Dismissal of a pregnant woman - law and right
It is always much more difficult for a woman than for a man to make a career, because at the most active age they become mothers, and this, in turn, imposes on them a number of additional responsibilities not related to work. Female workers do not enjoy the favor of employers, because children, especially at a young age, often get sick, and mothers are forced to issue paid sick leave. Regular time off and interviews from work lead company managers to the inevitable idea of not hiring young workers who want to become mothers in the near future, unmarried women with young children or children who have been disabled since childhood.
How to fire an employee on maternity leave
A fixed-term employment contract is terminated upon expiration of its validity period (Part 1, Article 79 of the Labor Code of the Russian Federation). However, the expiration of the term itself does not mean that the contract is automatically terminated. To terminate the employment relationship, it is necessary that at least one of the parties to the contract demands its termination due to the expiration of the term. If this does not happen, the employment relationship continues, and the contract itself is considered concluded for an indefinite period. At the same time, enter into an additional agreement to the employment contract (Article 58 of the Labor Code of the Russian Federation, letter of Rostrud dated November 20, 2021 No. 1904-6-1).
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If an organization does not plan to continue its relationship with an employee with whom a fixed-term employment contract has been concluded, then, as a general rule, such an employee must be notified of the upcoming dismissal. The exception is when the contract is concluded for the duration of the work of an absent employee. In such a situation, notice of dismissal is not necessary. This is stated in Part 1 of Article 79 of the Labor Code of the Russian Federation.
In what cases is it permissible to dismiss pregnant women?
It is possible to break off a professional relationship with a woman who is expecting a child if the requirements listed below are met:
- If the girl herself wanted to break her contract.
- If the organization stops its actual work.
- If the term of the fixed-term contract with the employee has expired. She is not ready to move to another open vacancy.
Dismissal upon liquidation of a legal entity or termination of an individual entrepreneur
The employer does not have the opportunity to unilaterally terminate the contract with a pregnant woman. This is illegal. The only exceptions are situations of liquidation of a legal entity or termination of the activities of an entrepreneur. To avoid wasting time preparing a claim and visiting the courtroom, the employee should inform the employer in advance about the upcoming personal event (the birth of a baby). It is better to do this by written notification in free form.
Agreement of the parties
The law allows termination of an employment contract at any time by mutual consent.
The main thing is that the pregnant employee and the employer confirm their intention to terminate the employment contract in writing.
Own desire to care for a child under 14 years of age
A woman’s right to retain her place of work is retained only until the child turns three years old. If, after the child reaches three years of age, the employee wants to continue her vacation, then she needs to contact the employer.
Dismissal from a temporary position (under a fixed-term employment contract of the organization)
To lay off an employee who is in a position and employed under a fixed-term employment contract, two mandatory conditions must be met:
- The document must indicate the specific duration of the contract.
- Transfer to another place of work should not be possible.
Any manager is obliged to offer a pregnant employee another vacant position.
Dismissal or reduction during maternity leave
Is it possible to fire an employee who is on vacation or sick leave? The answer is simple and clear. Only upon termination of the activities of an organization of any form of ownership. Dismissing an employee unilaterally is illegal.
The procedure for dismissal from maternity leave when the main employee leaves
- Uncertainty of work deadlines. A woman can be on maternity leave for all 3 years or the first few months. Sometimes an employer may not even provide 2 weeks' notice of a potential dismissal.
- No guarantees. Dismissal in this case is made according to circumstances, as soon as the maternity leaver returns from vacation. There are no social protection or compensation payments.
During the period of maternity leave, another employee may take the place of the employee. This rate is called maternity leave and is accompanied by the preparation of a fixed-term employment contract. It has its advantages and disadvantages. The employer must know all the nuances of dismissal from maternity leave when the main employee leaves, so that the process is fully compliant with labor legislation.
Is it possible to fire a pregnant woman during a probationary period?
When concluding an employment contract with an employee who is expecting the birth of a baby, the document cannot include a clause about the need to undergo a probationary period.
Let's consider non-standard cases:
- At the time of signing, the document included a test condition, despite the prohibition provided for by legislation in the field of labor relations. In this case, the condition has no legal force, and it is not possible to fire the employee.
- The employee, due to her short pregnancy, did not know that she was pregnant at the time of signing the employment contract or did not specifically inform her potential employer about her situation, or the pregnancy occurred after signing the employment contract. If such a situation arises, then it will be impossible to fire the woman in accordance with paragraph one of Article 81 of the Labor Code of the Russian Federation.
Transfer to maternity position
Often, companies with a well-established team avoid the influx of new labor. Then the manager can offer temporary work duties to a specialist with whom an employment agreement has already been concluded. With such a staffing change, the terms of the contract do not change, that is, the temporarily occupied position does not cancel the previous and corresponding salary. The employee is assigned other job responsibilities for a certain period.
Transfer to a maternity position can only be carried out by agreement of the parties. Consequently, an employee who has agreed to temporarily take a maternity position is more protected by the Labor Code of the Russian Federation than a newcomer.
Payments upon dismissal or reduction
If an employer dismisses an employee due to layoffs, he is obliged to transfer him the following amounts:
- salary;
- payment for unspent vacation;
- dismissal benefits.
The employer is obliged to pay the former employee all guaranteed payments on the last day of his work, at most the next day after the employee sends a request for final payment. If the employer does not do this, then he is obliged to make payments including lost profits for late receipt of the payment.
Are maternity payments due for pregnancy and childbirth?
The volume of guaranteed payments paid to employees in connection with the birth of a child is calculated based on a number of criteria, such as status in social society (student, employee, entrepreneur), length of work experience, amount of income before sick leave and parental leave, number of children and region of registration.
Guaranteed payments can be divided into two groups:
- Benefits of a certain size, that is, the volume of benefits is established by labor legislation: one-time benefits for the birth of children, benefits for registering with a antenatal clinic at the beginning of pregnancy.
- Benefits varying from the amount of previous income: payments in connection with maternity leave, child care benefits.
Vacation
Maternity leave or, as they say, maternity leave consists of a period of staying at home according to the certificate of incapacity for work, and leave to care for a child for up to three years.
For this period of time, the employee retains her position in accordance with the staffing table and salary.
Child care from the company
According to the law, child care benefits are paid only up to one and a half years, and its size depends on the amount of official income prior to going on maternity leave.
Calculation
Dismissal in connection with the return to work of a “maternity leaver” is carried out quite simply. The last stage is the issuance of the necessary funds and documents. Therefore, all calculations must be made before a person leaves. The employee has the right to receive:
- wages;
- vacation compensation;
- payment of sick leave;
- all necessary bonuses and rewards.
If you fire a temporary employee, you cannot force him to work for two weeks. There is no information about such work in labor legislation. Moreover, if this does happen, the employee has the right to complain about the boss to the labor inspectorate or the prosecutor's office.
What tricks do employers use?
Employers make all sorts of tricks to break the employment contract with a woman expecting the birth of a child, anticipating that the contract cannot be terminated with her until the unborn baby is three years old. Let's list the main tricks:
- Sometimes the employer strongly suggests that the pregnant employee terminate the contract by mutual agreement of the parties with a minimum number of payments.
- Quite often, employers often force pregnant employees to write a letter of termination of their work at their own request. For example, creating a precedent for committing misconduct at work. Here, all women need to remember that even if they violate discipline at work, the employer can only reprimand them.
How to legally dismiss from an enterprise or organization
Termination of a contract by the unilateral will of an employer with a pregnant woman is possible in one single case, if the organization is closed.
Russian legislation in the field of labor relations tries to protect citizens who are in a difficult situation during the period of impending motherhood. Protection is expressed in a ban on the dismissal of women during the period of impending motherhood and raising children under three years of age, and guaranteed benefits.
For example, this includes guaranteed benefits for pregnancy and childbirth, at the birth (adoption) of a child, and payments during the period of caring for a child up to three years of age. The Labor Code of the Russian Federation contains the only norm that allows an employer to sever an employment relationship with a pregnant woman - the liquidation of a legal entity or the termination of the private activities of a businessman. Particular attention should be focused on the fact that the law allows, by mutual consent, to terminate an employment contract at any time.
Filling a maternity position
It is worth noting the practice of substitution within the enterprise. The essence of the process is for the employee to perform the duties of a maternity position without ceasing his main activity. This is possible when concluding an additional agreement indicating the amount of the surcharge. If the replacement took place without maintaining the main responsibilities, the salary amount will correspond to the temporary position. All nuances are discussed and recorded in the additional agreement.
Filling a maternity position is accompanied by a corresponding order from the head of the organization and is displayed in the employee’s personal file (marks are not made in the work book). The substitute employee is listed only in the main position in all documentation of the enterprise.
The disadvantages of substitution for an employee include:
- The experience in the new place is not credited.
- Risk of loss of qualifications corresponding to the main place of employment.
Own wish
Leaving a company during maternity leave at the request of a woman is rare. But sometimes this happens.
Termination of the contract occurs in the usual manner, after the employee submits an application to the employer to terminate work.
The application is registered with the secretary or structural unit of the company as incoming internal correspondence.
After the director signs the application, the employee is given a work book and the money due is paid.
If the maternity leaver herself decided to quit, then the employer cannot interfere with her.
Dismissal procedure
The dismissal procedure includes the following steps:
- A resignation letter is submitted or the employment contract is terminated;
- An order is printed, with which the employee must be familiarized with signature;
- Cash payments are made and all amounts are issued;
- A work book and all necessary certificates are issued.
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If a woman on maternity leave decides to quit, first of all, she must notify her employer and agree with him on the date of dismissal. After that, write a statement. The application is written two weeks before the agreed date.
The employer must agree to the dismissal of the maternity leaver and sign the application. After all, he doesn’t even need time to find a replacement, since the resigning employee is already on maternity leave.
There are cases when an employer is waiting for a particularly valuable employee, and without warning, he writes a letter of resignation. What can a leader do?
If a mother quits while on maternity leave or immediately after it ends, the boss cannot prevent this.
Child benefit
After birth and up to one and a half years, child benefit is paid. It is 40% of average monthly earnings. This earnings are taken based on the two years that precede the payments. Non-working parents apply to the SZN service for such benefits.
The benefit is accrued upon presentation of the following documents:
- statements of the woman in labor;
- child’s birth certificate (a copy is possible);
- certificates from the second parent’s place of work confirming non-receipt of such benefits.
Going on maternity leave from maternity pay
Still, how to properly prepare documents? You are required to sign the “replacement” maternity leave (if she provided sick leave on time), calculate the benefit and pay her money within 9 days after providing all the documents. If working in your company is her first official position, then the benefit is calculated based on the minimum wage. If the “replacement” provides a certificate of income from the previous place of work, then payments are calculated using a general formula in accordance with all accounting nuances.
The validity of such an agreement expires in connection with the return to the position of the “absent” employee, i.e. It is almost impossible to determine in advance a specific date for the termination of the “replacement” duties. Her employment may end at any time. Although for a self-respecting company it is advisable to inform an employee about the end of his work activity 3 calendar days in advance (Article 79 of the Labor Code of the Russian Federation).
Description of special cases
The procedure for dismissing a temporary specialist can become more complicated and lengthy. This is possible if the temporary worker:
- issued a maternity leave;
- is pregnant;
- went on sick leave.
A temporary employee who went on maternity leave has all the rights to receive payments, just like a permanent specialist. The reduction in this case occurs on the same day when the main employee begins to perform his duties.
Although a pregnant woman belongs to a socially protected category, she can be fired if her employment contract has expired. This circumstance does not depend in any way on the will of the employer. However, there is a small feature here: the employer must offer a vacant position that is suitable for the woman based on her health condition. In this case, the proposed position may be less paid or have lower qualification requirements.
There are situations when a maternity leaver decides to return to work, and a temporary employee goes on vacation. In this case, the dismissal is formalized on the day the employee returns from vacation. In this case, the employment contract is not extended.
If a temporary employee is on sick leave while the woman is on maternity leave, then the day of registration of the layoff will be considered the last day of illness. In this case, the temporary worker receives all the payments due to him.
In the legislative framework, the status of a temporary worker and his rights are not protected in any way. The employer can fire such a specialist at any time without warning him in advance. However, it should be understood that the employee who signs the employment contract agrees to all terms and conditions of employment and also understands that the position is temporary.
Dismissal by agreement of the parties
A woman on maternity leave can be dismissed by agreement of the parties. Such dismissal will not constitute a violation of her rights.
Most often, the initiator here is the employer who wants to get rid of an ineffective employee. If the person does not object, an agreement is drawn up. When it is concluded, an application for termination of the contract is written, no work is required. Dismissal is formalized in accordance with clause 1 of Art. 77 Labor Code of the Russian Federation.
Read more: Dismissal by agreement of the parties
When signing an agreement, one of the frequently asked questions is: if a maternity leaver quits, what to do with the temporary worker who replaced her? Most often, a temporary worker is transferred to a permanent position.
