Dismissal as a forced measure
In case of staff reduction, when the position occupied by a pregnant woman is abolished, the employee cannot be fired either. Actions fall under Art. 261 of the Labor Code of the Russian Federation , when at the initiative of the employer it is impossible to issue a work book, but only to provide the employee with a new job within the organization.
Important! A woman in this position can be dismissed from her job only upon liquidation of the enterprise. In fact, she has nothing to offer, since legally the company does not exist.
It is prohibited to influence a pregnant employee psychologically with the help of dummies, threats, or blackmail. These actions already fall under the Criminal Code of the Russian Federation and under Art. 145 , the director faces a fine in the amount of official monthly earnings (or minimum wage) for 1.5 years. When there are no funds, the punishment is replaced by 360 hours of correctional labor.
It is impossible to create unbearable working conditions, although in practice it is enough to comply with the regime requirements:
- come to work no later than the established time;
- leave strictly minute by minute;
- prohibit “smoke breaks” and tea outside the lunch break;
- ask for a progress report.
In fact, the employer does not have to do anything reprehensible or illegal. It’s rare that a pregnant woman working in a serious company can cope with the dress code and avoid the stress, anxiety, and pressures that previously existed in her job responsibilities.
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Employer's liability for illegal layoffs
Article 145 of the Criminal Code of the Russian Federation qualifies illegal actions of the directory, which are aimed at terminating working agreements with pregnant or maternity workers. Sanction:
- corrective labor.
If the court found the layoff of a pregnant woman illegal during a staff reduction, then she must return to her duties and receive compensation for forced temporary unemployment.
The only reason for canceling the punishment is the manager’s ignorance of the woman’s interesting condition. That is, the person did not have a motive to terminate the employment relationship with the person subject to additional social protection.
This is important to know: Application for dismissal by agreement of the parties
When there is no work
You cannot fire an employee just by reducing your position. She can be transferred to a similar job (only with her consent and application of Part 2-3 of Article 72.2 of the Labor Code of the Russian Federation ) or with the provision of favorable working conditions. An exception is the situation when an early employee was hired temporarily under a contract, for the duration of another employee’s vacation or at the time of maternity leave.
Then the relationship with the company ends with the end of the contract, but not completely - she is required to announce a list of possible vacancies, and only when she herself refuses all of them can the employer consider himself to have complied with labor laws and fire the pregnant woman.
Complete liquidation of an enterprise means the layoff of all employees without exception. As a legal entity, the company ceases to exist, the office (production) is closed permanently.
A pregnant woman is dismissed on general grounds, namely:
- she is notified 2 months in advance and must be signed ( Article 180 of the Labor Code of the Russian Federation );
- average monthly earnings are calculated for a period of 2 months from the date of liquidation (compensation for the period of searching for a new job), with the exception of seasonal work, here the compensation period is calculated from 2 weeks of average earnings.
Important! Do not confuse the two concepts - salary and average monthly salary, these are completely different amounts. In addition, if a woman is officially hired at a quarter rate or her “white” salary is small, there is no need to expect significant payments.
If the rights of a pregnant woman are violated
Retrenchment of a pregnant woman may end in court
In the event of a minor violation of the Labor Code by the employer, it is best to seek protection of rights from the Federal Labor Inspectorate of the Russian Federation. Within a month from the date of application, they are required to go to the employer for a targeted check.
In case of significant violations of the procedure, which provides for staff reduction, when a woman is pregnant (her illegal dismissal), the Labor Code provides for the consideration of disputes by a special commission on labor disputes. It is formed within the organization, consisting of an equal number of employees and employers.
Expert opinion
Novikov Oleg Tarasovich
Legal consultant with 7 years of experience. Specializes in criminal law. Member of the Bar Association.
In addition, you can always go to court to restore justice. For dismissal of a pregnant woman without sufficient grounds, the administration and the employer may be held liable - administratively or criminally.
This is important to know: If a part-time worker quits his main job
When there is a successor
You should not try to fire a pregnant woman by manipulating the legal status of the company during the reorganization of the enterprise. Any merger of subsidiaries with the parent corporation is not considered a dissolution, nor is a succession in title.
If it is renamed on paper to “Cornflower”, but the greenhouse remains intact, with premises, equipment and employees, even if their positions are now called differently, the pregnant woman must be automatically enrolled in the new-old branch.
Important! According to Art. 261 of the Labor Code of the Russian Federation, it is permissible to independently write an application demanding the provision of a workplace. Even being on probation under Art. 70 of the Labor Code of the Russian Federation does not apply to pregnant women.
Elimination of positions
In a situation where the company’s management does not get rid of the number of employees, but permanently eliminates the positions they occupy, the position of a pregnant employee does not play into the company’s hands.
According to the law, there is no difference between the grounds on which a pregnant woman is fired .
If the initiative comes from the management of the company with a documented fact of pregnancy, this is in any case illegal, and such an act is subject to criminal liability.
The best action for the boss would be to offer the employee a request to transfer to another position. By law, the company is obliged to provide her with a place that will be no worse than the previous one.
But you can reach an agreement and, without formally dismissing the employee, significantly reduce the costs of her maintenance . If this fails, you will have to leave the position exclusively for this employee until her pregnancy expires. After this, the position can be safely eliminated.
This is important to know: Can an employer fire you from a job without reason?
First steps of a pregnant woman
Proof of an interesting situation will be a certificate from a gynecologist. From the moment it is provided to the employer, dismissal and layoff of a woman will become impossible. State protection from unauthorized actions of the director is guaranteed under Art. 261 of the Labor Code of the Russian Federation for all women at any stage of pregnancy. Even when the fact of theft of company property is established or there is chronic absenteeism!
Important! In cases where the decision to reduce the position occupied by a woman was made several months in advance, this does not change the matter. The idea is automatically canceled, and management will have to reconsider its plans.
A special fact is that a woman receives protection from contractions from the day she becomes pregnant. Not from the moment she found out about it or reported it to management, but from minute X, when conception occurred.
It will be more difficult in the case where the employee has already received notice of layoffs and signed while not yet pregnant. Then the first thing you can do is go to the director with Article 261 of the Labor Code of the Russian Federation , but if he firmly decides to stand his ground, go to court.
The expectant mother is almost untouchable
Dismissal of a pregnant woman due to staff reduction is possible only upon liquidation of the enterprise
And indeed it is. If a pregnant woman works under an employment contract with an indefinite term, then she belongs to one of the categories of citizens most protected from almost any dismissal. According to Article 261 of the Labor Code, initiated
Termination of a contract with a pregnant woman by an employer is unacceptable. The exception is cases of liquidation of an organization or termination of activities by an individual entrepreneur.
Guarantees when working conditions change
According to Article 74 of the Labor Code, with significant changes (structural, organizational, etc.) occurring in the organization, the terms of the employment contract can be revised. That is, with significant changes taking place at the enterprise, working conditions, pay, and work hours may be changed for individual employees. Moreover, if the threat of staff reduction or staff reduction looms over the organization, then the employer can switch to forced measures: introducing a part-time working week (day) for no more than 6 months, transferring to another position.
In this case, the administration is obliged:
- justify in detail all upcoming innovations, put them in writing and inform the employee no later than two months before the start of the changes>
- if the employee expresses her disagreement with the innovations, the employer must offer an existing vacant position, while demotion of a pregnant woman due to staff reduction is possible only with the consent of the employee herself.
If there is no alternative, dismissal occurs. However, it is impossible to lay off a pregnant woman, or one who is on maternity leave, has children under three years of age, and is raising a child on her own (single mother)!
So what's going on? The employer notifies employees of upcoming changes. A woman belonging to a preferential category does not agree with these changes. The employer cannot fire her...>
Unfortunately, this point is not clearly stated in the legislation. If you follow the letter of the law, the employer is obliged to leave the “beneficiary” under the same working conditions. But will a woman want to aggravate her relationship with her employer? Maybe it's better to resign due to redundancy?
Guarantees for pregnant women under threat of dismissal
Dismissal of a pregnant woman due to staff reduction is possible with the consent of the expectant mother
In Art. 261, part 1 of the Labor Code contains a ban on the employer’s dismissal of a pregnant woman due to staff reduction or other reasons. This is in some way a labor benefit aimed at supporting motherhood and childhood.
This increased protection is aimed at preventing possible discriminatory actions by unscrupulous employers. Yes, there are also those who seek to avoid the need to provide women with maternity leave, child care, and other guarantees and benefits provided for by law. At the same time, for a pregnant woman, finding a job is extremely difficult, since employers are reluctant to provide work to this category of applicants.
Some nuances that may arise in connection with such circumstances:
- Whether the employer knew about the pregnancy of the dismissed employee at the time of making the decision to reduce staff does not matter. This circumstance does not affect compliance with the guarantees provided by law when dismissing pregnant women at the initiative of the administration.
- The ban on dismissal or layoff of a pregnant woman does not depend on the employer’s knowledge. Even if an employee found out about her pregnancy after signing a notice of dismissal due to staff reduction, and provided the administration with a medical certificate that confirms the state of pregnancy, the employer cannot fire her.
- If the dismissal has already taken place, then after providing such a certificate the employee must be reinstated. However, before making a decision, the administration must make sure that the period of pregnancy indicated in the certificate confirms its presence on the date of dismissal due to staff reduction.
The implementation of guarantees and benefits provided by the Labor Code to employees must comply with the general legal principle of the impossibility of abuse of their rights by employees. That is, if at the time of dismissal from a pregnant woman’s job she knew about her pregnancy, but hid this fact from the administration, the employer formally has the right to refuse to reinstate her at work.
The question of whether layoff notices are given to pregnant women has a negative answer, since a pregnant woman cannot be fired due to staff reduction.
Employer action
It is known for certain that for small companies, maintaining a pregnant employee costs a pretty penny. It is much cheaper to liquidate the company, assign it a new legal status and re-hire suitable employees. This is what unscrupulous managers take advantage of due to the legal illiteracy of pregnant women and the fact that rarely anyone dares to sue.
You can reach an amicable agreement and create a position exclusively for a pregnant employee until maternity leave, and then liquidate it. In large corporations, you can transfer a woman to another branch or structural unit.
Pregnancy is always associated with absenteeism, constant visits to doctors, and in severe cases, being kept in hospital. As a good employee for the company, the pregnant woman is lost. Recording the time of absence from the workplace, failure to complete tasks, mistakes that entail financial losses for the enterprise, will make it possible to enter comments in the work book, deprive of bonuses, pay only the official (white) salary or reduce its level.
All these actions are actually legalized harassment of a pregnant employee; it is very difficult to prove the psychological effect on her in court. Therefore, the woman herself prefers to resign due to redundancy and preserve her health and her unborn child.
Can a pregnant woman be demoted and have her salary reduced?
I also want to say a few words about overtime work and night work. Indeed, on the basis of Article 99 of the Labor Code of the Russian Federation, the employer does not have the right to involve pregnant women in overtime work, and the employer also does not have the right to involve pregnant women to work on weekends or send them on business trips. Pregnant women should not be recruited to work at night from 10:00 p.m. to 6:00 a.m. Many working pregnant women are interested in the question of whether the employer can demote them in position, because many are not only demoted, but also have their wages cut due to the reduction. Let's take a look at the law together and see if such actions by the employer are legal?
Life situations
Despite the categorical statements of lawyers about the impossibility of reducing a woman at any stage of pregnancy (and during maternity leave for 3 years), Law 261 of the Labor Code of the Russian Federation does not always work. That is, it does not contain clear instructions on what to do if the employer, following the letter of the law, reduced staff, provided options for other positions, but the woman did not give her written consent, wanting to remain working under the same conditions and salary.
In essence, this is a direct conflict that puts both the woman at a disadvantage (stress is harmful for the child) and the director, who cannot give the employee something that actually does not exist. Here the right remains to resolve the situation amicably, to negotiate privately.
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Is it legal to reduce wages during pregnancy?
If we talk about overtime work, as well as work at night, then, based on Article 99 of the Labor Code of the Russian Federation, the employer has absolutely no right to involve pregnant women in overtime work. He also does not have the right to involve pregnant women in work on weekends or send them on business trips. Women should also not work at night. There is no justification for the demotion. It makes absolutely no difference whether a woman is pregnant or not. Article 72 of the Labor Code of the Russian Federation clearly states that only by mutual agreement is any change in the terms of the employment contract possible. And it must certainly be compiled in writing. To demote for various reasons, including pregnancy, the employee as well as the employer must come to a common agreement, and then draw up and sign a specific document.
