Dismissal of a pregnant employee: rights and obligations of the employer

Author of the article: Lina Smirnova Last modified: January 2021 26029

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

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

Legislation on the peculiarities of labor activity of pregnant women

The expectant mother should know her rights in order to defend them in case of conflict situations with the employer. They are set out in the Labor Code of the Russian Federation. At the initiative of the management of the enterprise, the dismissal of employees is allowed on the basis of the reasons set out in Article 81 of the Labor Code. However, Article 261 prohibits employers from dismissing women for the reasons specified therein if they are pregnant, except in circumstances that prevent them from maintaining their jobs. The article also defines the legal actions of the employer and employee upon termination of a fixed-term employment contract during her pregnancy.

Expert commentary

Kamensky Yuri

Lawyer

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

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

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

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

Maternity contributions

According to the law on social insurance, maternity benefits for pregnancy, childbirth and child care are made by the employer. The amounts paid are returned to him by the Social Insurance Fund of the Russian Federation.

The payment procedure occurs in the following order:

• the employee hands over her sick leave to her employer and writes an application for leave, the reason for which is child care;
• the employer calculates the amount of the benefit and begins to pay it;
• a report containing information on the costs of payments is submitted to the Social Insurance Fund;
• the fund verifies the data and compensates the amount in full.

If we are guided by this provision, then it becomes clear that the expectant mother can hardly receive maternity leave if she quit her job before going on vacation, since she is no longer bound by any employment relationship with the employer after termination of the contract.

A special mention is made of the situation when the organization where the expectant mother worked was liquidated. In this case, all concerns about payments fall on the Social Insurance Fund. But to do this, you need to apply to the fund yourself.

In addition, you will need to provide:

• certificate of incapacity for work;
• a photocopy of the work record book and a certified extract from it about the last place of employment;
• a document from the employment center confirming your unemployed status.

After a woman gives birth, she has the right to receive a one-time childbirth benefit.

As soon as her sick leave is over, she can go on maternity leave to receive payments. These payments will continue until the child is one and a half years old. The benefit is paid from the Social Protection Fund. At the same time, the right to receive payments remains even if a woman finds a new job, part-time or at home.

In what cases is it possible to fire a pregnant woman?

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

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

Dismissal during pregnancy from a practical point of view

Theoretically, the law prohibits dismissing a pregnant employee at the initiative of the employer. The key word is “on the initiative.” Therefore, in an attempt to reduce expenses, organizations are increasingly dismissing their pregnant employees for inappropriate performance. Whether this is correct is shown by the practice of courts in resolving labor disputes. And this practice is such that it is impossible, except for the above-mentioned cases, to fire an employee who is preparing to become a mother. This applies to absolutely all female workers: managers, civil servants, working in a private enterprise, or in a large corporation. The law is the same for everyone.

The Plenum of the Supreme Court of the Russian Federation, in its Resolution on the application by courts of the legislation of the Labor Code of the Russian Federation, indicated that it is impossible to dismiss a pregnant woman if she also works as the head of an enterprise. Therefore, a change of owner or a decree of the founders cannot have legal force for a pregnant hired manager.

The prohibition on dismissal of a pregnant woman also applies to cases of failure to pass certification, or unsatisfactory results of certification of the employee. In this case, such dismissal for official inadequacy is regarded by the courts as an initiative of the employer. The same applies to pregnant part-time workers. You cannot fire a pregnant part-time woman because of the hiring of a main employee for this position.

Thus, no matter how the leaders try to find a clue in the law, the courts will still be on the side of the pregnant woman. The only question is whether she has the strength and desire to defend the truth in court.

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The procedure for dismissal upon closure of an enterprise

The dismissal of employees of a liquidated enterprise, including women carrying a child, occurs according to a uniform procedure established by law. According to Article 180 of the Labor Code of the Russian Federation, each employee is required to notify of the upcoming dismissal no later than two months before the upcoming event. The notification must be in writing, which must be signed by the pregnant woman.

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

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

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

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

Legal provisions

The main document defining the rights and responsibilities of pregnant women upon termination of employment relationships is the current Labor Code (LC). Its articles do not contradict the Constitution of the Russian Federation, but only explain in detail legal behavior in a given labor situation.

Thus, based on these laws, a woman expecting a child belongs to the group of socially vulnerable people, and therefore has a number of benefits and advantages compared to other working citizens. It is worth noting that violation of the legal rights of pregnant women leads not only to administrative, but also to criminal liability.

Provisions that provide comprehensive explanations in matters of labor relations with pregnant women are indicated in the fourth part of the Labor Code of the Russian Federation in the twelfth section (in chapters 40 and 41).

The most interesting are the following articles:

• Art. 254 - explains the procedure for transferring pregnant women to another job;
• Art. 255 - guarantees the provision of leave related to pregnancy and childbirth;
• Art. 256 - describes the procedure for being on parental leave;
• Art. 258 - regulates the provision of time for feeding the child;
• Art. 259 - prohibits sending women preparing for motherhood on business trips, using them for overtime work or at night and on non-working days;
• Art. 260 - provides benefits to women when distributing planned annual leaves.

In addition, Article 251 of the Labor Code, which emphasizes the specifics of labor regulation, and Article 236, which guarantees additional leave without payment of wages to persons caring for children, are often used, as well as Articles 38 and 39 of the Constitution of the Russian Federation, which outline support for maternity and guaranteeing social benefits. provision. Payments are regulated by the Federal Law “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Maternity.”

Special working conditions for a pregnant woman

After official notification of management about her pregnancy, a woman receives the right not only to be protected from dismissal, but also to be given another job that ensures the health of her and her unborn child.
According to Article 254 of the Labor Code, at the request of an employee, management is obliged to either reduce her working day or provide her with other work that excludes the influence of production factors harmful to health. At the same time, she retains her previous average earnings. While searching for a suitable place of work, management is obliged to relieve the employee from performing previous duties related to exposure to harmful factors, while maintaining her average salary during this time. Working days missed due to the search for a new job are paid by the employer from his own funds.

How to fire a pregnant woman at her request

Nobody bothers you to formalize the dismissal of a pregnant woman on the basis of her own desire. But, despite her juicy position from the point of view of the law, she is still obliged to work the required time. In some specific situations (for example, for health reasons or when planning to move), it is acceptable to specify a specific date of dismissal. However, this is only the employer’s right to make a concession to the pregnant woman or not, and not his obligation.

Dismissal under a fixed-term employment contract

The procedure for drawing up a fixed-term employment contract with a woman during pregnancy and regulating its term is described in Article 261. The main postulate of this article is that even at the end of the contract, a pregnant woman does not have the right to dismiss. If her pregnancy is confirmed at the end of the fixed-term contract, the employer must extend its term until the end of the pregnancy. In this case, upon request, a woman is obliged to present a certificate from a gynecologist confirming the presence of pregnancy. An employer has the right to request information about pregnancy no more than three months later.

Expert commentary

Gorchakov Vladimir

Lawyer

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

Is it possible to fire a pregnant woman if she fails to complete her probationary period?

prohibits managers from establishing a probationary period for pregnant women and women raising children under 1.5 years of age. If at the time of concluding the TD there was no information about pregnancy, but everything later became clear, it will not be possible to cancel the contract based on the test results - this is illegal.

Even if a pregnant woman is completely dissatisfied with the employer, cannot cope with her job, and according to the test results she showed herself to be an extremely negative employee, it will not be possible to fire her. Termination is carried out on the initiative of the director, which is unacceptable in this situation. She will have to be employed on a permanent basis in the position for which she originally applied.

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

The ban on dismissal of a woman expecting a child applies primarily to the entire list of reasons listed in Article 81 of the Labor Code. It concerns, among other things, dismissal for disciplinary violations or inadequacy of the work performed. If a pregnant employee commits absenteeism, violations of internal order or causing material damage to the enterprise, and other factors that are a reason for dismissal for other employees, the employer may limit her to only punitive measures in the form of a reprimand, warning and reprimand.

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

In practice, cases of disciplinary punishment of pregnant women are rare, since they are always provided with the most favorable working conditions. Therefore, any woman in this position values ​​​​her job because she has no prospects for employment in the near future at another enterprise if she quits of her own free will. “Deeply” pregnant women can only be hired to temporarily fill the duties of another absent employee. Although, by law, an employer does not have the right to refuse to hire because of pregnancy, he will always find indirect reasons for refusing to hire such an employee.

Rights and responsibilities of a pregnant woman

The state protects the position of pregnant women, understanding the difficulty of fulfilling labor obligations while expecting a child. Therefore, a woman preparing to become a mother is obliged to receive a loyal attitude from the employer towards herself, but this does not mean that she has no obligations.

Its main rights are as follows:

1. Recruitment. An employer has no reason to refuse employment due to pregnancy. In case of refusal, the employee may demand a written explanation. In this case, the applicant for a vacant position has the right not to inform the employer about her pregnancy. A woman who gets a job and is in an “interesting” position is not assigned a probationary period by law.
2. Transfer to lighter labor. The Labor Code guarantees the right of a pregnant woman to work on a reduced schedule, but in this case wages will also be reduced. She is entitled to a transfer to lighter work with a limit on heavy lifting (no more than 2.5 kg) and a reduction in production standards.

According to sanitary rules and regulations, pregnant employees are subject to restrictions on the organization of working conditions.

Thus, they are prohibited from working in drafts, in basement-type rooms and with low lighting, under conditions of exposure to harmful substances and dampness.

Regardless of the time worked, the expectant mother can go on annual paid leave both before and after maternity leave. It is also important to note that calling an employee back from maternity leave is prohibited, even if she does not object.

If a pregnant woman is absent from her workplace due to being in a clinic or hospital, then these missed hours are counted by the workers and paid based on the established wage. Of course, for this, the employee must provide documents confirming her presence in a medical institution.

The law prohibits interrupting the employment relationship with a pregnant employee on one’s own initiative. But this is only possible if the enterprise is not completely liquidated. That is, staff reduction is not a reason for dismissal. Even a careless attitude of an employee towards the performance of her duties can lead at most to a reprimand.

It is worth noting that in order to exercise most of her rights, a pregnant employee will have to submit applications. For example, at the end of the contract, an application with an attached certificate is written to renew it, on the basis of which an additional agreement is concluded, usually expiring after the birth of the child.

Resignation at will

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

In practice, there are still often precedents for creating unbearable psychological conditions for the work of an employee, including a pregnant woman. If she was forced to resign on her own initiative, she should know that she can file a complaint with the State Tax Inspectorate, the prosecutor's office, and even the court. To do this, she must have in hand documents confirming the deliberate blackmail of management, with the goal of her voluntary dismissal. Upon receipt of her complaint, the relevant organization must verify all cases specified in the complaint.

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

A woman cannot demand exemption from work, despite her pregnancy. There is no such provision in the legislation. However, she may go to the hospital before maternity leave if there are indications for continuing the pregnancy or for other reasons. That is, by going on sick leave, a woman gets rid of the obligation to work for two weeks. She also has the opportunity to ask the employer for leave during the work period, if it has not been used before.

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

Dismissal from a part-time job

Part-time work, in accordance with Article 288 of the Labor Code, is carried out during free time from the main job, but this is work activity on a regular basis.
In this case, the employee is a full-time employee and is subject to all acts of the enterprise. If at a certain point a new employee is hired, for whom this work will be the main one, the previous one is fired at the initiative of the employer. It is he who makes the decision to dismiss a part-time employee, appointing a new permanent employee in his place. What to do when a woman who is expecting a child works part-time? She is protected by the state. As judicial practice shows, disputes between the parties are resolved in favor of the pregnant woman. In this case, Art. 261 of the Labor Code of the Russian Federation overlaps Art. 288. Dismissal made on the basis of the latter is equated to dismissal at the initiative of the employer, which is prohibited by law. Without the consent of the pregnant woman, she cannot be fired from her part-time job. The employer is forced to extend her employment contract.

Dismissal by agreement of the parties

Often, pregnant women quit by mutual agreement with the employer, formalizing this in the form of a documented bilateral Agreement with signatures of both parties. Based on this Agreement, the employer issues an order. The date of dismissal will be considered the date agreed upon by the parties, specified in the Agreement and order. By agreement with the employer, a woman may not work for two weeks if this suits him. To do this, she does not have to go to the hospital or take a vacation.

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

Types of leave and payments

There are three types of maternity leave: for pregnancy, caring for a child under 3 or 6 years old. The document for granting leave is a medical certificate confirming pregnancy. Based on this certificate, the expectant mother is granted leave of seventy days before giving birth and fifty-six days after the birth of the child. In case of postpartum complications or the birth of two or more children, leave after childbirth is extended to 70 days.

This leave is paid. After its completion, the young mother can go on maternity leave to care for a child under three years of age.

In addition to maternity benefits, she is entitled to the following benefits:

1. A one-time payment to pregnant women who registered at the antenatal clinic in the early stages of pregnancy (up to three months), amounting to 613 rubles 14 kopecks.
2. One-time payment after childbirth - 16,759 rubles 09 kopecks.
3. The minimum allowable amount of a one-time payment for caring for a child under one and a half years old for the first child is 2,718 rubles 34 kopecks, for the second and subsequent ones - 5,436 rubles 67 kopecks. These amounts are paid to all young mothers without exception, so if a woman quits her job during pregnancy, she will not be left without monetary compensation.

If the boss forces a woman to leave

On a note. The legislation provides for “maternity” leave for pregnant employees - that is, for pregnancy and childbirth, as well as for child care.

All this time, the woman remains on the staff of the enterprise, she is supposed to make payments to the mandatory funds - and therefore this situation is extremely unprofitable for the employer.

As a result, unfortunately, many of them use pressure on their employees - they force them to resign of their own free will.

What should a woman who finds herself in such a situation do? First of all, she needs to take several steps:

1. Do not write statements under any circumstances! If a document, even if written under pressure, was drawn up and personally signed by an employee, the likelihood of winning the case and achieving reinstatement or at least compensation becomes negligible.
2. If possible, record the fact of pressure. Testimony from loyal witnesses, audio or video recordings, etc. will come in handy. The main thing is to prove that there was a demand from the employer to resign.
3. File a complaint about the employer’s actions with the regulatory authorities (Rostrudinspektsiya or directly to the prosecutor’s office). The complaint must accurately reflect the circumstances of the case and express the demand that the perpetrator be brought to justice.
4. If the dismissal took place, appeal it to the court.

It must be remembered that a pregnant woman cannot be fired at the initiative of the employer. Even if she violates discipline, the employment contract can only be terminated on the initiative of the employee or by agreement of the parties.

Disciplinary offenses

The Labor Code does not provide for dismissal under this article. This is an erroneous expression that can be heard among the people and which in legal language means that a person will lose his job for any disciplinary violations. At the same time, dismissal is one of the types of penalties that are applied to employees. The other two are:

• comment;
• issuing a reprimand.

Dismissing pregnant women for violating labor discipline is prohibited by law.
The expectant mother can only receive one of the other two disciplinary actions. In some cases, for failure to fulfill official duties or for serious violations, the issue of termination of employment relations is decided on an individual basis. The existing system of fines at the enterprise may be applied to employees in this position, including deprivation of the due bonus. Employers and enterprise management are authorized to deal with bonus reduction issues.

Can a pregnant woman be fired from her job?

A pregnant woman cannot be dismissed at the request of the employer if the fact of her pregnancy is confirmed by a medical certificate. Even if pregnancy is obvious by external indicators, without documentary evidence, dismissal will not be considered illegal.

The Labor Code of the Russian Federation in Article 261 reflects the principled position of the legislator on this issue, suppressing self-will on the part of employers and thus protecting the rights of pregnant women.

However, an exception to this rule in the same article is the case of liquidation of the employer as such in the legal sense, that is:

• Complete liquidation of a legal entity (organization where a woman works);
• Termination of the activities of the individual entrepreneur who acts as her employer.

In this scenario, the employer may terminate the employment contract with the pregnant woman without her desire or consent.

When can you fire?

A girl always has the right to refuse to perform work duties. However, she is not required to indicate the true reason for leaving her place of employment. And the employer has no right to retain such an employee.

It is this situation that allows the employer to carry out the operation without any hassle. And in this case there are no complaints against the current authorities. The main thing is to comply with all the main points when dismissing an employee.

From all of the above it follows that it is still possible to dismiss an employee, but only on the grounds prescribed in the current Labor Code.

That is, in accordance with current legislation, it is possible to terminate an employment relationship if:

1. the company is being liquidated;
2. the company ceases operations.

These situations make it possible to terminate the employment contract with all citizens without exception. The organization is closing, and therefore it is impossible to work in it.

If a citizen is on a probationary period and then notifies the employer about an interesting situation, then the rules of impossibility of dismissal apply to her.

In accordance with Article 1 of the Family Code of the Russian Federation, the state is obliged to take motherhood under its guardianship and protect the rights of the expectant mother.

In accordance with the Labor Code of Russia, a woman has no right to be fired at the initiative of the employer. If she copes with all her work responsibilities, her dismissal is classified as illegal, for which fines may be imposed.

In accordance with current legislation, a citizen has the right to bring the director to justice of both criminal and administrative types. Moreover, management will be obliged to reinstate the employee in her position and pay compensation for forced leave.

This is regulated by Article 394 of the Labor Code of the Russian Federation.

Incorrect and unlawful dismissal of an employee on maternity leave is an action that is punishable by current legislation. More precisely, Article 145 of the Criminal Code of the Russian Federation. The punishment for such an offense is indicated here.

The act is punishable by a fine of up to 200,000 rubles. In some cases, forced labor in the amount of 360 hours.

On the part of the employer, the order has the right to enter into legal force only in accordance with the rules prescribed in Article 81 of the Labor Code of Russia. That is, dismissal is possible for official inconsistency or absenteeism. However, many situations may not apply to pregnant employees. And illegal dismissal can be challenged in court.

But the woman is obliged to notify the employer in writing that she has an interesting position. Moreover, if she needs to go to a medical facility, she must notify the employer in writing. If there is no written notice of this, then a penalty may be applied in accordance with Article 192 of the Labor Code of Russia. In this case, the employer has the right to apply only disciplinary sanctions.

In accordance with Article 261, Part 1 of the Labor Code of the Russian Federation, a pregnant woman can be fired only in the following situations:

1. upon closure of an individual entrepreneur where a pregnant woman was employed;

1. upon liquidation or reorganization of the company.

The liquidation of an organization means the complete cessation of the organization’s activities on the basis of an article of the Civil Code of Russia. In the event that the company is transferred to another legal entity where a merger has already taken place, the grounds for dismissing a pregnant woman are illegal.

If this is a bankruptcy of a company, then everything should happen on official documents and papers. And after liquidation, the organization will completely cease to operate. If a bankrupt person is bought out by other legal entities, then the dismissal of an employee in an interesting situation is stated as an unjustified reason.

A pregnant woman, in this case, can terminate the employment contract at her own request if she is not satisfied with the new management. If a company goes bankrupt in bankruptcy proceedings, then the woman does not have the right to be fired. If there is a reduction in a specific branch, then the citizen is obliged to transfer to another structural unit.

Prohibiting situations

Prohibited situations:

1. without giving reasons;
2. in case of failure to fulfill obligations;
3. during a probationary period;
4. with a fixed-term contract.

Agreement of the parties

One of the simplest and most convenient ways to fire a pregnant woman is to terminate the contract by mutual consent. According to Article 77 of the Labor Code of the Russian Federation, to carry out this procedure, simply agreeing on the terms of termination of the contract is sufficient.

After both parties reach a consensus, the order is put into effect, as a result of which the employee receives a work book and payment, and the company is released from all obligations related to the decree.

Important! In most cases, a separation by mutual consent is limited to the usual settlement, however, there are agreements in which the employer agrees to pay special severance pay if the relationship breaks down in this way.

Pressure on a pregnant woman is a violation not only of the Labor Code, but also of the Criminal Code, and therefore in such situations it is worth contacting law enforcement agencies and the labor inspectorate with a request to protect your rights.

Where to go if there was a violation of the law?

If a woman in a situation was fired without the grounds specified by law, it is advisable to contact:

1. Directly to management. It is recommended to draw up a complaint in any form with reference to legal acts.
2. To the labor inspectorate. The authority will conduct an inspection of the organization, and if violations are identified, it will issue demands to the employer to eliminate them. Penalties may be imposed. If necessary, the inspection will inform you that you need to go to court.
3. To the prosecutor's office. The woman needs to provide facts of violation of her rights: medical and work documentation; if there is pressure or threats from the employer, video, audio recordings, witness statements and other evidence of forced dismissal will be suitable.
4. To court. It is required to file a claim for illegal dismissal and reinstatement. Additionally, you can recover compensation from the employer for the missed period in the amount of average earnings and for moral damage (Article 394 of the Labor Code).

It is possible for the labor inspectorate to impose administrative liability on the employer, which involves penalties under Art. 5.27 Code of Administrative Offenses of the Russian Federation:

• 1–5 thousand rubles. — for officials, individual entrepreneurs;
• 30–50 thousand rubles. - for organizations.

Moral damage is assigned and assessed by the court.

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In accordance with the Labor Code of the Russian Federation, this procedure is quite difficult and complex. An employer has the right to get rid of pregnant women at work only in exceptional situations. In addition, every company must understand that a pregnant employee must be sent to antenatal clinics. After all, the employer does not have the right to prohibit a citizen from visiting medical staff.

But the employer has the right to require a certificate from the person confirming the visit to the medical company.

This is a violation of the law, which will entail certain consequences.

If the management wishes to terminate the employment relationship under an open-ended contract, then you can contact the labor inspectorate with a corresponding complaint. This will lead to the company earning an administrative fine or even criminal liability.

But there is a certain peculiarity here. If a woman works under a fixed-term employment contract, then she has the right to dismiss her upon expiration of the document. But current legislation makes it possible to prolong the employment relationship and thereby benefit pregnant women. The employer has no right to refuse such a request.

Some companies are changing their working conditions. For example, moving to another area or changing working conditions. It is possible to fire a pregnant woman in this situation. The main thing is to follow the basic rule - notify the citizen about available vacancies. If she does not agree to them, then take a written refusal and fire her.

The Labor Code of the Russian Federation stipulates all the grounds for dismissing a pregnant employee. The main thing for the employer is not to violate this information when terminating the employment agreement.

In case of reduction, the employer has the right to dismiss all employees. But he must leave the pregnant women and transfer them to another position with an appropriate salary.

Many citizens are expelled from the company under the article. This is done only if there are specific serious violations of the law. Dismissal of a pregnant woman under this article is not allowed if she confirms her absenteeism with medical certificates. That is, if a citizen was at an appointment with medical personnel, then this is not considered absenteeism.

Can an employment contract be terminated during pregnancy?

The possibility of terminating the employment relationship with an employee who is in a situation is regulated by Art. 261 Labor Code of the Russian Federation. Dismissal is not carried out at the request of the employer and is permissible only in certain cases:

1. With a voluntary decision of a woman.
2. With the consent of the parties.
3. Upon liquidation of a company, individual entrepreneur.
4. When working conditions change that are not suitable for a pregnant employee (for example, when the organization moves to another location).
5. If a woman fails to provide an application and medical certificate about pregnancy if she is working under a fixed-term contract, which expires while the child is pregnant. If a woman requests a contract extension, the employer is obliged to extend it until the end of the pregnancy.
6. If the contract was concluded during the absence of another employee who returns to work. At the same time, there is no possibility of transferring a woman to another position that suits her conditions and state of health.

In other cases, dismissal of a pregnant employee before or during maternity leave is unacceptable.

If a pregnant woman was on a probationary period, it is impossible to terminate the contract due to its failure. When informing the employer about pregnancy, the employee is automatically added to the staff.

How can you legally dismiss an employee?

The legal norms of the Russian Federation allow the termination of an employment relationship with a pregnant woman at any time if the initiative comes directly from her. Dismissal at the request of the employer is carried out only if there are established grounds.

When labor disputes arise, the law predominantly takes the side of the pregnant woman.

In this case, it is recommended to obtain evidence confirming the involuntary nature of the decision:

• audio and video recordings;
• correspondence;
• testimony of witnesses.

The company's management has the right to regularly require medical documentation confirming the fact of pregnancy. However, the frequency should not exceed 1 time every 3 months.

By agreement of the parties

Since the termination of a working relationship by agreement between the parties presupposes mutual consent, it is not prohibited by law. In this case, a bilateral agreement is drawn up and signed by the employer and employee. It is possible for a woman to send a letter of resignation, on which management puts a mark of consent.

This is important to know: Notification to pick up a work book after dismissal: sample 2021

A pregnant woman can cancel the agreement even if she does not have supporting medical documentation - a pregnancy certificate can be presented later. In other cases, this is unacceptable: once an agreement has been reached with the employee regarding his resignation, he cannot change his mind.

At your own request

Expert opinion

Lebedev Sergey Fedorovich

Practitioner lawyer with 7 years of experience. Specialization: civil law. Extensive experience in defense in court.

A woman has the right to resign at her own discretion at any time. The procedure for terminating an employment contract is carried out according to the standard algorithm:

1. The employee submits a resignation letter to the employer (in person or by mail).
2. An appropriate order is generated with the woman’s mandatory review (subject to signature).
3. Entries are made in the personal card and work book.
4. On the final day of work, documentation is issued and payments are calculated (will a woman receive maternity benefits if she becomes pregnant and quits her job and what should she do, read here).

Dismissal involves service (Article 80 of the Labor Code), counted from the next day after the application is submitted. It can be avoided by personal agreement with management, even if the dismissal was voluntary, as well as if the woman was on sick leave or on vacation during this period.

At the initiative of the employer

If a citizen whose place was occupied by a pregnant employee returns to work, her dismissal is permissible. But at the same time, the employer is obliged to offer the woman alternative positions that are suitable for her health and qualifications (including lower ones). If the employee agrees, she remains to work at the enterprise; if she refuses, she is dismissed.

If the manager has doubts about whether an employee is pregnant, he has the right to demand confirmation (quarterly). If the employer refuses to provide medical documentation, there are grounds for terminating the employment relationship on his initiative. At the same time, the woman’s disagreement to prove her pregnancy must be officially recorded : this may be necessary in court proceedings.

Procedure

Submitting an application

Art. 80 of the Labor Code of the Russian Federation provides that termination of an employment contract at the employee’s own will occurs only on the basis of his written application. Therefore, the first step towards dismissing a pregnant employee is to submit this application to her (we talked about how to dismiss a pregnant employee legally here). The document can be submitted:

1. To the HR department of the enterprise.
2. The head of the structural unit in which a woman works.
3. Directly to the head of the entire enterprise or personally to the individual entrepreneur.

The specific filing procedure is determined by local regulations in force at the enterprise.

According to Art. 80 of the Labor Code of the Russian Federation, when dismissing at one’s own request, the rule of two-week “working off” applies. This means that the 14-day period begins to run from the day after the application is submitted. It is given to the employer to find another employee to replace the quitting employee.

At the end of this period, the pregnant woman has the right to end her working activity: on the last day of the term, all her relations with the employer are terminated.

The warning period established by Art. 80 is not mandatory - termination of the employment contract may occur earlier. But although the employer has the right to fire a pregnant woman without working time, she is not obligated to do so - labor legislation does not contain such a condition.

If the head of an enterprise or individual entrepreneur does not give his consent to early dismissal, even a pregnant woman will have to work out the entire notice period.

Important! However, if a woman is placed on confinement before maternity leave or is in a medical institution for other reasons, she has the right to demand termination of the employment contract within the period set by her, since she does not have the opportunity to continue to fulfill her duties.

Preparation of personnel documents

After the application has been submitted to the employer, the following documentation is completed:

1. Order of dismissal in form No. T-8 or T-8a. It indicates the basis for dismissal (own desire) and the article of the Labor Code of the Russian Federation on the basis of which the dismissal is made (Article 80). The employee gets acquainted with the order by signing it.
2. Certificate of earnings for the last 2 months. It is issued along with the work book.
3. Entry into the work book. It is carried out in strict accordance with the order.
4. Calculation note (Form No. T-61) for payment to the employee of all funds due to her.
5. Certificate of information sent to the Pension Fund (clauses 2 – 2.2 of Article 11 of Federal Law No. 27-FZ of 04/01/1996).
6. Entry in the employee’s personal card (form No. T-2). The employee also gets acquainted with the recording by signing it.

All of the above standard forms are used if the enterprise has not developed its own forms. This right has been in effect since 2013. However, most organizations still use standard forms approved by the State Statistics Committee of the Russian Federation in 2004.

Calculation and issuance of a work book

On the last day of work, the employee must be paid all the money that she has earned but has not yet received. In addition, a work book is issued on the same day.

If the employee did not work on the last day of the employment contract, she will receive the money the next day after she requests payment.