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Can a private woman dismiss a pregnant woman. Ways to dispute dismissal. Care for your own desire that you need

How to protect your right to future mother?; When the boss has the opportunity to dismiss it without breaking the law, and in what circumstances does the Labor Code do not allow this? - Read a detailed explanation on these issues from our leading legal lawyer, Gerasimov Ilya Alexandrovich.

Over the past three years, in many parts of Russia, a wave of reducing the number of states of companies has been a wave. That is why today it is especially important to know about the most relevant changes in labor legislation. Especially in the vulnerable position are ladies who are preparing to become a mother. In the situation of tight savings, the owner of the enterprises are looking for increasingly cunning ways to get rid of pregnant women.

Legislation takes care of women during pregnancy

The news that the employee is preparing to become a mother is rarely able to delight the immediate chief, no matter how decent and fair man it is. Negative attitude towards pregnancy among subordinates is often caused by the fact that the care of women on maternity leave entails for the director of the company some unpleasant consequences. The competent boss knows that the law on the side of the future mother, and now it will have to treat it more condescendingly, free from hard work, recycling, let go on receptions in the female consultation and close the eyes on numerous hospital. And after the girl comes into decret, you will have to pay a maternity benefit until the baby becomes one year and six months.

In addition, it is necessary to find a new employee who needs to learn everything. It is always more difficult to find a replacement for the period of decree, since not every competent specialist will agree to temporary work. For the newly-made mother, her place in the state is maintained until the child is executed for three years.

In a word, to have a girl in an interesting position in an interesting position, but it can not be so easy to cut or dismiss. Pregnant and Mom rights are protected by law. During the period of tooling the baby and in the first twelve months of his life, it is not possible to divorce even the spouse. And the Labor Code of the Russian Federation very clearly regulates her rights to work. Knowing them, a woman will be able to protect himself from unlawful deprivation of work.

What can not be the basis for dismissal?

The leaders who possess the elementary concepts of labor legislation, well know that a woman cannot be dismissed during the fetal tooling period, which is why they come up with all new ways to bypass the law, are looking for increasingly narrow loopholes.

The future mother must be remembered that it is not allowed to deprive the workplace in the following situations:

  • If the employee itself does not want to change the place of employment, and its dismissal is only interested in the employer.
  • If the boss believes that it ceased to cope with his work responsibilities.
  • If, according to the results of the test period, the girl showed the worst performance indicators than expected from it.
  • In a situation where a pregnant lady works in part-time, but a permanent employee will be invited at the same time. This happens if the girl was taken on Poltavka, for example, in the absence of a free full bet at that time.

It happens that, having learned about the pregnancy of an employee, the boss begins to insist on care from the place of work on his own request. But it also does not have legal right, even if the woman is constantly performing his duties and makes rude mistakes..

First of all, it is worth remembering that the director will have to collect a number of convincing evidence to prove that the company damaged its mistakes in his work. But even if such a package of documents is assembled, then dismissal on the TK RF is impossible in this case. The only thing that the boss can make is to introduce fines and deprait for a pregnant employee.

What tricks are employers?

From such a colleague, as a pregnant woman wish to get rid of even the most decent directors. Even knowing that by law it is almost impossible to make employers begin to invent increasingly original causes for dismissal, which are considered illegal:

  • A woman works part-time, which means the responsibility for it can take the second employer.
  • They report that such a decision (about dismissal) adopted the owner of the enterprise or the Council of Shareholders.
  • Dismissal is prohibited even if disciplinary penalties were applied to the girl.
  • The most intractable bosses begin to create unbearable working conditions for future mothers, forcing them to leave the place of work at their own request. Such actions contradict labor law.
  • As you know, heavy labor is pregnant, contraindicated and the employer is obliged to provide lighter work, but it may refuse to be easier, referring to the absence of a suitable vacancy. It is worthwhile that, according to the law, in this case, a woman can be released from the fulfillment of his official duties for health, while it remains a full-fledged earnings.
  • It is impossible to dismiss a woman in a position even for rushing, immoral behavior at work or a violation of work discipline.
  • Also an insufficient basis for dismissal will be perfect pregnant tool or disclosure of commercial secrets.

Can make pregnant girls on a probationary period?

In many large companies, employees will have to undergo a trial period, during which the employer will check how professionally and a qualitatively new employee performs its work. After the end of this period, the incompetent employee can easily fire, but only if it is not a girl during pregnancy.

The future mother should remember the following important points:

  1. If a woman at the time of the device for work and paperwork already lays a child, then according to the Labor Code of the Russian Federation, a probationary period cannot be established for it.
  2. If the probationary period was established earlier than a woman learned about her pregnancy, then after this period, she could not dismiss it, regardless of whether it was coming to an employer or not.
  3. If a woman did not pass the trial period, but will give the employer a certificate of pregnancy immediately after his end, it cannot be dismissed.
  4. The term of the employment contract is extended before the start of maternity leave.
  5. Inform the Chief about his pregnancy stands before he decides whether a woman has passed a trial period, then he will lose the opportunity to adopt a negative decision.

How the urgent employment contract is terminated with a pregnant girl

In the event that a woman, awaiting a child, works on an urgent employment contract, then it should be aware that the employer has no right to terminate this agreement. In addition, after the end of the contract, he must extend it until the end of pregnancy. The boss has the right to demand a certificate of confirmation of pregnancy, but not more often than three months. If, after childbirth, the woman remains in this company, the leadership has the opportunity to terminate the employment contract at the end of its term. But this may not happen earlier than 10 days after the end of pregnancy.

If the employment contract ends, and the future mother held a temporary position to be released, the employer is obliged to provide it with another vacancy, which should also not violate the rights of a pregnant woman. If the vacancies are similar to the previous one, the boss must offer all the free options.

What are the reasons may deprive the place of work pregnant woman?

The dismissal of a woman waiting for a child may be legal in the event that only she wishes this itself or in such cases:

  • The company is completely eliminated, including absolutely all departments and units, and he has no successor.
  • The entrepreneur fully stops its activities.
  • If a labor temporary contract is concluded with a mark "Before going to the work of the main employee who studied in this position."
  • If a woman is not ready to take new working conditions introduced at the enterprise, regardless of its pregnancy.
  • In the event that the company has changed the owner, and the girl is not ready to work on a new chief.

Dismissal due to the liquidation of the enterprise

This is one of the most legal dismissal of a pregnant woman. If the company is completely eliminated, and not just proceeds to maintain another legal entity, the leading staff is not obliged to be responsible for the employment of its employees, including pregnant women. However, in relation to a woman in a position, he is obliged to do the following:

  1. The head of the liquidated enterprise is obliged to warn its employees about the dismissal minimum in two months. In this case, the woman will be able to find another place of work during this time.
  2. Each employee of such a company should receive a day off manual when dismissing, the amount of which is equal to the average wage for one calendar month.
  3. For a pregnant woman, as well as the rest of the employees of the closing enterprise, the right to receive compensation, the size of which is equal to the minimum of two salaries. This time is dismissed to find a new job.
  4. If the company goes under the maintenance of another legal entity, it is experiencing a merger, sales or absorption procedure, a pregnant woman can not dismiss, even if its position is reduced.

If you still have some kind of obscure moments in the legitimacy of the dismissal of a pregnant woman, or you want to discuss your personal situation, then our lawyer online will answer all your questions and help to figure out your concrete case. You can set your question in the form at the bottom of the page.

The content of the article:

Many pregnant women who work are afraid to warn the employer about their interesting position. And the leaders, due to legal illiteracy, consider such employees with "heavy cargo". And then some unscrupulous bosses think about how to cut a pregnant woman.

The labor legislation of Russia takes protected by this category of workers. And therefore, it is almost impossible to dismiss future mom without its consent.

The specificity of the dismissal of pregnant women

The question of whether you can dismiss a pregnant woman, interests many employers. Labor legislation describes all possible options Reducing such employees without a violation of legislation.

It is hard to fire a pregnant woman at the initiative of the chief. The reduction order can enter into force if the employee strives, does not fulfill official obligations or violates work discipline. However, the case concerns a pregnant woman who can challenge such dismissal in court.

To reduce future mother, the head of his own will cannot. However, that this rule acts, a woman must provide a certificate that confirms its condition. Visible signs are not legal proof.

For example, after medical confirmation of pregnancy, the manager cannot reduce the employee "in the Regulation" for the program. If a woman needs to appear on a planned inspection, then it should personally warn the boss and provide a written application. If the woman did not warn the head, then according to Art. 192 TK RF, he can make it a reprimand.

In accordance with Art. 261 Reduced a woman with the termination of the organization or enterprise, where pregnant worked. Then the head must pay the day off, which corresponds to the average wage of women and compensation for unused vacation. For 2 months after the termination of the employment contract, the average salary remains, and it has the right to state aid.

Termination of the organization

According to Article 81, a pregnant employee can be dismissed in the liquidation of the organization. If the company has passed into the hands of another legal entity, then cut the woman will not work. This restriction applies to those cases when merging, accession, separation, company transformation occurs. That is, the reorganization is not a legitimate ground for the dismissal of a pregnant woman.

The procedure for termination of the employment contract with the termination of the Company's activities:

According to the second part of Article 180, the employee personally warns about the reduction 2 months before the event.
The head must pay a woman a day off guide in the amount of average monthly salary and keep salary at the time of employment (but no longer since the reduction date).

If the enterprise went bankrupt, then this should be confirmed by official documents. In this case, the organization goes to the category "liquidated" and ceases to exist. If other legal entities bought a bankrupt company, the leader will not be able to dismiss a pregnant employee. A woman has the right to escape on his own request, if it is uncomfortable to work under the guidance of the new chief.

It will not be possible to dismiss the pregnant woman in reducing together with other employees. When reducing employees of one of the structural divisions and termination of the enterprise, pregnant women are transferred to another workplace. After that, the woman continues to work up to the decree.

Reduction on the initiative of the head

According to Article 81 of the Labor Code of the Russian Federation, the employer on its initiative may dismiss employees on the following grounds:

Termination of the enterprise.
Reducing posts or states.
The employee does not correspond to the position.
The organization goes into the hands of another owner.
Not fulfilling labor duties by an employee without valid reasons.
Disruption of labor discipline.
Received repeated employee absenteeism.
Other reasons for termination of the employment contract under Article 81.

But as mentioned earlier, such rules do not apply to pregnant women. The only exception is paragraph 1 Art. 81, according to which the organization ceases to operate.

Dismissal on the article or percentage

In the labor code of Russia, it is stated that it is possible to terminate the employment contract with the employee "in the Regulation" when eliminating the enterprise. It is impossible to dismiss pregnant for absenteeism. If a woman walks to work or disturb the work discipline, then the maximum that the manager is capable is disciplinary recovery.

In the same way, the chief does not have legal right to dismiss the employee under the article. In this case, the maximum punishment will reprimand. This applies to the dismissal of workers who committed theft of someone else's property in the workplace. Then the leader simply reprimands a woman.

However, in order not to lose the workplace, the pregnant woman should submit a certificate from the hospital who confirms its pregnancy. You should not rely on the visible sign.

It is impossible to cut a pregnant woman if it was accepted for a trial period. If an ordinary employee fails to check, then it will be fired. In the case of pregnant legal grounds for termination of the employment contract, there is no. If the woman "in the position" is a serviceman, then it will not work out to fire it either.

A pregnant employee is untouchable and reduced by state. The head must translate a worker to a position that corresponds to its position during the reduction. If there is no such job, the boss cannot reduce the position that the future mother occupies. Thus, the reduction of pregnant women is possible only on her personal initiative.

Termination of the employment contract on its own initiative or agreement of the parties

According to Article 80 of the Labor Code of the Russian Federation, a pregnant employee can be dismissed at their own request. To implement this opportunity, the woman provides the head of the statement in writing for 14 days before the date of dismissal. In this case, the employee must work out 2 weeks in obligatory.

If the future mother was hospitalized for health, it has the right to leave work without work. In this case, the woman sends a valuable posting a written application for dismissal on his own initiative to the company's address. Send references confirming her pregnancy and other documents do not need. According to Article 127, the employer can send it to the next vacation, after which the termination of the employment contract will be followed. The future mother has the right to withdraw its statement for 14 days.

As indicated in Article 78, the head may dismiss the parties to the parties to the parties. In this case, the document is in two samples, both sides sign it. The legal act negotiates the main items of labor activities for employees "in the position":

Salary amount.
Date of termination of work.
Other issues related to payments from the head.

Thus, dismissal at personal request or agreement of the parties is legal grounds for the dismissal of the future mother from the position. Such an initiative should proceed from pregnant

The items of the Agreement may be a head or woman herself. However, in any case, the project should be discussed by both parties. If the project makes changes, then they need to be included in the disagreement protocol. After reaching a compromise, the head and employee sign an agreement. The future mother then submits a document on dismissal by agreement of the parties, and not on personal initiative.

Reducing pregnant on probation

Many pregnant women are interested in the question of whether it is possible to dismiss the pregnant on the probationary period. According to part 4 of Art. 70 TC RF, the head cannot establish a trial period for pregnant. If a woman got pregnant after receiving a job, the boss must cancel this condition.

However, the above-described rules act if the employee knows about his pregnancy, and she reported this to the head. If a woman did not know about her position at the time of reception to work, the boss could establish it a trial period that it would pass or not. That is, in fact, the employer may dismiss the pregnant after the trial period. However, a woman who learned about pregnancy has the right to submit to the head to court and return his workplace.

Dismissal on an urgent employment contract or part-time

As indicated in part 2 of Art. 261 of the Labor Code of the Russian Federation, a pregnant woman will not dismiss under an urgent labor contract. However, that this condition is valid, a woman must submit a document confirming the pregnancy and an application for the extension of the term of the contract in writing to the personnel department.

However, in some cases, the head still has the right to dismiss the future mother after the expiration of the employment contract:

An employee did not provide medical certificate and a written application for the extension of the contract.
A woman was temporarily at work, and she refused the position when the permanent employee returns to his place.

According to Article 288, dismissed the pregnant woman who works part-time will not work either. It will be possible only subject to the elimination of the enterprise.

Many women are interested in the question of whether it is possible to dismiss the pregnant woman on a maternity place. This is possible after the expiration of the contract, there are several options:

The term of the contract is prolonged if the main worker did not go to the workplace before entering the maternity leave.
Translation of a temporary employee (before maternity leave) to another position, which corresponds to its state of health after the return of the main workers.

That is, the employer may terminate the employment contract at the end of maternity leave.

The consequences of illegal actions of the head

According to Article 1 of the RF IC, the state protects future mothers, that is, it is impossible to dismiss a woman at the request of the head. If a pregnant employee is well fulfilling his duties, then it is not right to dismiss it. Otherwise, the future mother can file a lawsuit in court and attract a former employer in criminal and administrative responsibility.

According to Art. 394 TK RF, Director of the Organization should resume an employment contract and fully pay salary and monetary compensation for forced rushing.

The illegal dismissal of workers due to pregnancy is punishable by law. As indicated in Article 145 of the Criminal Code of Russia, in this case, the leader must pay a fine of 200 thousand rubles or undergo forced social work for a period of about 360 hours. In some cases, the amount of the fine is equal to the income of the entrepreneur for 1.5 years.

Thus, the rights of pregnant workers are protected by labor, criminal, administrative and civil code. The head may terminate the employment contract only subject to the elimination of the organization or on his own initiative of a woman.

Although the legislator clearly indicates, in what situations the dismissal of a pregnant woman can occur, the employers increasingly ignore these prescriptions than and violate the law. This entails a number of negative consequences for the enterprise: legal proceedings, penalties, recovery of moral penalty, etc. That this does not happen, the law and the rights of future mothers should be observed. Of course, there are situations regulated by the Labor Code when the dismissal is necessary, even in the case of pregnancy. But this is a single case, for the most part, the employer does not even know what is necessary for proper dismissal. And a female worker who is preparing to become a mother does not know about his rights.

Dismissal of pregnant women - law and practice

What the employer should do if the employee became pregnant, and the working conditions for it are unfavorable, as well as for its position. After all, it is impossible to dismiss it, but she does not want to leave. In this case, the employer must translate it into less dangerous and malicious conditions, for example, to another position. The average earnings for it should be preserved for the previous, in accordance with Article 254 of the Labor Code of the Russian Federation. But, in order to take advantage of these guarantees, a woman must provide a medical conclusion, and write a statement to the head.

There is another situation when it is impossible to dismiss the pregnant woman, but it is impossible to give it another place. Let it be not entirely profitable for the employer, but a pregnant employee has the right to be suspended temporarily from harmful work, while maintaining a monthly earnings before the moment when the company can offer her another, safe office.

Under what circumstances the dismissal of pregnant women workers is allowed

Since neither on the initiative of the employer, nor to reduce the future mom, it is impossible, the question of situations remains an open question when the company is liquidated. Article 261 of the Labor Code of the Russian Federation allows you to dismiss a pregnant woman when the activities of a private entrepreneur stops, or when the enterprise ceases to fully its economic activities, that is, when liquidation.

Another reason for terminating labor relations with a pregnant employee is to enter the work of the employee who is temporarily replaced. If a pregnant woman was hired, and in the labor contract contains a reservation that it fulfills its working responsibilities temporarily, until the main employee comes out, in this case, the employment contract ceases to it.

Of course, it's easy to dismiss and terminate the treaty with it. By law, the employer must offer her another, vacant position. Dismissal occurs when it refused from the proposed position. Or, there is simply no such vacancies at the enterprise (taking into account all vacancies that exist in the enterprise, even lower paid).

Thus, dismissal of pregnant women at the initiative of the employer is allowed, in the case of:

  1. liquidation of the enterprise;
  2. the termination of the entrepreneur of his activities, if he acts as an employer of a pregnant woman.

Dismissal at the end of the employment contract

It is not allowed to terminate a labor contract with a pregnant woman, even if its expiration date. By law, if the term of employment approached the end, and it turned out that the employee is pregnant, the employer must extend the term of the contract until the end of the pregnancy of the employee.

If the pregnancy ended, the employer will terminate the employment contract with the employee, and therefore dismissal due to the expiration of the contract. The legislator provided the employer with such a right within a week since it became aware of the cessation of the pregnancy of workers. During the period of continuing labor relations with a pregnant employee, the company has the right to demand a certificate of her state of pregnancy, but not more than once every three months.

Dismissal of pregnant

A pregnant employee has the right to quit at his own request. To do this, apply for the care of two weeks. The testing of the last two weeks for pregnant women is also mandatory as for other employees. Only if pregnant lies, let's say, in conservation, and wishes to quit, she is not at all necessary to personally come to the enterprise. She has the right to send his application to a valuable letter to the address of the enterprise on which it is listed. Accordingly, from the moment the employer is obtained by the employer of its care, it does not have to work out for two weeks, as it is in a medical institution.

Thus, the dismissal of her own desire of a pregnant woman, the law is not prohibited by law. There is no violations from the employer, since the desire for workers is not, de Jura, the initiative of the employer.

Dismissal during pregnancy from a practical point of view

Theoretically, the law prohibits to dismiss a pregnant worker at the initiative of the employer. Keyword "on the initiative". Therefore, trying to reduce the expenditure article, the Organization is fired more and more than their pregnant workers for the service inconsistency. Is this correctly, shows the practice of ships on the resolution of labor disputes. And this practice is such that it is impossible, besides the aforementioned cases, dismiss the employee who is preparing to become a mother. This applies to absolutely all employees: managers, civil servants working in a private enterprise, or in a large corporation. The law is one for all.

The Plenum of the Supreme Court of the Russian Federation in its decision on the applications of the norms of the legislation of the Labor Code of the Russian Federation, indicated that it was impossible to dismiss the pregnant woman if she also works as the head of the enterprise. Therefore, the change of owner, or the decree of the founders cannot have legal force for a pregnant hired manteller.

The prohibition of dismissal of pregnant disseminates and in cases of not passing certification, or unsatisfactory results of certification of employees. In this case, such a dismissal for the service inconsistency, the courts regard the initiative of the employer. The same applies to pregnant partmen. It is impossible to dismiss a pregnant woman of the part-to-book due to admission to this position of the main employee.

Thus, as if leaders did not try to find a hook in law, the courts will still be on the side of a pregnant woman. The only question is whether she has enough strength and desire to defend the truth in court.

Review of the practice of the Supreme Court of the Russian Federation No. 2 of 26.06, 2015

The guaranteed guarantee of the protection of a pregnant woman from dismissal on the initiative of the employer are valid, regardless of whether the employer was informed about her pregnancy and whether she informed him about it.

N. appealed to the court with a claim to the employer's organization on recognizing illegal dismissal, recovery, recovery of wages during the forced absenteeism and other payments.

The representative of the defendant claims did not recognize the claim, asked to refuse their satisfaction for unreasonably.

The case of the case was established that N. worked in the employer's organization in various positions. According to the order of the director of this organization, the plaintiff was dismissed from work on sub. "A" clause 6 of the first Art. 81 of the Labor Code of the Russian Federation for a single gross violation by an employee of labor duties - a walk. The basis for the publication of this order was the previously published order on the application of disciplinary recovery in the form of dismissal.

Allowing the dispute and refusing to satisfy the stated requirements, the court of first instance proceeded from the fact that the plaintiff did not provide evidence of respect for the causes of his absence at work. The court also considered that by the plaintiff who did not know the employer about the fact of his pregnancy and temporary disability, there was an abuse of its right, and therefore the defendant was entitled to apply a disciplinary recovery to it in the form of dismissal from work for the program.

With these conclusions of the court of first instance, the court of appeal and the court of appeal.

The judicial board on civil cases of the Supreme Court of the Russian Federation, having considered the case of the appeal N., recognized the conclusions of the courts based on improper interpretation and the application of the norms of material right to the controversial relations of the parties.

Paragraph 4 of the first Art. 77 of the Labor Code of the Russian Federation as the overall basis of the termination of the employment contract indicates its termination on the initiative of the employer.

The list of grounds for termination of the employment contract on the initiative of the employer is established in Art. 81 TC RF, according to sub. "A" of paragraph 6 of the first part of which the employment contract may be terminated by the employer in the case of a single gross violation by the employee of employment duties - absenteeism, that is, the lack of in the workplace without good reason during the entire working day (shift), regardless of its (its) Duration, as well as in the absence of the workplace.

Thus, the dismissal of the employee at the above ground is related to labor legislation to dismissal on the initiative of the employer.

According to the Convention of the International Labor Organization No. 183 "On the revision of the Convention (Revised) of 1952 on the Protection of Maternity" (concluded in Geneva on June 15, 2000) Protection of pregnancy, including by establishing guarantees for pregnant women in the field of labor, is a common The responsibility of governments and society (preamble).

The Labor Code of the Russian Federation contains norms that enshrine for pregnant women increased guarantees compared to other norms regulating the termination of the employment contract. So, in accordance with part of the first Art. 261 of the Labor Code of the Russian Federation prohibits the termination of the employment contract on the initiative of the employer with pregnant women, with the exception of the liquidation of the organization or the termination of an individual entrepreneur.

This norm, as indicated by the Constitutional Court of the Russian Federation in the decision of December 6, 2012 No. 31-P, is an employment benefit that ensures the stability of pregnant women as workers and their protection against a sharp decline in the level of material well-being due to the fact that the search for a new Works for them during pregnancy is difficult. The named rate providing women who seek to combine labor with the implementation of maternal functions that are truly equal with other citizens opportunities for the realization of rights and freedoms in the field of labor are aimed at ensuring support for motherhood and childhood in accordance with Part 2 of Art. 7 and part 1 Art. 38 of the Constitution of the Russian Federation.

At the same time, the Constitutional Court of the Russian Federation in the specified resolution is stated as in the case of a single gross violation of a pregnant woman of their duties, it can be involved in disciplinary responsibility using other disciplinary penalties, in addition to dismissal.

Thus, from the literal interpretation of the part of the first Art. 261 of the Labor Code of the Russian Federation it follows that the law establishes a ban on the dismissal on the initiative of the employer of pregnant women, except for the only exception - the liquidation of the organization or termination of an individual entrepreneur. At the same time, the named norm does not possess the dismissal of a pregnant woman dependent on whether the employer was informed about her pregnancy and whether she told him about it, since this circumstance should not influence compliance with the guarantees provided for by labor legislation for pregnant women when dismissing At the initiative of the employer. In this case, the legal value is only the very fact of pregnancy on the day of the dismissal of women at the initiative of the employer.

This interpretation of the above regulations is consistent with the explanations contained in the Resolution of the Plenum of the Supreme Court of the Russian Federation on January 28, 2014 No. 1 "On the application of legislation regulating the work of women with family responsibilities and minors", in paragraph 25 of which the attention of the courts are drawn to The fact that, since the dismissal of a pregnant woman on the initiative of the employer is prohibited, the lack of information about its pregnancy does not have the basis for refusing to satisfy the claim for recovery at work.

N. refused to meet a lawsuit on the work and recovery of wages during the forced absenteeism, the court of first instance did not apply the estimated norms of the Constitution of the Russian Federation, international and labor law in their relationship, and also did not take into account the position on this issue of the Constitutional Court of the Russian Federation And clarification of the Plenum of the Supreme Court of the Russian Federation, which led to the deprivation of the plaintiff established for pregnant women guarantees when terminating the employment contract on the initiative of the employer.

In connection with the forensic panel of civil cases of the Supreme Court of the Russian Federation, the judicial decisions took place on the case and sent a case to a new consideration of the court of first instance.
Definition No. 18-kg14-148

An employee who is in position often becomes an additional "nonsense" for the employer, because in accordance with the current legislation, it is obliged to consolidate the workplace for it, issue a number of documents, pay decrehension. Worrying for your own future and career, many employees who are planning pregnancy consider the question of whether they can dismiss a pregnant woman from work.

Based on the TC, an employee who is in position can be fired, but under certain circumstances. However, in the current situation, the general procedure when the manual can manifest initiative and terminate labor interaction does not work.

Therefore, before a responsible step, each manager must examine the legal issues in detail in order to avoid legal proceedings and writing explanatory in labor inspection.

Article 261, enshrined in TC, displays all the permissible authority of the employer in relation to a pregnant employee. Despite the organization of the protection of the employee's rights in a position, there is still one nuance, in which dismissal is permissible - this is the self-destruction of the company.

  1. The organization is eliminated as a legal entity.
  2. The work activities of the enterprise or IP, serving as an employer.

In this case, the termination of labor relations without the consent of a pregnant woman is allowed.

The employer does not have the authority to make the dismissal of a pregnant worker at his request, if this fact found confirmation in a medical document. Regardless of how the signs of pregnancy are expressed, in the absence of a confirmation document, dismissal is not an illegal measure.

In what situations allowed dismissal

The dismissal of an employee who is in position is possible only in cases where the situation does not depend on the employer itself:

  • liquidation of company;
  • initiation of the official bankruptcy procedure;
  • if the certificate confirming the pregnancy was submitted, while the urgent contract was concluded;
  • the employee was provided with alternative working conditions suitable for medical records, but the woman refused voluntary order;
  • PI ceases its activities.

The procedure for the dismissal of a pregnant woman in the liquidation of a legal entity regulated 180 Articles of the TC. At its basis, the employee must be informed officially in two months, putting a signature on the document.

If the manual or owners change occurs, the employee cannot be dismissed in accordance with the liquidation of the enterprise. The current legislation suggests that a woman has the right to continue its activities in the organization.

Dismissal of women with a complete liquidation of a legal entity is possible at any time: before the occurrence or care of maternity leave. So, for example, if a commercial or production branch is closed, and a woman does not want to move to another place, the dismissal process can be initiated by the employer. But it must necessarily offer it a similar alternative. The procedure itself occurs in the standard order.

With the company's self-destruction, a pregnant woman receives a number of material payments.

  1. Compensation for the remaining vacation days.
  2. Weekend benefits (the average monthly salary size is established).
  3. Obtaining salary for two months.
  4. Calculation of salary for actually spent days.

At the same time, allowance for childbirth and pregnancy is paid not to the organization, but by the management of social protection. Although, as well as payments from the employer, these cash will come to the same employee's salary card.

A pregnant woman has the same rights as every employee, so it may be quitted by his own request, notifying the bosses in two weeks.

In practice, situations often arise when, under the law, the leadership cannot affect the created position, but they have a strong emotional impact on the employee, so that he will have a desire to leave the workplace or allowed a violation that will allow him to dismiss.

In a situation where the woman was hospitalized in connection with the deterioration of health, the legislation frees it from two weeks of working out. With the official design of the hospital, the employee does not have the opportunity to continue their work on an objective reason. At that moment, when a woman is in a medical facility, her relatives can send an application for dismissal by mail with the delivery notice.

The employer has the right during the development of sending a pregnant woman on vacation. With the final calculation, the amount of the manual, of course, will be an order of magnitude less. Within two weeks, the employee has the right to withdraw a statement without consequences for a career, and the management is obliged to take it back.

The dismissal initiative should come from the employee, justify with his personal motives, and not be a consequence of coercion or pressure from the employer.

And although at the request of the management procedure it is impossible to carry out, the right to issue the termination of the contract in a mutual manner.

The official document is drawn up in two copies, where the signatures of the employee and leadership should be present. After familiarization, the organization publishes an order to dismiss the employee. If one of the parties disagree with the requirements or terms of the conclusion of the agreement, each participants have the right to leave a document without signature. Alternatively, a protocol can be drawn up in which all the disagreements of the parties are recorded. But if they can not come to a compromise, the dismissal will not take place.

As for the date of termination of the contract, it remains at the discretion of the parties. If the employer does not object, then a pregnant woman may not work out, two weeks.

The entire scheme and order can be represented by several stages:

  1. Formation of an agreement in a written format (in two copies).
  2. The edition of the order on the established form T-8.
  3. Entering information into the employment record.
  4. Agreement on work and its absence.
  5. Salary is issued only in full.
  6. Weekend payouts are not provided.

The procedure is initiated exclusively in that situation if the employee shows its desire voluntarily, which does not contradict the rules recorded in TC.

If the statement was signed by a pregnant woman, but she did not know about her position, then the right to recognize the agreement is invalid.

The dismissal of a pregnant woman under an urgent employment contract may be initiated on the basis of 261 Articles of the TK RF in the following situations:

  • the contract is concluded only for the absence of another employee;
  • there is no possibility of transfer to the end of pregnancy to another position for health;
  • alternative vacancies are proposed on the employer's territory;
  • there was a refusal to transfer to another job.

In each situation, all aspects should be taken into account that the procedure for the dismissal of an employee who in position was recognized as legitimate. As a rule, the conclusion of urgent labor occurs when another employee is on the decree.

In other cases, the dismissal of a pregnant employee or the decree will be considered illegal. If a woman finds himself in a position, she is obliged to provide an employer medical confirmation to carry out the prolongation of labor relations.

When an employee comes out of the decree to the former place of work, another employee must go on an alternative place of work or position. The law provides for the possibility of vacancies with a smaller salary size. In this situation, the woman independently should make a decision: whether it will continue to work either go on their own request.

Is it possible to dismiss under the article

In the labor legislation of the Russian Federation there is no such formulation "Dismissal under the article". In this case, the dismissal of an employee for the accomplishment of a serious disciplinary violation to them or in connection with its revealed progenitivity.

When it becomes known that the employee is pregnant, the leadership immediately begins to perceive it as a person who is paid too much, because the rights of women are increasing, and the amount of responsibility decreases.

Often, guided by such an idea, the employer begins to think about how to dismiss a pregnant woman from office by law, referring to its non-professionalism or disruption of discipline.

But to such an employee, on the basis of Article 192 of the Labor Code, the employer can apply only one of the two penisters.

  1. Rebuke.
  2. Comment.

If a violation was admitted by the employee, a reprimand may officially be issued. It is also allowed to deprive the premium part of the salary. But such a decision is taken at the discretion of the employer.

Therefore, no need to be afraid of dismissal due to pregnancy. The current legislation does not allow the dismissal of a pregnant woman on a probationary period. With a standard situation, the employer has such an opportunity, but if the employee is in the position, then, on the initiative of the leadership, the dismissal is illegal.

It is also worth noting that 70 Article TK prohibits a trial period for workers if, when admitting to work, it provided a certificate confirming its position.

With a satisfactory state of health, the decret is drawn up with the onset of the thirtieth week of pregnancy (in the seventh month). Before the decree, management does not have the right to dismiss his employee. This is due to the fact that after granting official confirmation of pregnancy, the employee has all the rights to legislative protection provided for by the Labor Code.

With a planned or forced reduction in the state, a pregnant woman cannot be dismissed. In this situation, one of the solutions is allowed:

  • the employer offers an alternative position or place of work that meets medical requirements;
  • if there are no alternatives, the current place is fixed for pregnant.

Dismissal of pregnant while reducing the state is also a violation of current legislation. The woman is entitled to count either to a new place that will meet all its requirements, or the old position is fixed behind it.

Whether the dismissal of a pregnant part-time

Rostrud was published by a letter of 2607-6-1, where the following information can be distinguished: in accordance with 288 Article TC, the employer has the right to solve the issue of dismissing the employee. In practice, when adopting a new employee to work, an orders for the dismissal of a pregnant woman immediately formed if it is in part-time posts.

However, in contrast to this information, there are 261 Article TC, which suggests that the dismissal of a pregnant woman on the initiative of the leadership is illegal. Accordingly, it can be initiated only with the consent of the employee. The exception is only the self-destruction of the employer.

Accordingly, it is impossible to conclude that dismissal on the initiative of the leadership of a pregnant employee who works part-time is impossible.

In practice, it often happens when a woman hides his "position" when going to work, and then he experiences, whether its employer will fail, having learned about pregnancy. In this situation, the explanation can be obtained in 64 of the article by the TC, where the ban on the refusal to the conclusion of employment contracts on the motives associated with the "position" of a woman was recorded. Accordingly, the pregnancy of women is not an objective reason for refusing to continue work.

Before making a decision on his dismissal, the future mother should take into account several aspects.

  1. After the application fell on the table to the leadership, it is possible to withdraw in the period of working out (two weeks). To do this, it is necessary to fill out the relevant document confirming the desire to continue cooperation. If after a two-week period the place remains vacant, then dismissal does not occur.
  2. If the employee independently decides to complete labor activity in the enterprise, he does not receive payments in the form of benefits from the organization.
  3. The application can write an employee only by accepting this decision independently. If there is any pressure on the employer, it has all the grounds to apply to courts and demand compensation for illegal actions.

Solving to dismiss the pregnant woman, the management of the enterprise or the company acts in their own interests. Not having legal grounds for dismissal due to pregnancy, it can take advantage of:

  • presence in the workplace in a state of alcohol or narcotic intoxication;
  • applying serious damage to the company or enterprise (damage of property), but this fact must also be proved and establish that actions were intentional;
  • inaction or actions aimed at the loss of confidence from the leadership;
  • the behavior recognized by immoral, which was the cause of dismissal;
  • violation of the signing of an agreement on the storage of commercial secrets;
  • the employee committed actions that caused the application of the organization's material damage;
  • an employee does not appear in the workplace for more than two months.

Considering the last item, it is worth clarifying that there is a certain list of diseases, which is a serious obstacle to continuing work activities. It includes the threat of interrupting pregnancy, the emergence of complications when entering the fetus. Upon presentation to the authorities of the relevant medical documents, this basis for dismissal loses its legal framework.

Each employee who was absent in the workplace due to the occurrence of a severe disease or threat of miscarriage is obliged to provide an appropriate medical document for reporting and explanation. In addition, the enterprise should make payments due to the design of the hospital.

Unfortunately, legal practice knows a lot of situations where, despite the established legislative installations, the management of companies and manufacturing organizations often violate the rights of pregnant women. If such a situation happened, the employee has the right to appeal the actions of the employer.

  1. Judicially.
  2. Through a prosecutor's check.
  3. Appeal to the State Labor Inspection.

If the fact of the unfounded dismissal of a pregnant employee is proved, the employer may incur criminal or administrative responsibility:

  • Relying on Article 5.27 of the Administrative Code, an administrative penalty in the form of a fine of 30,000 -50,000 rubles can be imposed on the employer, and for an individual entrepreneur - from 1000 to 5,000.
  • On the basis of Article 145 of the Criminal Code - penalties 5,000-200,000 rubles, the salary over the past 18 months is submitted or mandatory work is appointed up to 360 hours.

The state labor inspectorate controls enterprises and conducts tests there. If necessary, this supervising authority transmits all materials for further proceedings to the prosecutor's office. For its part, a pregnant woman can independently contact the relevant services with a similar statement.

Also, the employee has the right to apply to court. What tasks are solved this way?

  1. Restoration of the employee in office. The employment record must be canceled on the dismissal record.
  2. Compensation payments for the time when the employee was in forced stroll.
  3. Compensation of moral damage.

True, many courts demand from the plaintiff to substantiate the stated amount. At the same time, as evidence, it was accustomed to adequately, medical documents on the exacerbation or occurrence of diseases passed. There will have to prove the relationship between diseases and dismissal. At the same time, in judicial practice it is believed that experiences on what happened, not reasurable health disorders are fully compensated by recovery at work.

On the basis of Article 393 of the TC, the employee will not need to pay for the state tax or duty to protect their rights at the court session. Guided by Article 234 TC, there is every reason to require payment of compensation, as well as the full size of wages for the entire period, while the woman did not work.

You can submit statements in several instances at once, while accelerating the process of proceedings on this issue. In practice, consideration of such situations does not occupy a large amount of time.

The current legislation of the Russian Federation strictly recorded the procedure for the dismissal of a pregnant employee, as well as the situations in which it can occur. It is worth noting that the initiation of such a procedure is possible only if the legal entity terminates its activities. In other cases, only the signing of mutual agreement is possible, providing an alternative vacancy at an enterprise or care for their own request.

Since statistics indicate a large number of cases of emotional pressure on a pregnant employee with all serious consequences, the management of companies carefully examines the legislative framework so that in the future do not encounter judicial claims and other unpleasant situations.