For what reason can a pregnant woman be fired? Is it possible to fire for absenteeism. Pregnancy and employment contract

09.05.2019

In the article:

For many employers, pregnant women are associated with additional problems. Many do not know how to build labor relations with this category of employees and in what situations a pregnant woman can be fired.

In what case is the dismissal of a pregnant woman allowed?

The Labor Code stipulates all the points that shed light on the question of when the dismissal of a pregnant woman is allowed. The Labor Code of the Russian Federation contains all the reasons for the dismissal of an ordinary employee and you can find them in article number 81. The most compelling reasons are absenteeism, failure to perform duties and violation of discipline.

In relation to pregnant women, there are different rules, so a completely natural question arises, in what case is the dismissal of a pregnant woman allowed? It is considered unacceptable to break an employment contract at the initiative of the employer. Only one situation is an exception. We are talking about the termination of the activities of the founder of the enterprise. If the organization is planned to be liquidated, then the pregnant employee will be fired. Other employees of the enterprise are also dismissed, and the employer does not have the obligation to employ them in a new place of work.

Reasons for dismissal

As mentioned above, the dismissal of a pregnant woman is allowed in very few cases.

Even if a pregnant employee is fired due to the liquidation of the company, she will have to be warned in advance.

The employer must personally warn the employee that the company is subject to liquidation. The founder must report the dismissal at least two months before the company ceases to exist. A pregnant employee will have to receive additional severance pay, the amount of which is equal to the average monthly salary. The employer has the right to dismiss a pregnant employee even if a branch of the enterprise is closed. A different situation is observed in the event that the firm will be reorganized. In this case, the founders have no right to fire the pregnant woman.

An employee can work under an employment contract. The agreement might not provide for specific dates, but they could also be specified. An employment contract can be concluded for no more than 60 months. Even if a fixed-term contract was concluded and its period expires at the time of the employee's pregnancy, the employer has no right to fire her. The employer must renew the contract until the pregnancy ends.

Dismissal clause of a pregnant woman

If we appeal to the legislation, then the issue related to the dismissal of a pregnant woman will be quite clear. The law is a kind of protection for pregnant employees, since the employer, on its own initiative, will not be able to initiate the dismissal process. Many people ask the question whether the dismissal of a pregnant woman under the article is allowed? Even if the employee commits any offense, the employer will still not be able to fire her. An employee could have violated labor discipline, but the maximum punishment that her boss can apply is a reprimand. A pregnant employee could be absent and not bring the necessary certificate to work. Dismissal of a pregnant woman is allowed only if it is initiated by the employee's own will.

An employee could be hired on a probationary period. If an ordinary employee does not pass it, then the employer has the right to fire him. This rule does not apply to pregnant employees, as in this case, the law will be on her side.

If the employer violates the rights of a pregnant woman, certain sanctions may be applied to him. An unlawful dismissal can result in a fine for the employer. Even if a pregnant employee is fired for absenteeism, her employer threatens to receive a penalty in the form of a fine of 50,000 rubles.

Is it possible to fire a pregnant woman for absenteeism

Despite the fact that the law is a good protection for a pregnant employee, many negligent employers still find loopholes that can be used to get fired. It is not uncommon for pregnant women to be fraudulently fired. Such employees must know their rights so that in the event of an unfair situation, they can defend themselves. Not only employers, but also employees should know the answer to the question, when is the dismissal of a pregnant woman allowed?

When absenteeism, a pregnant woman cannot be fired. Violation of discipline is also not a valid reason. If an employee writes a statement of her own free will, she may change her mind and take it back. Often there are situations when employees are forced to write a statement under pressure, but in fact it looks as if it was drawn up of their own free will. There may not be a complete liquidation of the company, but only that department or workshop where the employee works. According to the law, in such a situation, the employee must be transferred to another department, while the employer is obliged to keep the salary that she received earlier.

There may be a change of leadership, but even in this case, the pregnant woman is under the reliable protection of the law. Negligent employers may hide the true state of affairs or present them in a different light. Dismissal of a pregnant employee will not be hindered only if it is her own desire.

If a pregnant employee believes that her rights are being violated, she can go to court. She can also seek help from the Labor Disputes and Disputes Commission.

An employee in a position often becomes an additional "burden" for the employer, since, in accordance with current legislation, he is obliged to assign him a job, draw up a number of documents, and pay maternity payments. Worried about their own future and career, many employees planning a pregnancy consider the question of whether a pregnant woman can be fired from work is relevant for themselves.

On the basis of the Labor Code, an employee in a position can be fired, but under certain circumstances. However, in the current situation, the general procedure when the management can take the initiative and stop labor interaction does not work.

Therefore, before a responsible step, each manager should study in detail the legal points in order to avoid litigation and writing explanatory notes to the labor inspectorate.

Article 261, enshrined in the Labor Code, reflects all the permissible powers of the employer in relation to a pregnant employee. Despite the organization of the protection of the employee's rights in the position, there is still one nuance in which dismissal is permissible - this is the self-liquidation of the company.

The organization is liquidated as a legal entity.
The work activity of the enterprise or individual entrepreneur, acting as an employer, is terminated.

In this case, termination of employment is allowed without the consent of the pregnant woman.

The employer does not have the authority to dismiss a pregnant employee at his will, if this fact has been confirmed in a medical document. Regardless of how pronounced the signs of pregnancy are, in the absence of a supporting document, dismissal is not an illegal measure.

In what situations is dismissal allowed

Dismissal of an employee in a position is possible only in cases where the situation does not depend on the employer itself:

liquidation of a company;
initiation of formal bankruptcy proceedings;
if a certificate confirming pregnancy was submitted with a delay, while a fixed-term contract was concluded;
the employee was provided with alternative working conditions suitable for medical reasons, but the woman voluntarily refused;
IP ceases to operate.

The procedure for dismissing a pregnant woman upon liquidation of a legal entity is regulated by Article 180 of the Labor Code. On its basis, the employee must be officially informed two months in advance by signing the document.

If there is a change in management or ownership, the employee cannot be dismissed in accordance with the liquidation of the enterprise. The current legislation assumes that a woman has the right to continue her activities in the organization.

Dismissal of a woman with the complete liquidation of a legal entity is possible at any time: before the onset of the clan or going on maternity leave. So, for example, if a commercial or production branch is closed, and the woman does not want to move to another place, the dismissal process can be initiated by the employer. But first, he must, without fail, offer her a similar alternative. The procedure itself takes place in a standard manner.

When the company self-liquidates, the pregnant woman receives a number of material benefits.

Compensation for the remaining vacation days.
Weekend allowance (the average monthly salary is set).
Receiving a salary for two months.
Calculation of the salary for the days actually worked.

At the same time, maternity and pregnancy benefits are paid not by the organization, but by the social protection department. Although, like payments from the employer, this money will go to the same employee's salary card.

A pregnant woman has the same rights as every employee, so she can quit at her own request, notifying her superiors two weeks in advance.

In practice, situations often arise when, within the framework of the law, the management cannot influence the situation, but they have a strong emotional impact on the employee so that he expresses a desire to leave the workplace or makes a violation that will allow him to be fired.

In a situation where a woman is hospitalized due to deteriorating health, the law exempts her from two-week labor. With the official registration of sick leave, the employee is not able to continue working for an objective reason. At the moment when a woman is in a medical facility, her relatives can send a letter of resignation by mail with a delivery receipt.

The employer has the right to send a pregnant woman on leave during work. In the final calculation, the amount of the benefit, of course, will be an order of magnitude less. Within two weeks, the employee has the right to withdraw the application without career consequences, and the management is obliged to accept it back.

The initiative for dismissal should come from the employee, justified by his personal motives, and not be the result of coercion or pressure from the employer.

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

An official document is drawn up in duplicate, where the signatures of the employee and management must be present. After familiarization, the organization issues an order to dismiss the employee. If one of the parties does not agree with the requirements or conditions for concluding an agreement, each party retains the right to leave the document unsigned. Alternatively, a protocol can be drawn up, in which all disagreements of the parties are recorded. But if they cannot 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 the pregnant woman may not work out the prescribed two-week period.

The whole scheme and order can be represented in several stages:

Formation of an agreement in writing (in duplicate).
Issuance of an order in accordance with the established form T-8.
Entering information in the work book.
Agreement on working off or not.
The salary is issued only in full.
Day off payments are not provided.

The procedure is initiated only in the situation when the employee expresses his desire on a voluntary basis, which does not contradict the rules set forth in the Labor Code.

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

Dismissal of a pregnant woman under a fixed-term employment contract can be initiated on the basis of Article 261 of the Labor Code of the Russian Federation in the following situations:

the contract is concluded only for the period of absence of another employee;
there is a lack of the possibility of transfer before the end of pregnancy to another position for health reasons;
offered alternative options for vacancies on the territory of the employer;
there was a refusal to transfer to another place of work.

In each situation, all aspects must be taken into account so that the procedure for dismissing an employee in a position is recognized as legal. As a rule, the conclusion of urgent labor occurs when another employee is on maternity leave.

In other cases, the dismissal of a pregnant employee or one on maternity leave will be considered illegal. If a woman finds herself in a position, she is obliged to provide the employer with medical confirmation in order to carry out the renewal of the employment relationship.

When an employee leaves the decree for the previous place of work, the other employee must go to an alternative place of work or position. The law provides for the possibility of vacancies with a lower salary. In this situation, a woman must independently make a decision: whether she will continue to work or leave of her own accord.

Is it possible to dismiss under the article

In the labor legislation of the Russian Federation there is no such wording "dismissal under the article." In this case, it means the dismissal of an employee for committing a serious disciplinary violation by him or in connection with his revealed incompetence.

When it becomes known that an employee is pregnant, management immediately begins to perceive her as a person who is being paid too much, because a woman's rights increase, and the amount of responsibility decreases.

Often, guided by this very idea, the employer begins to think about how he can dismiss a pregnant woman from office according to the law, citing her unprofessionalism or violations of discipline.

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

Rebuke.
Comment.

If an employee committed a violation, a reprimand or reprimand can be officially issued. The deprivation of the bonus part of the salary is also allowed. But this decision is made at the discretion of the employer.

Therefore, there is no need to be afraid of being fired due to pregnancy. Current legislation does not allow the dismissal of a pregnant woman on probation. In a standard situation, the employer has such an opportunity, but if the employee is in a position, then on the initiative of the management, the dismissal is illegal.

It is also worth noting that Article 70 of the Labor Code prohibits fixing a probationary period for employees if, upon hiring, she provided a certificate confirming her position.

If the state of health is satisfactory, the decree is issued with the onset of the thirtieth week of pregnancy (in the seventh month). Before the onset of the decree, the management has no right to dismiss its employee. This is due to the fact that after providing official confirmation of pregnancy, the employee has all the rights to legislative protection provided for by the labor code.

With a planned or forced layoff, a pregnant woman cannot be fired. In this situation, one of the solutions is allowed:

the employer offers an alternative position or place of work that satisfies medical requirements;
if there is no alternative, the current place is assigned to the pregnant woman.

Dismissal of a pregnant woman while downsizing is also a violation of current legislation. A woman has the right to count either on a new position that will meet all her requirements, or an old position is assigned to her.

Is it allowed to dismiss a pregnant woman who works part-time

Rostrud published a letter 2607-6-1, where the following information can be highlighted: in accordance with Article 288 of the Labor Code, the employer has the right to independently decide the issue of dismissing an employee. In practice, when a new employee is hired, an order is immediately formed to dismiss a pregnant woman if she is in a part-time position.

However, in contrast to this information, Article 261 of the Labor Code stands out, which says that the dismissal of a pregnant woman on the initiative of the management is illegal. Accordingly, it can only be initiated with the consent of the employee. The only exception is the employer's self-liquidation.

Accordingly, it can be concluded that dismissal at the initiative of the management of a pregnant employee working part-time is impossible.

In practice, a situation often happens when a woman hides her "position" when she is hired and then worries about whether the employer will fire her upon learning of the pregnancy. In this situation, an explanation can be obtained in Article 64 of the Labor Code, which contains a prohibition on refusal to conclude employment contracts for reasons related to the "position" of a woman. Accordingly, a woman's pregnancy is not an objective reason for refusing to continue working.

Before deciding on her dismissal, the expectant mother should take into account several aspects.

After the application has reached the management table, it is possible to withdraw it during the working period (two weeks). To do this, it is imperative to fill out an appropriate document confirming the desire to continue cooperation. If, after the expiration of a two-week period, the place remains vacant, then no dismissal occurs.
If an employee independently decides to complete his labor activity at the enterprise, then he does not receive payments in the form of benefits from the organization.
An employee can write a statement only by making this decision on his own. If any pressure is exerted on the part of the employer, then he has every reason to apply to the courts and demand compensation for illegal actions.

When deciding to fire a pregnant woman, the management of an enterprise or company acts in their own interests. Without a legal basis for dismissal due to pregnancy, it can take advantage of the following:

presence at the workplace under the influence of alcohol or drugs;
causing serious damage to a company or enterprise (damage to property), but this fact still needs to be proven and established that the actions were intentional;
inaction or actions aimed at loss of trust on the part of management;
conduct found to be immoral, which was the reason for the dismissal;
violation of the signing of an agreement on the keeping of commercial secrets;
the employee has committed actions that entailed material damage to the organization;
the employee does not appear at the workplace for more than two months.

Considering the last point, it is worth clarifying that there is a certain list of diseases, which is a serious obstacle to continuing to work. It includes the threat of termination of pregnancy, the occurrence of complications during gestation. Upon presentation of the relevant medical documents to the authorities, this ground for dismissal loses its legal basis.

Each employee who is absent from the workplace due to a serious illness or a threat of miscarriage is obliged to provide an appropriate medical document for reporting and explanations. In addition, the company must adjust payments to him in connection with the registration of sick leave.

Unfortunately, legal practice knows many situations when, despite the established legislative guidelines, the management of companies and production organizations often violate the rights of pregnant women. If such a situation has occurred, then the employee has the right to appeal against the actions of the employer.

Judicially.
Through a prosecutor's check.
Contacting the state labor inspectorate.

If the fact of unjustified dismissal of a pregnant employee is proven, the employer may incur criminal or administrative liability:

Based on Article 5.27 of the Administrative Code, an administrative penalty in the form of a fine of 30,000 -50,000 rubles may be imposed on the employer, and from 1,000 to 5,000 for an individual entrepreneur.
On the basis of article 145 of the Criminal Code - penalties of 5,000 - 200,000 rubles, wages for the last 18 months are deducted or compulsory work up to 360 hours is prescribed.

The State Labor Inspectorate controls enterprises and conducts inspections there. If necessary, this supervisory authority transfers all materials for further investigation to the prosecutor's office. For her part, a pregnant woman can independently apply to the relevant services with a similar statement.

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

Reinstatement of an employee in office. The record of dismissal must be canceled in the work book.
Payment of compensation for the time when the employee was in forced absenteeism.
Compensation for moral damage.

True, many courts require the plaintiff to substantiate the amount claimed. At the same time, they are used to accepting mainly medical documents about exacerbation or occurrence of diseases, treatment received as evidence. We'll have to prove the relationship between illness and dismissal. At the same time, in judicial practice, it is believed that worries about what happened, which did not entail health disorders, are fully compensated by restoration at work.

Based on Article 393 of the Labor Code, an employee does not need to pay state tax or duty in order to protect his rights at a court hearing. Guided by Article 234 of the Labor Code, there is every reason to demand payment of compensation, as well as the full amount of wages for the entire period while the woman was not forced to work.

You can submit applications to several instances at once, while speeding up the process of proceedings on this issue. In practice, dealing with such situations does not take much time.

The current legislation of the Russian Federation strictly fixed the procedure for dismissing a pregnant employee, as well as situations in which this can happen. It should be noted that the initiation of such a procedure is possible only if the legal entity ceases to operate. In other cases, it is only possible to sign a mutual agreement, provide an alternative vacancy at the enterprise, or leave at will.

Since statistics indicate a large number of cases of emotional pressure on a pregnant employee with all serious consequences, the company management carefully studies the legislative framework so as not to face lawsuits and other unpleasant situations in the future.

The most serious guarantees provided by labor legislation in our country are provided to women in connection with motherhood. This is especially true of the fairer sex who are expecting the birth of a child - it is almost impossible to fire a pregnant woman without her consent.

In what cases is the dismissal of a pregnant woman allowed?

Is it possible to dismiss a pregnant woman without violating the law. The Labor Code of the Russian Federation spelled out all the possible circumstances of the dismissal of their employees at the initiative of the employer. The most compelling reasons are truancy, failure to fulfill their immediate duties and violations of labor discipline.
But in relation to a pregnant woman, different rules apply. Therefore, a logical question arises: "In what cases is the dismissal of a pregnant woman allowed?"

An employer cannot terminate an employment contract on its own initiative with a pregnant woman. But at the same time, pregnancy must be confirmed by a medical document. The visible sign is not evidence.

There is only one circumstance when an employer can terminate an employment relationship with a pregnant woman - this is the liquidation of the enterprise itself. But this does not relieve the employer of the obligation to promptly notify such an employee and pay her all the necessary sums of money.
The employer can also dismiss a pregnant woman from the maternity rate only on her initiative.

Inadmissibility of dismissing a pregnant woman at the initiative of the employer

It strictly forbids the employer to fire a pregnant woman on his own initiative. This applies to absolutely all grounds for terminating an employment contract, be it absenteeism, committing a disciplinary offense or unsatisfactory work results at the end of the probationary period. The only exception to this rule is the liquidation of an enterprise.

Dismissal of a pregnant woman upon liquidation of an organization / enterprise

Dismissal of a pregnant employee due to the fact that the employer stops his economic activity is possible at any stage of pregnancy - both before and after maternity leave.
The employer must, without fail, notify the employee of the upcoming dismissal in case of liquidation of the organization / enterprise at least 2 months in advance. The notification must be in writing, and the employee must sign that she has read it.

You can also fire a pregnant employee if a branch of the company is closed, and the employee is not ready to move to another location to work in the head office. But the employer must offer her such an opportunity in writing. Dismissal of a pregnant woman during the liquidation of a separate division occurs in the same way as the dismissal of a pregnant woman during the liquidation of an individual entrepreneur or legal entity that is the parent company.

Dismissal of pregnant women in bankruptcy occurs in the same way, but all personnel issues are not dealt with by the head of the enterprise, but by the bankruptcy administrator.
We are talking about a pregnant employee who works under an employment contract. Its validity period cannot exceed 5 years. But, if the validity period is agreed, then such an agreement is called urgent, and it can be concluded only under certain circumstances.

If we are talking about a fixed-term employment contract, then its validity, on the basis of a written application from the employee, is extended until childbirth or termination of pregnancy for other reasons. It will not be possible to use pregnancy for selfish purposes here - it will have to be confirmed by appropriate medical documents at the request of the employer, though not more often than once every three months.

Unfortunately, not all workers have a full understanding of their labor rights, which is often used by unscrupulous employers. Therefore, upon the expiration of the term of the employment contract, the manager is obliged to explain to the pregnant employee the possibility of prolonging it or to offer her another position - both equivalent to the one held earlier and lower, but with working conditions that do not contradict the state of health. Dismissal is allowed only after a voluntary refusal of the woman herself, set out in writing.

Thus, the dismissal of an employee who is in a state of pregnancy without her consent is only possible on condition that the activities of the organization or individual entrepreneur are terminated. A special case of such a basis is the liquidation of a separate branch of a legal entity located in a region remote from the main office.

Dismissal of pregnant women at the initiative of the employer under Art 81 of the Labor Code of the Russian Federation

Art. 81 of the Labor Code of the Russian Federation implies the grounds for dismissing employees at the initiative of the employer. Such grounds include:

liquidation of an enterprise;
reduction of positions or number of staff;
inconsistency of the employee with the position he occupies;
change of the owner of the enterprise;
the employee repeatedly, without good reason, does not fulfill his job duties;
repeatedly violates labor discipline;
absenteeism;
other grounds for dismissal listed in Art. 81 of the Labor Code of the Russian Federation.

But the law protects pregnant women. Dismissal of a pregnant woman at the initiative of the employer under Art. 81 of the Labor Code of the Russian Federation is not allowed, except for paragraph 1 of this article, that is, the termination of the enterprise. When a branch is liquidated, the dismissal of a pregnant woman is also allowed. This applies to both legal entities and individual entrepreneurs.

Dismissal of a pregnant woman under the article or for absenteeism

The Labor Code of the Russian Federation clearly states that a pregnant woman can be fired only when an enterprise or a branch is liquidated. Even if a pregnant woman skips work or violates labor discipline, the employer can only confine himself to a reprimand. He cannot apply the dismissal of a pregnant woman under the article or for absenteeism as a disciplinary punishment. This also applies to the dismissal of a pregnant woman under the article of embezzlement. The maximum punishment is a reprimand!

But, a woman's pregnancy must be constantly confirmed by certificates from a medical institution. A visible sign of a woman's position is not evidence. Dismissal of a pregnant woman for absenteeism without a good reason is also not allowed, even if the woman did not show up to work and did not present a document justifying her.

This also applies to the moment if a woman was hired for a trial period. The employer can fire an ordinary employee if he does not pass the test. But, he cannot do this to a pregnant woman. This applies to all pregnant employees. The dismissal of a pregnant woman in service is also prohibited.
This also applies to the reduction of staff at the enterprise. The employer must offer the pregnant woman a position that meets the medical indications of her condition at the time of the layoff. If there are no such positions, then the employer cannot reduce the position occupied by a pregnant woman. In addition, dismissal to reduce the number of pregnant women is possible only with the consent of the employee herself.

Dismissal of a pregnant woman by agreement of the parties or of her own free will

A pregnant woman can leave only of her own free will. An alternative to this is the dismissal of a pregnant woman by agreement of the parties.
This document is drawn up in duplicate and signed by both parties. It specifies the main points of termination of the activity of a pregnant woman:

the amount that the employer will pay her as compensation for the loss of her job;
the date on which the employee will stop working;
other important points that may apply to various payments from the employer.

Dismissal of a pregnant woman by agreement of the parties or of her own free will is a legal basis for terminating an employment contract with an employee. The initiative to conclude an agreement on dismissals should come from the woman herself.

The draft agreement can be drawn up by either of the parties, but it must be discussed without fail. All changes made to the project must be reflected in the protocol of disagreements. Once a compromise is reached, the parties sign an agreement. After that, the pregnant woman immediately writes a letter of resignation by agreement of the parties, and not of her own free will.

A woman can decide for herself that she no longer wants to work and write a statement of her own free will. In this case, she will not receive compensation payments. She will only receive wages for the days actually worked and compensation for the days of unused vacation. Dismissal of a pregnant woman is allowed under Articles 78 and 80 of the Labor Code of the Russian Federation.

Responsibility for unlawful dismissal of a pregnant woman

The rights of a pregnant woman in the field of employment are protected not only by the Labor Code, but also by the Criminal, Administrative and Civil Codes of Russia, as well as by a host of other legislative acts. There are many ways to protect against illegal dismissal, and if the employer, despite the prohibitions, nevertheless terminated the employment contract with the pregnant employee, she has the right to use any of them.

However, as practice shows, the greatest effect is achieved by filing a complaint with the regional office of labor inspectorate. An application for illegal dismissal of a pregnant woman can be submitted by both the woman herself and her representative. No further evidence is required. The duties of the inspection staff include a total check of the arguments of the complaint and the adoption of measures to eliminate the violations identified.

The result of such an appeal may be bringing the employer to administrative responsibility under Article 5.27 of the Administrative Offenses Code of Russia, as well as transferring materials to the prosecutor's office or other law enforcement agency to resolve the issue of initiating a criminal case under Article 145 of the Criminal Code of the Russian Federation.

However, reinstatement at work is possible only by a court decision, which should be contacted as soon as possible. If inspectors find offenses regarding the dismissal of a pregnant employee, then a lawsuit must be filed with the court for reinstatement at work and payment of wages for forced absenteeism. An order from labor inspectors must be attached to the claim as evidence.

In case of a successful outcome of the case, the unscrupulous employer will be obliged not only to cancel his decision to dismiss, but also, by virtue of Article 234 of the Labor Code of the Russian Federation, to fully pay wages for the entire period of forced absence from work.
The law does not prohibit seeking the protection of one's rights in several instances at the same time, therefore, filing a complaint with the Labor Inspectorate does not exclude the possibility of initiating legal proceedings.

Can a woman in a position be fired? They can ... There are a number of nuances in the current legislation regulating this area. They are guided by them.

Pregnant women are protected by the Law

Women who are preparing for motherhood are under special legislative protection. For example, her husband will not be able to divorce a pregnant woman; the judge gives permission for this procedure only after the child is 1 year old (the exception is the mutual consent of the parties to).

The Labor Code of the Russian Federation is the main defender of this category of women, because often employers are not interested in retaining a job for a woman who will be on maternity leave.

The reasons for such actions by the employer are as follows: ensuring special working conditions for a pregnant woman and paying cash benefits that are due to a woman after childbirth, plus the search for a new employee who will be assigned a salary (it turns out that the employer incurs losses in terms of cash payments). The reasons for this may be the existence of any conditions, but will they be legal?

Can a woman who is expecting a child be fired?

The Labor Code provides a clear list of reasons why an “ordinary” employee is dismissed (and the list specified in the code is not complete). There are six spelled out in total:

the contract has expired;
the employer can act as the initiator of the dismissal;
dismissal of a pregnant woman on her initiative;
dismissal in connection with the termination of labor obligations for reasons that do not depend on the wishes of the parties;
dismissal due to violation by one of the parties of the rules of the employment contract.

How to fire an expectant mother? In practice, this is a very complex process that can occur in the isolated cases mentioned above. For example, it is not possible to deprive a woman of her job on the initiative of a manager, as it is strictly prohibited by law.

You can only be dismissed in the following cases: upon liquidation of the organization in which the woman worked (in this case, the liquidation should be complete, not partial) and in the event of the termination of the economic activity of the entrepreneur who provided her with a job (for example, a private entrepreneur went bankrupt).

Don't be fooled

Pregnancy cannot be a reason for dismissal

It must be remembered that it is forbidden to fire a pregnant woman in the event of the liquidation of one department or division where she directly performed her work. In the event of such a situation, it must be sent to another operating structural unit, and the transfer must be carried out while maintaining the size of the salary.

But often women are not aware of these nuances and therefore are forced to sign documents related to their dismissal. Also, women preparing to become a mother do not have the right to be deprived of their jobs as a result of a change in the name of a company or the form of its management - these points are also clearly spelled out in the law.

In cases of a change in the management team or the entire staff of employees, the expectant mother cannot be dismissed since such changes do not meet the definition. Even when they try to hide the truth from a woman, she can always get to the bottom of the truth by contacting the tax authority at the place of residence and asking for an extract from the state register of legal entities.

Do not forget - this service is provided on a paid basis, and the necessary information is provided within seven days from the date of application. Also, in order to obtain the required extract, you need to provide the tax authority employee with certain information about the organization where you work: the state registration number of the company and the private taxpayer number that is assigned to the company with it. This information will be more than enough to find out what exactly is happening with the organization and whether its head has the right to fire a pregnant lady.

Dismissal on the personal initiative of a pregnant woman

A pregnant woman may require transfer to "light labor"

The termination of the employment relationship is possible at the initiative of the pregnant woman. But it may turn out that the employees of the personnel department may refuse to sign the application submitted by the woman, which indicates that she wants to stop working in the organization at will.

In this case, specialists must provide a link to the Labor Code of the Russian Federation, which prohibits the dismissal of this category of persons. But such actions will be illegal, since it is precisely in the legislation that the pregnant woman has the right to terminate her labor activity for the above reason.

Can a pregnant woman be terminated in cases of mutual consent of the parties? Of course, in this case, the dismissal process is not hampered by any circumstances. It is important to remember that in cases where a woman expresses a desire to leave the workplace of her own free will, the law is always on her side. Thanks to this, he can quit for a number of personal reasons - for example, if it is possible to move to another job or in connection with a desire to change the conditions of work, etc.

In other words, a woman has the right to say goodbye to the employer due to her unwillingness to work in this company or because of medical contraindications to this type of work. But in cases of dismissal associated with gross violations of the terms of the employment agreement, the employer may be punished for this.

feel the difference

If you were engaged in labor activity on the basis of a fixed-term employment contract, the legislation is applied differently. There are two possible cases:

A woman works - here the position of a woman provides an opportunity for further work, since she cannot be fired. But at the same time, she must definitely submit an application with a request to extend the term of the contract (an appropriate certificate must be attached to the application, which confirms an interesting position and gestational age). If the certificate is missing, the employer reserves the right to refuse the woman (subject to dismissal). An important nuance is that the employer has the right to dismiss the woman after the child is born (in the case when the term of the contract, which was extended before the birth has expired).
A pregnant woman works instead of an employee who is absent (for example, is on maternity leave or on a long-term basis). If these conditions exist, a woman can be dismissed and her position will not be the basis for her continuation of her labor obligations, since it was stipulated in the contract that she fulfills her duties until the exit of the specialist whom she replaces. But do not rush, because in this case, there are also certain nuances - if a woman wants to continue working in this organization, she cannot be deprived of her job just like that. The employer must offer her several different options, appropriate to the qualifications of the pregnant woman. If there are none, he informs about it in writing. True, many owners of the company forget purposefully forget about this condition so that the pregnant woman cannot

Termination of labor relations gives citizens a lot of trouble. Especially for the employer. After all, the boss must not only find a replacement for the subordinate, but also comply with the rules for dismissing employees. This is not always easy to do. There are some categories of people who are legally given special rights in employment. Therefore, today we will try to find out how a pregnant woman is fired. Is it possible to get rid of this category of subordinates altogether?

Labor Code on the Protection of Pregnant Women

To deal with the issues raised, it is necessary to study labor legislation. What does it say?

Dismissal of a pregnant woman according to the Labor Code of the Russian Federation is a difficult and not always possible operation. An employer can get rid of an unwanted employee in exceptional cases.

In addition, women "in position" can take time off from antenatal clinics. The employer has no right to prohibit visits to doctors during pregnancy. Nevertheless, it is within his authority to demand from a subordinate a certificate from a specialist or other proof of a visit to a medical institution.

Dismissal on the initiative of the superiors

The boss has the right to terminate the employment relationship with any of his employees at any time. But pregnant women are the exception to the rule.

According to the Labor Code of the Russian Federation, it is impossible to dismiss a woman "in an interesting position" at the request of her boss. This is a gross violation of the law. If the boss is going to dissolve, you can threaten him with a complaint to the labor inspectorate, as well as criminal liability and a large fine.

Fixed-term contract

Accordingly, getting rid of an employee who is waiting for replenishment in the family is not as easy as it seems.

Is it possible to dismiss a pregnant woman under a fixed-term contract? Yes. The termination of the employment contract is the basis for the termination of relations with the subordinate.

However, the Labor Code protects expectant mothers as well as women on maternity leave. At the request of the employee, the employer must extend the cooperation agreement until the end of pregnancy / maternity leave. You cannot refuse such a "bonus".

Dismissal under a fixed-term contract of a pregnant woman, if she did not want to continue to cooperate with the company, is carried out in the usual manner.

Adjustment of working conditions and relocation

In some cases, the firm drastically changes working conditions or moves to another locality to continue its activities. In the situations described, the dismissal of a pregnant woman is possible.

The main thing is that the boss first in writing offers the subordinate available vacancies and working conditions. If the girl refuses, she can be fired. Otherwise, you will not be able to get rid of the unloved category of female employees.

Reduction

Planning to fire a pregnant woman? The Labor Code of the Russian Federation clearly prescribes a number of grounds on which it is possible to get rid of the vulnerable category of subordinates. The main thing is not to violate the established procedure for terminating employment contracts.

Downsizing is the time when the employer has the right to fire employees he dislikes. For example, those with insufficient qualifications or work experience.

Do pregnant girls get contractions? No. Under no circumstances can a woman who is awaiting replenishment in the family be made redundant. If it is planned to reduce the position, the employee must be transferred to a suitable vacancy. But at the same time the company should not keep the salary.

By article

What other scenarios are encountered in practice? Some people are kicked out of companies "under the heading". That is, in the presence of any serious violations of the employment contract. For example, for absenteeism without reason.

Dismissal of a pregnant woman under a fixed-term employment contract takes place without any special features. But what if they want to throw the girl out of the company under the article? Nothing. This scenario is not allowed. Moreover, if a girl is absent from work due to being on procedures for pregnant women or at a doctor's appointment, such an act will not be considered absenteeism. Especially when the subordinate has some evidence of a visit to the doctor.

The desire of the worker

The simplest scenario is to leave work at the request of a subordinate. Dismissal of a pregnant woman is permitted. In this case, as practice shows, the process runs smoothly.

A girl expecting the birth of a child can refuse to cooperate with the company at any time. It is not required to provide a reason for leaving work. Keeping a subordinate is also prohibited.

It is this alignment that gives the employer the least trouble. In this case, there are no complaints about the authorities. The main thing is to observe a certain order of termination of relations. We will get to know him a little later.

Other circumstances

From the foregoing, it follows that getting rid of such a vulnerable category of subordinates as pregnant women is problematic. However, it will still be possible to do this. In particular, if there is a legal basis for it.

Allows employers to terminate employment contracts with pregnant women if:

the company is being liquidated;
the entrepreneur ceases to operate.

In these cases, the employment relationship is terminated with all subordinates, without exception. The company is closing down, no one else can work in it. Moreover, the information about the company is removed from the corresponding register of organizations.

Probation

According to the Labor Code of the Russian Federation, an employer can dismiss an employee who is on probation. Does this rule work for pregnant women? Unfortunately no. All of the above principles apply to female employees who are on probation. At the same time, it is important that the employer is notified of the "interesting position" of the subordinate.

Independent situations

The reasons for dismissing a pregnant woman are not as varied as the reasons for terminating an employment relationship with an ordinary employee. Are there any other options for the development of events?

There are a number of reasons for dismissing subordinates in an "interesting position" that do not depend on anyone. These include:

restoration of a subordinate in court at the same place of employment;
obtaining the status of an employee incapable of continuing to work in full;
expiration of licenses and permits required to work in the organization in a particular position.

All of these situations are not considered to be dismissal initiated by the management. But in all circumstances, the employer must first offer the employee other vacancies for employment. If this item is left out, there will be a violation of the termination process according to the law.

Agreement of the parties

Dismissal of a pregnant woman can be carried out by agreement of the parties. During the operation, someone (boss or subordinate) proposes their own terms of termination of a labor-type contract, someone agrees with the proposal or puts forward counterclaims. After reaching a consensus, an agreement of the established form is concluded with the subsequent dismissal.

It is desirable that the initiator of the operation is a pregnant woman. Then, in the case of an inspection, the labor inspectorate will have fewer questions to the employer.

How to Quit Yourself

We got acquainted with the grounds for dismissing a pregnant woman. As already noted, according to the law, getting rid of the vulnerable category of subordinates is problematic. And it is proposed to do this only under certain conditions.

How to terminate an agreement on the initiative of an employee?

This will require:

Draw up and write a letter of resignation of your own free will.
Contact your employer with a request.
Wait for the signature of the application in the personnel department.
Work 14 days.
On the day of dismissal, familiarize yourself with the relevant order.
Get a calculation in the accounting department.
Pick up a work book, medical book and income statement.

That's all. After that, it remains only to sign in the special magazines of the employer. The citizen is dismissed of his own free will.

How to dismiss in liquidation

You will have to act somewhat differently if the relationship with a pregnant woman is terminated due to the liquidation of the company. In this case, you will have to:

Notify the employee of the event 2-3 months in advance.
Issue a dismissal order.
Wait for the employee's signature on the document.
Calculate with a subordinate.
Make a corresponding entry in the work book and issue the document to the employee.
To issue and give a certificate of income.
File the employee's personal file.

If a woman refuses to sign the order or avoids calculating / issuing documents, she will have to draw up appropriate acts. Without them, the process of dissolving the relationship will be disrupted.

Outcomes

Getting rid of a pregnant employee in a company is problematic. This can be done either for the reasons described, or when the employer does not know about the "interesting position" of the subordinate.

That is, the dismissal of a pregnant woman is allowed on the initiative of her superiors, "according to the article", due to layoffs or for other reasons, but for this it will be necessary to prove that the personnel department has not notified anyone about the pregnancy. In this case, the labor inspectorate can only ask to reinstate the employee in her position. But the head of the company cannot be punished with fines or criminal liability.