How to fire a pregnant employee for absenteeism: can this be done and how to punish for guilty actions?

According to Russian legislation, expectant mothers are provided with special working conditions, a number of guarantees and benefits. There are no grounds for terminating an employment contract with working women, including the dismissal of a pregnant woman for absenteeism. Despite the severity of the punishment, some managers commit violations and ignore the requirements of the law. One of the main reasons is due to ignorance or incorrect interpretation of legal norms.

Is it possible to fire a pregnant woman for absenteeism under the law?

Truancy is a term that, according to the Labor Code of the Russian Federation, has several characteristics:

• the person is absent from work for more than 4 hours without a valid reason;
• he did not notify his employer in advance of his absence.

Thus, absenteeism is the absence of an employee at the place of work without a good reason and advance warning of this to the employer for more than 4 hours. Absenteeism is a gross violation and is punishable by financial penalties, demotion or dismissal. To document the fact of absenteeism, the employer must draw up a special act, this must be done in the presence of 2 or more witnesses, take explanations from the employee and familiarize him with the dismissal order. If the employee brings the boss a certificate from the doctors, the violation is declared invalid, and the punishment is removed from the person due to illegality. Even a single absence gives the employer the right to part with the employee by dismissing the guilty person. The legislator allows the dismissal of an unscrupulous employee if the employer provides evidence of the staff’s guilt. For example, evidence may include an act of refusal to provide an explanation for absenteeism from the violator, written in writing, or the consent of the culprit with the violation, created in a similar form. It is allowed to fire an employee for absenteeism within six months from the moment his misconduct was discovered. The employer is obliged to prove that absenteeism occurred during the person’s work shift, which is confirmed by the work schedule signed by the employees. That is, during the period specified in the schedule, the employee was not at the enterprise, in its specific division or at the site.

Dismissal for absenteeism is not the only punishment that can befall a negligent employee. In this sense, the legislator gave some right of choice to the employer. He can financially punish an employee, but not fire him. It is difficult to say how correct this is. An employer can take advantage of a personal relationship with a specific person, for example, for the same violation, fire one and punish the other financially. This is probably not entirely fair. If the employer is limited to a reprimand, then it is entered into the work book. If the reprimand was made orally, then without entering it into the work book. A reprimand is issued on the basis of an order or instruction issued by the head of the enterprise. But the employer is obliged to require an explanatory paper from the employee, in which the latter sets out the reasons that prompted him to act in this way: to violate labor laws.

The Labor Code of the Russian Federation has established a number of conditions and guarantees for pregnant women. In particular, at the request of expectant mothers:

• the working day can be reduced to 6 hours;
• PC work time is reduced to 3 hours a day;
• a woman is freed from difficult work, physical exertion, and from working under harmful and dangerous working conditions;
• a woman is exempt from official travel;
• A pregnant woman cannot be forced to work overtime without her consent;
• a pregnant employee has the right to count on annual leave (paid) if her work experience in the organization is more than 6 months.

An employment contract cannot be terminated unilaterally by the employer. Termination of labor relations is possible only with the consent of the parties. A pregnant woman is not deprived of her rights and guarantees even if she violates legal norms. Not for all women this is an incentive to work normally, without violations.

If a woman abuses her position, the employer can impose a disciplinary sanction on her, but a pregnant woman cannot be fired!! This is evidenced by Article 261 of the Labor Code of the Russian Federation, which imposes a ban on the employer from dismissing a pregnant woman.

Is it possible or not to terminate an employment contract with a struggling employee?

It is permissible to terminate an employment relationship with an employee in a position only in strictly prescribed cases by law:

1. At the request of the woman.
2. By agreement of the parties.
3. Upon liquidation of an organization, closure of an individual entrepreneur.
4. When working conditions change that are not suitable for a pregnant employee (for example, when a company moves to another region).
5. If a woman fails to provide an application and a medical certificate about her situation if she is signed up for a fixed-term contract, the validity of which ends during pregnancy. If the employee requests an extension of the contract, the employer undertakes to extend it until the end of the gestation period.
6. Upon termination of pregnancy without childbirth (in case of miscarriage, abortion for medical reasons, etc.). In this case, it is possible to terminate the contract with the woman within a week after notifying the employer of the incident.
7. If the contract was concluded during the absence of another employee who returns to work. At the same time, it is not possible to transfer the employee to another position that would suit her conditions and health status.

In other cases, termination of an employment relationship with a pregnant woman is unacceptable, including due to her committing a disciplinary offense.

If an employee carrying a child was on a probationary period, she cannot be fired due to failure to pass the test.

When informing the employer about her position, the employee is automatically added to the staff.

The employer has the right to regularly require medical documentation confirming the fact of pregnancy. However, the frequency should not exceed 1 time every 3 months. If the employer refuses to provide documentary evidence, 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.

We talked in more detail about the dismissal of a pregnant woman here.

Pregnant women are rarely fired. More often, women leave work after or during maternity leave. Read our articles about the reasons for dismissal during maternity leave, about compensation, about the nuances of terminating a contract at your own request, about the reasons and procedure for dismissal during maternity leave and after leave, as well as about the maternity rate.

Dismissal of a pregnant woman for absenteeism or violation of labor obligations

If Article 261 prohibits a boss from dismissing a pregnant employee for absenteeism, then what should an employer do in this difficult situation? It is necessary to refer to the provisions of Article 192 of the Labor Code, which provides for disciplinary sanctions. They can be applied to a pregnant woman:

• comment;
• rebuke.

Thus, the employer should not turn a blind eye to the unreasonable behavior of his employee, even if she has an “interesting position.” Instead of dismissal, the employer may reprimand or reprimand her. Ladies should understand that reprimands are recorded in the work record book. Pregnancy is a condition that ends after 9 months. Someday a successful mother will need a job. But a female employee who has many reprimands in her work book is unlikely to be needed in a company or enterprise. In addition, a woman may simply not be hired after carefully studying her track record. Therefore, you should not abuse the employer’s patience without good reason. Also, a worker who constantly violates labor standards may be financially punished. For example, the employer may not award her bonuses.

What is truancy

Absence without good reason.

As a rule, the course of pregnancy for each woman proceeds differently, so it is possible to predict whether she will be able to fulfill her duties in full during the first trimester, but on the eve of maternity leave it is impossible to take the same annual leave.

It should also be noted that illness can occur suddenly, which predetermines the likelihood of leaving work in the middle of a shift, without filing a sick leave.

Of course, the first and second time they forgive the employee and go to the meeting, taking into account her condition, but if such behavior becomes the norm, the attitude changes, and the question is raised about officially registering absence from the workplace, which, within the framework of Article 81 of the Labor Code of the Russian Federation, is already absenteeism .

That is, if a pregnant employee leaves work in the middle of her shift and is absent from her place of work for more than four hours or does not show up for work at all for at least one day.

And at the same time, she cannot provide data that confirms the validity of the absence, for example, the same sick leave, her behavior by virtue of the law is regarded as absenteeism, entailing the right to disciplinary action.

Rights and guarantees of pregnant women at work

1. Articles 64, 70 of the Labor Code - stipulate the guarantees that are provided to pregnant women when concluding an employment contract. For example, it is prohibited:
   • deny employment to women for reasons related to her pregnancy;

   establish a probationary period for pregnant women.

When concluding an employment contract, a pregnant woman has the right to the following guarantees and benefits:

• part-time work (the number of hours of work per shift accepted for this category of workers is reduced;
• incomplete week (the number of working days is reduced compared to the week established for this category of workers), the duration of the shift remains the same;
• combination of modes: allowed by labor legislation, while the number of hours of work per shift established for this category of workers is reduced, while the number of working days per week is reduced.

A woman can send a request to the employer with a request to determine a part-time working day for her during employment, as well as in the future if she realizes that a full-time schedule is difficult for her. According to Article 93, Part 1, the employer has no choice but to satisfy the request. Part-time working hours can be determined either without a time limit or at any convenient time.

These are a number of provisions prescribed in the Labor Code of the Russian Federation, prohibiting employers from hiring women in the following positions:

• to work per day, to overtime work;
• to work on non-working days;
• to work on a rotational basis.

According to Article 259, paragraph 1, an employer cannot send pregnant women on business trips. In addition, if a woman expresses a desire that she should

• One of the most important guarantees is the guarantee that the pregnant employee will retain her average salary. The law defines several cases in which the employer is obliged to do this: the period during which a woman in a position performs easier work, despite this, the work must be paid for the previous work, which may be much more difficult;
• the period during which a worker is exempt from work due to the harmful effects of hazardous production factors on her. These days must be paid;
• time of examination in a medical institution (mandatory, dispensary).

Is it possible to punish for absence from work?

Within the framework of the law, the company's management has the authority to choose punishment for a particular offense committed by a full-time employee. A pregnant employee is no exception; she can still be punished for absenteeism, but only under certain circumstances.

During medical examination

A medical certificate is required.

As a rule, from the moment of registration, a pregnant woman undergoes a monthly mandatory medical examination, which includes routine tests and a gynecological examination.

Moreover, these procedures can take from several hours to several days, given that the list of medical measures that a woman must undergo is very long.

In particular, by virtue of Order of the Ministry of Health No. 572n, within 30 weeks a woman must visit the following specialists:

• at least 7 times by an obstetrician-gynecologist;
• 2 times therapist;
• 2 times dentist.

At the same time, with the direction of the leading gynecologist, the employee can be sent to any doctor in case of complications during the process of bearing a child, and this is not to mention routine tests and ultrasounds at least 3 times during the following period:

• 11-14 weeks;
• 18-21 weeks;
• 30 weeks.

That is, in fact, after registration, a woman is obliged to undergo the above-described medical measures, and during working hours, which predetermines the need for her absence from the workplace.

That is why, within the framework of Article 254 of the Labor Code of the Russian Federation, her average earnings for the entire time she visited the hospital are retained, but only if she provides confirmation in the form of a certificate issued by a medical institution.

Thus, if a pregnant employee can confirm her absence with an official document, her actions cannot be called absenteeism and, accordingly, disciplinary measures will not be applied to her.

During treatment

In accordance with the norms defined by Article 183 of the Labor Code of the Russian Federation, a worker with health problems retains not only his workplace, but also his position for the entire period of recovery in a medical organization.

How can a pregnant woman be punished?

An employer has no right to fire a pregnant woman even for absenteeism. If this happens, the pregnant woman has every reason to go to court, the Labor Inspectorate or the prosecutor's office to protect her violated rights. But the employer has the right to reprimand the pregnant woman verbally or in writing, as well as write a reprimand. In any case, the employer’s patience should not be abused. Especially if a woman plans to return to work after maternity leave in the same company.

General position

The rights and guarantees of future mothers are prescribed in Art. 261 Labor Code of the Russian Federation. At work, pregnant women are treated more leniently, but this does not mean that it is permissible to disregard the company’s charter and break the law. An “interesting” situation does not provide grounds for absenteeism and violation of the work schedule without good reason.

If absenteeism occurs, the employer may resort to dismissal. But if an employee believes that his rights have been violated, he has the right to file a complaint with the prosecutor’s office or the labor inspectorate.

Company liability

Some organizations take great risks by breaking the law. According to Art. 145 of the Criminal Code of the Russian Federation, unjustified dismissal threatens the employer with punishment:

• Payment of a fine of up to 200 thousand rubles or 18 times the minimum salary.
• Forced labor for a period of 120 to 180 hours.

There are a number of companies that, when hiring an employee, include in the contract a clause regarding dismissal upon pregnancy - this is an illegal action and can be appealed in court.
Refusal to hire without reason or dismissal in the event of pregnancy provides for penalties for the employer. An employee has the right to apply for protection of his rights within a month from the date of receipt of a copy of the dismissal order or work record book (Article 392, Part 1), to the following authorities:

• The prosecutor's office.
• District Court.
• Labor Inspectorate.

Thus, companies that think they can fire a pregnant woman for absenteeism will be disappointed. But women should also remember that all reprimands are noted in the work record book. Pregnancy has a term that ends after 9 months, and it is possible that the expectant mother will have to look for another job. The presence of many reprimands in the document will negatively affect the decision to accept a new position. It is necessary to approach this issue more responsibly and not test the patience of your superiors if there are no good reasons.

Cases from practice

Keeping a woman in the service is unprofitable.
Sometimes employers take risks and terminate the contract unilaterally. Dismissal of a pregnant woman for absenteeism is not uncommon. However, in court this case is initially lost, and the employee will have to be taken back. Systematic non-compliance with the rules of the Labor Code of the Russian Federation provides grounds for imposing a disciplinary reprimand, but the dismissal of a pregnant woman for absenteeism is illegal. More details about this are written in Article 261 of the Labor Code of the Russian Federation. In conditions that do not allow management to dismiss a pregnant employee, one should refer to Article 192 of the Labor Code of the Russian Federation, which stipulates the main disciplinary penalties: reprimand and reprimand.

The law is on the side of expectant mothers. If an employer independently files an appeal to the court with a request to dismiss an employee who violates her job duties, she may be asked to take leave without pay. The resolution preserves the official employment of the worker with the condition of non-fulfillment of work duties.

Prohibited and permitted reasons for dismissal are presented in the table:

Many workers are interested in the question of at what point can they enjoy pregnancy privileges. There are cases when an employer, having learned about a woman’s situation, tries to fire her before she submits a medical certificate. However, the period for informing superiors about pregnancy does not affect the rights and guarantees of a woman (Article 261).