Article 261. Guarantees for a pregnant woman and persons with family responsibilities upon termination of an employment contract

06.06.2019

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6 min.

The rights of pregnant women and women with children under the age of 14 are clearly protected by the norms of the Labor Code of the Russian Federation. The main goal of legislatively establishing high-quality social protection for a specific category of citizens is to guarantee the right to work for women bearing and raising children, since they cannot compete on equal terms with other people in the free labor market.

This article examines in detail the provisions of Art. 261 of the Labor Code of the Russian Federation, regulating the ban on dismissal of pregnant women except for special circumstances, and also spells out the permitted mechanism for terminating a contract with subsequent employment at another enterprise. There is no need to contact a consultant.

Under what articles of the Labor Code can the persons specified in Art. 261 TK?

Workers named in Art. 261 of the Labor Code, except pregnant women, can be dismissed on some grounds presented in Art. 81 TK:

• clause 5, part 1 – for repeated failure to fulfill duties;
• clause 6, part 1 – for gross violation of labor discipline, even once;
• clause 7, part 1 – for guilty actions of an employee servicing commodity or monetary assets, which resulted in a loss of trust;
• clause 8, part 1 – for committing an immoral act by an employee performing educational functions;
• clause 11, part 1 – for false information provided during employment.

In addition, the provisions of Art. 81 Labor Code, providing for special responsibilities for management.

More about dismissals under Art. 81 of the Labor Code, find out: “Termination of an employment contract at the initiative of the employer .

Law protecting the right to work of pregnant women and people with family responsibilities

It is important for the employer to understand that ignorance of the laws does not exempt them from responsibility for failure to comply with them, and workers must know that they have legal mechanisms to protect their rights, in particular in court.

Many employers extremely dislike the situation when a pregnant woman works at the enterprise, since her social status requires special protection and guarantees.

The essence of Art. 261 Labor Code of the Russian Federation

Article 261 of the Labor Code of the Russian Federation contains norms that regulate the following points:

• As a general rule, employment contracts with pregnant women cannot be terminated (except for fixed-term ones, but they also have their moments).
• There are specific general situations when dismissal is inevitable.
• Termination of an employment contract by agreement of the parties and at the request of the employee is permitted on a general basis.

As a rule, some employers take advantage of the opportunity indicated in the last paragraph and use methods of psychological pressure on the woman. They believe that she will not withstand the press and will write a letter of resignation of her own free will.

The main goal of this behavior by management is quite clear: not to pay for help. Plus, few people want to look for new employees to fill the position during the maternity leave of the main employee. Therefore, it is better for such managers to get the pregnant woman fired and hire a new person without the threat of going on maternity leave.

You can and should fight such pressure. Firstly, do not leave of your own accord. Well, and secondly, if they were forced, all the facts, including those about working night shifts (preferably with evidence), should be stated in a statement of claim, which is submitted to the court.

Exceptional situations

The Labor Code says the following about the rights of pregnant women to work: they are limited to points that, in fact, do not depend on the will of the employer. This refers to exceptional cases, such as:

• expiration of the employment contract;
• liquidation of the enterprise;
• self-care;
• dismissal by agreement of the parties;
• gross violations of discipline and other aspects of work activity on the part of the employee.

Each of the above points will be discussed below in more detail, so that pregnant women and those planning to have children in the near future are more “savvy” from a legal point of view and know Russian laws.

Liquidation of the enterprise

The liquidation of an enterprise is a mass dismissal of employees, so the employer (legal entity or individual entrepreneur) has no opportunity to keep a woman who is preparing to become a mother at work. Algorithm for terminating an employment contract with an individual, in accordance with the provisions of Art. 180 of the Labor Code of the Russian Federation, in this case it is as follows:

• Notification of all employees at least 2 months (3 days - for an employment contract for a period of up to 60 days, a week - if the contract is concluded for a season) before the expected date of termination of the operation of the enterprise. The citizen puts his signature on the notification. If the employee refuses this, then an act is drawn up, which is endorsed by several people, including the head of the company’s liquidation commission.
• Carrying out full settlements with employees. This means the following: payment of wages in full;
• transfer of severance pay in the amount of average monthly earnings for the position for the last 6 months.

It is important to know! In the future, the number of payments from the employer may increase if the person fails to find a job in the shortest possible period.

• Familiarization with the dismissal order on the day of termination of legal relations.
• Issuance of completed work books in accordance with the norms of the law (an exact record indicating the number and date of the order, with the company’s seal affixed and the signature of the head of the personnel service).

Expiration of the contract term

Until 2015, according to the provisions of Art. 261 of the Labor Code of the Federation, the situation was regulated as follows. If the period of validity of a fixed-term employment contract ended before the birth, in this case a new contact was concluded. The pregnancy certificate indicated the approximate date of birth of the baby, which was the final date of the legal validity of the contract.

The day after the birth of the child, the head of the enterprise received every right to dismiss the employee, since the term of the agreement had come to an end. If the order was not signed within 7 days, then the contract was converted into an open-ended one. All the rules of the Labor Code of the Russian Federation that relate to such contracts began to apply to him.

According to the norms of Federal Law No. 201 of June 29, 2015, the contract period is now extended until the end of maternity leave. Let us remind you that the standard duration of this period is 70 days before birth and 56 days after it, but in case of complications, another 14 days are added to restore the health of the mother and child.

There is one, but very important exception to the rule: registration of a pregnant woman during the absence of the main employee (vacation, sick leave). After the employee returns to work, the boss studies the possibility of transferring the woman to another vacancy suitable for her condition and pay level.

Gross violations of labor activity

Providing information on this issue is possible only with a clear understanding of what gross violations are. According to the provisions of Art. 81 of the Labor Code of the Russian Federation, these acts include:

1. Failure to fulfill job duties for a long period without good reason.
2. Absenteeism.
3. Theft of material assets.
4. An immoral act of persons performing educational work (regardless of the place where it was committed).
5. Wrong decision of the head of the company or enterprise.
6. A single fact of failure to fulfill duties by a manager or chief accountant.

Usually such situations end in dismissal. But if a pregnant woman becomes a participant, then termination of the employment contract is unacceptable for the following reasons:

• These norms are not spelled out in Art. 261 of the Labor Code of the Russian Federation, which provides special increased benefits to pregnant women.
• Such dismissal is contrary to the provisions of Art. 4 and art. 11 of the Convention on the Elimination of All Forms of Discrimination against Women, adopted on 10/18/1979.

Of course, management cannot ignore facts of violations, so the following types of sanctions may be applied:

1. Rebuke.
2. Recording the fact of absenteeism in the report card with subsequent non-accrual of wages for the day.

If there is disciplinary liability in the form of a reprimand, the employee is deprived of the right to receive incentive bonuses and cannot be promoted.

Attention! In no case is it permissible to dismiss an employee for the following reason: if he has not passed certification in the current year.

Self-care

Termination of a contract at will is regulated by the Labor Code of the Russian Federation. Pregnant women are calculated according to the traditional algorithm, namely:

1. Writing a resignation letter at least 2 weeks before the expected date. The period may be reduced if a person enters an educational institution for training, moves to another city, or another event that interferes with the performance of work duties.
2. Review and approval of the application by the employer.
3. Drawing up and signing a dismissal order.
4. Carrying out a full settlement with compensation for unused vacation.
5. Receipt of a work book by an employee.

At the same time, the law gives the employee the right to withdraw the submitted application and continue to work on a general basis, but this can only be done until the date of dismissal.

Maintaining salary levels when switching to light work

Norms Art. 254 of the Labor Code of the Russian Federation provide for the possibility of transferring pregnant women to lighter work or reducing their production plan standards under the following conditions:

• Availability of relevant medical indications.
• Providing a medical certificate from a doctor indicating specific requirements. This document may state that a person is contraindicated from working at a computer or at night.

At the same time, according to Decree of the Government of the Russian Federation No. 922 of December 10, 2016, the average earnings for the calendar year before the date of temporary transfer to another position are maintained.

What is the employer's procedure if the employment contract with a pregnant employee has expired?

The employer is obliged to extend an expiring fixed-term contract if the employee has requested this in writing. The period is extended at least until the end of pregnancy. At the same time, since, according to the established procedure, the employer is also obliged to provide the employee with maternity leave (Maternity leave), the contract is legally extended immediately until the end of the Maternity leave. In this case, the employer may require confirmation of the employee’s condition by providing her with relevant medical documents.

For details on concluding fixed-term employment contracts, see: “We are drawing up a fixed-term employment contract - sample for 2021. ”

Dismissal of a pregnant woman during liquidation of an enterprise

Liquidation of an organization or termination of activities by an individual entrepreneur (IP) is the only exception to the general rule prohibiting the dismissal of a pregnant employee at the initiative of the employer.

This is understandable. Indeed, in this case, the organization or individual entrepreneur has no other choice, because All employees are fired.

When liquidating an enterprise, the employer must warn pregnant women about the upcoming dismissal two months before this event. However, with your consent, the employment contract can be terminated before the expiration of a two-month period only with the written consent of the employee. In this case, the employer must pay you additional compensation (Part 3 of Article 180 of the Labor Code of the Russian Federation).

There is one subtle point here that is useful to know about. The organization is considered liquidated from the date of making the corresponding entry in the Unified State Register of Legal Entities. Therefore, if the date of dismissal of a pregnant woman is earlier than the date of entry in the Unified State Register of Legal Entities, the court may declare such dismissal illegal.

How can an employee confirm that he belongs to persons who have guarantees under Art. 261 TK?

Usually, if the organization has established personnel and accounting records, then the employer already has information about the presence of children and marital status. And he is obliged to take it into account, for example, when preparing cuts.

However, in a difficult economic situation, it would be useful to play it safe and transfer to the HR department (or the person responsible for personnel records) copies of additional documents confirming the right to use the guarantees under Art. 261 TK. For example,

• certificate of a large family;
• a certificate from the Employment Fund and an extract from the spouse’s work record book (if the second spouse does not work);
• a certificate from the medical and social examination bureau confirming the child’s disability, etc.

You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

Working conditions for female workers at risk due to pregnancy

Working conditions for pregnant women

As soon as the employee provides the manager with a medical certificate confirming pregnancy, new rules begin to apply to her.

The first thing the employer is obliged to do is transfer her to “light work,” which is provided for in Article 254 of the Labor Code. If this is not done, the employee has the right to go to court, and the law will be on her side.

A document from a medical institution serves as a reason to reduce production standards for an employee. If the work involves harm to health, the employee must be transferred to another place of work. Regardless of the changes that have occurred, average earnings must be maintained.

After providing a certificate, if there is a need to transfer a pregnant woman to another place, the time of making a decision and the woman’s temporary idleness do not affect her salary. Average earnings remain the same.

If an employer has difficulties in resolving this issue, he can rely on the “Hygienic Recommendations for the Rational Employment of Pregnant Women” issued in 1993 by the State Committee for Sanitary and Epidemiological Surveillance of the Ministry of Health.

This document is intended for all types of organizations and is the basis for monitoring how the work and leisure of women expecting a child proceeds.

Pregnant employees, after providing management with a medical certificate, must be transferred to easier working conditions, while their average salary remains unchanged even in case of downtime.

Refusal to hire

The rights of expectant mothers begin to be protected at the employment stage. In particular, an unreasonable refusal to hire can cause quite serious troubles for the employer, including criminal liability. But to do this, you need to defend your position, which is much easier to do with the help of a labor lawyer.

A refusal is considered unreasonable when the employer is ready to hire another specialist with the same qualifications, comparable experience and other characteristics. Or when the requirements for a vacancy are described in great detail in the advertisement, the pregnant woman fully complies with them, but they still do not agree to hire her. To defend your position in court, it is highly advisable to take written confirmation of the refusal. But the fact itself can be proven with the help of audio or video recordings. Witness testimony is also accepted.

What can a woman count on in such a situation? Firstly, if the refusal is found to be unfounded, she will be paid compensation. Secondly, they will be required to hire her. Finally, the company's management will be punished for violating the law (large fine or correctional labor).

Please note that a woman has the right not to disclose her situation when applying for a job. And one more thing: she doesn’t have to go through a probationary period. That is, such an employee only needs to sign an agreement in order to be hired. And even if the text of the contract contains provisions regarding a probationary period, and the woman has concluded it, this still does not oblige her to anything.

Responsibilities of a pregnant woman

It should be noted that the rights of a pregnant woman do not mean that she has no responsibilities or that they become formal. A woman really cannot be fired, except in the event of liquidation of the enterprise. However, this does not mean that the employer does not have the right to impose other penalties on her. In addition, no one is stopping the company management from depriving such an employee of a bonus.

So the need to stick to your schedule, show up for work on time, and fulfill your responsibilities remains. Plus, don’t forget that maternity leave will end one day, but work will still be needed.

Arbitrage practice

A careful study of judicial practice shows that employers rarely directly violate the prohibition of dismissing a pregnant woman or refusing to provide her with maternity leave. However, there are still plenty of problems.

One of the most common problems is refusal to hire. The employer does not want to bind himself with unnecessary obligations; as a result, he tries to find any excuse not to hire such an employee. Which is a direct violation of the labor rights of pregnant women.

Also, quite often, troubles arise with determining the nature of working conditions. It’s especially difficult to figure this out if there hasn’t been an assessment yet.

It can be difficult for a pregnant woman to understand all the legal subtleties. So, when problems arise, it is best to entrust them to an experienced employment lawyer to resolve them. The participation of the pregnant woman herself in such a situation is minimized. But at the same time she still gets the desired result.