The nuances of dismissal
Many employers are biased towards their pregnant employees. This is due to their long stay on maternity leave, as well as subsequent difficulties that arise for workers with children. To avoid possible discrimination, the labor rights of pregnant women are reliably protected, including the right to retain their job.
Current legislation contains an extremely limited list of grounds on which an employment contract with a pregnant woman can be terminated.
It is also useful to read: For what period are employment contracts concluded?
When can you fire a pregnant woman?
There are quite a few grounds for termination of a contract, but they can all be combined into two groups depending on whose initiative it is. Thus, it should be noted dismissal at the initiative of the employee and at the initiative of the employer. In addition, the legislation identifies a third group of grounds that do not depend on the will of both parties to the labor relationship.
Thus, it is allowed to dismiss a pregnant employee on her own initiative. However, it should be noted that this initiative must be an expression of the will of the employee himself. If an application for resignation of one's own free will is submitted under duress, then it may be considered illegal, and the perpetrators will bear varying degrees of responsibility.
Reference! To dismiss a pregnant woman at her own request, all she needs is a signed statement.
In addition, the law allows for the dismissal of an employee who is expecting a child if an agreement is reached between her and the employer. Moreover, in this case, such an action is considered legal only when the woman actually has the intention to quit.
The list of grounds, including dismissal under the article for which a pregnant woman is dismissed at the initiative of the organization’s management, is extremely limited.
Among them, only one should be highlighted - the liquidation of an organization and the termination of activities by an individual entrepreneur. In other words, in cases where the employer ceases all activities and ceases to be an economic entity. However, dismissal on this basis requires the implementation of many formal procedures by the company's management.
In addition, a pregnant woman can be dismissed in cases where she performs her duties on the basis of a fixed-term employment contract, replacing the main employee, if it is impossible to transfer her to another job at the time of his departure. However, the employer has the obligation to offer the pregnant employee all possible vacancies and only after her refusal to formalize the dismissal.
Liquidation of the company
The only case that provides for the dismissal of a woman expecting a child without her consent is the liquidation of the organization. If she is already on maternity leave, the dismissal will still happen. A mandatory condition is a written warning. It is made two months before settlement. The woman must read the document and sign.
Attention
If only a branch of an enterprise closes, the pregnant woman is offered work in other branches or in the central office. If she is not satisfied with this, a settlement is made.
When an employer does not have the right
In all other cases, it is impossible to fire an employee who is expecting a child. This feature should be examined in more detail, since many expectant mothers are poorly aware of their rights, which is taken advantage of by unscrupulous employers.
Here are the most common grounds for terminating employment relationships with employees where the employer’s initiative is present.
- Staff reduction. If a pregnant woman’s position is subject to reduction, the employer is obliged to either maintain the job or offer the employee a different position. It should be noted that the nature of the work should not have medical contraindications.
- Violation of labor discipline . Even if a pregnant woman violates labor discipline, including absenteeism, it is impossible to fire her. However, it is permissible to apply disciplinary measures, the list of which is contained in the Labor Code of the Russian Federation.
- Expiration of the employment contract . If by the time the employment agreement expires the employee is in a “situation”, then she cannot be fired. In this case, the employer is obliged to keep her job until the end of her pregnancy or maternity leave, if the woman has received an application for the corresponding leave. However, during the entire remaining period of pregnancy, the employee is obliged to provide management with certificates confirming that she is pregnant.
Attention! Additional labor guarantees are provided to a woman only if the fact that she is expecting a child is confirmed by a certificate from the antenatal clinic. If a pregnant woman does not provide such a document, then she may be dismissed on any of the grounds presented above, regardless of the fact that she is actually expecting the birth of a child.
Absenteeism during pregnancy
The legislation protects the rights of pregnant workers so much that some unscrupulous people consider themselves entitled to take advantage of it. It is clear that pregnancy is a difficult period from all points of view. It may be accompanied by poor health, chronic fatigue, weakness, nausea, etc.
This is also important to know:
Dismissal of the CEO: options
Expectant mothers enjoy such privileges as:
- visiting an antenatal clinic during working hours without loss of wages or risk of dismissal;
- the possibility of not showing up for work due to poor health with impunity;
- changing the work schedule according to a more convenient scenario (shorter shift, transfer to easier work, etc.);
Situations are often made public when an enterprise illegally fired a pregnant woman, thereby violating her rights, and she, with self-esteem, is forced to restore justice in court. Stories about pregnant violators are much less common.
There are special cases when a woman, being pregnant, simply stops showing up at work without explaining the reasons or providing any documents.
In practice, there are examples where such absenteeism lasted from the beginning of pregnancy until childbirth. Then the unscrupulous employee appeared at the enterprise with a child’s birth certificate and an application for leave to care for him. The situation, of course, was outrageous, but the management had no choice but to grant leave according to the law. It is clear that after the end of the specified period, no one will continue to cooperate with such a person.
Using your position as a guarantee against dismissal under any circumstances is not the best solution.
Yes, according to labor law, an employer does not have the right to fire a pregnant woman on his own initiative, but if the case is out of the ordinary, he may well:
- All absences from work should be reflected in the timesheet, thus paying wages only for hours or days worked. Without any documents confirming absence for a valid reason, this method is quite reasonable. If a reason for absenteeism is provided, such as sick leave, naturally, everything will be paid for by recalculation next month.
- To deprive the bonus for such an attitude towards official duties.
- Dismiss such an employee under the article after childbirth and maternity leave.
When skipping work hours, you should not lose sight of the fact that the amount of income during pregnancy, or rather, its average value, directly affects the amount of child care benefits.
Dismissal procedure
The procedure for terminating employment relations is regulated by law. It involves a series of actions on both sides. Let's take a closer look.
Upon liquidation of an enterprise
Liquidation of an organization, which involves the complete cessation of the economic activities of a legal entity, is one of the few legal grounds on which a pregnant woman can be dismissed.
Thus, the employer’s obligation in this case is to notify the employee in writing. It must be carried out no earlier than 2 months before the expected date of closure of the enterprise. Notification is a mandatory procedure prescribed by the Labor Code. In this regard, the employer must have confirmation that the employee has been notified. This circumstance is confirmed by his handwritten signature in the order.
At your own request
If a pregnant employee decides to resign, then a corresponding application is required from her, which is submitted to the personnel service.
Based on it, upon expiration of the established period, the organization issues an order, according to which the employee is released from performing labor duties. After this, a full settlement is made with him, and a work book and other documents upon request are issued.
Termination of the contract by agreement of the parties
In some cases, dismissal is allowed if there is mutual will of the parties. In this case, an appropriate agreement is drawn up between them. It may reflect the remaining term of employment, compensation payments and other nuances.
Reduction
If the staff at an enterprise is reduced, this does not affect expectant mothers. But the pregnancy needs to be confirmed. For this purpose, a certificate is obtained from a medical institution. Mere appearance is not a basis for having a legal defense.
If the necessary document is available and the position in which the pregnant woman works is reduced, she is selected for another type of activity that corresponds to her position. If this is not possible, she continues to work in her place.
Read more about reducing maternity positions here.
When training is required
In cases where an employee resigns on his own initiative, there is a special procedure for notifying the company's management of his decision. So, the employee is obliged to notify about this no earlier than 2 weeks in advance.
Important! If the employee is on probation, then this period is 3 days.
This rule also applies to pregnant women. Thus, an employee who is expecting a child is required to work no more than 2 weeks after the decision is made and the application is submitted.
When terminating an employment contract by agreement, the period of “working off” is set individually, and in some cases it may be completely absent.
In contrast, when a company is being wound up, the duty of notification lies with the employer. However, if a pregnant woman decides to quit before the deadline, the organization’s administration cannot prevent her.
It is also useful to read: Fixed-term employment contract
Agreement of the parties
An agreement between the parties is a process in which the employer and the dismissed woman come to a common opinion on the following issues:
- settlement date;
- amount of monetary compensation;
- other points important for both parties.
Everything that the parties agreed on is indicated in the official document that they sign. It is created in two copies. One remains with the manager, the second - with the dismissed person.
Important
In this case, the duty of the pregnant woman is to submit an application for settlement, indicating the reason - the agreement of the parties.
Responsibility for illegal actions
The rights of a pregnant woman to work are extremely closely protected by the state, therefore, for their violation, not administrative, but criminal liability is provided. Thus, for such an act as the unjustified dismissal of a woman who is expecting a child, Article 145 of the Criminal Code of the Russian Federation provides for punishment. It is not associated with the deprivation of liberty of the guilty person, suggesting such a measure of influence as compulsory labor or a fine.
Responsibility under this article is provided not only for the dismissal of a pregnant woman, but also for the unlawful termination of a contract with a woman who has a child under three years of age. In addition, an unjustified refusal to hire a woman due to pregnancy is included in a separate section.
Also, an unscrupulous employer may suffer material losses from unlawful dismissal. So, if it is declared illegal, the pregnant woman will be reinstated at work, and the organization will be obliged to pay her wages for the entire period of the unlawful removal.
Is it possible to fire a pregnant woman if the contract prohibits pregnancy?
Sometimes, when hired, employees sign a contract that stipulates certain conditions for future work.
But all of them should not contradict current legislation. An employee can sign a document prohibiting pregnancy and her subsequent maternity leave. This condition is classified as an illegal requirement and has no legal force. An employer can respond to a woman’s pregnancy with a fine, dismissal, or separately note in the paper that in the event of an interesting situation for a certain period (for example, 2-3 years), the employee will not be paid for maternity leave. Even if a woman agrees to the conditions put forward and her signature is on the document, she can refute the contract at any time, because it is against the law. If the manager decides to fire a pregnant woman, she can safely file a complaint with the labor commission, which will solve the problem.
An employer does not have the right to demand that a pregnant woman leave her position because of her position.
Payments
The size and nature of payments directly depend on the grounds on which the employment contract is terminated.
So, when leaving at her own request, an employee can receive payment in terms of wages, as well as compensation for unused vacation.
If there is an agreement between the parties, then it may stipulate additional payments upon dismissal . However, in practice this rarely happens. As a rule, everything is limited to wages and compensation for vacation.
And only if the company is liquidated can the employee count on decent compensation. Thus, all employees of an organization that is ceasing its activities are entitled to additional severance pay, which is calculated based on average monthly earnings.
