Today we have to find out whether a pregnant woman can be laid off. The thing is that in Russia now the labor market is not showing the best results - companies are opening and closing, employees are being fired and laid off, unemployment in some regions is growing rapidly. For someone who is 100% able to work, finding a new place of employment is not the most difficult task. But pregnant women are in a vulnerable position. The Labor legislation of the Russian Federation actively protects them against employers. Can a pregnant woman be laid off? Does an employer have the right to treat an employee who is in an “interesting” situation in a similar way? The answers to all these questions will certainly be discovered further. In reality, everything is not as simple as it seems. There are many controversial and ambiguous issues in the Labor legislation of the Russian Federation.
Special position
Can a pregnant woman be laid off? To correctly answer this question, you need to carefully study the current Labor Code of the Russian Federation.
For an employer, having pregnant employees is a huge problem in most cases. The Labor Code actively protects the interests and rights of women in “interesting” situations.
The main problem for the boss is the dismissal of the studied category of subordinates. The thing is that removing a pregnant woman from work is not as easy as it seems.
Desire of a subordinate
Let's start with the most common case - dismissal at the initiative of the employee. This form of termination of employment relations with the employer takes place. Usually it implies a voluntary decision that has no connection with staff reduction.
However, some employers try not to fire pregnant women. The Labor Code of the Russian Federation actively protects such employees. And if the latter can prove that their decision regarding dismissal was forced (the employer created conditions that prompted the termination of the employment contract, blackmailed, threatened, and so on), the labor inspectorate will be on the woman’s side. In this case, the employee will have to be reinstated in her position.
Do they have the right to lay off a pregnant woman? We can say for sure that a woman is able to take the initiative and quit. But what if there are plans to reduce the workforce soon?
If the rights of a pregnant woman are violated
Retrenchment of a pregnant woman may end in court
In the event of a minor violation of the Labor Code by the employer, it is best to seek protection of rights from the Federal Labor Inspectorate of the Russian Federation. Within a month from the date of application, they are required to go to the employer for a targeted check.
In case of significant violations of the procedure, which provides for staff reduction, when a woman is pregnant (her illegal dismissal), the Labor Code provides for the consideration of disputes by a special commission on labor disputes. It is formed within the organization, consisting of an equal number of employees and employers.
In addition, you can always go to court to restore justice. For dismissal of a pregnant woman without sufficient grounds, the administration and the employer may be held liable - administratively or criminally.
Inevitable
It is still difficult to answer this question unambiguously. As already mentioned, the boss can terminate the employment contract with a pregnant employee due to external circumstances related to the working relationship. There really is such a right, but in practice it is quite rare.
It is allowed to terminate an employment contract with a pregnant woman:
- if the employee whose position was temporarily replaced by a pregnant woman returns to work;
- upon expiration of the concluded employment agreement;
- when a pregnant woman refuses to be transferred to another location and the terms of the employment contract change;
- if a woman is declared unable to continue working.
In reality, everything is not so simple. For example, dismissing a woman because she refuses to be transferred to another location is permitted only when the company as a whole is moving its operations to another location.
Does pregnancy time affect contraction?
When reducing staff, the employer must first find out whether any of the employees are expecting a child.
This will avoid problems in the future. If someone finds themselves in a situation, then it is necessary to request the appropriate certificate and, on its basis, exclude the employee from the list for layoffs. The woman herself has the right to report pregnancy not only before immediate notice of layoff, but also in later periods - two months before dismissal and even after dismissal.
It happens that an employee becomes pregnant after receiving a layoff notice. But even then they won’t be able to fire her. Then the reduction procedure is suspended, for which a special order is issued. And management is looking for alternative options to reduce staff.
Due to stress or other reasons, a woman may lose her child before a court decision is made on her restoration. Even then, she does not lose the right to return to work, since the fact of unlawful dismissal remains, because at the time of dismissal the employee was expecting a child.
If a woman becomes pregnant immediately after dismissal, then the employer’s actions will be considered lawful and the court will refuse to reinstate the former employee. This is perhaps the only acceptable reduction option.
Employer initiative
Do they have the right to lay off a pregnant woman? Theoretically, the employer himself can terminate the employment relationship with his subordinates. For example, if they do not meet work requirements.
But in the case of pregnant women, everything is somewhat different. Current labor legislation prohibits employers from dismissing employees in an “interesting” position. This is only possible in the situations listed above.
Special cases
But that is not all! Termination of an employment contract with pregnant employees is permitted under certain and unavoidable circumstances. These include the liquidation of a company or termination of the activities of an individual entrepreneur.
According to current laws, a girl in an “interesting” position can be fired at the request of her boss only due to the liquidation of the corporation. Perhaps this is one of the few cases in which an employee is forcibly removed from work.
Downsizing - is it dangerous?
Do they have the right to lay off a pregnant woman? If you carefully study all the previously listed features and refer to the Labor Code of the Russian Federation, you can come to the conclusion that the category of personnel being studied is one of the most protected. It will not be possible to simply terminate the employment relationship with her. There must be good reasons for this.
Despite the fact that staff reduction is often a forced measure, the employer cannot use it to get rid of a pregnant employee. Retrenchment is not a legal basis for terminating an employment contract. This means there is nothing to be afraid of.
Is it possible to reduce the position of a pregnant employee?
In our organization, on February 1, 2012, there was a reduction in staff, and on February 6, one of the laid-off employees brought a certificate of pregnancy. What should an employer do with it?
If the employee referred to in the question has already been dismissed due to reduction in numbers or staff, she should be reinstated
in her previous position or, as a last resort, provide her with her consent with work that she can perform taking into account her qualifications and health status.
If measures to reduce the number of people have just begun (a new staffing table has been approved, employees have received notices of dismissal due to staff reduction), then the reduction should either be canceled
position of the employee, or transfer the employee with her written consent to another job[1], which the employee can perform taking into account her state of health.
Termination of an employment contract at the initiative of an employer with pregnant women is not allowed, except in cases of liquidation of the organization or termination of activities by an individual entrepreneur[2].
This norm is imperative (categorical) in nature, therefore, the dismissal of a woman who was pregnant during the period of the employment contract due to a reduction in the number or staff of the organization’s employees is also illegal in the case where the fact of pregnancy became known to the employer after the termination of the employment relationship
.
We find confirmation of what has been said in judicial practice.
ARBITRAGE PRACTICE
The Constitutional Court of the Russian Federation in its Determination dated November 4, 2004 No. 343-O noted that Part 1 of Art. 261 of the Labor Code of the Russian Federation, which prohibits the dismissal of pregnant women at the initiative of the employer (except in cases of liquidation of the organization), is essentially a labor benefit aimed at providing support for motherhood and childhood in accordance with Part 2 of Art. 7 Part 1 and Art. 38 of the Constitution of the Russian Federation.
This kind of increased protection is provided by the legislator to pregnant women as those in need of special social protection in the world of work in order, on the one hand, to prevent possible discriminatory actions of unscrupulous employers seeking to avoid in the future the need to provide them with maternity leave and parental leave. a child, other guarantees and benefits provided by law in connection with maternity, and on the other hand, due to the fact that even if there is a ban on refusing to conclude an employment contract for reasons related to pregnancy or the presence of children, finding a job for a pregnant woman is extremely difficult.
The Presidium of the Perm Regional Court in the Resolution dated February 17, 2010 in case No. 44-g2496/31/10 indicated that the fact whether the employer was or was not aware of the pregnancy status of the dismissed employee has no legal significance, since this circumstance should not affect compliance with the guarantees provided by law for pregnant women upon dismissal at the initiative of the administration. Based on the literal interpretation of the provisions of Part 1 of Art. 261 of the Labor Code of the Russian Federation, the ban on dismissal of pregnant women does not depend on the employer’s awareness
.
A similar conclusion was made by the Moscow City Court in its Ruling dated November 10, 2010 in case No. 33-34497: the provisions of Art. 261 of the Labor Code of the Russian Federation does not contain any indication that a woman’s failure to notify her employer of her pregnancy is an abuse on her part and entails the possibility of her dismissal at the employer’s initiative.
Rostrud explains that even if an employee signed a notice of dismissal due to a reduction in the number of employees of the organization, but after signing she learned about her pregnancy and provided the employer with a medical certificate confirming the state of pregnancy, she cannot be dismissed due to a reduction in the number or staff workers[3].
When deciding to reinstate an employee at work, you should make sure that the gestational age indicated in the medical certificate confirms the presence of a pregnancy condition at the time of dismissal
.
In addition, one cannot help but say that when implementing the guarantees provided by the Labor Code of the Russian Federation to employees in the event of termination of an employment contract with them, the general legal principle of the inadmissibility of abuse of rights, including by the employees themselves,
[4]. In particular, it is unacceptable for an employee to conceal temporary disability during his dismissal from work.
Thus, if it becomes known that at the time of dismissal the employee knew about her pregnancy, but hid this fact from the employer, the employer has the formal right to refuse to reinstate her at work.
In conclusion, we note that for dismissing a pregnant woman without sufficient grounds, the employer may be subject to administrative[5] or criminal[6] liability.
[1] Part 3 art. 81 Labor Code of the Russian Federation.
[2] Part 1 art. 261 Labor Code of the Russian Federation.
[3] Letter dated April 2, 2010 No. 902-6-1.
[4] Paragraph 27 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (as amended on September 28, 2010).
[5] Article 5.27 of the Code of the Russian Federation on Administrative Offenses.
[6] Article 145 of the Criminal Code of the Russian Federation.
Real picture
Now it’s clear whether a pregnant woman can be laid off. The legislation of the Russian Federation indicates that the employer does not have the right to do this. Regular employees are allowed to be laid off, but vulnerable categories of subordinates cannot be touched.
Often the real situation is somewhat different. There are not many conscientious employers in Russia. The majority of them try not to get involved with girls who are planning a pregnancy or who are already in an “interesting” situation. And if a subordinate was able to find a job, then she is more likely to have problems in the future.
Can a pregnant woman be laid off? In case of reduction, this category of citizens cannot be touched by law. But not everyone knows about this. Therefore, pregnant girls often become victims of illegal dismissal.
You should also pay attention to the fact that employers often force their employees to quit on their own. According to the laws of the Russian Federation, the boss is obliged to transfer a pregnant woman to light work and, at the woman’s initiative, provide a shortened working day. In practice, this does not always happen. Rather, everything turns out exactly the opposite - the boss does not make any concessions to pregnant women, creating uncomfortable working conditions. Due to such circumstances, women simply quit of their own free will. The corresponding entry is made in the work book, the employer remains safe. After all, the Labor Code does not prohibit subordinates from independently leaving their previous place of work. This is the most favorable outcome.
What should an employer do if an employee brings a certificate?
If the certificate is genuine, then any path to her legal dismissal as a pregnant woman due to staff reduction at your request is cut off.
From this moment on, she is in a special position, and criminal punishment is provided for attempting psychological pressure . But you can always reach an agreement with your subordinates, especially if you have a good relationship with them.
It is unlikely that a woman will agree to quit, but you can legally offer her to transfer to another position in your organization, or to another structural unit, if we are talking about a large corporation, and then she will no longer be your headache.
As mentioned earlier, the law provides for a loophole in the form of legal liquidation of the enterprise and its exclusion from the state register.
This step is not suitable for reputable organizations, but companies with a bad reputation often take advantage of this by formally liquidating their company, registering a similar one and recruiting the same employees in a few weeks.
If you know the legal side of the issue well, the cost of re-establishing a company will be cheaper than maintaining a worker in a situation. This method is good because it will be impossible to prove in court the relationship between the liquidated and newly created company.
Direct psychological pressure on an employee in court is easy to identify . Therefore, managers use a different method if they want to get rid of it. To do this, they begin to record any possible disciplinary violation.
Pregnancy involves a lot of visits to doctors, which means absenteeism and tardiness are inevitable. Constantly recording small violations will give rise to a reason to write a remark in the work book, reduce the salary and deprive the employee of a bonus.
This is actually a legal way to pressure your employee into layoffs during pregnancy. It will be difficult to prove the fact of pressure in court, so women prefer not to go to court, but to write a statement of their own free will.
REFERENCE . But even despite all the recorded disciplinary violations, they have no right to fire her. Article 261 of the Labor Code provides a complete guarantee against dismissal, although it allows for other types of penalties.
