Under what article can a pregnant woman be fired. The optimal time for informing the authorities

Last updated March 2018

A pregnant woman can become a burdensome "burden" for the employer, because she will have to keep her job for the duration of the decree, pay vacations and make other payments provided for by law. All this is unnecessary trouble, besides, finding a new employee who agrees to work temporarily is very difficult. Poorly aware of the nuances of labor legislation or simply confident in their impunity, employers decide that by firing such employees, they will avoid many problems. However, in reality, they create new and much more serious ones for themselves ... We will figure out more about whether employers have the right to fire a pregnant employee in 2019, in what cases these actions will be legal, and how a future mother can protect her labor rights if they are violated. Further.

Can a pregnant woman be fired from her job?

A pregnant woman cannot be dismissed at the request of the employer if the fact of her pregnancy is confirmed by a medical certificate. Even if pregnancy is obvious by external indicators, without documentary evidence, dismissal will not be considered illegal.

The Labor Code of the Russian Federation in Article 261 reflects the principled position of the legislator on this issue, suppressing the willfulness of employers and thus protecting the rights of pregnant women.

However, an exception to this rule in the same article is the case of liquidation of the employer as such in the legal sense, that is:

• Complete liquidation of a legal entity (an organization where a woman works);
• Termination of the activities of the individual entrepreneur, who acts as her employer.

With such a development of events, the employer may terminate the employment contract with the pregnant woman without her desire and consent.

In what cases is it possible to dismiss pregnant women

In order to fire a pregnant subordinate, the manager must not take the initiative. Dismissal at his will is a taboo. A valid reason may be a reason independent of the will of the employer (liquidation of a legal entity, termination of an individual entrepreneur, bankruptcy, etc.), as well as the initiative of a pregnant woman.

Dismissal upon liquidation of a legal entity or termination of IP

Dismissal during the liquidation of a pregnant woman is regulated by Article 180 of the Labor Code of the Russian Federation. The fact that the enterprise will be liquidated, the employer is obliged to notify her at least 2 months in advance. In this case, not verbally, but necessarily by signature.

If there is not liquidation, but a change of ownership (the company is bought out, it passes to other persons), the woman cannot be dismissed due to liquidation. By law, she must continue to work under the new leadership, unless, of course, she herself wants to quit.

• They are entitled to a severance pay in the amount of their average monthly earnings;
• They receive compensation for unused vacation;
• They keep their salary for two months;
• Wages are calculated for the actually worked days of the current month.

According to paragraphs 10, 11 of Decree N 865 of December 30, 2006, the maternity benefit after liquidation will no longer be paid by the employer, but by the department of social protection of the population at the place of residence of the pregnant woman.

Voluntary dismissal

A woman in a position, in fact, like everyone working under an employment contract, can terminate it at any time, having previously notified the employer of her intention 2 weeks in advance.

In this case, the desire to quit must be one's own, and not arisen due to conditions deliberately created by the employer. The practice when managers blackmail or create unbearable psychological working conditions is quite common. In this case, the pregnant woman can complain to the GIT or the prosecutor's office, after which an inspection will be carried out. But the burden of proof is that the application own will was written under duress, is assigned to the resigned according to the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts Russian Federation Labor Code of the Russian Federation"

A two-week period can not be worked out if a woman is hospitalized for health reasons. That is, in fact, she goes on sick leave, and the time of forced absence from work (sick leave, vacation) is counted in this two-week period. Therefore, if in such a situation it is not possible to personally deliver a statement to the employer, a pregnant employee can write a statement, and her relatives will send it by mail to the address of the employer.

That is, it is important that the paper is already on the employer's desk during these 2 weeks while you are in the hospital. An oral statement that you may have made in person or on the phone with an employer does not count.

Keep in mind that during the two-week period that must elapse from the moment the application is submitted, the employer has the right to send the employee on vacation. Then the amount of vacation pay during the calculation upon dismissal will be less.

Employees "in position" can withdraw their resignation letter before the expiration of the specified period - for them this is not fraught with any consequences.

Dismissal by agreement of the parties

An alternative to voluntary dismissal at the request of a pregnant employee may be the termination of the contract with her by agreement of the parties.

What is the difference between dismissal at the request of a pregnant woman and by agreement of the parties, the table will help to understand.

	Statement	Agreement of the parties
How is it arranged?	In the form of a statement from a pregnant employee with her signature. The employer issues an order.	In the form of an agreement on behalf of two parties (it can be drawn up by one of them, but the second party must check it). The document is drawn up in 2 copies, signed by both parties. Upon dismissal, the employer issues an order.
If the parties disagree?	The employer cannot refuse to dismiss the employee at his own request if he has worked for two weeks after submitting the application.	If the employer or the pregnant woman does not agree with the provisions in the agreement, they have the right not to sign it. Then dismissal on this basis is impossible. Alternatively, in case of disagreement, a protocol of disagreements can be drawn up, however, if the parties do not reach a consensus, the dismissal will still not occur.
date of dismissal	The date of dismissal is not the date of drawing up the letter of resignation, but the day the two-week period expires from the date of its submission.	The date of dismissal is negotiable, that is, as both parties decide, it will be so. By agreement of the parties, a pregnant woman can quit without a two-week working off.

What remains common between dismissal on these two grounds is that it is voluntary, and therefore does not contradict the Labor Code of the Russian Federation.

On the issue of dismissal of a pregnant woman by agreement of the parties, there is a Ruling of the Supreme Court of the Russian Federation of September 5, 2014 N 37-KG14-4. According to its provisions, it can be concluded that a woman who signed an agreement between the parties on dismissal, who did not know about her pregnancy at that time, can send an application to the employer to recognize the agreement as invalid due to a significant change in circumstances (pregnancy), if the day of dismissal indicated has not yet arrived. in agreement.

Dismissal from a temporary place (under a fixed-term employment contract)

Article 261 of the Labor Code of the Russian Federation allows the dismissal of a pregnant employee under a fixed-term employment contract if the following conditions are met:

1. The employment contract was concluded for the duration of the performance of the duties of the absent employee.
2. It is impossible, with the written consent of the woman, to transfer her before the end of her pregnancy to another job available to the employer, suitable for her health reasons.
3. The employer offered her all available vacancies in the area.
4. The pregnant woman refused to be transferred to a vacancy in another area.

When considering a specific situation, ALL conditions must be met so that dismissal from a maternity position (and most often fixed-term employment contracts are concluded precisely at the time of the decree of another employee) is considered legal.

In other cases, the employer is not entitled to dismiss a pregnant woman from a maternity job. If a woman proves that she is carrying a child by providing a medical certificate, the employer MUST renew her fixed-term employment contract. Even if an employee enters a maternity place, the pregnant woman should be sent to another job. At the same time, it is assumed that a transfer to a place with a lower salary is possible. In this case, the woman must already decide for herself whether to remain in a position where they will pay less, or write a statement of her own free will.

Can I be fired under the article?

Labor legislation does not contain such a wording as "dismissal under the article." In the people, this is understood as dismissal for committing a disciplinary offense, that is, in order to impose a disciplinary sanction, or because of unsuitability.

The employer cannot dismiss a pregnant woman for absenteeism or other violations of labor discipline, but has the right to impose one of the other penalties.

According to Art. 192 of the Labor Code of the Russian Federation, the following penalties may be applied to an employee:

• Comment;
• Rebuke;
• Dismissal.

Therefore, if a woman “in position” has violated labor discipline, she may be given a reprimand or a reprimand. In addition, there are no restrictions on the deprivation of bonuses. Pregnant women may be deducted at the discretion of the employer.

Can a pregnant woman be fired on probation?

Moreover, it is impossible to establish a probationary period for a pregnant woman in accordance with Article 70 of the Labor Code of the Russian Federation (if her pregnancy is confirmed by a certificate at the time of employment).

Does an employer have the right to fire a pregnant woman before maternity leave?

A woman goes on maternity leave from the 30th week of pregnancy, that is, approximately at the 7th month. But the employer is not entitled to dismiss her before the decree, since pregnant women at any time are equally protected by law from the moment they documented the pregnancy.

Should women be afraid of contractions "in position"?

Dismissal to reduce pregnant women is impossible, since the Labor Code of the Russian Federation gives them immunity in this regard, and events unfold according to two scenarios:

1. The employer offers in return another position that is suitable for medical reasons.
2. If it is impossible to provide an alternative, he retains the seat for the pregnant woman.

That is, in any case, during the reduction, pregnant women are not threatened with dismissal: they are either offered a new place, or the old one is retained.

Is it allowed to dismiss a pregnant woman working part-time?

There is an explanation of Rostrud in this regard in a letter dated November 24, 2008 No. 2607-6-1. Summarizing its provisions, we can display a recommendation on this issue in the form of the following thesis:

The decision to dismiss an employee under the conditions provided for in Article 288 of the Labor Code of the Russian Federation is made by the employer. It is his right, not his duty. Therefore, when accepting a new “permanent” employee instead of a pregnant female part-time worker, it is the employer who initiates the termination of the employment contract. Article 261 of the Labor Code of the Russian Federation establishes a ban on the dismissal of pregnant women at the initiative of the employer, except for the liquidation of the organization and the termination of the activity of the individual entrepreneur, which means that it is impossible to dismiss a pregnant part-time worker without his consent at the initiative of the employer.

If the pregnancy was hidden during employment

Many women are concerned about the question - if she got a job already pregnant and kept silent about it, will she be fired when everything turns out.

According to Art. 64 of the Labor Code of the Russian Federation, it is prohibited to refuse to conclude an employment contract for women for reasons related to pregnancy. This means that pregnancy is not grounds for refusing employment. And if so, then even when the employer finds out and it will be too late, a woman cannot be convicted of some kind of deceit and fired for it, since she is not obliged to inform him.

What to do if the employer violated the labor rights of a pregnant woman?

Despite the guarantees for pregnant women enshrined in the Labor Code of the Russian Federation, cases of unjustified dismissals are not so uncommon.

The employee can appeal against the actions of the employer in:

• State Labor Inspectorate;
• Prosecutor's Office;

Unjustified dismissal of a pregnant woman threatens the employer with administrative and even criminal liability:

• According to Article 5.27 of the Code of Administrative Offenses of the Russian Federation, a fine of 1,000 to 5,000 rubles for officials and individual entrepreneurs, as well as from 30,000 to 50,000 for legal entities.
• In accordance with Article 145 of the Criminal Code of the Russian Federation, a fine from 5,000 to 200,000 rubles or in the amount of salary / income for 18 months or compulsory work from 60 to 360 hours.

The employer is brought to administrative responsibility by the GIT, and if necessary, it transfers the materials of the audit to the prosecutor's office in order to bring the perpetrator also to criminal liability. But such an order is not obligatory - the victim can herself apply to the prosecutor's office with a complaint.

In addition, she is entitled to file a lawsuit against the employer, where, of course, her violated rights will be restored:

1. She will be reinstated, while she may require the issuance of a duplicate work book, where there will be no record of dismissal.
2. She will be paid compensation for the time she was forced to absenteeism.
3. The employer will have to compensate non-pecuniary damage if it is proven.

According to Article 393 of the Labor Code of the Russian Federation, an employee is exempt from paying state duty when defending labor rights in court.

If you have questions about the topic of the article, please feel free to ask them in the comments. We will definitely answer all your questions within a few days. However, carefully read all the questions and answers to the article, if a similar question has a detailed answer, then your question will not be published.

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Relations between an employee and an employer are regulated by a special document: the Labor Code of the Russian Federation. A separate chapter in it deals with guarantees when terminating an employment contract with a woman who is expecting a child. It also stipulates special cases when an employee and when she does not have the right to do this.

Can a pregnant woman be fired?

Working relationships don't always go smoothly. Not all women, having become pregnant, are in a hurry to warn management about this, and some unscrupulous employers consider such an employee a burdensome burden. Despite the fact that all maternity benefits are paid not from the pocket of the organization, but by the state, the management will face additional troubles. A pregnant woman will have to keep her job, pay vacations, adjust working conditions and schedule, and look for a person for a temporary position. This also includes paperwork.

It is not surprising that they are trying to get rid of a pregnant woman. Not understanding all the intricacies of the law and considering themselves unpunished, employers are trying by any means to break the employment contract. Knowing her rights, the future mother will not allow this. She is protected by Article 261 of the Labor Code, according to which dismissal is impossible for absolutely all reasons for terminating the contract:

• for walking;
• unsatisfactory results of work;
• committing a misdemeanor of a disciplinary nature, etc.

When is dismissal legal?

There is an opinion among the people that under no circumstances it is impossible to part with a subordinate who is expecting a child. And an interesting position guarantees complete inviolability and preservation of all working conditions. This is only partly true. The cases specified in the Labor Code allow terminating the contract with a pregnant woman, and there are enough legal grounds. But both parties (subordinate and employer) must comply with certain conditions, know their rights and obligations.

Of your own accord

The employee is right. To do this, two weeks before the expected date of dismissal, it is necessary, and immediately before leaving, to transfer all cases to a substitute employee. The employer makes full financial settlements with the employee, makes an appropriate entry in the work book, and gives the book itself along with other documents: a copy of the order, pay slip, characteristics, etc.

A woman who quits on her own is deprived of the maternity and childcare benefits that the company would have provided her.

There should be no problems with the manifestation of independent initiative, but there are some nuances here. There are known cases of dismissal of pregnant women of their own free will and in accordance with all the rules of the Labor Code, but only on paper. In reality, the woman was under pressure from the employer. Creating unbearable working conditions, he forced the pregnant woman to write a statement and leave her position.

For her part, an unscrupulous employee can also slander the manager: quit on her own, and then write a statement against him to the regulatory authorities, followed by a trial and a large fine. Fearing this, experienced employers are in no hurry to ask the employee to write a statement of their own free will and act in other ways.

By agreement of the parties

The most correct safe solution in this case would be. Then an agreement is reached between the pregnant worker and the management. For example, a woman quits, but with compensation. It is not required, but in addition additional payments the employee is required to:

• wages since the last payment, for all unworked hours;
• compensation for unused vacation, even if this period exceeds 2 years.

The employment contract can be terminated at any time, i.e. a woman does not have to work out a 14-day period. The termination of the employment relationship is evidenced by an agreement signed by both parties. One side initiates and the other agrees:

1. If this is an employee, then she submits an application with a request to terminate the cooperation in agreement with the company's management.
2. When the employer initiates the dismissal, he sends the woman a written proposal (where he indicates the date and signs the head), and she agrees and signs the paper.

Termination is recognized as legal when both parties knew that at the time of signing the agreement the woman was pregnant. But if, after the employee terminated the contract, she found out about her situation and turned to the employer with a request to cancel the agreement, as a rule, the courts will take her side. Pregnancy is a significant ground for appealing the contract.

Upon liquidation of an organization

If at the time when a woman is pregnant, her company (employer, as a legal entity) completely ceases to operate, this is the basis for termination of the employment relationship. This situation is separately stipulated in the Labor Code. The actions of the employer are regulated, and the recognition of dismissal is permissible subject to confirmation of the legal basis for terminating the employment contract.

The decision on (institutions, companies, organizations, expiration of the IP certificate) must be unconditional, taken by the owner and executed in writing. A pregnant woman cannot be fired if:

• the owner of the organization has changed;
• there was a merger, accession, separation and other reorganization;
• the company has transformed the form of its activity;
• the name has been renamed.

When an organization liquidates a branch in which a pregnant woman works, her dismissal is also legal. And if the basis for the liquidation of the enterprise is bankruptcy, it must be proven in court. If all the conditions are met, the woman, upon dismissal, signs the relevant documents and receives the monetary compensation guaranteed to her.

On a fixed term contract

Sometimes an employment relationship may be temporary, i.e. be concluded for a specified period. These include seasonal employment, work in an organization created to perform specific jobs, or replacing an employee who is absent for some reason. When a pregnant woman works under a fixed-term contract, she can be fired, but both the employee and the employer need to know some of the nuances:

1. If the term of the temporary contract expires during pregnancy, the manager is obliged to extend it until the end of pregnancy in accordance with Art. 261 of the Labor Code.
2. The employer has the right to demand from a woman a certificate of her position. She brings documentary evidence every three months. and less frequently.
3. If a woman took the place of an employee who was absent, but went to work (for example, maternity leave), she can be fired. But in the case that in this organization there is no way to transfer a woman to another position that is feasible for her.
4. In the latter case, the employer must offer the woman all the vacancies he has, regardless of qualifications and wages.

Dismissal on probation

The probationary period is established in order to check the employee for compliance with his new position. In employment, it is not always used, it is regulated by the Labor Code, but does not have clearly defined terms. You can test an employee from one day to 6 months. If the appointed time is up, the employee is not notified of the dismissal, it is considered that he passed the test successfully.

If a pregnant woman is accepted for a trial period, she is not entitled to be fired, moreover, she should not be installed in principle (when the situation is documented).

But there are exceptions. When the boss was not in the know, the employee did not report her position (or perhaps did not know herself), upon completion of the probationary period - and poor performance - she may be asked to leave her place. Management declares this in writing three days before the proposed dismissal. However, later the woman can ask to come back after learning about her pregnancy and providing the relevant certificate. And she needs to be reinstated.

An employee in a position may be asked to leave a place on probation and in situations such as:

• termination of the activity of the organization, liquidation of the enterprise;
• downsizing;
• by agreement of the parties or the personal initiative of the woman.

Is it possible to fire a pregnant woman under the article?

The wording "dismissal under the article" implies the termination of the employment contract at the initiative of the employer for the commission of a disciplinary offense by the employee (Article 81 of the Labor Code of the Russian Federation). This also includes the unsuitability of a new employee. To identify the fact of non-compliance of an employee, he must undergo an attestation that does not go beyond the scope of his usual work. For control, a special commission is organized, which includes the director of the enterprise, the personnel officer and the immediate supervisor. The reasons for dismissal under the article include:

• theft and embezzlement of property belonging to the enterprise;
• loss of trust of a materially responsible person (cashier, accountant, etc.);
• failure to perform duties;
• drunkenness;
• tardiness and absenteeism good reason.

A pregnant woman cannot be dismissed for absenteeism, failure to perform her duties and other violations of labor discipline. But the employer has the right to impose such penalties as a reprimand or remark on her. This does not include the deprivation of the bonus, although it is possible, by decision of the head, to deprive the bonus. The employer records all comments, draws up an act of absence from the workplace (if a document or an explanatory note on the existence of a good reason is not provided). An employee loses wages on absent days.

Dismissal from part-time work

Part-time work in accordance with Article 288 of the Labor Code is carried out in free time from the main employment, but this is labor activity on a regular basis. In this case, the employee is full-time, he is subject to all acts of the enterprise. If at a certain moment a new employee is hired, for whom this work will be the main one, the previous one is fired at the initiative of the employer. It is he who decides to dismiss the part-time worker, appointing a new permanent employee in his place.

What to do when a woman who is expecting a child works part-time? She is protected by the state. Judicial practice shows that disputes between the parties are resolved in the direction of the pregnant woman. In this case, Art. 261 of the Labor Code of the Russian Federation overlaps Article 288. A dismissal made on the basis of the latter is equated to, which is prohibited by law. Without the consent of the pregnant woman, she cannot be fired from part-time work. The employer is forced to extend the employment contract with her.

Is it possible to fire a pregnant woman if there was a ban on pregnancy under the contract?

Sometimes, when hiring, employees sign a contract that specifies certain conditions for future work. But all of them should not contradict the current legislation. An employee can sign a document that prohibits pregnancy and her subsequent maternity leave. This condition belongs to the category of illegal requirements and has no legal effect.

An employer can respond to a woman’s pregnancy by fine, dismissal, or separately note in a paper that in case of an interesting situation for a certain period (for example, 2-3 years), the decree will not be paid to the employee. Even if a woman agrees to the terms put forward and her signature is on the document, she can refute the contract at any time, because. he is against the law. If the manager decides to dismiss the 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 require a pregnant woman to leave her position because of her position.

What should I do if I was fired illegally?

Without sufficient grounds, the employer does not have the right to dismiss a pregnant employee. For this, he can be brought to administrative and even criminal liability, sent to forced labor (from 60 to 360 hours) or get off with a fine:

• in the amount of 1000 to 5000 rubles for officials and individual entrepreneurs;
• from 30,000 to 50,000 rubles. for legal entities (the organization itself);
• up to 200000 r. or in the amount of income for 18 months.

When a woman's rights are violated - she was fired illegally or forced to do so - she can go to court with a lawsuit about the illegal actions of the employer. However, she is exempted from paying state duty in court. Also, a pregnant woman whose civil rights have been affected has the right to file a complaint with other state authorities. These include:

1. Federal Labor Inspectorate. This is an organization that successfully resolves a significant part of labor conflicts.
2. Trade union. This public association is called upon to resolve the issues that have arisen related to the conditions of their work.
3. Prosecutor's office. The application is made in person.

If the case still goes to court, the violated rights of the woman will be restored. The employer must accept the pregnant employee back, at the same time issue a duplicate work book without a record of dismissal, compensate her for moral damage (proven) and pay compensation for the time of forced absenteeism (it is calculated on average earnings).

State-guaranteed rights must be respected by both parties. An employed pregnant woman who conscientiously fulfills the duties assigned to her, but does not abuse her rights, is reliably protected by the Labor Code of the Russian Federation. Dismissing her at the initiative of the employer is considered illegal, with the exception of certain cases specified in the Code. Knowing her rights, a worker may not be afraid to lose her job and work calmly until she goes on maternity leave.

The legislation of our country protects the expectant mother and her child. Laws do not always correspond to the interests of an entrepreneur who loses an employee for a long time. It is far from easy to find a complete replacement for her.

A working woman is not always able to perform production duties as fully as before pregnancy. In some cases, it needs to be transferred to the workplace with others, gentle working conditions.

Not all SMEs can find jobs where working conditions are appropriate during pregnancy. Women, for their part, want to feel secure, many want to keep their jobs in order to return to work in three years.

Dear readers! Our articles talk about typical solutions legal issues but each case is unique.

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Is it possible to fire a pregnant woman and what articles of the Labor Code of the Russian Federation regulate this?

There are situations in which pregnancy is not an obstacle to termination of employment.

In the same time, The Labor Code of Russia protects women“in position” and allows her to be fired only in special situations.

In market relations, not all state enterprises, owners of private firms and individual entrepreneurs operate with sufficient profits to bear the burden of social costs.

Guarantees and circumstances of possible termination of the employment contract are regulated by Article 261 of the Labor Code.

A young woman going on maternity leave needs special attention. Sometimes for her you need to look for another workplace in production or in the office.

A woman is unlikely to be able to get a job at another enterprise. And if, due to family circumstances, she and her family are limited in funds, her financial situation can become catastrophic. Therefore, legislators tried to stipulate in the law the creation the most comfortable working conditions for the expectant mother and protect her.

Permissible situations and why they cannot be fired?

To fire a pregnant employee need a good reason. Legislators have sharply limited the range of reasons for dismissal.

According to the above article of the Labor Code, an employee in " interesting position"It is allowed to dismiss without her consent only in two cases:

• With the complete liquidation of the company, organization, enterprise.
• When an individual entrepreneur terminates his activities.

An employee cannot be fired if the enterprise continues to function after reorganization, merger, division into several enterprises, change of owners or founders.

If the head enterprise has a branch in another region (city), then the closure (liquidation) of the branch is regarded by law as the liquidation of an independent enterprise. And a pregnant employee at the closing of a branch cannot qualify for transfer to another branch or parent company and will be fired.

An individual entrepreneur who has closed his business dismisses all employees without regard to their condition and position, including pregnant women. He is not obliged to change plans and continue activities because of them, and dismissed employees should go for help to social services.

This legislation does not provide for other cases of dismissal without the consent of the future mother.

When working on a temporary (fixed-term) contract

The conclusion of fixed-term (temporary) contracts is universal, but not always legal practice in public and private organizations and enterprises. Especially often, fixed-term contracts are concluded with young people without practical work experience.

It often happens that a young worker finds herself “in an interesting position” at the time the temporary contract expires. In this case the woman must receive a certificate from the clinic that she is expecting a baby, and bring her to her employer. According to the application written by the employee, the employer is obliged to extend the temporary employment contract.

The law obliges a pregnant woman to bring certificates from the clinic to the employer once a quarter that she is pregnant.

The contract is extended for the entire period of pregnancy. If a woman is going to go on maternity leave, then the fixed-term contract must be extended for the entire time period of such leave.

In the event that a woman loses a child (pregnancy will stop for any reason), manager has the right to cancel(cancel) the extended contract within seven days. In which case it is possible to cancel the contract, it is indicated in the Federal Law No. 201 of June 26, 2015 (part 2).

When working in the place of a temporarily absent person

In practice, there are often situations when women get a job temporary vacancy and get pregnant. But when a permanent employee goes to work, the pregnant woman is subject to dismissal. The employer cannot fire her, as the law prohibits doing so.

If such a situation arises, the leader must find a woman another job. New job should not be heavy, the employee should not move heavy things, lift weights, work in gassed rooms. It can be feasible work that will not harm the expectant mother and her baby.

Including, unskilled and poorly paid, which is in this locality or area.

If there is no work for a woman in the enterprise in her specialty, qualifications, then the managers will offer the employee any available job.

Collective labor agreements sometimes provide for the provision of vacancies in other settlements, regions and even regions. If the employment contract contains such a clause, then the employer is obliged to offer the pregnant woman relocation job opportunity. If the employee refused all offers, or none were found, she will be fired.

Dismissal of a pregnant woman admitted on probation

The state of pregnancy transfers women to the category of workers protected by the state. Protecting their interests not only labor, but also the criminal code.

For most positions, the probationary period is three months, with the only exception being leadership positions.

Legislation prohibits establishing a probationary period for pregnant women when hiring them (Article 70 of the Labor Code of the Russian Federation No. 90-F3).

If an employee was hired on a probationary period and became pregnant, then she must bring a certificate from the attending physician confirming the fact of pregnancy. The manager will not be able to fire a pregnant woman, even if she did not work well during the probationary period.

Now the head will conclude with a woman temporary (or indefinite) employment contract. The new contract covers the period from the end of the probationary period until the end of maternity leave (or until the end of the pregnancy).

Application for an extension of a fixed-term contract during pregnancy: download sample .

A woman is not subject to dismissal, even if she showed herself on probation far from the best side.

Termination of the contract by agreement of the parties

This type of dismissal of a pregnant employee implies the presence of her desire. Boss should not push the subordinate to take such a step, and the woman must carefully consider the consequences of her actions. That is, dismissal by agreement should be mutually beneficial for both parties.

The practice of such dismissals does not provide for control by trade union organizations, but low legal literacy of a pregnant woman employees can lead to loss of space and money.

If the collective agreement does not provide for the payment of compensation in this situation, then this clause should be stipulated in the agreement itself or in local documents (acts).

If the agreement is signed by both parties, it cannot be cancelled.

What threatens for absenteeism and low qualifications?

An employee "in position" it is forbidden to fire for leaving the workplace for a few hours or for the whole day (for absenteeism). She cannot be fired even for systematic absenteeism without a good reason, unauthorized abandonment of production, failure to fulfill production duties, violation of discipline.

A woman cannot be fired based on negative test results. If the manager dares to do this, then the employee can sue him.

Russian courts, as a rule, take the side of a pregnant employee, and the head can pay for causing non-pecuniary damage to the plaintiff.

How to fire a pregnant employee by law - procedure

If an organization, an enterprise is liquidated, all the dismissed employees have equal rights, and pregnant employees are no exception(according to article 180, paragraph 2 of the Labor Code of Russia). The order of action of the management in the event of liquidation (termination of the activity of the IP) will be as follows:

1. Employees are notified two months in advance through notices. Employees receive a notification from the HR department about the closure of the enterprise and dismissal. The employee gets acquainted with the notification, signs and receives one copy in his hands.

Oral acquaintance with the document is not allowed.

2. Employment contracts are terminated. The pregnant employee agrees in writing to terminate the contract.
3. An order is issued to liquidate (close) the enterprise and to dismiss employees. Employees get acquainted with the order and sign in the column "Familiarized".
4. Employees receive wages and compensation.

Enterprise (entrepreneur) at the request of the employee must prepare and issue:

The issuance of certificates and funds must take place in last day of work(it's the same day of dismissal).

Care of one's own free will, what is needed for this?

Any employee working under a fixed-term or indefinite contract can write an application and resign by agreement of the parties. This is true for pregnant women as well.

In the event that an employee “in position” wants to quit in this way, she must write an application addressed to the head of the enterprise or to the personnel department.

The personnel department accepts and fixes the application, after which she can be fired the next day (for which an appropriate order is issued). If the management of an organization or enterprise believes that a pregnant employee must work until dismissal two weeks, then she has to do it.

By law, any employee can withdraw their application within two weeks and continue working.

This also applies to pregnant women. This type of dismissal can have unpredictable consequences for a woman.

If she submitted an application, then the administration may invite another employee in her place. If this new employee invited to her place in writing, then the woman will not be able to apply and will still be fired (even despite her pregnancy).

Employer's responsibility

If a woman left work of her own free will and then felt that she was forced to do so, she can go to court. For filing an application, the legislation establishes a limit period of 1 month.

It is considered from the day when the employee received the order to dismiss, or from the day she received the work book in the personnel department.

In order to prove the fact of coercion, woman must provide evidence. She can present witnesses to the court, bring audio and video recordings, letters, print out electronic correspondence, SMS correspondence, and other documents.

Perhaps the court will consider the systematic non-payment of bonuses, “gray” cash payments, as an act of coercion.

If the court finds the evidence convincing, it will take the side of the plaintiff, and the pregnant woman employee will be reinstated in the position. Applications and orders will be cancelled. In the same way it is possible to prove illegality, although there are few such cases in judicial practice.

A pregnant employee can write a statement to the court if she was deprived of her job for absenteeism, violation of discipline, failure to fulfill direct duties, since the law prohibits dismissal for this. A woman "in position" for this can only be declared reprimand or warning.

The courts not only reinstate pregnant women at work, they award the employer payment of monetary compensation to the victim for the moral damage caused.

A woman who is expecting a baby protects not only the Labor Code. Article 145 of the Criminal Code of the Russian Federation for the dismissal of such an employee punishes the employer with compulsory work in the amount of up to 360 hours or a fine of up to 200 thousand rubles.

The employer will be obliged to pay the injured employee the average earnings for forced absenteeism.

The term for filing a lawsuit on the facts of illegal dismissal is 1 month. If this time is missed, the court will not accept the application. This period can be restored if a woman for some time spent in hospital.

If a pregnant worker commits an administrative act, a criminal offense, the law is still does not provide for her dismissal. An employee can sue and be reinstated in her workplace.

Download samples of a claim to the court and statements to the prosecutor's office in case of illegal dismissal.

The dismissal of pregnant women should be carried out in accordance with the law. This is a delicate issue, since the employee's pregnancy forces the entrepreneur to look for a replacement for her, and the woman herself is encouraged to seek protection in the letter of the law.

Additional useful information you can learn about the dismissal of a girl in a position in the video below:

Labor legislation provides protection for pregnant workers, for example, such an employee cannot be involved in overtime work (Article 99 of the Labor Code of the Russian Federation) or recalled from vacation (Article 125 of the Labor Code of the Russian Federation). But does labor protection always work? Can a pregnant woman be fired from her job?

Can a pregnant woman be fired?

An employer is prohibited from firing a pregnant employee (Article 261 of the Labor Code of the Russian Federation).

If the employer violates this rule and dismisses the pregnant woman, and she, in turn, goes to court with a claim for illegal dismissal, then the employer will have to (Article 237, Article 394 of the Labor Code of the Russian Federation):

• reinstate a pregnant worker;
• pay her the time of forced absenteeism according to average earnings;
• compensate for the moral damage.

In addition, if labor inspectors become aware of the dismissal of a pregnant woman, the employer faces a fine in the amount (part 1 of article 5.27 of the Code of Administrative Offenses of the Russian Federation):

• from 30,000 to 50,000 rubles. for the organization itself;
• from 1000 to 5000 rubles. for officials of the organization (for the employer-IP).

But it is important to note that there are cases when the dismissal of a pregnant woman is still legal.

In what cases can a pregnant woman be fired

The employer has the right to dismiss a pregnant woman in the event of the liquidation of the organization / termination of the IP (Article 261 of the Labor Code of the Russian Federation).

Can a pregnant woman working under a fixed-term employment contract be fired?

If an employee working on the basis of a fixed-term employment contract is in an interesting position, the employer needs to be aware of some of the nuances.

So, for example, if a fixed-term employment contract expires during a woman's pregnancy, the employer is obliged to extend the employment contract until the end of the pregnancy of this employee (Article 261 of the Labor Code of the Russian Federation). The employer must do this on the basis of the employee's application, as well as a medical certificate confirming her pregnancy. At the same time, the employer has the right to demand documentary confirmation of pregnancy once every three months.

An employer can dismiss a pregnant woman working under a fixed-term employment contract if the following conditions are met:

• such an agreement was concluded for the duration of the absence of another employee;
• that other worker goes to work;
• it is not possible, with the written consent of a pregnant employee, to transfer her before the end of pregnancy to another job that a woman can perform taking into account her condition.

But here it should be borne in mind that in this situation, the employer is obliged to offer the pregnant employee all the vacancies he has (not only the relevant qualifications of this employee, but also vacancies for lower / lower paid positions).

An employee who is in a position often becomes an additional "burden" for the employer, since, in accordance with the current legislation, he is obliged to secure a workplace for him, draw up a number of documents, and pay maternity leave. Worried about their own future and career, many employees planning pregnancy consider the question of whether a pregnant woman can be fired from work to be relevant to them.

On the basis of the Labor Code, an employee in position can be fired, but under certain circumstances. However, in the current situation, the general procedure for when management can take the initiative and terminate labor interaction does not apply.

Therefore, before a responsible step, each manager must study the legal aspects in detail in order to avoid litigation and writing explanatory notes to the labor inspectorate.

Article 261, enshrined in the Labor Code, reflects all the permissible powers of the employer in relation to a pregnant employee. Despite the organization of the protection of the rights of an employee in a position, there is still one nuance in which dismissal is permissible - this is the self-liquidation of the company.

1. The organization is liquidated as a legal entity.
2. The working activity of an enterprise or individual entrepreneur acting as an employer is terminated.

In this case, termination of the employment relationship is allowed without the consent of the pregnant woman.

The employer does not have the authority to dismiss a pregnant employee at his will, if this fact is confirmed in a medical document. Regardless of how pronounced the signs of pregnancy are, in the absence of a supporting document, dismissal is not an illegal measure.

In what situations is dismissal allowed?

The dismissal of an employee in a position is possible only in cases where the situation does not depend on the employer himself:

• Liquidation of company;
• initiation of official bankruptcy proceedings;
• if a certificate confirming pregnancy was provided late, and a fixed-term contract was concluded;
• the employee was provided with alternative working conditions suitable for medical reasons, but the woman refused on a voluntary basis;
• The IP will be terminated.

The procedure for the dismissal of a pregnant woman during the liquidation of a legal entity is regulated by Article 180 of the Labor Code. Based on it, the employee must be officially informed two months in advance by signing the document.

If there is a change of management or ownership, the employee cannot be fired in accordance with the liquidation of the enterprise. The current legislation assumes that a woman has the right to continue her activities in the organization.

The dismissal of a woman in the event of the complete liquidation of a legal entity is possible at any time: before the onset of the birth or leaving in maternity leave. So, for example, if a commercial or industrial branch closes, and the woman does not want to move to another place, the dismissal process can be initiated by the employer. But first, he must necessarily offer her a similar alternative. The procedure itself takes place in a standard manner.

When the company self-liquidates, a pregnant woman receives a number of material payments.

1. Compensation for remaining vacation days.
2. Weekend allowance (the average monthly salary is set).
3. Receive salary within two months.
4. Calculation of wages for actually worked days.

At the same time, the allowance for childbirth and pregnancy is paid not by the organization, but by the department social protection. Although, like payments from the employer, these cash will be credited to the same employee's payroll card.

A pregnant woman has the same rights as every employee, so she can quit of her own free will, notifying her superiors two weeks in advance.

In practice, situations often arise when, within the framework of the law, management cannot influence the situation, but they have a strong emotional impact on the employee so that he expresses a desire to leave the workplace or commits a violation that will allow him to be fired.

In a situation where a woman is hospitalized due to poor health, the law exempts her from two weeks of work. With the official registration of the sick leave, the employee is unable to continue labor activity for an objective reason. At the moment when a woman is in a medical facility, her relatives can send a letter of resignation by mail with delivery notification.

The employer has the right to send a pregnant woman on vacation during working off. In the final calculation, the amount of the benefit, of course, will be an order of magnitude smaller. Within two weeks, the employee has the right to withdraw the application without consequences for the career, and the management is obliged to accept it back.

The initiative to dismiss must come from the employee, be justified by his personal motives, and not be the result of coercion or pressure from the employer.

And although it is impossible to carry out the procedure at the request of the management, the parties have the right to issue a termination of the contract in a mutual manner.

An official document is drawn up in two copies, where the signatures of the employee and management must be present. After familiarization, the organization issues an order to dismiss the employee. If one of the parties does not agree with the requirements or conditions for concluding an agreement, each participant retains the right to leave the document without a signature. Alternatively, a protocol can be drawn up, in which all disagreements of the parties are recorded. But if they cannot come to a compromise, the dismissal will not take place.

As for the date of termination of the contract, it remains at the discretion of the parties. If the employer does not object, then the pregnant woman may not work out the prescribed two-week period.

The whole scheme and order can be represented in several stages:

1. Formation of an agreement in writing (two copies).
2. Issuance of an order in the prescribed form T-8.
3. Entering information into the work book.
4. Agreement on working off or its absence.
5. The salary is issued only in full.
6. Weekend pay is not provided.

The procedure is initiated only in the situation if the employee shows his desire on a voluntary basis, which does not contradict the rules fixed in the Labor Code.

If the application was signed by a pregnant woman, but she did not know about her situation, then she has the right to invalidate the agreement.

The dismissal of a pregnant woman under a fixed-term employment contract can be initiated on the basis of Article 261 of the Labor Code of the Russian Federation in the following situations:

• the contract is concluded only for the period of absence of another employee;
• there is no possibility of transfer before the end of pregnancy to another position for health reasons;
• proposed alternatives vacancies in the territory of the employer;
• refusal to transfer to another job.

In each situation, all aspects must be taken into account so that the procedure for dismissing an employee in position is recognized as legal. As a rule, the conclusion of an urgent labor contract occurs when another employee is on maternity leave.

In other cases, the dismissal of an employee who is pregnant or on maternity leave will be considered illegal. If a woman finds herself in a position, she is obliged to provide the employer with medical confirmation in order to prolong the employment relationship.

When an employee returns from the decree to the previous place of work, another employee must go to an alternative place of work or position. The law provides for the possibility of a vacancy with a lower salary. In this situation, the woman must decide on her own: whether she will continue to work or leave of her own free will.

Can I be fired under the article

IN labor law The Russian Federation does not have such a wording "dismissal under the article." In this case, it means the dismissal of an employee for committing a serious disciplinary violation or in connection with his revealed unsuitability.

When it becomes known that an employee is pregnant, management immediately begins to perceive her as a person who is paid too much, because the rights of a woman increase, and the amount of responsibility decreases.

Often guided by just such an idea, the employer begins to think about how a pregnant woman can be fired from a position according to the law, referring to her lack of professionalism or violations of discipline.

But on the basis of Article 192 of the Labor Code, the employer can apply only one of two penalties to such an employee.

1. Rebuke.
2. Comment.

If an employee has committed a violation, a reprimand or remark can be officially issued. It is also possible to deprive the bonus part of the salary. But such a decision is made at the discretion of the employer.

Therefore, there is no need to be afraid of dismissal due to pregnancy. Current legislation does not allow the dismissal of a pregnant woman on probation. Under a standard situation, the employer has such an opportunity, but if the employee is in a position, then at the initiative of the management, dismissal is illegal.

It is also worth noting that Article 70 of the Labor Code prohibits fixing a probationary period for employees if, when hiring, she provided a certificate confirming her position.

In a satisfactory state of health, the decree is issued with the onset of the thirtieth week of pregnancy (in the seventh month). Prior to the decree, the management does not have the right to fire its employee. This is due to the fact that after providing official confirmation of pregnancy, the employee has all the rights to legislative protection provided for labor code.

With a planned or forced staff reduction, a pregnant woman cannot be fired. In this situation, one of the solutions is allowed:

• the employer offers an alternative position or place of work that satisfies the medical requirements;
• if there is no alternative, the current place is assigned to the pregnant woman.

The dismissal of a pregnant woman during a staff reduction is also a violation of current legislation. A woman has the right to count either on a new place that will meet all her requirements, or an old position is assigned to her.

Is it allowed to dismiss a pregnant woman working part-time

Rostrud published a letter 2607-6-1, where the following information can be highlighted: in accordance with Article 288 of the Labor Code, the employer has the right to independently decide on the dismissal of an employee. In practice, when a new employee is hired, an order is immediately formed to dismiss a pregnant woman if she is in a part-time position.

However, this information is opposed by Article 261 of the Labor Code, which says that the dismissal of a pregnant woman at the initiative of the management is illegal. Accordingly, it can be initiated only with the consent of the employee. The only exception is the self-liquidation of the employer.

Accordingly, we can conclude that the dismissal at the initiative of the management of a pregnant employee working part-time is impossible.

In practice, a situation often happens when, when hiring a woman, she hides her “position” and then worries if her employer will fire her after learning about the pregnancy. In this situation, an explanation can be obtained in Article 64 of the Labor Code, which contains a prohibition on refusing to conclude employment contracts for reasons related to the “position” of a woman. Accordingly, a woman's pregnancy is not an objective reason for refusing to continue working.

Before making a decision about your dismissal, future mom must take into account several aspects.

1. After the application has got on the table to the management, it is possible to withdraw it during the working off period (two weeks). To do this, it is necessary to fill out an appropriate document confirming the desire to continue cooperation. If at the end of the two-week period the position remains vacant, then the dismissal does not occur.
2. If the employee independently decides to end his labor activity at the enterprise, then he does not receive payments in the form of benefits from the organization.
3. An employee can write an application only by making this decision on his own. If any pressure is exerted on the part of the employer, then he has every reason to apply to the courts and demand compensation for illegal actions.

When deciding to fire a pregnant woman, the management of an enterprise or company acts in its own interests. Having no legal grounds for dismissal due to pregnancy, it can use the following:

• presence at the workplace in a state of alcoholic or drug intoxication;
• causing serious damage to the company or enterprise (damage to property), but this fact still needs to be proven and established that the actions were intentional;
• inaction or actions aimed at the loss of confidence on the part of management;
• behavior deemed immoral, which was the reason for dismissal;
• violation of the signing of an agreement on the storage of trade secrets;
• the employee has committed actions that caused material damage to the organization;
• the employee does not appear at the workplace for more than two months.

Considering the last point, it is worth clarifying that there is a certain list of diseases, which is a serious obstacle to the continuation of work. It includes the threat of abortion, the occurrence of complications during gestation. Upon presentation of the relevant medical documents to the authorities, this ground for dismissal loses its legal basis.

Each employee who was absent from the workplace due to a serious illness or a threat of miscarriage is required to provide an appropriate medical document for reporting and explanations. In addition, the company must adjust his payments in connection with the registration of the sick leave.

Unfortunately, legal practice knows many situations when, despite the established legislative guidelines, the management of companies and industrial organizations often violate the rights of pregnant women. If such a situation occurs, then the employee has the right to appeal against the actions of the employer.

1. IN judicial order.
2. Through the prosecutor's office.
3. Appeal to the state labor inspectorate.

If the fact of unjustified dismissal of a pregnant employee is proved, the employer may incur criminal or administrative liability:

• Based on Article 5.27 of the Code of Administrative Offenses, an administrative penalty may be imposed on the employer in the form of a fine of 30,000-50,000 rubles, and for an individual entrepreneur - from 1,000 to 5,000.
• On the basis of Article 145 of the Criminal Code - penalties of 5,000 - 200,000 rubles, wages for the last 18 months are deducted or compulsory work up to 360 hours is assigned.

The State Labor Inspectorate supervises enterprises and conducts inspections there. If necessary, this supervising body transfers all materials for further proceedings to the prosecutor's office. For her part, a pregnant woman can independently apply to the relevant services with a similar statement.

The employee also has the right to apply to the courts. What tasks are solved in this way?

1. Reinstatement of an employee. The record of dismissal must be canceled in the work book.
2. Payments of compensation for the time when the employee was in forced absenteeism.
3. Compensation for moral damage.

True, many courts require the plaintiff to substantiate the amount claimed. At the same time, as evidence, they are used to accepting mainly medical documents about the exacerbation or occurrence of diseases, the treatment received. We'll have to prove the relationship between illness and dismissal. At the same time, in judicial practice, it is believed that worries about what happened, which did not lead to health disorders, are fully compensated by reinstatement at work.

Based on Article 393 of the Labor Code, an employee will not need to pay a state tax or duty in order to protect his rights at a court hearing. Guided by Article 234 of the Labor Code, there is every reason to demand payment of compensation, as well as the full amount of wages for the entire period while the woman was not forced to work.

You can submit applications to several instances at once, while speeding up the process of proceedings on this issue. In practice, consideration of such situations does not take much time.

The current legislation of the Russian Federation strictly fixed the procedure for the dismissal of a pregnant employee, as well as the situations in which this can happen. It should be noted that the initiation of such a procedure is possible only if the legal entity ceases to operate. In other cases, it is only possible to sign a mutual agreement, provide an alternative vacancy at the enterprise, or leave at will.

Since the statistics point to a large number of cases of emotional pressure on a pregnant employee with all serious consequences, company management carefully studies legislative framework in order not to face lawsuits and other unpleasant situations in the future.