy, an employee is exempt from working in hazardous workplaces.

In order for a woman to benefit from her rights and benefits, she must do the following:

• register for pregnancy;
• notify the employer of your situation by presenting an official pregnancy certificate from a gynecologist.

A pregnancy certificate serves as the basis for protecting a woman from dismissal at the initiative of the company’s management and will give her the right to receive various benefits.

In what cases is it possible for a pregnant woman to be fired?

Of all the variety of reasons for which the dismissal of pregnant women is prohibited, there are circumstances that do not allow the expectant mother to retain her job. New amendments to the law give the right to dismiss a pregnant employee on his own initiative only in exceptional cases, which include:

• complete closure of the enterprise and its liquidation as a legal entity;
• termination of the IP operation;
• expiration of the period of temporary replacement of another employee by a pregnant woman, if it is not possible to provide her with another position corresponding to her qualifications, or any other work that does not harm her health. Moreover, the employer’s responsibilities include the mandatory offer to the pregnant woman of all vacancies available at the enterprise that are suitable for a woman in her position. And, if she refuses all offers, then he will have the right to fire her.

The procedure for dismissal upon closure of an enterprise

The dismissal of employees of a liquidated enterprise, including women carrying a child, occurs according to a uniform procedure established by law.

According to Article 180 of the Labor Code of the Russian Federation, each employee is required to notify of the upcoming dismissal no later than two months before the upcoming event.

The notification must be in writing, which must be signed by the pregnant woman.

The liquidation of an enterprise should not be confused with a change of management, when the functions of the enterprise remained the same as they were, only other persons began to manage it. In this case, the woman must continue working for another manager if she herself agrees to this.

Upon termination of the operation of the enterprise, the employee is required to pay:

• severance pay equal to two average salaries;
• monetary compensation for vacation pay if she did not use her vacation;
• lost wages calculated for days worked before dismissal.

Responsibilities for paying benefits due to her in connection with pregnancy and childbirth, after the liquidation of the enterprise, fall on the social service located at the place of residence of the dismissed woman.

Special working conditions for a pregnant woman

After official notification of management about her pregnancy, a woman receives the right not only to be protected from dismissal, but also to be given another job that ensures the health of her and her unborn child. According to Article 254 of the Labor Code, at the request of an employee, management is obliged to either reduce her working day or provide her with other work that excludes the influence of production factors harmful to health. At the same time, she retains her previous average earnings.

While searching for a suitable place of work, management is obliged to relieve the employee from performing previous duties related to exposure to harmful factors, while maintaining her average salary during this time. Working days missed due to the search for a new job are paid by the employer from his own funds.

The procedure for drawing up a fixed-term employment contract with a woman during pregnancy and regulating its term is described in Article 261. The main postulate of this article is that even at the end of the contract, a pregnant woman does not have the right to dismiss.

If her pregnancy is confirmed at the end of the fixed-term contract, the employer must extend its term until the end of the pregnancy. In this case, upon request, a woman is obliged to present a certificate from a gynecologist confirming the presence of pregnancy.

An employer has the right to request information about pregnancy no more than three months later.

If, when extending a fixed-term contract, a woman continues to work after the end of pregnancy, then she may be fired due to the termination of the contract. Dismissal can take place within a week from the moment the manager learns about the end of the woman’s pregnancy.

Is it possible to fire a pregnant woman for violating labor discipline?

The ban on dismissal of a woman expecting a child applies primarily to the entire list of reasons listed in Article 81 of the Labor Code. It concerns, among other things, dismissal for disciplinary violations or inadequacy of the work performed.

If a pregnant employee commits absenteeism, violations of internal order or causing material damage to the enterprise, and other factors that are a reason for dismissal for other employees, the employer may limit her to only punitive measures in the form of a reprimand, warning and reprimand.

If a pregnant woman systematically violates labor standards, the reprimand can become severe. It is implemented in the form of an order filed with the employee’s file. And, if her behavior when going back to work after the end of pregnancy and using the required maternity leave, as well as leave to care for a child up to three years old, does not change, then she faces real dismissal, since the “immunity” of the pregnant woman will end for her .

In practice, cases of disciplinary punishment of pregnant women are rare, since they are always provided with the most favorable working conditions.

Therefore, any woman in this position values ​​​​her job because she has no prospects for employment in the near future at another enterprise if she quits of her own free will.

“Deeply” pregnant women can only be hired to temporarily fill the duties of another absent employee. Although, by law, an employer does not have the right to refuse to hire because of pregnancy, he will always find indirect reasons for refusing to hire such an employee.

Resignation at will

A woman in a “position” can leave her job at her own request by terminating her contract with the employer. No one can stop her desire. The main thing is that her desire must be truly voluntary, and not intentionally created by the employer to provoke dismissal.

In practice, there are still often precedents for creating unbearable psychological conditions for the work of an employee, including a pregnant woman.

If she was forced to resign on her own initiative, she should know that she can file a complaint with the State Tax Inspectorate, the prosecutor's office, and even the court. To do this, she must have in hand documents confirming the deliberate blackmail of management, with the goal of her voluntary dismissal.

Upon receipt of her complaint, the relevant organization must verify all cases specified in the complaint.

Having decided to resign at will, a woman must submit an application to management two weeks before dismissal.

After two weeks, in accordance with the issued order, the employee is dismissed with the issuance of a work book and the final payment. Unfortunately, she is not entitled to severance pay.

Dismissal by agreement of the parties

Often, pregnant women quit by mutual agreement with the employer, formalizing this in the form of a documented bilateral Agreement with signatures of both parties. Based on this Agreement, the employer issues an order.

The date of dismissal will be considered the date agreed upon by the parties, specified in the Agreement and order. By agreement with the employer, a woman may not work for two weeks if this suits him.

To do this, she does not have to go to the hospital or take a vacation.

Important! If a woman did not know about the pregnancy at the time of signing the dismissal agreement, she can withdraw her signature on the agreement by writing a statement to the employer if the day of the appointed dismissal has not yet arrived.

Source: https://lawinfo24.ru/trudovoe-pravo/uvolnenie/uvolnenie-beremennoj

What rights are regulated by the Labor Code for pregnant women?

The Labor Code prohibits denying employment to women in this position. The rights of pregnant women at work are also protected. In particular, the law does not allow establishing a probationary period for them when hiring, dismissing them at the initiative of the employer, except in cases specified in the law, and provides for a number of other benefits.

Rights and benefits of pregnant women during employment

Article 64 of the Labor Code of the Russian Federation regulates the rules for concluding an employment contract, prohibiting restricting a person’s right to get a job based on any criteria, including due to the presence of pregnancy or small children, except for business qualities.

The Labor Code protects expectant mothers and provides them with a number of benefits when hiring. In accordance with Article 70 of the Labor Code of the Russian Federation, pregnant women must be employed without a probationary period.

When hiring a woman, the employer does not have the right to refuse her employment if she is pregnant. Also, he should not be interested in whether she is pregnant at the time of employment. It is possible for an expectant mother not to be hired if her level of qualifications is insufficient or does not meet the requirements for the job for which the pregnant woman is applying.

If a woman understands that she is being refused on a far-fetched pretext, she has the right to ask for the refusal to be formalized in writing. You can subsequently contact the labor inspectorate or court and prove that there was bias on the part of the employer and an unreasonable refusal of employment.

In practice, this is not so easy to do. Employers, aware of the legal requirements, try to circumvent them in order to avoid penalties. Therefore, do not just ask for a written refusal, but put your request on paper and register it with the director’s secretary as expected, with an assigned number and registration in the appeals log.

Rights of pregnant women at work

The rights of a pregnant woman at work are protected by the Labor Code. She cannot be fired even under Article 81 of the Labor Code of the Russian Federation for violating labor regulations, absenteeism or other violation.

The rights and benefits of a pregnant woman at work are discussed in the following video

Benefits for working expectant mothers

According to the law, a working woman, preparing to become a mother, can take advantage of benefits specially provided by law. Not all women know the law well, and employers often take advantage of this. In order not to lose your privileges, you need to remember the following:

Transfer to another position

If a pregnant woman cannot perform her previous duties, the employer must offer her another job. According to Part 3 of Art. 261 of the Labor Code of the Russian Federation, this can be not only a job that corresponds to the qualifications of the worker, but also a lower-paid and lower-ranking position, as well as all vacancies that are suitable for the woman for health reasons and are located in the area.

1. The pregnant woman should be given light work.
   The expectant mother has the right to ask for a transfer to light work. This is done in application form. A medical certificate confirming the need for transfer can be attached to the application. It is issued by a antenatal clinic doctor. It indicates which specific works are contraindicated. For example, lifting weights, working in rooms with high humidity, etc. If a woman is transferred to light work, she retains the average earnings that she had in her previous position. A pregnant woman has the right to switch to part-time work according to the Labor Code of the Russian Federation. The manager determines how many hours her working day will last. Payment must be made for actual time worked.
2. A pregnant woman is exempt from work on weekends, holidays, and days. She should not be asked to work at night or overtime.
3. A pregnant woman has the right to take annual leave in advance before or after maternity leave. Every employee has the right to receive paid leave once a year. You can take it after working for at least 6 months. This rule does not apply to expectant mothers. As regulated by the Labor Code of the Russian Federation, pregnant women can take annual paid leave after working any amount of time. A pregnant woman cannot be called back to work from vacation early.
4. A pregnant woman cannot work on a rotational basis. The 2020 Labor Code of the Russian Federation for pregnant women, in Article 298, limited the possibility of working away from their permanent place of residence.
5. A pregnant woman has the right to leave work to see a doctor for regular checkups.
   If the pregnancy is multiple or the gestation is complicated by various problems, systematic examinations, tests, etc. may be required. The woman must be released from work for the duration of the visit to the clinic, while maintaining her salary. After the expectant mother receives a certificate confirming her condition from the medical institution and registers it with the personnel department, she is required to allocate time to visit the doctor as needed.
6. A pregnant woman should receive additional breaks during work. She also cannot be transferred to another job without consent, unless it is a transfer to light work.
7. A pregnant woman has the right to receive paid maternity leave. In a normal case and a normal pregnancy, a woman has the right to write an application for paid leave under the BiR for a period of 30 weeks. If there is a multiple pregnancy, the law allows you to take 28 weeks off. If a woman lives in areas that have environmentally unfavorable status, she is allowed to take 27 weeks of leave under the BiR. Thus, depending on the circumstances, the duration of leave under the BiR can be 140, 156, 160 or 194 days. If the birth was complicated, another 16 days will be added to the 140-day sick leave. It will be issued by a doctor at the maternity hospital.

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In addition to the pregnant woman, her husband also has benefits. At his request, the employer is obliged to provide him with annual leave while his wife is on maternity leave. Moreover, it does not matter what length of continuous work experience he has at this enterprise.

Birth and labor leave is granted on application. Let us tell you in more detail what this means and what it is needed for. By writing an application for leave under the BiR and attaching a sick leave certificate to it (Art.

255 of the Labor Code of the Russian Federation), the expectant mother hands these documents to her employer (when the employer should inform about pregnancy, read here). The calculation of vacation pay begins. And here it may turn out that it is not profitable for a pregnant woman to go on vacation, because she will lose in salary.

The fact is that women receive all maternity payments at their place of work, but the Social Insurance Fund allocates funds for their payment to the employer. The Fund's capabilities are not unlimited, therefore, when calculating the amount, the value of the basic marginal income was introduced.

The amount of vacation pay under the BiR depends on the average daily earnings of the maternity leaver for the 2 years preceding the year of going on maternity leave.

When the average daily earnings are calculated, they must be compared with the value of the maximum average earnings for the current year adopted by the legislator. If a woman’s earnings exceed the value established by law, the basic one is taken to calculate the benefit.

You can watch this video about calculating the allowance for BiR

This is why it is not profitable for some expectant mothers whose income is above the basic value established by law to go on maternity leave for a long time. The law provides for the possibility of such situations. Therefore, going on labor and employment leave is a voluntary matter for the employee herself.

She has the right to continue working until the day of birth and take only the postpartum part of the leave. The next stage, registration of parental leave for a child up to 3 years old, may also not be used by the young mother.

She has the right to go to work, and her father, grandmother or other working relatives can take leave to care for a newborn. Find material on applying for maternity leave for your husband at the link https://otdelkadrov.online/8653-mozhno-li-oformit-dekretnye-na-muzha-ili-drugih-rodstvennikov.

The expectant mother needs to remember what rights a pregnant woman has at work, whether she is entitled to benefits under the law, and in case of misunderstanding or unreasonable actions of the manager, refer to the article of the Labor Code.

If the pregnant woman’s demands are legal and she knows all her benefits and rights, the employer will not break the law. Failure to comply with the rules threatens him with serious sanctions (Article 145 of the Criminal Code of the Russian Federation).

Rights of a pregnant woman upon dismissal

Additionally, if the rights of a pregnant woman have been violated, it is necessary to defend them based on the law. There are several ways to do this.

First, you need to write a statement addressed to the manager with reference to the articles of the law and a requirement to comply with them.

If this does not work, then you should write a complaint to the State Labor Safety Inspectorate and (or) the prosecutor's office. The last resort would be to go to court, but no later than 3 months from the date of violation of rights.

A pregnant woman cannot be fired at the initiative of the employer. Trying to circumvent the law prohibiting dismissal and inventing some kind of violation or finding fault with the employee and accusing her of poor quality work is also impossible. Article 81 of the Labor Code of the Russian Federation, regulating the dismissal of workers for disciplinary violations, prohibits the dismissal of pregnant women, no matter what offense they have committed.

A pregnant woman can only be fired if the organization is liquidated and the individual entrepreneur is closed. More information about the dismissal of a maternity leaver during the liquidation of an enterprise is here.

The Labor Code of 2020 establishes certain rules for dismissal for pregnant women at the initiative of the employer. This can only be done upon liquidation of an enterprise where a woman works. Upon dismissal, she will receive a salary for the time actually worked, compensation for unused vacation, unemployment benefits and maternity benefits from the Social Insurance Fund or the Social Security Administration.

You can also fire the expectant mother:

• if her work takes place in difficult conditions and transfer to light work within the framework of this organization is impossible;
• by agreement of the parties;
• at your own request.

If a woman is employed under a fixed-term employment contract (issued for a period of no more than 2 months) and is pregnant at the time of dismissal, she can be fired only a week after she gives birth to a child and starts working again. You can learn about the extension of a fixed-term employment contract from the article https://otdelkadrov.online/5448-osobennosti-pravila-prodleniya-srochnogo-trudovogo-dogovora-po-tk-rf.

In a controversial situation, remind the employer of the articles of the Labor Code of the Russian Federation for pregnant women, giving them rights and benefits:

1. Art. 64 of the Labor Code of the Russian Federation guarantees the expectant mother the conclusion of an employment contract.
2. Art. 70 of the Labor Code of the Russian Federation prohibits testing a pregnant woman in order to verify her suitability for the job received.
3. Art. 255 of the Labor Code of the Russian Federation speaks of providing leave for the BiR of at least 140 days.
4. Art. 261 of the Labor Code of the Russian Federation prohibits the dismissal of pregnant women.

Can a woman's position at work be reduced during pregnancy, when dismissal is permissible?

to lay off a pregnant woman , but it is entirely possible to force her to leave of her own free will by creating unbearable working conditions. Which is what employers sometimes take advantage of. However, ignorance can also be fought on completely legal grounds. A woman in this position not only cannot be fired, but must also be transferred to light work, eliminating dangers and taking into account the harmfulness of production.

In case of staff reduction, when the position occupied by a pregnant woman is abolished, the employee cannot be fired either. Actions fall under Art. 261 of the Labor Code of the Russian Federation, when at the initiative of the employer it is impossible to issue a work book, but only to provide the employee with a new job within the organization.

Important! A woman in this position can be dismissed from her job only upon liquidation of the enterprise! In fact, she has nothing to offer, since legally the company does not exist.

 

It is prohibited to influence a pregnant employee psychologically, with the help of dummies, threats, or blackmail. These actions already fall under the Criminal Code of the Russian Federation and under Art. 145 the director faces a fine in the amount of official monthly earnings (or minimum wage) for 1.

5 years. When there are no funds, the punishment is replaced by 360 hours of correctional labor.

It is impossible to create unbearable working conditions, although in practice it is enough to comply with the regime requirements:

• come to work no later than the established time;
• leave strictly minute by minute;
• prohibit “smoke breaks” and tea outside the lunch break;
• ask for a progress report.

In fact, the employer does not have to do anything reprehensible or illegal. It’s rare that a pregnant woman working in a serious company can cope with the dress code and avoid the stress, anxiety, and pressures that previously existed in her job responsibilities.

Only if a position is reduced, an employee cannot be fired; she can be transferred to a similar job (only with her consent and application of Part 2-3 of Article 72.2 of the Labor Code of the Russian Federation), or with the provision of favorable working conditions. An exception is the situation when an early employee was hired temporarily under a contract, for the duration of another employee’s vacation, or at the time of maternity leave.

Then the relationship with the company ends with the end of the contract, but not completely - she is required to announce a list of possible vacancies, and only when she herself refuses all of them can the employer consider himself to have complied with labor laws and fire the pregnant woman.

Complete liquidation of an enterprise means the layoff of all employees without exception. As a legal entity, the company ceases to exist, the office (production) is closed permanently.

A pregnant woman is dismissed on general grounds, namely:

• she is warned 2 months in advance and must be signed (Article 180 of the Labor Code of the Russian Federation);
• average monthly earnings are calculated for a period of 2 months from the date of liquidation (compensation for the period of searching for a new job), with the exception of seasonal work, here the compensation period is calculated from 2 weeks of average earnings.

Important! Do not confuse two concepts - salary and average monthly salary; these are completely different amounts. In addition, if a woman is officially hired at a quarter rate, or her “white” salary is small, there is no need to expect significant payments.

You should not try to fire a pregnant woman by manipulating the legal status of the company during the reorganization of the enterprise. Any merger of subsidiaries with the parent corporation is not considered a dissolution, nor is a succession in title.

If the company "Lutik" is renamed on paper to "Cornflower", but the greenhouse remains intact, with premises, equipment and employees, even if their positions are now called differently, the pregnant woman must be automatically enrolled in the new or old branch.

Important! According to Art. 261 of the Labor Code of the Russian Federation, it is permissible to independently write an application demanding the provision of a workplace. Even being on probation under Art. 70 of the Labor Code of the Russian Federation does not apply to pregnant women.

Proof of an interesting situation will be a certificate from a gynecologist.

From the moment it is provided to the employer, dismissal and layoff of a woman will become impossible. State protection from unauthorized actions of the director is guaranteed under Art. 261 of the Labor Code of the Russian Federation for all women at any stage of pregnancy.

Even when the fact of theft of company property has been established, or there is chronic absenteeism!

Important! In cases where the decision to reduce the position occupied by a woman was made several months in advance, this does not change the situation.

The idea is automatically canceled, and management will have to reconsider its plans.

A special fact is that a woman receives protection from contractions from the day she becomes pregnant.

Not from the moment she found out about it or reported it to management, but from minute X, when conception occurred.

It will be more difficult in the case where the employee has already received notice of layoffs and signed while not yet pregnant. Then the first thing you can do is go to the director with Article 261 of the Labor Code of the Russian Federation, but if he firmly decides to stand his ground, go to court.

It is known for certain that for small companies, maintaining a pregnant employee costs a pretty penny. It is much cheaper to liquidate the company, assign it a new legal status and re-hire suitable employees. This is what unscrupulous managers take advantage of due to the legal illiteracy of pregnant women and the fact that rarely anyone dares to sue.

You can reach an amicable agreement and create a position exclusively for a pregnant employee until maternity leave, and then liquidate it. In large corporations, transfer to another branch or structural unit.

Pregnancy is always associated with absenteeism, constant visits to doctors, and in severe cases, being kept in hospital. As a good employee for the company, the pregnant woman is lost.

Recording the time of absence from the workplace, failure to complete tasks, mistakes that entail financial losses for the enterprise, will make it possible to enter comments in the work book, deprive of bonuses, pay only the official (white) salary or reduce its level.

All these actions are actually legalized harassment of a pregnant employee; it is very difficult to prove the psychological effect on her in court. Therefore, the woman herself prefers to resign due to redundancy and preserve her health and her unborn child.

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Despite the categorical statements of lawyers about the impossibility of reducing a woman at any stage of pregnancy (and during maternity leave for 3 years), Law 261 of the Labor Code of the Russian Federation does not always work.

That is, it does not contain clear instructions on what to do if the employer, following the letter of the law, reduced staff, provided options for other positions, but the woman did not give her written consent, wanting to remain working under the same conditions and salary.

In essence, this is a direct conflict that puts both the woman at a disadvantage (stress is harmful for the child) and the director, who cannot give the employee something that actually does not exist. Here the right remains to resolve the situation amicably, to negotiate privately.

If you have any questions, our duty lawyer is ready to advise you free of charge ↓

Source: https://propravo24.ru/pravo/trudovoe-pravo/uvolnenie/mogut-li-sokratit-beremennuyu-zhenshinu

Can a pregnant woman be fired from her job?

Dismissing a pregnant woman is difficult for an employer. That is why companies are wary of hiring women in the so-called reproductive age. In case of wrongful dismissal, they can sue and will most likely win.

What laws protect a pregnant woman?

In Russia, the Labor Code is on the side of pregnant women. In order to understand the topic, you need to especially study Article 261. There is nothing complicated in it, and even a person without a legal education can understand it. It also lists categories of women who cannot be deprived of work, even if they have already given birth to a child and their maternity leave has ended.

Amendments are periodically made to the Labor Code of the Russian Federation. You should always look for the latest edition so as not to get into trouble. This applies to both employees and employers.

For the illegal dismissal of a woman expecting a baby, management faces administrative or even criminal punishment. Someone might think that the fine is not that high (up to 50,000 rubles) and dismissal may be a cheaper option than paying benefits. Not at all!

Indeed, in addition to paying a fine, the employee will also have to restore her rights - that is, return her to her workplace - and, perhaps, even pay compensation for moral damage. At the same time, no one limits it in determining the amount of compensation, although the court may change the requested amount.

Criminal penalties consist of either a larger fine or community service. However, it is not so much they who pose a danger as the criminal record in their biography. Subsequently, it can create problems when taking out loans, traveling abroad, and so on.

The Labor Code of the Russian Federation protects pregnant women.

What you need to know about your rights

Most often, women become victims of unscrupulous employers not because they do not have rights granted by law. But because they either don’t know these rights or are afraid/embarrassed to defend them.

A pregnant woman cannot be fired even in case of violation of labor discipline, that is, something for which an ordinary employee quickly loses his job! The maximum that an employer has the right to is to reprimand or take absenteeism into account in the time sheet. You can warn the employee that a decrease in salary due to absenteeism will ultimately lead to a small maternity benefit.

If a pregnant employee wrote a statement of her own free will, then she can withdraw it before the dismissal occurs.

But if it was an agreement between the parties, then she can no longer revoke it, unless the employer also changes his intentions.

True, if a woman found out about her situation when she had already signed the agreement, she can refuse it. The law is on her side in this case.

When can you still be fired?

It is possible to fire a woman who is expecting a child if the enterprise is completely liquidated. And also in the event that a fixed-term contract was concluded and she did not apply for its extension. This application is accompanied by a certificate of pregnancy.

By the way, the company has the right to periodically request such certificates, but not too often: maximum once every three months. When an employee gives birth, or has a miscarriage, or an abortion for medical reasons, the contract can be terminated one week after that.

There are not many opportunities to break the employment relationship, so firms are trying to reach an agreement with women. Some of the women write a statement “of their own free will,” although in fact this is an agreement of the parties.

By pressuring female employees to sign a statement supposedly of their own free will, companies are putting themselves at risk.

Firstly, a woman can withdraw such a statement, and, secondly, she can sue for violation of her rights if she was pressured.

There are also other cases, which, however, almost never occur:

• departure of a pregnant woman to a place of detention;
• complete loss of the employee's ability to work;
• natural disaster, epidemic, war (must be recognized by government authorities);
• loss of any special right or access to state secrets, as a result of which the employee can no longer perform his duties.

It is possible to fire a pregnant woman only in rare cases.

Features of dismissal of a pregnant woman

Table: when is it possible and when not to fire a pregnant woman?

Situation Possibility/impossibility of dismissal Indefinite employment contract Dismissal is impossible. Liquidation of an enterprise Dismissal is possible, but employees must receive written notice of it two months before liquidation. Liquidation of a branch Dismissal is impossible; the employee must be offered a transfer to the head office or another branch. Fixed-term employment contract without replacing the main employee Dismissal is possible only if the employee does not write an application to extend the employment contract or does not provide a pregnancy certificate at the request of the employer. A week after the termination of pregnancy (due to childbirth or other reasons), the contract can be terminated. Fixed-term employment contract with replacement of the main employee The same as in the previous paragraph. However, if the main employee returns to work, the woman can be fired. Before this, the employer is obliged to offer her another position in the company, even a lower rank and with a lower salary. Failure to complete the probationary period Dismissal is impossible, since the probationary period for pregnant women is prohibited in principle. Reduction of staff Dismissal is not possible. Relocation of the company to another area Dismissal is possible if the employee also refuses to move, but before that she must be given a notice of the company's relocation.

If you are pregnant and your rights have been violated

If an employer fires a pregnant woman without her consent or uses moral pressure to get her way, she has the right to go to court. Worsening working conditions can also be used as moral pressure.

In this case, the company must prove before the court that the change in conditions was really necessary and did not threaten the health of the pregnant woman.

Since there is no need to pay a state fee when filing a claim for reinstatement, you should not be afraid of going to court, even if your financial situation is far from optimal.

If a woman wants to quit, no one has the right to prevent her on the basis of her pregnancy. She is required to give notice of her departure two weeks in advance, but can spend this time on vacation or on sick leave. And by agreement of the parties, dismissal can be carried out earlier than after 2 weeks.

The court almost always sides with illegally dismissed women.

Can a pregnant woman be fired during a probationary period?

Update: December 6, 2018

When concluding an employment contract with an employee, the employer can generally include a probationary clause. The test is appointed to check the employee’s compliance with the assigned work (Part 1, Article 70 of the Labor Code of the Russian Federation). Is a test assigned to a pregnant woman and can a pregnant woman be fired during the probationary period?

Pregnancy and probation are incompatible

The Labor Code of the Russian Federation provides that in certain cases it is impossible to establish a probationary period for an employee. The ban applies, in particular, to the following persons (part 4 of article 70, part 1 of article 207 of the Labor Code of the Russian Federation):

• pregnant women;
• women with children under 1.5 years of age;
• persons invited to work as a transfer from another employer;
• persons who have received secondary vocational education or higher education in state-accredited educational programs and are entering work for the first time in the acquired specialty within 1 year from the date of completion of training;
• persons under the age of 18.

Thus, pregnant women belong to the category of persons who, in principle, cannot be subject to employment tests. And therefore, the question of dismissing a pregnant woman during a probationary period is not entirely correct. But here we need to make a reservation.

Firstly, a situation is possible when the employer, contrary to the direct prohibition of the Labor Code of the Russian Federation, included a probationary clause in the employment contract and the employee signed such an agreement. And secondly, the employee may not know about her pregnancy at the time of concluding the employment contract or may know but not inform the employer about it.

Or maybe the pregnancy occurred after the employment contract with the probationary clause was concluded. What to do in these cases? Can a pregnant woman be fired during her probationary period?

So is it possible to fire a pregnant woman during a probationary period?

When answering the question whether a pregnant woman can be fired during a probationary period, we mean dismissal at the initiative of the employer due to an unsatisfactory test result. After all, a pregnant employee can always quit at her own request. And the condition of the probationary period no longer matters here.

What if the employer wants to fire a pregnant employee, explaining that she failed the test?

Suppose the employer knew that the employee was pregnant, but, contrary to the legal prohibition, included a probationary clause in the employment contract with her. In this case, such a condition will not have legal force. And therefore, it is impossible to dismiss an employee as having failed the test (part 2 of article 9 of the Labor Code of the Russian Federation, clause 9 of the Resolution of the Plenum of the Supreme Court of January 28, 2014 No. 1).

What if the employee intentionally did not inform the employer about her pregnancy or did not know about it herself, and the employment contract provides for a probationary period? In these cases, as well as in the case when pregnancy occurred after the conclusion of an agreement with a probationary period, it will also not be possible to fire the employee. After all, there is another rule in force here that prohibits the termination of an employment contract with a pregnant woman at the initiative of the employer (Part 1 of Article 261 of the Labor Code of the Russian Federation). The exception applies only to cases of liquidation of an organization or termination of the activities of an individual entrepreneur.

The above means that under any circumstances, the employer does not have the right to dismiss a pregnant woman during the probationary period due to an unsatisfactory test result.

If the employer, on his own initiative, nevertheless fires the pregnant woman, she will be able to go to court and the employer will have to reinstate her in her previous job and pay the average salary for the period of forced absence (Article 391, Part 2 of Article 394 of the Labor Code of the Russian Federation).

Can a pregnant woman be laid off: when can she be fired?

Can a pregnant woman be laid off without breaking the law? The Labor Code provides pregnant women with many guarantees, including a guarantee against dismissal for most possible reasons. Read more about the possibility of dismissal of a pregnant woman below.

• Guarantees and benefits for pregnant women during reduction
• Illegal dismissal - is it possible to recover?
• Consequences for the employer
• Results

Guarantees and benefits for pregnant women during reduction

The answer to the question whether a pregnant woman can be laid off is contained in the Labor Code. According to clause 1, part 1, art. 81 of the Labor Code of the Russian Federation, a pregnant woman can be dismissed at the initiative of the employer only in one case - if the organization in which she works is liquidated.

In this case, the dismissed person is entitled to the following payments:

1. Salary for hours actually worked, compensation for unused vacation and severance pay.
2. In case of early dismissal (at the request of the pregnant woman), compensation for the time remaining before the expected day of dismissal, calculated based on the size of her average earnings (Part 3 of Article 180 of the Labor Code of the Russian Federation).
3. Maternity benefit. Moreover, depending on the circumstances, it is paid by different organizations:

• employer - if the employee applied for payment before dismissal;
• local branch of the Social Insurance Fund - if the employer cannot pay benefits on his own due to the fact that bankruptcy proceedings are underway against him (Part 4, Article 13 of the Law “On Mandatory ..." of December 29, 2006 No. 255-FZ);
• local social security department - if the right to receive benefits arose after the dismissal of the employee (clause 15 of the Procedure, approved by order of the Ministry of Health and Social Development dated December 23, 2009 No. 1012n).

Pregnant women do not have any additional benefits upon dismissal due to the liquidation of an organization - paperwork and payment assignments in this case are carried out in accordance with the general procedure.

Nuances when reducing staff

Reduction of staff in an organization is a basis for termination of an employment contract at the initiative of the employer, provided for in clause 2, part 1, art. 81 Labor Code of the Russian Federation. However, this basis cannot be applied if the employee who was decided to be laid off is pregnant.

That is why a pregnant employee does not have to worry - she is guaranteed to remain in her job even if the employer decides to lay off workers without closing the organization.

Moreover, the courts side with dismissed pregnant workers even if at the time of dismissal the employer was not notified of the fact of pregnancy (see, for example, the appeal ruling of the Moscow City Court dated March 16, 2017 No. 33-9158/2017).

Nuances when reducing a position

Position reduction is a special procedure that entails the exclusion from the organization’s staffing table of a certain labor unit performing established job duties.

Is it possible to dismiss a pregnant woman if she holds such a position? The answer is clear: the law does not allow firing a woman who is pregnant - this means that she will continue to work in the organization.

But it is still possible to reduce the position held by a pregnant woman, provided that she is transferred to another job on a permanent basis and agrees to this.

Important! The basis for transfer of an employee can only be her personal desire, stated in a written application. For example, before pregnancy she worked as a recruitment manager, and during pregnancy she decided to move to the position of occupational safety specialist.

In this case, an additional labor agreement will be concluded with her, and the employer will issue an order to transfer her to another position.

At the same time, the position of recruiting manager, which was previously occupied by a pregnant employee, can be reduced without negative consequences for the employer.

Illegal dismissal - is it possible to recover?

If an employer fires a pregnant woman on his own initiative, thereby violating labor laws, the woman can protect her rights and be reinstated at work in court. To do this you will need:

1. Prepare evidence that she was dismissed at the initiative of the employer, for example, a work book with a corresponding entry or a copy of the dismissal order, which indicates the basis for the dismissal.
2. File a claim. We will discuss the requirements that can be included in this statement below.
3. Submit completed documents to the court.

Moreover, it is possible to be reinstated at work if the dismissal order and the work record book indicate the pregnant woman’s own desire as the basis for terminating the employment contract.

Even if there is a letter of resignation, the court may conclude that it was written under pressure from the employer, who wanted to get rid of the pregnant employee.

As evidence that the employee was actually under external pressure, under the influence of which she made the decision to quit, the court may take into account the following factors:

• the woman has no other sources of income;
• lack of job offers in other organizations.

Thus, the Moscow City Court, in its appeal ruling dated March 28, 2018 No. 33-13175/2018, based on the listed factors, decided that, by resigning, the woman acted to her detriment. Termination of the employment contract led to the following consequences:

• deprived her of the right to receive maternity benefits due to her;
• significantly reduced the amount of child care benefits (unemployed citizens receive the minimum established by law).

The woman could not consciously take such a step - this means that her employer forced her to quit, even if of her own free will. The court reinstated the woman in her position and satisfied all her demands.

Important! A woman fired during pregnancy can be reinstated at work even if at the time of her appeal to the court the pregnancy was not still present (clause 25 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).

Consequences for the employer

Illegal dismissal of a pregnant woman may entail the following consequences for the employer:

• bringing to administrative responsibility under Parts 1, 2 of Art. 5.27 Code of Administrative Offenses of the Russian Federation;
• bringing to criminal liability under Art. 145 of the Criminal Code of the Russian Federation.

In addition, if the dismissal is declared illegal, the employer, at the request of the former employee and on the basis of a court decision, will have to (paragraph 1, paragraph 60 of resolution No. 2):

• Reinstate her at work.
• Pay her average earnings for the time during which she did not work. At the same time, the income used in calculating the amount of such earnings will also include the severance pay paid to her upon dismissal (see paragraph 62 of Resolution No. 2).
• Reimburse other expenses incurred by the employee (for example, legal costs).

Taking into account the current judicial practice, in particular the above-mentioned appeal ruling No. 33-13175/2018, we can conclude that employers are practically not protected from unscrupulous employees.

Women who quit voluntarily while pregnant can be reinstated at work after some time, receiving compensation from the employer for the time during which work was not actually carried out.

Results

So, the answer to the question of whether it is possible to shorten a pregnant woman is negative.

Russian legislation is aimed at protecting motherhood and childhood, therefore working pregnant women have a special set of rights, including in terms of maintaining their right to work in the organization even if management has decided to reduce staff.

However, there is only one exception to this rule: a pregnant woman can be fired if the organization completely ceases its activities through liquidation.

Can a pregnant woman be fired from work in 2020 - early, up to 12 weeks, if the contract is fixed-term, for absenteeism

The labor legislation of the Russian Federation protects different categories of working citizens, including pregnant women.

Article 261 of the Labor Code allows for termination of an employment contract with a pregnant woman for one of the following reasons:

• at her own request;
• at the initiative of the employer in the event of liquidation of the organization.

What can they pay for?

Since labor legislation allows for the only reason for dismissal of a pregnant woman, and this is the liquidation of an organization or termination of the activities of an individual entrepreneur, she cannot be fired for any violations, including absenteeism.

Although usually even one day of absenteeism can be a reason for the dismissal of a careless employee. Pregnant women often abuse this guarantee by violating their employment contract and missing work days without good reason.

However, apparent impunity should not make their head spin, because in addition to dismissal, employers can use other methods of punishment, for example:

• reprimands with or without entry into the work book exclusively orally;
• Financial punishment also applies: deprivation of bonuses.

Company management is not obligated to ignore the unreasonable behavior of an employee who is trying to justify a violation of labor laws due to her pregnancy.

Therefore, it would be wiser for her to maintain friendly relations with management in order to protect her work record from reprimands, because in the future she may want to change her place of work, and then she will need recommendations and an impeccable reputation.

In what cases will care be within the law?

If labor legislation very strictly limits the employer’s rights to dismiss a pregnant woman, nothing prevents her from leaving the organization of her own free will. This opportunity is a lifesaver for management because it allows both parties to reach an amicable agreement and part ways.

Options for legally dismissing a pregnant employee:

1. Dismissal at your own request in accordance with Article 80 of the Labor Code, when management does not have the right to refuse, and the employee is not required to work two weeks between the date of the application and the date of planned departure if during this period he is on vacation or sick leave. There are the following subtleties:
   • if a pregnant woman is not sick and cannot take advantage of vacation, because she previously “took off” all the days due, she can avoid the need to work out this period only by agreement with the management of the organization;
   • if a pregnant woman wrote a statement of her own free will under pressure from the employer, she can prove the fact of coercion in court in accordance with Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004 on the mechanisms for applying the Labor Code by courts.
2. Dismissal by agreement of the parties:
   • since termination of an employment contract in the context of an agreement between the parties in accordance with Article 77 of the Labor Code does not come from the employer, this option is permitted by legislation protecting the rights of pregnant employees;
   • a previously concluded agreement to terminate an employment contract can be canceled with the mutual consent of both parties or in court on the initiative of the dismissed employee.

An initiative coming from the employee occurs if, for example, the woman found out about her pregnancy after signing the appropriate agreement. In this case:

• she may decide to restore her employment relationship in order to protect herself from the damage that she and her unborn child may suffer as a result of the termination of the employment contract;
• the court may oblige the employer to restore employment relations with a former employee who happens to be pregnant;
• In judicial practice, there were precedents when the dismissal was refused to be annulled by agreement of the parties in the same case when, after leaving, the woman found out about her pregnancy.

It is important here that the employer and employee part ways while maintaining good relations, because this will protect them from many problems that may arise later.

For example, if the court forces the employer to reinstate a dismissed employee due to her pregnancy, he will have to incur additional expenses, for example, compensation for all legal costs.

Can a pregnant woman be fired from her job during a probationary period?

This issue is supervised by two articles of the Labor Code:

• Article 261, which prescribes guarantees for pregnant employees;
• Article 70, which describes all the nuances of applying for a job with the introduction of a probationary period.

In accordance with them, the employer has the right to set a probationary period when hiring an applicant, but only with the consent of the new employee. The employment contract concluded between both parties specifies the duration and conditions of the probationary period.

If the contract does not contain such information, the employee is considered hired without preliminary testing. However, pregnant women are among those employees to whom a probationary period cannot be applied.

There are two possible scenarios here:

1. The employer is notified of the pregnancy of his new employee and receives confirmation in the form of a medical certificate, even if we are talking about early pregnancy. In this case, he cannot establish a probationary period, because this is against the law.
2. The employer does not know that his new employee is pregnant. Here he has the right to establish a probationary period at his own discretion and is not responsible for this, because the employee hid the fact of her pregnancy from him.

If, during the preliminary test, the employer comes to the conclusion that his new employee cannot cope with her duties, he has the right to fire her. However, if at this moment he becomes aware of her pregnancy, he will have to prove that at the time of hiring her this information was hidden from him.

• A woman can become pregnant during the probationary period and notify the employer about this, confirming the news with a medical certificate.
• In this case, the woman cannot be fired because she failed the test.
• However, the previously established probationary period does not end at the moment of notification, but continues until its planned completion with all appropriate guarantees.
• There is no need to wait until 12 weeks of pregnancy before presenting the employer with a relevant certificate from a gynecologist.

Can I get fired in a temporary job?

If the contract is fixed-term, and the employee who entered into it with the employer became pregnant during its execution:

• management is obliged to extend the term of this contract upon the written application of the employee;
• To this application, the woman must attach a certificate confirming pregnancy.

The contract period is extended:

• until the end of pregnancy, if she works temporarily;
• until its completion - when she is granted maternity leave.

1. From the date of filing the appropriate application, the employee is obliged, at the request of the employer, to provide him with medical certificates confirming pregnancy.
2. If a woman was hired to replace an absent employee, and he returns to work during her pregnancy, either her dismissal or her transfer to another position with the same salary level or with its reduction is allowed.
3. It is important that the proposed vacancies correspond to the health status of the pregnant employee and are located at her residential address.

Employer's liability

If a pregnant employee was forced to write a statement of her own free will, using various methods of influence (deprivation of a bonus, harsh treatment), she can protect her rights by filing a complaint with the labor inspectorate.

In this document, you need to set out the entire situation with the dismissal and request an investigation into this fact in order to hold the employer accountable. She also has the right to go to court with a claim for unlawful dismissal.

If the court rules in favor of the plaintiff, her former employer, in accordance with Article 237 of the Labor Code, will be forced to:

• reinstate a dismissed employee;
• compensate her for moral damage caused due to illegal dismissal;
• pay her for working days during which she did not go to work.

In accordance with the Code of Administrative Offenses of the Russian Federation (Article 5.27, Part 1), for this violation of labor legislation, the employer is entitled to a fine, the amount of which depends on the form of its organization:

Form of legal entity Amount of fine for an organization 30 - 50 thousand rubles for an individual entrepreneur 1 - 5 thousand rubles

So, although labor laws provide pregnant employees with certain guarantees, employers may violate them, wanting to relieve themselves of liability in connection with subsequent maternity leave. It is important to know your rights and be able to protect them by contacting higher authorities.

Video: Dismissal of a pregnant woman: labor guarantees.

Attention!

• Due to frequent changes in legislation, information sometimes becomes outdated faster than we can update it on the website.
• All cases are very individual and depend on many factors. Basic information does not guarantee a solution to your specific problems.