Dismissal of a pregnant woman women by terminating an employment contract at the initiative of the employer is not allowed (Article 261 of the Labor Code of the Russian Federation). However, the employer may initiate her dismissal in the event of liquidation of an organization or enterprise or when an individual entrepreneur ceases his activities.
Also, Article 261 of the Labor Code of the Russian Federation contains the only situation in whichMaybe dismissal of a pregnant woman women from an existing organization: if a fixed-term employment contract was concluded with her to perform the duties of a temporarily absent employee and the term of this contract has expired. If the employer cannot, with the written consent of the employee, transfer her before the end of pregnancy to another available job (both to a vacant position or work corresponding to the employee’s qualifications, and to a vacant lower position or lower paid job), which the woman can perform taking into account her state of health - in this case, her dismissal is justified.
As for fixed-term employment contracts concluded for other reasons (not to perform the duties of a temporarily absent employee), hereThe following rules apply. If such an agreement expires during pregnancy, the employer is obliged to extend it until the end of pregnancy.
If a woman actually continues to work after the end of pregnancy, the employer has the right to issue dismissal of a pregnant woman women due to the expiration of its validity period within a week from the day when he learned about the end of the pregnancy. Or from the day the pregnancy certificate is provided.
If the employer commits gross violations - an unjustified refusal to hire or dismissal of a pregnant woman women, then such a leader, as well as an individual entrepreneur -can be prosecutedaccording to Art. 145 of the Criminal Code of the Russian Federation. In addition, a fine of up to 200 thousand rubles may be imposed. or in the amount of wages (other income) for a period of up to 18 months. In addition, you can be involved in compulsory work for a period of 120 to 180 hours.
Fire a pregnant woman at the initiative of the employer is possible only in two cases: if the organization is liquidated or the activities of an individual entrepreneur are terminated. At the same time, we can talk about liquidation in relation to the provisions of Article 61 of the Civil Code of the Russian Federation, according to which the liquidation of a legal entity entails its termination without the transfer of rights and obligations in the order of succession to other persons.
At the same time, according to Part 4 of Article 81 of the Labor Code of the Russian Federation pregnant women may be fired from representative offices or branches of legal entities or other separate structural divisions located in another area. This rule is an exception to the general rule that dismissal under clause 1 of Article 81 of the Labor Code of the Russian Federation can only be carried out in the event of liquidation of the organization, that is, the legal entity as a whole, since Part 4 of Article 81 of the Labor Code of the Russian Federation allows for the termination of an employment contract when liquidating only separate divisions of a legal entity that do not have independent employer legal personality in relation to employees, they have the rights of hiring and dismissal only within the limits established in the power of attorney issued in accordance with Article 55 of the Civil Code of the Russian Federation. At the same time, the legal entity itself remains and continues to operate.
A pregnant woman can quit by agreement of the parties (clause 1ch.1s.77 of the Labor Code of the Russian Federation). In accordance with the law, an employment contract concluded for both a definite and an indefinite period can be terminated at any time if its parties - the employee and the employer - come to an agreement on this. The law does not provide for any procedures that must be followed by the parties when terminating an employment contract on this basis (no warning to the parties, no payment of severance pay, etc.). It is important to determine the day of dismissal (last day of work), that is, the day that will be indicated in the dismissal order and on which theemployment historyand full payment has been made.
In the event that a special procedure for terminating an employment contract by agreement of the parties is provided for in the contract itself, it must be executed by the parties.
Sometimes employment contracts include a provision for the payment of certain amounts to the employee upon termination. These amounts must be paid by the employer.
However, employers should remember that the woman who signed such an agreement can challenge it in court. If she can prove that the agreement was signed under pressure from the employer, she will be reinstated at work.
You can terminate your employment contract with pregnant woman upon expiration of the fixed-term employment contract (Clause 2.Part 1.Article 77 of the Labor Code of the Russian Federation). In this case, the employer must prove the validity of concluding such an agreement.
The procedure for terminating a fixed-term employment contract, as provided for in Article 79 of the Labor Code of the Russian Federation, must be followed. If it is not followed, the employee’s dismissal may be considered to have been carried out in violation of the established procedure and, as a result, he may be reinstated.
Wherein pregnant woman can take advantage of the guarantee provided to it by Art. 261 Labor Code of the Russian Federation. Thus, if a fixed-term employment contract expires during a woman’s pregnancy, the employer is obliged, upon her written application and upon provision of a medical certificate confirming the state of pregnancy, to extend the term of the employment contract until the end of the pregnancy. A woman whose employment contract has been extended until the end of her pregnancy is obliged, at the request of the employer, but not more than once every three months, to provide a medical certificate confirming the state of pregnancy. If the woman actually continues to work after the end of her pregnancy, then the employer has the right to terminate the employment contract with her due to its expiration within a week from the day the employer learned or should have learned about the end of the pregnancy.
It is permissible to dismiss a woman due to the expiration of the employment contract during her pregnancy, if the employment contract was concluded for the duration of the duties of the absent employee and it is impossible, with the written consent of the woman, to transfer her to another job available to the employer before the end of her pregnancy. Upon dismissal due to the expiration of the employment contract, the employee may request leave with subsequent dismissal.
Also a possible basis for dismissal is dismissal at one’s own request (clause 3, part 1, article 77 of the Labor Code of the Russian Federation).
An employee’s refusal to continue working in connection with a change in the owner of the organization’s property, a change in the jurisdiction (subordination) of the organization or its reorganization (Article 75 of the Labor Code of the Russian Federation) - clause 6, part 1, art. 77 of the Labor Code of the Russian Federation is another basis for dismissal. However, a change of owner does not imply the termination of employment contracts concluded with employees. As an exception to the general rule, one should consider the possibility of terminating labor relations with the head of the organization, his deputies and the chief accountant (see also clause 4, part 1, article 81 of the Labor Code of the Russian Federation), which can be done by the new owner of the organization’s property no later than three months from the date on which his ownership rights arise.
However, Art. 75 of the Labor Code of the Russian Federation provides that if an employee refuses to continue working in connection with a change in the owner of the organization’s property, the employment contract is terminated not at the employee’s own request, but according to clause 6, part 1, art. 77 of the Labor Code of the Russian Federation - refusal to continue work in connection with a change in the owner of the organization’s property, expressed in writing. Theoretically, a pregnant woman can declare her disagreement to continue working for the new owner. Accordingly, in this case, the employment contract with her will be terminated.
The basis for dismissal may be the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties (part 4 of article 74 of the Labor Code of the Russian Federation) - clause 7 of part 1 of art. 77 Labor Code of the Russian Federation. According to the general rule enshrined in Art. 72 of the Labor Code of the Russian Federation, changes in the terms of the employment contract determined by the parties, including transfer to another job, are allowed only by agreement of the parties to the employment contract, with the exception of cases provided for by the Labor Code of the Russian Federation.
Article 74 of the Labor Code of the Russian Federation established an exception to the general rule on the invariability of working conditions established by an employment contract. Thus, for reasons related to changes in organizational or technological working conditions, it is allowed to change the terms of the employment contract determined by the parties at the initiative of the employer (i.e., unilaterally) while the employee continues to work without changing the job function. However, the employee’s consent to change such conditions is not required.
It should be borne in mind that any conditions, both mandatory and additional, can be changed, with the exception of the labor function condition.
An employee’s refusal to be transferred to work in another location together with the employer (Part 1 of Article 72 of the Labor Code of the Russian Federation) is also grounds for dismissal. The law provides for the possibility of transferring to work in another area together with the employer. Such a transfer is permitted only with the written consent of the employee. If an employee, including a pregnant woman, refuses to be transferred to another location together with the employer, the employment relationship with him can be terminated under clause 9, part 1, art. 77 Labor Code of the Russian Federation.
In the context of the financial crisis, in recent years we have increasingly seen cases of forced furloughs, unjustified dismissals and salary cuts. And everyone needs to know their rights, and even more so a pregnant woman. A question that concerns many expectant mothers is whether a pregnant woman can be fired? What rights does she have, and does a pregnant woman have any special restrictions on work? And what loopholes do managers use to fire pregnant women?
Can a pregnant woman be fired - when can an employer fire a pregnant woman?
Liquidation of an organization (enterprise, company).
Termination of activities by the individual entrepreneur himself.
Dismissal of a pregnant woman during liquidation of a company - rights of expectant mothers
If we are talking specifically about the liquidation of a legal entity (organization), and the rights and responsibilities are not transferred to other persons through succession, then the employer is not obliged to employ his employees. However, his obligations in this situation include:
Personal warning of future dismissal two months (minimum).
Payment of severance pay (it is equal to average monthly earnings).
Maintaining this income for the duration of employment (no more than two months after dismissal).
When a branch is closed, the grounds for dismissal of the expectant mother will be the same as when the organization is liquidated.
During a company reorganization (division, merger, etc.), the expectant mother cannot be fired.
As for dismissal upon termination of the activities of an individual entrepreneur, the procedure is the same as for the liquidation of a company.
Dismissal of pregnant women under a fixed-term employment contract - what an employer can do
If the contract expires during pregnancy, the employer must extend the contract with the expectant mother until the end of the pregnancy, after her written application and provision of a pregnancy certificate. At the same time, once every three months (they have no right to demand more often), a woman must confirm her pregnancy with a certificate.
If the mother continues to actually work after giving birth, the organization’s management has the right to terminate the contract based on its expiration. The contract is terminated within a week from the day the employer learns of the end of the pregnancy.
Dismissal of the expectant mother is also possible due to the expiration of the contract during pregnancy, provided that the contract was concluded for the expectant mother to perform duties in place of a temporarily absent employee, and the employer cannot provide other work that meets the work requirements for the pregnant woman due to the lack of such vacancies . In this case, the employer’s responsibilities include offering the expectant mother all vacancies that meet the specified requirements.
Guarantees and rights of pregnant women at work - responsibilities of the employer
Notice of dismissal must be given at least two months in advance.
Within two months after termination (and immediately upon termination) of the contract, the expectant mother is required to pay the average monthly salary.
The dismissal of an expectant mother due to a reduction in the number of employees of the company (organization) is prohibited.
Motives for dismissing pregnant women - tricks of employers
Dismissal of a pregnant woman at her own request - what awaits the expectant mother
This is the most ideal option for an employer. It is often used “under pressure” (threats, clearly negligent attitude, etc.), as a result of which the woman, in despair, actually agrees to write a statement. What should an expectant mother know?
Even after writing a statement, the expectant mother has the right to withdraw it if she changes her mind about quitting. You can withdraw your application within 2 weeks in writing. If during this time another employee has not been found to replace the pregnant woman, then dismissal does not occur.
If the expectant mother quit of her own free will, then payment of benefits is no longer the responsibility of the company.
The employer has no right to force you to write such a statement. If such a fact occurs, the expectant mother can safely go to court.
Dismissal of a pregnant woman for absenteeism or violation of labor obligations
The expectant mother is legally protected from the risk of discrimination by the employer. Therefore, it is impossible to fire her for absenteeism or even a gross violation of discipline. But a reprimand, reprimand or other disciplinary action is possible.
Can a pregnant woman be fired during her probationary period?
As everyone knows, the employer sets a probationary period to test the employee’s professional suitability. A positive test result is grounds for hiring, a negative result is grounds for dismissal. What does an expectant mother need to know?
If the contract does not provide for such a condition as testing the employee in order to verify suitability for the job, then it can be argued that you were hired without a probationary period. That is, the motive “did not pass the probationary period” cannot be used for dismissal.
A probationary period, according to the law, cannot be established for an expectant mother hired in a position.
If there is a certificate of pregnancy, the employer does not have the right to dismiss the expectant mother as an employee who has not completed the probationary period.
The employer is obliged to extend the term of the contract (in this case, until the BIR leave) if it expires during pregnancy.
What is important is the fact of pregnancy at the time when the decision is made to pass/fail the “test”. Therefore, pregnancy should be warned in advance, and then it will be impossible to terminate the employment relationship with the expectant mother.
Why, how and for what can a pregnant woman be fired?
Many managers dream of getting rid of such an unwanted employee as a pregnant woman. Often, to achieve their goal, they abuse their rights or resort to various tricks. You should know that any such actions by the employer are illegal - the expectant mother cannot be fired. So, what else do employers motivate for dismissing a pregnant woman?
Part-time work. They cannot invite a permanent employee to take the place of a future mother working part-time. These are violations of the law.
According to the decision of the owner of the property, the organization or the general meeting of shareholders. Likewise, dismissal is prohibited.
Disciplinary violations. Dismissal is prohibited.
Working conditions unbearable for the expectant mother. The creation of such conditions often frightens pregnant women into writing a letter of resignation. These actions are illegal.
Lack of vacancies with easier working conditions. The employer is obliged, in accordance with the law, to provide the expectant mother with easier work (or part-time work) at her written request, confirmed by medical certificates, while maintaining the amount of earnings. In the absence of such vacancies, the expectant mother is relieved of work, and her earnings are maintained at the expense of the employer.
Inadequacy for the position due to health or lack of qualifications. See previous paragraph.
Employers also use the following grounds to dismiss an expectant mother:
Presence at the workplace in a state of alcoholic (or other) intoxication.
Committing theft, damage, or destruction of company property.
Inaction (or, on the contrary, action) resulting in loss of trust of the employer.
Immoral behavior that is incompatible with continued employment.
Disclosure of any information that is a trade secret.
Actions that resulted in material damage to the employer.
Absence from work for two or more months. It is worth clarifying here that there is a list of diseases that are an obstacle to dismissal. This list also includes illnesses that complicate the course of pregnancy, the threat of miscarriage, etc. That is, in fact, on the basis of such a long absence from work, they cannot be fired (if the illness is confirmed by certificates).
Labor legislation provides protection to pregnant workers; for example, such an employee cannot be required to work overtime (Article 99 of the Labor Code of the Russian Federation) or recalled from vacation (Article 125 of the Labor Code of the Russian Federation). But is labor protection always valid? Can a pregnant woman be fired from her job?
Is it possible to fire a pregnant woman?
An employer is prohibited from dismissing a pregnant employee (Article 261 of the Labor Code of the Russian Federation).
If the employer violates this rule and fires a pregnant woman, and she, in turn, goes to court with a claim for illegal dismissal, then the employer will have to (Article 237, Article 394 of the Labor Code of the Russian Federation):
- reinstate a pregnant employee;
- pay her for her forced absence at the average salary;
- compensate for moral damage caused.
In addition, if labor inspectors become aware of the dismissal of a pregnant woman, the employer faces a fine in the amount (Part 1 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation):
- from 30,000 to 50,000 rub. for the organization itself;
- from 1000 to 5000 rub. for officials of the organization (for the employer-individual entrepreneur).
But it is important to note that there are cases when the dismissal of a pregnant woman is still legal.
In what cases can a pregnant woman be fired?
An employer has the right to dismiss a pregnant woman in the event of liquidation of the organization/termination of the activities of an individual entrepreneur (Article 261 of the Labor Code of the Russian Federation).
Can a pregnant woman working under a fixed-term employment contract be fired?
If an employee working under a fixed-term employment contract finds herself in an interesting situation, the employer needs to be aware of some nuances.
So, for example, if a fixed-term employment contract expires during a woman’s pregnancy, the employer is obliged to extend the term of the employment contract until the end of the employee’s pregnancy (Article 261 of the Labor Code of the Russian Federation). The employer must do this based on the employee’s application, as well as a medical certificate confirming her pregnancy. In this case, the employer has the right to require documentary confirmation of pregnancy once every three months.
An employer can dismiss a pregnant woman working under a fixed-term employment contract if the following conditions are met:
- such an agreement was concluded during the absence of another employee;
- this other employee goes to work;
- It is not possible, with the written consent of a pregnant employee, to transfer her to another job before the end of her pregnancy, which the woman can perform taking into account her condition.
But here it is worth keeping in mind that in this situation the employer is obliged to offer the pregnant employee all available vacancies (not only the corresponding qualifications of this employee, but also vacancies for lower/lower paid positions).
The relationship between employee and employer is regulated by a special document: the Labor Code of the Russian Federation. A separate chapter in it examines guarantees for terminating an employment contract with a woman expecting a child. It also stipulates special cases when the employee and when she does not have the right to do this.
Is it possible to fire a pregnant woman?
Work relationships don't always go smoothly. Not all women, having become pregnant, rush to warn management about this, and some unscrupulous employers consider such an employee a burdensome burden. Despite the fact that all maternity benefits are paid not from the organization’s pocket, but by the state, management faces additional troubles. The pregnant woman will have to keep her job, pay for vacations, adjust working conditions and schedule, and look for a person for a temporary position. This also includes paperwork.It is not surprising that they are trying to get rid of the pregnant woman. Without understanding all the intricacies of the law and considering themselves unpunished, employers try to break the employment contract by any means. Knowing her rights, the expectant mother will not allow this to happen. She is protected by Article 261 of the Labor Code, according to which dismissal is impossible for absolutely all reasons for terminating the contract:
- for absenteeism;
- unsatisfactory performance results;
- committing a disciplinary offense, etc.
In what cases is dismissal legal?
There is an opinion among people that under no circumstances is it possible to separate from a subordinate who is expecting a child. And the interesting position guarantees complete integrity and preservation of all working conditions. This is only partly true. The cases specified in the Labor Code allow terminating a contract with a pregnant woman, and there are sufficient legal grounds. But both parties (subordinate and employer) must comply with certain conditions and know their rights and obligations.At your own request
The employee has the right. To do this, two weeks before the expected date of dismissal, it is necessary to transfer all matters to the replacement employee immediately before leaving. The employer makes full financial settlements with the employee, makes a corresponding entry in the work book, and hands over the book itself along with other documents: a copy of the order, pay slip, characteristics, etc.A woman who voluntarily resigns loses the maternity and child care benefits that the company would have provided her.
There should be no problems when showing independent initiative, but there are some nuances here. There are known cases of pregnant women being dismissed at their own request and in accordance with all the rules of the Labor Code, but only on paper. In reality, the woman was under pressure from her employer. By creating unbearable working conditions, he forced the pregnant woman to write a statement and leave her position.
For her part, an unscrupulous employee can also slander the manager: resign on her own, and then write a statement against him to the regulatory authorities, which will be followed by a trial and a large fine. Fearing this, experienced employers are in no hurry to ask an employee to write a personal statement and act in other ways.
By agreement of the parties
The safest solution in this case would be. Then an agreement is reached between the pregnant employee and management. For example, a woman quits, but with compensation. It is not mandatory, but in addition to additional payments, the employee is entitled to:- wages since the last payment, for all hours not worked;
- compensation for unused vacation, even if this period exceeds 2 years.
- If this is an employee, then she submits an application with a request to terminate cooperation in agreement with the company management.
- When the employer initiates dismissal, he sends the woman a written proposal (where he indicates the date and signs the manager), and she agrees and signs the paper.
Termination is considered legal when both parties knew that the woman was pregnant at the time of signing the agreement. But if, after the employee terminated the contract, she learned about her situation and turned to the employer with a request to cancel the agreement, as a rule, the courts will side with her. Pregnancy is a significant basis for appealing the contract.
Upon liquidation of an organization
If at the time a woman is pregnant, her company (employer, as a legal entity) completely ceases its activities, this is grounds for termination of the employment relationship. This situation is separately stipulated in the Labor Code. The employer's actions are regulated, and recognition of dismissal is permissible subject to confirmation of the legal basis for termination of the employment contract.The decision on (institution, company, organization, expiration of the individual entrepreneur certificate) must be unconditional, accepted by the owner and documented in writing. A pregnant woman cannot be fired if:
- the owner of the organization has changed;
- there has been a merger, acquisition, division or other reorganization;
- the company has transformed the form of its activities;
- the name was renamed.
Under a fixed-term employment contract
Sometimes the employment relationship may be temporary, i.e. be concluded for a certain period. These include seasonal employment, work in an organization created to perform specific work, or replacing an employee who is absent for some reason. When a pregnant woman works under a fixed-term contract, she may be fired, but both the employee and the employer need to know some nuances:- If the term of a temporary contract expires during pregnancy, the manager is obliged to extend it until the end of pregnancy in accordance with Art. 261 Labor Code.
- The employer has the right to demand from the woman a certificate about her position. She brings documentary evidence once every three months. and less often.
- If a woman occupied the position of an employee who was absent but returned to work (for example, a maternity position), she may be fired. But in the case that in this organization it is not possible to transfer a woman to another position that is feasible for her.
- In the latter case, the employer must offer the woman all available vacancies, regardless of qualifications and salary.
Dismissal during probationary period
The probationary period is established to check the employee's suitability for his new position. It is not always used in employment; it is regulated by the Labor Code, but does not have clearly defined deadlines. You can test an employee from one day to 6 months. If the appointed time has expired, the employee is not notified of dismissal, it is considered that he has passed the test successfully.If a pregnant woman is hired for a probationary period, she has no right to be fired; moreover, she should not be given one in principle (when the position is documented).
But there are exceptions. When the boss was not aware of the events, the employee did not report her situation (and, perhaps, did not know herself), upon completion of the probationary period - and unsatisfactory performance results - she may be asked to leave her position. Management declares this in writing three days before the proposed dismissal. However, later the woman can ask to return, having learned about her pregnancy and providing the appropriate certificate. And she must be reinstated.
An employee in this position may be asked to leave her position during a probationary period and in situations such as:
- termination of the organization's activities, liquidation of the enterprise;
- staff reduction;
- by agreement of the parties or the woman’s personal initiative.
Is it possible to fire a pregnant woman under the article?
The wording “dismissal under an article” implies termination of an employment contract at the initiative of the employer for the employee committing a disciplinary offense (Article 81 of the Labor Code of the Russian Federation). This also includes the professional incompetence of the new employee. To identify the fact of non-compliance of an employee, he must undergo certification that does not go beyond the scope of his usual work. For control, a special commission is organized, which includes the director of the enterprise, a personnel officer and the immediate superior. Reasons for dismissal under this article include:- theft and embezzlement of property belonging to the enterprise;
- loss of trust of a financially responsible person (cashier, accountant, etc.);
- failure to perform duties;
- drunkenness;
- tardiness and absenteeism without a valid reason.
Dismissal from a part-time job
Part-time work, in accordance with Article 288 of the Labor Code, is carried out during free time from the main job, but this is work activity on a regular basis. In this case, the employee is a full-time employee and is subject to all acts of the enterprise. If at a certain point a new employee is hired, for whom this work will be the main one, the previous one is fired at the initiative of the employer. It is he who makes the decision to dismiss a part-time employee, appointing a new permanent employee in his place.What to do when a woman who is expecting a child works part-time? She is protected by the state. As judicial practice shows, disputes between the parties are resolved in favor of the pregnant woman. In this case, Art. 261 of the Labor Code of the Russian Federation overlaps Art. 288. Dismissal made on the basis of the latter is equated to, which is prohibited by law. Without the consent of the pregnant woman, she cannot be fired from her part-time job. The employer is forced to extend her employment contract.
Is it possible to fire a pregnant woman if the contract prohibits pregnancy?
Sometimes, when hired, employees sign a contract that stipulates certain conditions for future work. But all of them should not contradict current legislation. An employee can sign a document prohibiting pregnancy and her subsequent maternity leave. This condition is classified as an illegal requirement and has no legal force.An employer can respond to a woman’s pregnancy with a fine, dismissal, or separately note in the paper that in the event of an interesting situation for a certain period (for example, 2-3 years), the employee will not be paid for maternity leave. Even if a woman agrees to the conditions put forward and her signature is on the document, she can refute the contract at any time, because it is against the law. If the manager decides to fire a pregnant woman, she can safely file a complaint with the labor commission, which will solve the problem.
An employer does not have the right to demand that a pregnant woman leave her position because of her position.
What to do if you were fired illegally?
Without sufficient grounds, an employer does not have the right to dismiss a pregnant employee. For this, he can be brought to administrative and even criminal liability, sent to forced labor (from 60 to 360 hours) or get off with a fine:- in the amount of 1000 to 5000 rubles for officials and individual entrepreneurs;
- from 30,000 to 50,000 rub. for legal entities (the organization itself);
- up to 200,000 rub. or in the amount of income for 18 months.
- Federal Labor Inspectorate. This is an organization that successfully resolves a significant part of labor conflicts.
- Trade union. This public association is designed to resolve issues related to their working conditions.
- Prosecutor's office. The application is made in person.
State-guaranteed rights must be respected by both parties. An employed pregnant woman who conscientiously fulfills the duties assigned to her, but does not abuse her rights, is reliably protected by the Labor Code of the Russian Federation. Her dismissal at the initiative of the employer is considered illegal, with the exception of certain cases specified in the Code. Knowing her rights, a worker can not be afraid of losing her job and can work calmly until she goes on maternity leave.
Dismissal in any situation raises many questions; each specific case has its own characteristics and nuances.
Dear readers! The article talks about typical ways to resolve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:
APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.
It's fast and FOR FREE!
The problem of dismissing a pregnant employee is highlighted separately. It is during the period of waiting for the birth of a child that a woman must be completely protected from possible shocks and worries.
It is believed that it is impossible to fire a pregnant woman. But in some cases it is still possible to do this.
What does the law say?
All relations between employer and employee are regulated by the Labor Code of the Russian Federation.
Working relationships with pregnant women are also stipulated within the framework of Article 145 of the Criminal Code of the Russian Federation, as well as in explanations and comments to the codes.
Article 261 of the Labor Code of the Russian Federation states that an employer does not have the right to dismiss a woman in a position on his own initiative.
Rights and privileges
When hired, a pregnant woman is exempt from any entrance examinations, business trips, and overtime and excess work.
A certificate of pregnancy status must be provided to the employer every reporting quarter.
If a miscarriage occurs or the pregnancy is frozen, the employee does not have the right to hide this fact from the employer.
Within seven days after the silence is revealed, the employee may be fired.
If pregnancy occurs while a woman is on probation, then upon providing the employer with a pregnancy certificate, she must be officially enrolled in the organization’s staff.
In what cases is it permissible to fire a pregnant woman?
Termination of an employment relationship with an employee is legally possible in the event of the pregnant woman’s personal desire to quit, liquidation of the organization, as well as in the following situations:
- when transferring an employee at her request to another branch or to an elective position;
- if a pregnant woman refuses to work in other conditions: when changing the location of the company, when changing the owner of the enterprise or subordinate connections;
- if medical workers do not allow a woman to perform the duties required by her existing position, and the pregnant woman has no desire to perform other types of work;
- in force majeure circumstances beyond the control of either party;
- at .
Worker initiative
Article 2 of the Labor Code establishes a ban on forcing anyone to work, so a pregnant employee has the legal right to resign from the organization’s staff at her own request.
Dismissal is possible using the most preferred option:
- by writing a letter of resignation at one’s own request () – Article 80 of the Labor Code of the Russian Federation;
- by concluding an agreement with the employer on termination of employment relations at mutual request - Article 78 of the Labor Code of the Russian Federation.
Employer initiative
Many employers want to know how to fire an employee during pregnancy, and whether this can be done legally.
The law does not allow the employer to take initiative in this matter. You can only try to come to an agreement on the mutual desire to terminate the employment relationship.
There are cases when an employee provided nursing or nanny services to an ordinary citizen who was not registered as an individual entrepreneur or LLC: in this case, the citizen acts as an employer and also does not have the right to terminate the employment relationship if the employee is pregnant.
Liquidation of the enterprise
Liquidation of an enterprise is the only legal basis for the dismissal of even a pregnant employee of an enterprise.
The following situations are possible:
- A structural unit of the organization (branch or representative office located in another area) may also cease its work;
- an individual entrepreneur can end his working career;
- the organization can be completely liquidated - the employer no longer exists.
Any other change in the status of a legal entity cannot become a reason for the dismissal of an employee, even if formally her position in the organization no longer exists.
Thus, neither during reorganization, nor when joining another company, nor when changing the name of a legal entity, the dismissal of pregnant women is not allowed.
Expiration of the employment contract
If the employment contract is usually concluded for 5 years, it is.
If an employee’s pregnancy occurred in the last months of this period, then the employer does not have the right to fire a woman who is expecting the birth of a baby.
A pregnant woman must write an application due to extenuating circumstances and attach to it a medical certificate confirming the woman’s exclusive rights.
If an employee temporarily occupied the place of an absent employee and he returned to work, then the employment relationship with the pregnant woman may be terminated.
However, at the written request of the employee, the employer is obliged to offer the pregnant woman a similar vacant position, or some lower-skilled positions.
How to apply?
The voluntary dismissal of a pregnant woman is formalized in the standard way.
Two weeks before the desired date of dismissal, the employer is warned in writing about the pregnant woman’s intentions upon receipt.
Documentation
In addition to signing the resignation letter, an agreement can be drawn up to terminate the employment relationship by mutual desire.
When a pregnant woman, whose contract was signed during the absence of another employee, is dismissed, she is sent by mail in advance from the employer.
If it has ended, the pregnant woman has the right to extend it. For this purpose, a corresponding statement is written.
Entry in the work book
Records when dismissing a pregnant woman of her own free will do not have any special features.
When dismissal due to the liquidation of the organization, the note “Dismissed due to termination of the employment contract due to the liquidation of the enterprise, paragraph 1 of Article 81 of the Labor Code of the Russian Federation” is made.
Payments and compensations
If the organization has been liquidated, the pregnant woman must exercise her right to receive severance pay.
During the period of searching for a new job, a woman is paid an average monthly salary for no more than two consecutive months.
Before leaving, a pregnant woman can use the right to leave, maternity leave and receive maternity benefits.
At the birth of a child, the mother is paid a lump sum benefit.
Where to complain if your rights are violated?
The complaint should initially be sent to the department of the federal labor inspection; the employees of this institution usually allow you to quickly resolve all existing disputes.
If a solution is not found, the district court will deal with the case. There you must provide written evidence of the employer’s guilt.
Employer's liability
An employer cannot fire a pregnant employee. However, in case of gross violations and absenteeism, a woman may be reprimanded or reprimanded, and she may be deprived of her bonus.
If the employer nevertheless fires the pregnant woman, the court will impose a fine of up to 200,000 rubles.
FAQ
I quit my job and found out I was pregnant. What to do?
The organization from which the pregnant woman left does not pay benefits.
Unfortunately, the employee will not be able to return to her lost position, because the dismissal process was voluntary.
If you have a good relationship with the employer, you can try to get back into your previously held position.
Can a pregnant woman be fired if she did not provide information about her condition during staff reduction?
Yes they can. But when the necessary certificates are received, the employee must be reinstated to her previous place of work.
What to do if you are forced to leave of your own free will?
If you leave work of your own free will before the start of maternity leave, the woman in labor will lose the opportunity to receive a significant sum of money - maternity benefits. In addition, her work experience will be interrupted for a long time.
If an employer puts pressure on a pregnant woman, forcing her to sign a statement of voluntary resignation, you should not agree and remain silent about it.
The labor inspectorate quickly and easily considers such issues, if necessary, referring them to the court or prosecutor's office.
When turning to the judicial authorities, a pregnant employee does not risk losing.
The employer may be right only if the employee was fired because she was convicted of stealing the organization's inventory or while intoxicated at the workplace.
