The procedure for dismissing a pregnant woman from work - is it possible to dismiss and in what cases. When should you tell your employer about your pregnancy? Light labor during pregnancy. Can a pregnant woman be fired from her job?

Labor legislation provides protection to pregnant workers; for example, such an employee cannot be required to work overtime (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 is labor protection always valid? Can a pregnant woman be fired from her job?

Is it possible to fire a pregnant woman?

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

If the employer violates this rule and fires a 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 employee;
• pay her for her forced absence at the average salary;
• compensate for moral damage caused.

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 rub. for the organization itself;
• from 1000 to 5000 rub. for officials of the organization (for the employer-individual entrepreneur).

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?

An employer has the right to dismiss a pregnant woman in the event of liquidation of the organization/termination of the activities of an individual entrepreneur (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 finds herself in interesting position, the employer needs to be aware of some nuances.

So, for example, if a fixed-term employment contract expires during a woman’s pregnancy, the employer is obliged to extend the term of the employment contract until the end of the employee’s pregnancy (Article 261 of the Labor Code of the Russian Federation). The employer must do this based on the employee’s application, as well as a medical certificate confirming her pregnancy. In this case, the employer has the right to require 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 during the absence of another employee;
• this other employee goes to work;
• It is not possible, with the written consent of a pregnant employee, to transfer her to another job before the end of her pregnancy, which the woman can perform taking into account her condition.

But here it is worth keeping in mind that in this situation the employer is obliged to offer the pregnant employee all available vacancies (not only the corresponding qualifications of this employee, but also vacancies for lower/lower paid positions).

A pregnant woman can become a burdensome “burden” for the employer, because she will have to maintain workplace during maternity leave, pay for vacation and make other payments provided for by law. All this is unnecessary hassle, and besides, finding a new employee who will agree to work temporarily is very difficult. Employers who are poorly informed about the nuances of labor legislation or are simply confident in their impunity decide that by firing such employees they will avoid many problems. However, in reality, they are creating new and much more serious ones... Read more about whether employers have the right to fire a pregnant employee in 2019, in what cases these actions will be legal, and how an expectant mother can protect her labor rights, if they are violated, we will look into it 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, stopping self-will on the part of employers and thus protecting the rights of pregnant women.

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

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

In this scenario, the employer may terminate the employment contract with the pregnant woman without her desire or consent.

In what cases is it permissible to dismiss pregnant women?

In order to fire a pregnant subordinate, the manager must not take the initiative. Dismissal at his request is a taboo. An acceptable basis 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 an individual entrepreneur

Dismissal during the liquidation of a pregnant woman is regulated by Article 180 of the Labor Code of the Russian Federation. The employer must notify her that the company will be liquidated at least 2 months in advance. Not verbally, but always against signature.

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

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

According to paragraphs 10, 11 of Resolution No. 865 of December 30, 2006, maternity benefits after liquidation will no longer be paid by the employer, but by the social security department at the place of residence of the pregnant woman.

Dismissal at your own request

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

In this case, the desire to quit must be your own, and not arise due to conditions intentionally created by the employer. The practice of managers blackmailing or creating unbearable psychological working conditions is quite common. In this case, the pregnant woman can complain to the State Inspectorate or the prosecutor's office, after which an inspection will be carried out. But the burden of proof is that the statement at will written under duress, is assigned to the person who resigned in accordance with the Resolution of the Plenum Supreme Court RF dated March 17, 2004 No. 2 “On the application by courts Russian Federation Labor Code of the Russian Federation"

The two-week period does not have to be completed if the woman is hospitalized for health reasons. That is, in essence, she is sent on sick leave, and the time of forced absence from work (sick leave, vacation) is counted towards this two-week period. Therefore, if in such a situation it is not possible to personally take the application to the employer, the pregnant employee can write a statement, and her relatives will send it by mail to the employer’s address.

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 could make in person or telephone conversation with the employer does not count.

Please keep in mind that during the two-week period that must pass from the date of filing the application, the employer has the right to send the employee on leave. 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 termination of the contract with her by agreement of the parties.

The table will help you understand the difference between dismissal at the request of a pregnant woman and by agreement of the parties.

What is 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 dated 09/05/2014 N 37-KG14-4. According to its provisions, it can be concluded that a woman who signed a dismissal agreement between the parties, who did not know at that time about her pregnancy, can send an application to the employer to invalidate the agreement due to significant change circumstances (pregnancy), if the day of dismissal specified in the agreement has not yet arrived.

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

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

1. The employment contract was concluded for the duration of the duties of the absent employee.
2. It is impossible, with the written consent of the woman, to transfer her to another job available to the employer that is suitable for her health before the end of her pregnancy.
3. The employer offered her all available jobs 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 in order for dismissal from a maternity position (and most often fixed-term employment contracts are concluded precisely for the duration of another employee’s maternity leave) to be considered legal.

In other cases, the employer does not have the right to dismiss a pregnant woman from her maternity position. If a woman proves that she is carrying a child by providing a medical certificate, the employer MUST extend the fixed-term employment contract with her. Even if an employee goes on maternity leave, the pregnant woman must be assigned to another job. It is assumed that a transfer to a place with a lower salary is possible. In this case, the woman must decide for herself whether to remain in a position where they will pay less, or write an application of her own free will.

Is it possible to be fired under an article?

Labor legislation does not contain such wording as “dismissal under an article.” This is popularly understood as dismissal for committing a disciplinary offense, that is, in the course of imposing a disciplinary sanction, or due to professional incompetence.

An employer cannot fire a pregnant woman for absenteeism or other violations of labor discipline, but he 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 a position violates labor discipline, she may be reprimanded or reprimanded. In addition, there are no restrictions on the deprivation of bonuses. Pregnant women may be deprived of bonuses at the discretion of the employer.

Is it possible to fire a pregnant woman during a probationary period?

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 hiring).

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 in the 7th month. But her employer does not have the right to fire her before maternity leave, since pregnant women at any stage are equally protected by law from the moment they document the pregnancy.

Should pregnant women be afraid of layoffs?

Dismissal of pregnant women due to layoffs 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 medically suitable.
2. If it is impossible to provide an alternative, the place is reserved for the pregnant woman.

That is, in any case, pregnant women do not face dismissal during layoffs: they are either offered a new position or the old one is retained.

Is it permissible to fire a pregnant woman working part-time?

There is an explanation from Rostrud on this matter in letter No. 2607-6-1 dated November 24, 2008. 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. This is his right, not his obligation. Therefore, when hiring a new “permanent” employee instead of a pregnant part-time woman, it is the employer who initiates the termination of the employment contract. Article 261 Labor Code The Russian Federation has established a ban on the dismissal of pregnant women at the initiative of the employer, except during the liquidation of the organization and termination of the activities 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 while already pregnant and kept silent about it, will she be fired when everything becomes clear.

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

What to do if an employer violates 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 that uncommon.

An employee can appeal the employer's actions to:

• 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 of 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 State Inspectorate, and if necessary, transfers the inspection materials to the prosecutor's office in order to bring the culprit to criminal liability. But this procedure is not mandatory - the victim can herself contact the prosecutor’s office with a complaint.

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

1. She will be reinstated in her position, and may require the issuance of a duplicate work book, which will not contain a record of dismissal.
2. She will be paid compensation for her forced absence.
3. The employer will have to compensate for moral 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.

Is a pregnant woman required to inform her employer about her pregnancy? The law regulates labor relations between the expectant mother and the boss to a greater extent from 27-30 weeks, that is, from the date of maternity leave. The Labor Code does not indicate whether a woman must report her situation or when this should be done. This means that the decision remains with the expectant mother. The special situation of the employee requires a solution large quantity questions, so it’s worth talking about pregnancy before going on maternity leave. But up to 12 weeks, this should only be done if necessary.

Legal nuances: what you need to know

Any expectant mother enters into new stage relationship with the employer. Labor legislation is on the side of the pregnant woman; you just need to know how to rely on it correctly. Today, prejudice against pregnant women during employment or already at work is a form of discrimination. Unfortunately, such phenomena are quite widespread, because it is not profitable for an employer to keep an employee who, for one reason or another, cannot fulfill her duties fully. Therefore, many women have a fear of how the joyful news about the imminent addition to the family will affect their career.

The rights of pregnant women are regulated by the Labor Code. An employee who is expecting a child cannot be involved in overtime or night work, business trips and work on holidays and weekends. A woman has the legal right to have her working hours reduced, transferred to light work during pregnancy, and work in a comfortable room (ventilated and bright, without a lot of equipment, and so on). The employee’s work responsibilities do not change in any way, but she has the right to demand a loyal attitude to her new position.

Maintaining a job and the issue of dismissal

The employer is obliged to maintain the employee’s position and salary, but may offer vacancies that are more appropriate to the woman’s health condition. A pregnant woman can be fired only in one case - during the liquidation of the enterprise. But even with this, the manager is obliged to employ women employees who are in this situation. When working under a fixed-term contract, a woman must apply for an extension on the grounds of pregnancy. An employee cannot be fired for severe disciplinary violations and failure to perform her duties. The greatest possible punishment is deprivation of bonuses.

Vacation and cash payments

Annual leave must be paid in full and regardless of the length of work in this company. Maternity leave lasts 70 days (if multiple pregnancy- 84 days) before birth and 70 after (110 - for the birth of two or more children, 86 - for complicated births). During this time, social security benefits are paid.

Vacation pay is paid upon provision sick leave. If the employee’s annual income is less than 415 thousand rubles, the calculation is based on the average amount of income per day multiplied by 140-180 days. The employer can optionally add 50 thousand rubles to this amount. The woman does not pay tax on these amounts. Immediately after the BiR leave, parental leave begins. Through social insurance, a woman has the right to receive 40% of the average monthly salary for the previous year. If your annual income exceeded 415 thousand rubles, then the maximum you can get is 13,833 rubles per month. During the period of labor and child care leave, the length of service is not interrupted.

Official registration of a woman

Important condition— in matters of the rights of pregnant women and their responsibilities at work, you must rely on official documentation. Otherwise, the employer may refuse to transfer the woman to light work and other benefits, provide leave and pay benefits. In this case, lawyers advise entering into a formal employment relationship with your employer or collecting documents confirming the fact of working in this company. As evidence, you can attach, for example, a statement of movement on the card, if wage transferred through the bank.

When to Tell About Your Pregnancy at Work

When should I inform my employer about pregnancy? Expectant mothers answer this question in different ways. At good relations with management and staff, many share their joy even before registering with antenatal clinic, other women strive to hide their special position until maternity leave. When should you tell your employer about your pregnancy? This issue is not legally enshrined in the Labor Code, that is, a woman can decide for herself when to do this and whether to do it at all (you can simply bring sick leave and go on vacation).

Until 27-30 weeks, a woman can act as she pleases. Further, the employee has the right to go on leave under the Labor and Employment Regulations. Failure to complete all necessary actions expectant mother will lead to the loss of a major sum of money, and failure by the manager to comply with the provisions of the Labor Code threatens him with fines. So, when should you notify your employer that you are pregnant? By generally accepted standards According to professional ethics, a woman should inform her immediate superior about going on maternity leave a little in advance. It takes time for an employer to find a replacement for an employee for such a long period.

Early message about "interesting situation"

When should you tell your employer about your pregnancy? You can first obtain medical confirmation. A certificate of pregnancy can be issued to the expectant mother in the housing complex as soon as this fact is established by the gynecologist, that is, starting from 5-6 weeks. But is it worth it to notify your superiors about your special status so early? Do I need to officially inform my employer about my pregnancy or can I get by with a conversation? In general, a woman is not obliged to report her situation before going on maternity leave, but this will prevent her from ruining relationships with her superiors and colleagues, who will have to urgently look for a replacement and train a new person.

Optimal time to inform management

Doctors in the antenatal clinic in most cases do not recommend that women inform their superiors about their situation before 12 weeks. In the early stages, pregnancy is still very vulnerable, but if a woman carries the pregnancy to term, then in the future the threats are no longer so great, there is a high probability of successful pregnancy and childbirth. If examinations carried out at the antenatal clinic predict pregnancy complications, and it is also known whether there is one fetus or several, the expectant mother can convey this information to the employer. For a singleton pregnancy, it is already possible to make an approximate calculation of benefits.

When should you tell your employer about your pregnancy? It is better to do this no earlier than 12 weeks. When announcing an upcoming maternity leave, the expectant mother should discuss a number of issues with the employer. This could be light or remote work until the day of birth, if going on maternity leave is unprofitable for some reason, the opportunity to take on an annual need to switch to preferential working conditions, and so on. It is necessary to warn the authorities so that the pregnant woman is not involved in heavy work, overtime, or business trips. Organizational issues Quite a few arise, but this does not mean that we should start discussing them too early.

In some cases, it makes sense to notify your bosses and colleagues about your special situation before 12 weeks. If work responsibilities are too difficult for a pregnant woman or her health condition requires her to take additional days off, it is worth discussing all issues with her superiors early on. A woman has the right to be transferred to light work and reduced work hours. In this case, you must provide a doctor's certificate.

Transferring an employee to lighter work

When working in production or harmful conditions labor, a pregnant employee has the right to switch to light work. A woman in this position is prohibited from being nervous, working on a conveyor belt, lifting heavy objects, working with pathogens, coming into contact with toxic substances and poisons, lifting objects from the floor too high, sitting on her knees or squatting, working in a hot room or in a draft. The employer's responsibilities include reducing the production rate for pregnant women and providing work in which there is no influence of harmful factors. In the event that it is not possible to give a pregnant woman another job, and it is impossible to leave her in her previous place, the law provides for complete release from duties while maintaining earnings.

How does the process of transferring to light work take place?

Transfer to light work during pregnancy occurs according to the procedure established by law. The woman needs to take a certificate with a recommendation to work with less workload and give it to her immediate supervisor. Without documented proof of pregnancy, no benefits will be provided. A certificate of gestational age and recommendations for transfer to light work are required; otherwise, the boss has every right to refuse the transfer. Then the employee must write a statement. After a positive response from management, the woman’s workload will be reduced, an additional contract will be concluded, or a transfer order will be issued. This can be done at any stage of pregnancy. Since the work is not permanent, they do not register for employment.

Can a pregnant woman be fired?

Can a pregnant woman be fired from her job? According to the law, the boss has the right to deprive a pregnant woman of her job only during the liquidation of the enterprise, but in this case he is obliged to employ the employee in a position. In fact, there are two more situations in which such an employee could lose her job. If working conditions are harmful or difficult, then the employer offers the woman other vacancies, but if she does not agree to them, she can quit. The grounds for terminating the employment relationship are also mutual agreement parties (dismissal at will). At the same time, the employer should not put pressure on the employee.

Can a pregnant woman be fired from her job if she is employed under a fixed-term contract? No, but the employee must independently apply for an extension of the contract. It will be possible to break it only after she returns to work after leave for employment and childcare. You cannot fire employees who are on a probationary period. If a woman is employed during pregnancy, she must be hired without a probationary period.

Documentary proof of pregnancy

Official notification of the employer about pregnancy - a certificate from the antenatal clinic. At early production When registered, a woman has the right to an additional benefit, which is paid simultaneously with the B&R benefit and after providing a certificate to her superiors. This document can be used as confirmation of pregnancy in the early stages. Additionally (if necessary), the doctor can issue a certificate with a recommendation for transfer to lighter work or with information about the duration of pregnancy. Before maternity leave, documentary evidence is a sick leave certificate, according to which benefits are paid.

Preparing for a conversation with your boss

Each expectant mother has the right to decide for herself when to inform her employer about pregnancy. But how to do that? You need to prepare for a conversation with your superiors. It is better to have documentary evidence of pregnancy on hand. It is also worth knowing your rights and responsibilities under the new regulation. Before the meeting, you should decide what the woman’s goal is. You need to save your job, switch to light work now, or get compensation payment and quit for early? You need to determine for yourself the main points in the negotiations in order to know what to agree to and what not to.

It is better to make an appointment in advance. Subject - personal question. It is worth considering who can replace the employee during the period of absence in order to propose a candidate and have time to bring the person up to date. It may be better to make this proposal in writing to show the employer and leave it after the negotiations. If the boss is a man, then you should express your thoughts briefly and clearly, if you are a woman, you can say more about the state and express emotions. When the employer formulates the conditions to which the employee agrees, it is better to put the agreement on paper.

What responsibility does the employer have?

If an employer violates the rights of a pregnant woman, she has the right to complain to the labor inspectorate. Inspectors will conduct an appropriate inspection. If the fact of violation is confirmed, the management will be fined 5 thousand rubles, in addition, they may be banned from activity for three months. According to the Criminal Code of employers who fired expectant mother illegally or not hired, you will face not only a fine, but also forced labor.

In our turbulent times, the question of whether a pregnant woman can be fired from work worries every expectant mother. Guarantees for a pregnant employee are stipulated in several articles of the Labor Code. In particular, the rules are stipulated in articles 260, 261, 99, 125 of the Labor Code of the Russian Federation and some others. Let's look at everything in detail possible options and we’ll tell you what to do if they try to fire you illegally.

Is it legal to fire a pregnant woman?

First of all, the employer must remember: dismissal of a pregnant woman on his initiative is prohibited, according to Article 261 of the Labor Code of the Russian Federation. If he decides to break this rule, and the dismissed employee files a corresponding lawsuit in court, then justice will be on her side. As a result, the employer will have to reinstate the employee in her position, pay for the forced absence and compensate for moral damages. If the injured party decides to go further and contact the labor inspectorate with a complaint, then the violator, in accordance with Part 1 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation, will be fined in the amount of:

• from 30,000 to 50,000 rubles - for an organization;
• from 3000 to 5000 rubles - for official or an employer who is an individual entrepreneur.

In addition, the case of termination of the employment contract can be transferred to the prosecutor's office, where the issue of initiating a criminal case under Article 145 of the Criminal Code of the Russian Federation “Unreasonable refusal to hire or unjustified dismissal of a woman who is expecting a child or has children under three years of age” will be decided. " Now you know whether an employer can fire a pregnant woman.

In what cases can you be fired?

The legislation quite clearly answers the question: do they have the right to fire a pregnant woman? However, there are cases when dismissal is permissible:

1. Liquidation of the enterprise.
2. The employee's replacement period has expired.

Liquidation of the enterprise

Article 261 of the Labor Code of the Russian Federation says that in this case it is possible to fire a pregnant woman.

Dismissal at the end of a fixed-term employment contract

If the term of a fixed-term contract ends during the woman’s pregnancy, the employer must extend it until the end of this period. This is done on the initiative of the employee on the basis of a corresponding application and a certificate confirming pregnancy. In such cases, the employer may require new certificates every three months.

It is worth knowing that within a week after giving birth, the employer has the right to terminate the employment contract. The same rule applies to female employees who replaced other employees.

At the end of the replacement period for an absent employee

If the contract under which the pregnant woman performed the duties of the absent employee expires, it may be terminated. However, in this case, the employer is obliged to offer the “distressed” employee another job that she can perform taking into account her state of health. If the employee does not like any of the proposed vacancies, then she must provide a written refusal from them.

At your own request and by agreement of the parties

A pregnant woman can resign of her own free will or by agreement of the parties. At the same time, the initiative to vacate the workplace should come from the employee. In this case, all details of the dismissal must be specified in the agreement of the parties. This document is drawn up in two copies and all the main points of dismissal are recorded in it. In particular, what payments and compensations can the employee receive.

If the pregnant woman is on probation

Let's start with the fact that it is impossible to set a probationary period for a woman during pregnancy (Article 70 of the Labor Code of the Russian Federation) if her condition is confirmed on the date of hiring by a certificate. If during the process of hiring an employee there was no information about her status and the employment agreement contains a condition on a probationary period, it should not be applied.

Considering that dismissal in such a format means showing the initiative of the employer (Part 1 of Article 71, Clause 4 of Article 77 of the Labor Code of the Russian Federation), the ban on such actions of the employer, defined in Part 1 of Art. 261 Labor Code of the Russian Federation.

Is it possible to fire before maternity leave?

Article 261 of the Labor Code of the Russian Federation prohibits the termination of an employment agreement with a pregnant woman at the initiative of the employer (except for the option of liquidating the enterprise). This means that the employer cannot part with the employee before she goes on maternity leave, since the current legislation is on the side of the employee from the moment she confirms the fact of pregnancy in documentary form.

Can a pregnant woman be laid off?

The answer to the question whether an employer has the right to dismiss a pregnant woman due to staff reduction is negative.

Dismissal of this format refers to the grounds for which the employer takes the initiative (clause 4, part 1, article 77, clause 2, part 1, article 81 of the Labor Code of the Russian Federation). At the same time, it is prohibited to separate from a pregnant woman on the latter’s initiative (with the exception of liquidation of an institution, Part 1 of Article 261 of the Labor Code of the Russian Federation).

If, nevertheless, the employer fired a pregnant woman due to layoff, he may incur both administrative (Parts 1, 2, Article 5.26 of the Code of Administrative Offenses of the Russian Federation, Article 145 of the Criminal Code of the Russian Federation) and criminal liability. Moreover, the employee will be reinstated at work without much difficulty (even if at the date of dismissal the employer had no information about her pregnancy). The court will side with the woman even when the pregnancy is not preserved at the date of the trial (Part 1 of Article 394 of the Labor Code of the Russian Federation, paragraph 60 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2, paragraphs 24, 25 No. 1 of January 28. 2014).

In this case, the employer will pay for the time of forced absence, and the calculation of the amount will include the severance pay provided upon termination of the contract.

If a pregnant woman works part-time

When working part-time, it is impossible to separate from a pregnant employee on the initiative of the employer (except in the case of liquidation of the enterprise, Part 1 of Article 261 of the Labor Code of the Russian Federation). This provision also applies if a woman is working part-time, including on the basis of Art. 288 of the Labor Code of the Russian Federation, when hiring an employee in her place for whom such work will become the main one. Since separation from the employee in this case is carried out on the initiative of the employer, the ban on such actions (Part 1 of Article 261 of the Labor Code of the Russian Federation) also applies in this case.

Moreover, Rostrud (Explanation dated November 24, 2008 No. 2607-6-1) recommends the following. If the conditions provided for in Art. 288 of the Labor Code of the Russian Federation, the decision to dismiss an employee is made by the employer. In this case, the decision is a right, not an obligation. This means that by hiring another employee for a permanent position instead of a part-time pregnant woman, the employer initiates the termination of the employment agreement. Article 261 of the Labor Code of the Russian Federation prohibits dismissing a pregnant woman on grounds related to the initiative of the employer (except for liquidation). This means that it is prohibited to fire a pregnant part-time employee against her will.

If the pregnancy was hidden during employment

What should an employer do if a woman hid this fact when applying for a job? Article 64 of the Labor Code of the Russian Federation directly prohibits an employer from refusing employment due to pregnancy. Thus, if the employer discovers new circumstances related to the employee’s pregnancy, information of this kind cannot become grounds for separation.

What to do if an employer violates the labor rights of a pregnant woman

Violation of the conditions for dismissal of pregnant women, defined by current legislation, will entail a number of unpleasant consequences for the employer.

An employee whose rights have been violated has the right to contact control, supervisory and other authorities with a corresponding statement, namely:

• State Labor Inspectorate;
• prosecutor's office;

The Labor Inspectorate will bring administrative liability, and, if necessary, send information to the prosecutorial supervision authorities for criminal prosecution. However, a dismissed employee has the right to contact the prosecutor's office directly. A woman can also submit statement of claim to the judicial authorities and demand:

• reinstatement at work in the previous position with the issuance of a duplicate work book and the absence of a record of dismissal;
• payment of compensation for a period of absenteeism against her will;
• compensation for moral damage (if such is proven).

At the same time, Article 393 of the Labor Code of the Russian Federation exempts the employee from having to pay the state fee for filing a claim.

Responsibility for violations

Dismissal of a pregnant woman without sufficient grounds will result in fines for the employer.

According to the Code of Administrative Offenses of the Russian Federation (Article 5.27):

• from 1000 to 5000 rubles - for an official or individual entrepreneur;
• from 30,000 to 50,000 rubles - for a legal entity.

According to the Criminal Code of the Russian Federation (Article 145) - from 5,000 to 20,0000 rubles or the amount of income for one and a half years, or compulsory work lasting from 60 to 360 hours.

In addition, establishing the fact of illegality of dismissal and the need to reinstate a person will entail the need to pay:

• average earnings during absence due to no fault of the employee;
• other amounts, such as legal costs.

It is generally accepted that labor legislation prohibits the dismissal of a pregnant employee in any situation. However, this prohibition is not absolute; in some cases, termination of employment relations with an employee in an interesting situation is completely legal. Let's consider whether an employer has the right to fire a pregnant woman in various situations.

In Art. 261 of the Labor Code of the Russian Federation provides for only two cases when dismissal of a pregnant woman is possible:

• termination of activities of the employer-individual entrepreneur;
• Liquidation of company.

It is this circumstance that prompts employers to refuse employment to pregnant applicants or to all young women in general. However, in fact, there are several more reasons for terminating an employment contract with such an employee. And all of them, importantly, will be legal.

There is a direct prohibition on terminating the contract if the employer takes the initiative. This measure is intended to protect a woman’s labor rights, in particular the right to receive maternity leave and all pregnancy-related payments in full. An exception, as already mentioned, would be the liquidation of a legal entity or individual entrepreneur, after which labor relations become simply impossible.

The law does not prohibit a pregnant woman from expressing a desire to resign, and the employer is obliged to satisfy such a request. Or both parties may come to an agreement on this issue. However, this does not mean that it is permissible to force an employee to take such a step. If it turns out that the application was written under pressure, the dismissal will be considered illegal with all consequences unfavorable for the employer.

If the employment contract has expired

When registering the dismissal of an employee working under a fixed-term contract, the possibility or impossibility of her dismissal in the event of pregnancy depends on several circumstances. By general rule the employer, having learned about the condition of his employee, is obliged to extend the term of her employment contract until the end of the pregnancy. But he must do this only after he receives a corresponding application and a medical certificate from the woman. After which, every three months she has the right to demand the presentation of a medical document confirming the continuation of pregnancy.

However, there are exceptions to this rule. More often fixed-term contract signed by a temporary worker hired to replace the absent main worker. And if the employee has begun his duties, then he has every right to take his place. The answer to the question whether it is possible to fire a pregnant woman in such a situation will be positive. But the employer must first offer her a transfer. And only if there are no other vacancies, or the pregnant woman herself refused them, a dismissal order is issued.

An employer is not obliged to reinstate a pregnant woman and extend the term of her employment contract if she announced her pregnancy after dismissal. This follows from the logic of Art. 261 of the Labor Code, which states that the basis for revising the term of the contract is a personal statement and a medical certificate. If at the time of dismissal they were not presented to the employer, then he acted lawfully. Courts take a similar position when considering disputes.

Dismissal at your own request

Dismissal at the request expressed by the employee is carried out by the employer, regardless of his state of health. But the desire must be truly voluntary; dismissal of a pregnant woman under duress is unacceptable.

The basis for terminating the contract and issuing an order is the employee’s personal statement in writing. The document is submitted in person, through the office or sent by registered mail. The notice period for the employer cannot be less than two weeks. An exception is working during a probationary period, when it is enough to submit an application three days before the expected dismissal.

Registration of dismissal of a pregnant employee at her request is carried out according to the usual algorithm:

• receiving an application;
• issuance of an order;
• making the necessary entries in the T-2 card and work book;
• issuance of calculations and documents.

Dismissal by agreement of the parties

There are often cases when workers dismissed at their own request went to court, motivating their demands by the pressure exerted on them. Therefore, it will be safer for the employer to formalize the dismissal of a pregnant employee on a different basis - by agreement of the parties. The law allows the parties to terminate the employment relationship at any time by mutual agreement.

Such dismissal does not violate the rights of a pregnant woman, since she agrees with it. And it does not create problems for the employer, since it is not subject to the ban on dismissal on his initiative. In the order and work book the agreement of the parties must be indicated as the reason for termination of the relationship. After this, it is almost impossible to challenge the legality of the employer’s actions.

Dismissal upon liquidation of a company

The dismissal of all employees, including pregnant women, during the liquidation of the organization will be undeniable. However, the employer must adhere to of a certain order actions. In particular, notify employees in advance of the upcoming dismissal. Minimum term such warning is 2 months, necessarily in writing.

The employer is not obliged to offer other vacancies, as in the case of layoffs. The fact of pregnancy also does not play any role, the extension of the employment contract in similar cases not provided. With one small exception: employees on maternity leave will be fired only after their sick leave ends. But the law does not prohibit warning them during vacation.

Is it possible to fire someone for absenteeism?

Separately, it is worth highlighting the question of whether a pregnant woman can be fired for gross violations of discipline, such as absenteeism. The law gives an unequivocal answer to this: they cannot. In addition, absences from work due to visits to antenatal clinics or specialized specialists cannot be considered absenteeism. But the fact of being in a medical institution for a scheduled or extraordinary examination must be confirmed by a woman with a certificate.

Pregnancy does not give the right to violate discipline with impunity. The inability to fire such an employee does not mean that other measures, such as a reprimand, cannot be applied to her. The imposition of such a penalty also has a number of unfavorable consequences: during its validity, incentive measures are not applied to the violator, bonuses are not awarded, etc. For a family expecting a child, this can be a serious nuisance.