Can a pregnant woman be fired during her probationary period? Is it possible to fire a pregnant woman during a probationary period?

In some cases, it is possible to fire a pregnant woman. You need to turn to the norms of current legislation and find out what the legal nature of dismissal is. And can a pregnant woman be fired if she has violated labor discipline, or is the enterprise simply liquidated? It is worth knowing that dismissal of a pregnant woman at the initiative of the employer is possible only in certain situations, an exhaustive list of which is provided by the law. There are few of them, thus the law protects the rights of expectant mothers.

Is it possible to fire a pregnant woman?

There is no clear answer to this question. On the one hand, the Labor Code contains norms that allow a woman to be fired, but on the other hand, the legislator made sure that such situations do not occur and specifically specified the list of legal grounds for dismissing a pregnant woman. A woman in a position can be fired in the following cases:

1. her wishes;
2. agreements between the employee and the enterprise (this outcome of the event is most often found in everyday practice);
3. at the initiative of the employer (but only in some cases, which we will consider below).

It turns out that an employer is simply obliged to fire a pregnant woman if she herself wrote a letter of resignation and wanted to leave the company. This statement is also true if the pregnant woman quits by agreement with the employer. Both the civil and labor laws of the country give priority to the consent of the parties, even if they contradict the obvious rights of the employee. It is no secret that many unscrupulous employers hide behind this article as soon as they find out that an employee is pregnant and fire her by agreement of the parties.

Moreover, this formulation is generally the most acceptable for the employer in any case, because there is no intention or initiative of the employer to fire the pregnant woman. This is what many firms and corporations in our country use quite successfully.

How to fire a pregnant woman on her own initiative

A pregnant employee has the right to write a letter of resignation. Regardless of her situation, she is legally obligated to work the allotted time. In emergency cases, when, for example, she needs to move to another city, or for reasons of her health, she can indicate in her resignation letter a request to the employer to fire her on a specific day. But, again, it is the employer’s right to make a concession and dismiss the employee on the date she desires, and not an obligation.

Let's assume this outcome of events: a pregnant woman wanted to quit, but at the last moment changed her mind. In this case, if an employee who is prohibited by law from refusing employment was not hired in her place, the employer is obliged to extend the employment relationship with the pregnant employee.

Therefore, if an employee wrote a letter of resignation, after which she decided to continue the employment relationship, but the employer fires her, the court will regard such an act as the employer’s initiative.

On its own initiative, an employer can fire a pregnant woman on the basis of Art. 261 of the Labor Code, which contains cases when the law still allows for the dismissal procedure. First of all, this is the liquidation of an enterprise, or termination of activities by an individual entrepreneur. But upon liquidation of the enterprise, the pregnant woman must be notified of the upcoming dismissal two months before the expected date.

Why can a pregnant woman be fired?

If, nevertheless, there is an initiative of the employer, then it is necessary to take into account that the reason and motivation for dismissal is indeed legal. At the initiative of the employer, a pregnant woman may be dismissed if:

1. The enterprise where the pregnant woman works is liquidated without legal succession;
2. If a pregnant woman works for an entrepreneur who ceases his activities;
3. If a temporary employment contract has been concluded with a pregnant woman until the employee who is listed in this position as the main one returns to work;
4. If a pregnant woman refuses to accept the change in working conditions that have occurred at the enterprise;
5. If the organization has changed ownership, and the pregnant woman refuses to work in the new organization

At the same time, if an employee has entered into a temporary employment contract with an enterprise, after its expiration, she cannot be dismissed if she did not perform the duties of a temporary employee. That is, if a temporary employment contract was concluded with an employee and its validity period has expired, the pregnant woman remains at this enterprise with the same salary until the end of her pregnancy. The employer has the right to demand from her confirming certificates about the state of pregnancy, no more than once every three months.

When dismissing a woman after the end of her pregnancy, it is important to observe a one-week period for dismissal. In accordance with Art. 261 of the Labor Code, the employer has the right to dismiss the employee within a week after learning that the employee’s pregnancy has ceased.

If an employee whose duties were performed under a temporary employment contract by a pregnant woman returns to work, the employment contract with her may be terminated. Just not right away. Initially, the employer must offer the employee all the vacancies he has at a given place of work that correspond to her qualifications and which she can perform in her position. If there is no such place to work, dismissal occurs according to the general procedure. The wording of the dismissal must indicate that the contract with the employee terminated due to the departure of the employee whose duties she temporarily performed at this enterprise.

How to fire a pregnant employee

In addition to the reasons indicated above, it is permissible to dismiss a pregnant employee if the employer has changed its location, moved to another area, and the pregnant woman also refuses to move, or change her place of residence to another area. In this case, it is necessary to indicate in the work book a link to Art. 77, part 1, clause 9 of the Labor Code. After all, such a reason for dismissal applies neither to the initiative of the employer nor to the initiative of the employee.

In addition, there are a number of questions about whether it is possible to fire a pregnant woman during the probationary period. And the answer here is clear and categorical – it’s impossible. The fact is that the law prohibits establishing a probationary period for a pregnant woman. Thus, if an employee who got a job with a probationary period, during its completion, learned that she was pregnant, she must provide the employer with a document confirming her position (medical certificate). After this, the employer is obliged to formalize it on a permanent basis under the employment contract that was concluded between them.

The employer simply cannot fire an employee if it becomes known that she is pregnant on his own initiative.

Unfortunately, there are often situations when an employee is going to leave the company by agreement with the employer. An agreement was signed between them. And so, before leaving, she finds out that she is pregnant and changes her mind about leaving. What should an employer do in such a situation? Dismiss, as expected, by agreement of the parties. About this, a corresponding note is made in the work book. If, of course, the employer wants to extend the employment relationship with the pregnant employee, he has the right to keep her at the enterprise. But only the written agreement and all agreements reached must be canceled.

The opinion of judicial practice, in particular, the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004, indicates that if the employee and the employer reach an agreement to terminate the employment contract, the employee may be dismissed. Regardless of his condition. Therefore, a pregnant woman can be dismissed by agreement of the parties, on the basis of Art. 78 TK, even if she “changed her mind” at the last moment.

Legislation analysis

Thus, to summarize, it can be noted that the employer’s right to dismiss a pregnant employee is strictly limited. It is this situation that becomes the reason why employers are distrustful of hiring young employees. After all, she cannot be fired, even for being late, and absenteeism cannot be imputed, since for a pregnant woman all the circumstances are respectful, since the condition itself implies this respect. But this is rather an exception to the rule. As a rule, pregnant women understand perfectly well that this temporary condition will pass, and everyone wants to retain a place where they can return to work after maternity leave.

If the situation does not allow keeping a pregnant woman at work, she can be fired at the initiative of the employer, in the event of liquidation of the organization, or termination of activities by the entrepreneur. It is important to note that, in the event of reorganization of an enterprise, or liquidation with the transfer of the rights and obligations of the enterprise to another legal entity, the dismissal of a pregnant woman is still not allowed.

The law does not prohibit dismissing an employee if she herself wants to leave her job, or in case of a preliminary agreement with the employer. When the form of ownership of the enterprise changes, or when the employer moves to a new location, the employee may object to the move or to the change in working conditions. In this case, the employee can also be fired during her pregnancy.

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 under a fixed-term employment contract finds herself in an interesting situation, 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).

The question of whether an employer can fire a pregnant employee is important to many HR professionals and both sides of the employment relationship. Current legislation establishes very strict standards to protect the rights of expectant mothers, and violation of them may result in liability. However, in some cases, such broad opportunities can lead to malicious violations on the part of the employee - in this case, understanding the existing mechanisms and principles of how to fire a pregnant woman will be extremely useful for the employer.

Can a pregnant woman be fired from work - laws and regulations

The legal regulation of the obligation to provide special social protection for pregnant women is secured primarily by the provisions of Articles 7 and 38 of the Constitution of the Russian Federation, as well as the provisions of the Labor Code, which ensure high protection of pregnant employees from illegal dismissal.

Directly issues of legal regulation related to the context of termination of an employment contract with a pregnant employee are considered by the following articles of the Labor Code of the Russian Federation:

• Art. 70 of the Labor Code of the Russian Federation regulates the relationship between the employer and employees during the probationary period, including if they are pregnant.
• Art. 77 of the Labor Code of the Russian Federation demonstrates a general list of reasons why a previously concluded employment contract may be terminated.
• Art. 84.1 of the Labor Code of the Russian Federation regulates the procedure for formalizing the procedure for terminating an employment contract.
• Art. 254 of the Labor Code of the Russian Federation requires employers to transfer a pregnant employee to another position in a number of situations when previous activities do not correspond to her current state of health and the restrictions established for pregnant women.
• Art. 261 of the Labor Code of the Russian Federation is the main one that regulates the principles of dismissal of pregnant employees and the guarantees that the state provides them with to protect them from unfair dismissal.

In general, the dismissal of a pregnant woman from the point of view of the law is unacceptable only directly at the initiative of the employer. However, there are many nuances that should be known, both for employees so as not to be taken by surprise when pregnancy occurs, and for personnel officers or employers in order to be able to influence a pregnant employee.

In what cases can an employer fire a pregnant woman?

The answer to the question of whether an employer can fire a pregnant woman is quite complex and complex. First of all, the main standards that prevent the dismissal of a pregnant employee are the principles set out in the provisions of Article 261 of the Labor Code of the Russian Federation. It prohibits the dismissal of pregnant workers at the initiative of the employer in principle, except in cases of liquidation of the enterprise. In particular, the following grounds for dismissal, considered by the provisions of Article 81 of the Labor Code of the Russian Federation, are not applicable to a pregnant woman:

• Reduction of staff or number of employees. In normal situations, the employer can make such a dismissal in relation to an employee simply if there is a corresponding desire on his part, and also on the condition that no similar vacancies will be published during the year. However, the reduction of pregnant women is unacceptable.
• Inadequacy for the position held or lack of qualifications. Such dismissal must necessarily be confirmed by the results of an attestation carried out at the enterprise or by a third-party certification center. But it is prohibited to fire pregnant women for this reason. However, their referral for certification is entirely legal.
• Change of owners and management of the company. In the event of a change in the owner of the enterprise, only the chief accountant, director or their deputies can be dismissed for this reason without restrictions. However, if such an employee is a pregnant woman, her dismissal is considered unacceptable.
• Failure to perform official duties repeatedly and in the presence of other disciplinary sanctions. Regardless of the number of disciplinary sanctions, pregnant employees are prohibited from being fired for this reason. That is, from the point of view of the letter of the law, the dismissal of a pregnant employee is prohibited, even if she does not perform her job duties at all.
• A single gross violation of labor discipline in the form of absenteeism, theft, appearing drunk at the workplace, ignoring labor safety rules with serious consequences, as well as disclosing secrets is sufficient grounds for dismissal of an employee.
• But in the case of pregnant women, none of these offenses, or even their totality, can serve as grounds for dismissal. However, the employer has a number of tools to reduce the damage from such a worker - if he is absent, he has the right not to pay money for the designated working day, and intoxicated workers cannot be allowed to work in principle, just as they are not entitled to payment per day of suspension.
• Commitment by an employee with access to funds of clearly guilty actions that may lead to loss of trust, as well as failure to prevent the possible occurrence of a conflict of interest. A pregnant employee cannot be dismissed for these offenses, regardless of their severity.
• Performing immoral acts by persons entrusted with educational responsibilities.
• For them, workers who are in a position cannot be subject to dismissal. Pregnant employees cannot be fired if managers or chief accountants make unfounded decisions that result in material damage to the enterprise, or for gross violations of official duties.
• For providing false documents. Even if a pregnant employee provided false documents during employment and such deception was discovered, she cannot be dismissed throughout the entire period of her pregnancy, regardless of the severity of the forgery.
• While on vacation or No employee can be dismissed on sick leave, and a pregnant woman is no exception.
• For other reasons that may be provided for by labor agreement with managers or members of the collegial executive body. Regardless of these conditions, a pregnant employee cannot be dismissed under any circumstances.

This is a list of reasons relating to the dismissal of female employees at the initiative of the employer, which are clearly prohibited from use and practical application. Nevertheless, the negative consequences of a number of actions of pregnant workers can be smoothed out using other methods of influence other than direct termination of the contract. Also, employers should not forget that pregnant employees on fixed-term employment contracts cannot be fired.

The legislation contains a strict list of prohibitions on when a pregnant employee can be fired. This means that if restrictions on other options for terminating the employment relationship are not established by law, then these can be used by the employer and employee.

A fixed-term employment contract with a pregnant woman implies that this contract can be terminated upon the occurrence of certain circumstances. The procedure for dismissal for this type of labor relationship is discussed in Article 79 of the Labor Code of the Russian Federation. Current regulations provide that if an employee is pregnant under a fixed-term employment contract, this contract must be extended until the end of her maternity leave period, with one exception. This exception includes cases where a fixed-term contract was concluded for the purpose of replacing an absent employee.

In this case, there will be an absolutely legal termination of the employment relationship with the pregnant employee.

As mentioned above, the employer has certain opportunities to fire a pregnant employee without possible penalties for such actions. An employer can dismiss a pregnant woman without any restrictions in a number of cases directly provided for by labor legislation. Situations in which challenging dismissal will be impossible or extremely difficult include:

• Dismissal of a pregnant woman at her own request. A pregnant employee has the right to apply for dismissal at any time on her own initiative. However, it can also be submitted during maternity leave. Filing such an application does not exempt a pregnant employee from the mandatory two-week work period, but the work period is counted also during sick leave. If necessary, the employer can convince a pregnant employee to write a statement of her own free will, but if there is coercion with relevant evidence, she can easily challenge the decision in court.
• Dismissal of a pregnant woman by agreement of the parties. An agreement between the parties is an ideal option for an employer to dismiss a pregnant employee. This application cannot be withdrawn before the date of dismissal by the employee unilaterally, and the presence or absence of pregnancy and information about it from the parties is not grounds for reviewing the said dismissal. However, it is impossible to dismiss her on this basis without the employee’s consent.
• Termination of a fixed-term contract when replacing another employee. If a pregnant employee worked under a fixed-term contract that implied replacing another employee, she can be fired immediately on the day such an employee returns to work without any restrictions. At the same time, some employers always keep such fictitious workers “in reserve”, for example, on leave without pay, and hire women at risk of pregnancy only for fixed-term contracts.
• Dismissal for reasons beyond the control of the parties. These include natural disasters or the death of an employer or employee, the departure of a previously absent employee or his reinstatement in court, and other cases, for example, administrative or criminal liability that does not allow him to continue working.
• Liquidation of the enterprise. In the event of liquidation of an enterprise, pregnant workers are dismissed in accordance with the general procedure, and the responsibility for their social security may be assigned to government agencies.

As you can understand, the above grounds cannot always be applied by the employer. However, this is a comprehensive answer to the question of how to fire a pregnant employee. If it is impossible to use legal mechanisms for dismissing an employee, the employer has the right to use other mechanisms to minimize its costs associated with such employees. These include the following features and circumstances:

• Pregnancy does not exclude the employee’s financial liability. Moreover, if she systematically violates internal regulations or causes actual damage to the property of the enterprise through her actions, she may be brought to administrative or criminal liability for this. It is best for the employer if an agreement on full financial responsibility is concluded with such an employee.
• Removal from work. If an employee appears drunk, she may be suspended from work without payment of wages.
• Assigning a female employee to idle time while retaining 2/3 of her salary. In some cases, it may be beneficial for the employer, at least in this way, to temporarily get rid of an employee who violates internal regulations.
• Changes in working conditions. The employer has the right to change the working conditions of the employee by reducing her working hours and changing her job responsibilities. In such a situation, the pregnant employee may refuse these changes and, if she refuses, she may be dismissed without restrictions. However, the employer should keep in mind that changes in job descriptions should affect all employees in this case - if the court establishes that they were changed for the sake of one employee, such actions may be considered discrimination.
• Statement of administrative or criminal offense. If the actions of a pregnant woman constitute an administrative or criminal offense, she may be punished for such in the manner prescribed by law, which will preclude the possibility of continuing to work.
• The use of internal rules that significantly limit the work of pregnant women in order to take care of their health. Enterprise standards may provide for restrictions for pregnant women to occupy certain positions or maximum working hours - if such restrictions are justified by the need to ensure the health of workers, then they may be the basis for a significant reduction in costs for a pregnant employee.

Responsibility for dismissing a pregnant employee

Russian labor legislation provides not only guarantees for the protection of pregnant workers, but also mechanisms for punishing employers for violating the rights of such women. Responsibility for the dismissal of a pregnant woman can primarily be attributed to the standards of Article 145 of the Criminal Code of the Russian Federation, which provides for the dismissal of a pregnant woman with a fine of up to 200 thousand rubles or 18 months of the convicted person’s income, as well as the possibility of assigning compulsory labor lasting up to 360 hours.

In addition, in court, the employer may be obliged to reinstate the wrongfully dismissed employee at work and pay her compensation for moral damages and earnings for the entire period of forced absences, including if she was fired while on vacation, for which vacation pay was already paid. Therefore, employers should approach the dismissal of pregnant women with the utmost responsibility. In a lawsuit, witness testimony and internal documents of the enterprise may be important. However, if the grounds for dismissal were precisely reasons that clearly cannot be applied to pregnant women, then it will simply be impossible for the employer to win such a case in court.

Larisa Naumenko

The Labor Code of the Russian Federation (LC RF) provides pregnant women with additional benefits and guarantees, including protection against unjustified dismissal. But there are situations when dismissal of an employee is possible even if she is pregnant. Although these are isolated cases, employers and employees need to be aware of their rights.

When dismissal depends on the employer's initiative

Dismissal of an expectant mother at the initiative of the employer is possible only on the grounds of clause 1, part 1, art. 81 of the Labor Code of the Russian Federation, that is, in two cases:

Upon liquidation of an enterprise;

Upon termination of the activities of an individual entrepreneur.

In other cases, termination of an employment contract with a pregnant woman at the initiative of the employer is not allowed (Part 1 of Article 261 of the Labor Code of the Russian Federation).

iconmonstr-quote-5 (1)

Thus, a pregnant woman cannot be fired for absenteeism or repeated failure to fulfill her official duties.

The guarantee provided for in Part 1 of Art. 261 of the Labor Code of the Russian Federation, also applies to women whose work is regulated by special standards, for example, to women:

Heads of organizations,

Sportswomen,

Coaches,

Women serving in state civil and municipal service (clause 26 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 28, 2014 N 1).

When dismissing for the above reasons, a pregnant employee should be more careful, since unscrupulous employers often, under the guise of liquidation, actually carry out a reorganization or change the name of the company.

iconmonstr-quote-5 (1)

Dismissal in this case will be considered illegal.

And, of course, in the event of liquidation of an enterprise or termination of the activities of an individual entrepreneur, the employer must follow the established procedure for terminating the employment contract and pay the dismissed woman all severance pay due to her.

When dismissal depends on the employer's capabilities

There are also often cases when a fixed-term employment contract ends during pregnancy.

iconmonstr-quote-5 (1)

As a general rule, if a woman expresses a desire to continue working, the employer is obliged to extend the contract with her until the end of her pregnancy.

But here, too, there is one exception: a fixed-term employment contract with such a woman can be terminated if it was concluded during the performance of the duties of an absent employee.

In this case, the employer is obliged to offer the pregnant employee all available vacancies in the organization, and only if it is not possible to transfer the employee to another job before the end of pregnancy, the employer is allowed to terminate the fixed-term employment contract with her.

When dismissal depends on the decision of a pregnant employee

The basis for dismissal may be the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties (clause 7, part 1, article 77 of the Labor Code of the Russian Federation). Simply put, if the expectant mother did not like the new terms of the employment contract and for this reason she refuses to continue working, then she is fired.

Let's figure out what new terms of the contract we are talking about here.

In accordance with Art. 72 of the Labor Code of the Russian Federation, the terms of the contract can be changed only by agreement of the parties - the expectant mother and the employer. However, there are exceptions provided for by labor legislation, when the employer can change the terms of the contract without the consent of the employee.

Thus, when organizational or technological working conditions change, it is also possible to change the terms of the employment contract determined by the parties at the initiative of the employer (that is, unilaterally).

Where to be vigilant

In practice, many employers abuse the right to unilaterally change the terms of an employment contract, thereby trying to “survive” a pregnant woman.

Therefore, you need to know that such changes must be caused by objective necessity, namely a change in organizational or technological working conditions, after which it is impossible to maintain the previous conditions.

A pregnant woman can become a burdensome “burden” for the employer, because she will have to keep her job 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... Let’s find 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 an expectant 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 self-will on the part 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 (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 proving that the application was written under duress at his own request rests with the person who resigned in accordance with Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the 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 may have made during a personal or telephone conversation with your 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.

	Statement	Agreement of the parties
How is it processed?	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 (can be drawn up by one of them, but the second party must check it). The document is drawn up in 2 copies and signed by both parties. Upon dismissal, the employer issues an order.
What if the parties do not agree?	An employer cannot refuse to dismiss an employee at his own request if he has worked for a two-week period after submitting an 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, you can draw up a protocol of disagreement, but if the parties do not reach a consensus, dismissal will not occur.
date of dismissal	The date of dismissal is not the date of drawing up the resignation letter, but the day of expiration of the two-week period from the date of its submission.	The date of dismissal is negotiable, that is, whatever both parties decide, so it will be. By agreement of the parties, a pregnant woman can quit without working for two weeks.

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 about her pregnancy at that time, can send an application to the employer to invalidate the agreement due to a significant change in circumstances (pregnancy), if the day of dismissal indicated has not yet arrived in the agreement.

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 of the Labor Code of the Russian Federation establishes 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 is already 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.