Reduction of pregnant women

Is it possible to fire a pregnant woman due to staff reduction? In general, it is impossible to lay off a pregnant employee .

Such an action contradicts Article 261 of the Labor Code, in which the first paragraph clearly states the prohibition of dismissing a pregnant woman at the initiative of the employer.

The only case when the law allows the layoff of a pregnant woman is the liquidation of a company and its deletion from the register of legal entities .

Also, under no circumstances should you put pressure on an employee to resign from her position on her own. The law very strictly protects the rights of pregnant workers, not only in terms of dismissal.

If pressure was exerted on a pregnant woman in order to force her to resign, such a case is already regulated by the Criminal Code. Article 145 of the Criminal Code of the Russian Federation provides for punishment for such managers in the form of a fine equal to 18 months’ salary, or 360 hours of correctional labor.

If a legal entity is liquidated and deleted from the state register, and there are no successors to this organization, then the pregnant woman is dismissed on a general basis. This applies to branches and divisions of large corporations.

But you cannot fire a pregnant employee by manipulating the legal structure of the company . In the event of mergers and acquisitions, the employee is required to retain her work position; reduction of the position of a pregnant woman is unacceptable.

When the term of the employment contract expires, the employer also does not have the right to dismiss the employee at his own request, even if he no longer needs her services.

A woman can write a statement demanding that she be given another job or keep her old one; the employer, according to the second part of Article 261 of the Labor Code of the Russian Federation, is obliged to do this.

This also applies to cases where a pregnant woman is still on probation. According to Article 70 of the Labor Code of the Russian Federation, a probationary period is, in principle, not provided for pregnant women.

This means that when a woman becomes pregnant, she is automatically included in the staff, has the right to work part-time, and cannot be fired for almost a year. In addition, she cannot be forced to work overtime.

IMPORTANT . There is another rare case when a pregnant woman can still be fired. If she was hired to replace another employee, and he suddenly returned, then the employer is obliged to provide the woman with a list of positions to choose from that are similar to her in terms of qualifications and health requirements.

If she doesn't like any of them, we can assume that she no longer works in your organization.

Is it possible to lay off a pregnant employee?

A pregnant woman has special protection from the state. It consists, among other things, in the impossibility of dismissing such an employee. Women in this situation receive the guarantees reflected in Part 1 of Article 261 of the Labor Code of the Russian Federation. It just says that the employer cannot fire an employee during pregnancy, maternity leave and the child reaches 3 years of age. The exception is situations when the company is liquidated. Then the pregnant woman, like other employees, is dismissed with severance pay.

A reduction is not a sufficient reason for a pregnant woman to leave. If the company plans to reduce the number of jobs, then it should in no way affect female employees.

What should an employee do in the early stages of pregnancy?

If she is absolutely sure that she is in the early stages of pregnancy, and these are not symptoms of something else, then she should present a certificate of this to her management .

From the very moment the certificate is received, despite any external conditions, layoffs during pregnancy at work are impossible.

The Labor Code does not make exceptions for different stages of pregnancy; Article 261 guarantees state protection from dismissal to all pregnant women without exception .

Even if the decision to reduce staff was made several months before the woman found out about her pregnancy, if she receives notice and she has proof of her position, the reduction in her position will be canceled.

The important legal point is that pregnant women receive protection from layoffs on the very day they become pregnant.

And if medical tests show that this happened before receiving the notification, the employee should first contact management directly , armed with Article 261 of the Labor Code of the Russian Federation, and then, if the first does not help, go to court with a demand to leave her position.

REFERENCE . It must be remembered that they do not have the right to fire her even for theft of property of the company in which she works or chronic absenteeism. Any disciplinary violations cannot be considered a reason for dismissal.

Rights of pregnant women during layoffs

Pregnancy is confirmed only by an official document from a medical institution. To do this, the employee must promptly register with the antenatal clinic and receive a certificate from the attending physician. This document must be submitted to the enterprise and registered in the internal document flow system. Only in this case will the employer have additional obligations in relation to the woman, including when making a decision on layoffs.

The Labor Code of the Russian Federation establishes the following special rights of a pregnant employee, which the employer must observe:

• a complete ban on dismissal, except in cases of liquidation of the company or termination of the activities of an individual entrepreneur;
• the right to refuse to be sent on business trips without giving reasons;
• the ability to get vacation at any time;
• the right to maintain average earnings for the entire period of temporary disability associated with pregnancy and childbirth (this right is exercised by submitting a sick leave certificate to the employer);
• change in working conditions, including temporary transfer to another position, if this is due to medical contraindications.

Throughout the entire period of pregnancy, a woman can continue to work until she goes on maternity leave. Although the sick leave certificate will indicate the date from which you can go on maternity leave, the employee may not immediately submit the document to the administration of the enterprise. While her work continues, a woman is obliged to comply with her job duties and submit to discipline and working hours. When disciplinary offenses are committed, official investigations are carried out according to the general rules of the Labor Code of the Russian Federation.

If the management of an enterprise has decided to reduce the number of its employees, it must act in full compliance with the law. The sequence of actions is prescribed in Articles 81 – 180 of the Labor Code of the Russian Federation. In general, the procedure looks like this:

1. the authorized body decides on the need to reduce staff (due to lack of financial reserves, expediency, reduction in production volumes or for other reasons);
2. appropriate changes are made to the staffing table of the enterprise;
3. it is determined which of the employees occupying the same position has a preferential right to retain their job;
4. employees being laid off are notified of the decision in advance in writing;
5. All necessary papers are drawn up, and at the time of dismissal, compensation payments are made.

When considering candidates for layoff, a pregnant woman should be excluded from the possible list, since her dismissal would be illegal. Moreover, such employees do not have a preferential right to retain their position - in principle, they are not candidates for dismissal.

Staff reduction refers to the exclusion of certain positions from the staffing table. That is, the elimination of these positions. The rights of an expectant mother are not particularly different from the rights of other employees, with the exception of the presence of a preemptive right - the right to dismissal “last in line”, as an employee from the corresponding category of persons who have the right to remain at work.

So, what should an expectant mother know about her rights?

1. 2 months before the planned layoff, the employer is obliged to notify the pregnant employee.
2. The employer is obliged to offer the expectant mother all available vacancies in his organization that are suitable for the employee both in terms of qualifications and her state of health.
3. The employee, in turn, has the right to refuse these vacancies if they do not suit her.
4. An employer has the right to fire an expectant mother due to layoffs only in one case - upon liquidation of a company or individual entrepreneur (Article 261 of the Labor Code of the Russian Federation).
5. Dismissal for any reason other than liquidation of the company is not legal, and can be appealed in court, which will be on the side of the expectant mother.
6. Dismissal will also be considered illegal if the employer learned about the fact of pregnancy after the termination of the employment contract.
7. Dismissal without substantial grounds entails criminal or administrative liability for the employer.
8. If the employment contract expired during the employee’s pregnancy, then, upon her application and in the presence of a certificate of pregnancy, the employer is obliged to extend the employment contract until the end of the pregnancy. No more than once every 3 months, an employee will have to confirm her pregnancy with certificates if the employer requires it.
9. Dismissal of an expectant mother is permissible due to the expiration of the employment contract during pregnancy if the contract was concluded for the duration of the work of the absent employee, and it is not possible to transfer the pregnant employee to another position suitable for her health reasons. The employer’s obligation in this case is to offer the expectant mother all available vacancies suitable for the employee in his area, and all available vacancies in other areas, provided that this is provided for in the contract.
10. It is also illegal to fire an expectant mother “for lack of compliance” while she is on probation. A probationary period for an expectant mother cannot be established at all - this contradicts Article 70 of the Labor Code of the Russian Federation. And at the same time, it does not matter at all whether the employer knew about the employee’s pregnancy or found out only after hiring.

The rights of the expectant mother during the reorganization of the company depend on the reorganization process itself. If the reorganization is a “liquidation”, in which the company is legally closed and after a while appears in a new form and with the same founders, then it will not be possible to challenge the dismissal in court, since in fact the liquidation still occurred.

Legislative protection of the expectant mother from layoffs is provided by Article 261 of the Labor Code of the Russian Federation.

What should an employer do if an employee brings a certificate?

If the certificate is genuine, then any path to her legal dismissal as a pregnant woman due to staff reduction at your request is cut off.

From this moment on, she is in a special position, and criminal punishment is provided for attempting psychological pressure . But you can always reach an agreement with your subordinates, especially if you have a good relationship with them.

It is unlikely that a woman will agree to quit, but you can legally offer her to transfer to another position in your organization, or to another structural unit, if we are talking about a large corporation, and then she will no longer be your headache.

As mentioned earlier, the law provides for a loophole in the form of legal liquidation of the enterprise and its exclusion from the state register.

This step is not suitable for reputable organizations, but companies with a bad reputation often take advantage of this by formally liquidating their company, registering a similar one and recruiting the same employees in a few weeks.

If you know the legal side of the issue well, the cost of re-establishing a company will be cheaper than maintaining a worker in a situation. This method is good because it will be impossible to prove in court the relationship between the liquidated and newly created company.

Direct psychological pressure on an employee in court is easy to identify . Therefore, managers use a different method if they want to get rid of it. To do this, they begin to record any possible disciplinary violation.

Pregnancy involves a lot of visits to doctors, which means absenteeism and tardiness are inevitable. Constantly recording small violations will give rise to a reason to write a remark in the work book, reduce the salary and deprive the employee of a bonus.

This is actually a legal way to pressure your employee into layoffs during pregnancy. It will be difficult to prove the fact of pressure in court, so women prefer not to go to court, but to write a statement of their own free will.

REFERENCE . But even despite all the recorded disciplinary violations, they have no right to fire her. Article 261 of the Labor Code provides a complete guarantee against dismissal, although it allows for other types of penalties.

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.

REFERENCE . You should not think that every employee who has been fired by her employer knows her rights and will definitely go to court. Legal illiteracy opens up a wide field of opportunities for leaders who are not burdened with morality.

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: Application for issuance of a work book upon dismissal

Punishment for the manager

So we figured out how layoffs at work and pregnancy are connected. Is there any punishment in case of illegal behavior of the employer?

To find out what kind of punishment awaits management who decides on illegal dismissal, you should refer to Article 145 of the Criminal Code of the Russian Federation , which regulates not only unlawful refusals to hire, but also illegal dismissals.

According to this article, a manager who decides to take an illegal action can be punished either with a fine or correctional labor .

The fine can be up to 200 thousand rubles, or it can be replaced with an amount equal to 18 monthly salaries.

Correctional work for a manager can be for a period of up to 360 hours.

Retrenchment and pregnancy are unacceptable. Dismissing a pregnant woman is a step that is not only beyond morality, but also beyond the law .

It is worth thinking several times before putting pressure on an employee, demanding that she leave the company. The law strictly protects the rights of expectant mothers, and you should not risk your reputation, as well as the fate of the company, for the sake of momentary gain.

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: Is a bonus paid upon dismissal?