How to legally fire a pregnant woman without her desire

Russian legislation is so strict that it does not allow women in positions to be fired even for what others are fired for, including absenteeism (Part 1 of Article 261 of the Labor Code of the Russian Federation and Resolution of the Supreme Court of the Russian Federation dated January 19, 2015 No. 18-KG14-148 ). Is it possible to dismiss a pregnant woman working under an employment contract concluded for an indefinite period from a difficult and/or harmful job if such work is contraindicated for her for medical reasons? No you can not. The employer must transfer her to another job that is not contraindicated for her, and if such a transfer is impossible, remove her from hard work while maintaining her salary (Article 254 of the Labor Code of the Russian Federation). To the question whether an employer can fire a pregnant woman on his own initiative, the current legislation also answers unequivocally - it cannot, except in cases of liquidation of an organization or termination of the activities of an individual entrepreneur.

Conditions under which dismissal is not possible

If your boss puts pressure on you to sign a resignation letter of your own free will after presenting a certificate of pregnancy, then know that the law is on your side. The Labor Code protects the rights of expectant mothers from the whims of employers who wish to fire an employee for no apparent reason. In the case of conscientious performance of duties, absence of absenteeism and administrative violations, the dismissal of an individual is illegal. The employee has the right to file a claim in the courts with a legal demand to provide her with equivalent working conditions and compensation for moral damage in the form of financial compensation.

As judicial practice shows, penalties for the illegal dismissal of a pregnant woman can vary from ten to two hundred thousand rubles, depending on the place of work and the damage caused. An employer should know that incorrect performance of job duties is not a legal reason for dismissing a pregnant woman. Dismissal in violation of labor discipline is impossible, since this is essentially a disciplinary measure, which is not provided for in Article 261 of the Labor Code of the Russian Federation.

The law establishes certain restrictions for individual entrepreneurs and legal entities regarding the termination of contractual relations with such employees.

It is prohibited to fire pregnant women in the following situations:

• absenteeism, theft of varying degrees and other administrative offenses that do not fall into the category of legal grounds (except for the cases provided for in paragraph 4 of Article 83 of the Labor Code of the Russian Federation);
• if the girl is on a probationary period, then pregnancy can be an excellent option to gain a foothold in the workplace as a permanent employee of the company;
• when a fixed-term employment contract is concluded (if the document terminates during pregnancy, the individual must contact the administrative center of the organization and submit an application for the extension of contractual obligations by agreement of the parties - in this case, the employee can be fired only a week after the birth of the child).

Important: throughout pregnancy, every three months a woman must provide her superiors with a certificate of health in order to provide moral and material support in the event of fetal loss.
If it is proven that the girl deliberately hid information about her pregnancy or its absence, then the employer can fire her within seven working days without giving reasons. Can a pregnant woman be laid off or fired from her job? Termination of an employment contract upon liquidation of a company applies to all employees. However, this rule does not apply to the reduction of individuals, especially those groups of the population that are under enhanced state protection. The management of the organization must provide a pregnant woman with a suitable place of work when reducing a division or branch of a private enterprise. And remember, no employer has the right to kick out a pregnant woman - otherwise, a serious fine or order of forced social work will be imposed (in extreme cases, he will face criminal liability).

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Dismissal of pregnant women under a fixed-term employment contract - what an employer can do

• If the contract expires during pregnancy, the employer must extend the contract with the expectant mother until the end of the pregnancy, after her written application and provision of a pregnancy certificate. At the same time, once every three months (they have no right to demand more often), a woman must confirm her pregnancy with a certificate.

• If the mother continues to actually work after giving birth, the organization’s management has the right to terminate the contract based on its expiration. The contract is terminated within a week from the day the employer learns of the end of the pregnancy.

• Dismissal of the expectant mother is also possible due to the expiration of the contract during pregnancy, provided that the contract was concluded for the expectant mother to perform duties instead of a temporarily absent employee, and the employer cannot provide other work that meets the work requirements for the pregnant woman due to the lack of such vacancies. In this case, the employer’s responsibilities include offering the expectant mother all vacancies that meet the specified requirements.

How can you legally fire a pregnant woman?

First of all, the dismissal of an employee should not come from the manager. For example, if a manager loses trust, terminating an employment contract on his initiative is prohibited. Legal grounds include reasons beyond the will of the employer (closure of a small business, bankruptcy of a company or bankruptcy of a legal entity). Another condition is the woman’s desire to stop collaborating with a particular organization.

Under what article can a pregnant woman be fired?

In accordance with the two hundred and sixty-first article, paragraph one, of the Labor Code of the Russian Federation, cancellation of labor obligations with a pregnant woman is possible in the following cases:

1. If the authorized commission has decided to liquidate a branch or the entire company and there is no legal successor.
2. The individual entrepreneur announced the cessation of activity.
3. Upon termination of the temporary employment contract.
4. If the new working conditions do not suit the personal requirements of the individual.
5. When the owner of the company changes (if a woman has expressed a desire to change jobs or switch to part-time work after leaving maternity leave).

Is it possible to suspend or fire a pregnant woman during the liquidation of an enterprise - the answer is yes. This is the only condition that applies to all categories of employees from directors to seasonal workers. The employer is obliged to warn his subordinates about such changes no later than two months before entering the data into Rosreestr.

According to the latest 2020 amendments to labor legislation, on the last working day a woman receives recommended payments - severance pay, the amount of which is equal to the monthly salary without bonuses, compensation for sick leave and unused vacation days, as well as the average salary for two months after dismissal.

In what cases is dismissal legal?

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

At your own request

The employee has the right to leave work on her own initiative.
To do this, two weeks before the expected date of dismissal, you must write a statement and immediately before leaving, transfer all matters to the replacement employee. The employer makes full financial settlements with the employee, makes a corresponding entry in the work book, and hands over the book itself along with other documents: a copy of the order, pay slip, characteristics, etc. A woman who voluntarily resigns loses the maternity and child care benefits that the company would have provided her.

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

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

By agreement of the parties

The safest decision in this case would be dismissal by agreement of the parties. Then an agreement is reached between the pregnant employee and management. For example, a woman quits, but with compensation. It is not mandatory, but in addition to additional payments, the employee is entitled to:

• wages since the last payment, for all hours not worked;
• compensation for unused vacation, even if this period exceeds 2 years.

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

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

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

Upon liquidation of an organization

If at the time a woman is pregnant, her company (employer, as a legal entity) completely ceases its activities, this is grounds for termination of the employment relationship.
This situation is separately stipulated in the Labor Code. The employer's actions are regulated, and recognition of dismissal is permissible subject to confirmation of the legal basis for termination of the employment contract. The decision to liquidate an enterprise (institution, company, organization, expiration of the individual entrepreneur certificate) must be unconditional, accepted by the owner and documented in writing. A pregnant woman cannot be fired if:

• the owner of the organization has changed;
• there has been a merger, acquisition, division or other reorganization;
• the company has transformed the form of its activities;
• the name was renamed.

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

Under a fixed-term employment contract

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

1. If the term of a temporary contract expires during pregnancy, the manager is obliged to extend it until the end of pregnancy in accordance with Art. 261 Labor Code.
2. The employer has the right to demand from the woman a certificate about her position. She brings documentary evidence once every three months. and less often.
3. If a woman occupied the position of an employee who was absent but returned to work (for example, a maternity position), she may be fired. But in the case that in this organization it is not possible to transfer a woman to another position that is feasible for her.
4. In the latter case, the employer must offer the woman all available vacancies, regardless of qualifications and salary.

Dismissal procedure

Legislation takes responsibility for the protection and safety of pregnant women and new mothers. Any fraud in this category is punishable by law, this also includes illegal attempts to fire an employee without severance pay. To prevent careless employers from hiding behind ignorance of the laws, when concluding an employment contract with a female person, it is recommended to indicate in the document all the grounds for its termination, based on federal and regional legislative acts.

Thus, the procedure for dismissal may vary:

• the employee decided to terminate the contract at will (mistrust on the part of management, bad relations with colleagues, which she does not intend to try to correct). In this case, an application is drawn up, on the basis of which the individual undertakes to work a certain number of hours. However, the employer can make concessions and cancel working hours if the search for a new employee does not require a lot of time;
• by agreement of the parties (in the process of drawing up this document, the wishes of both parties must be taken into account, with special importance given to the amount of compensation and social payments to the pregnant woman, as well as the need to pay child care benefits).

The last method is the most common in labor practice, however, it is the one that causes a large number of disputes and often leads to litigation.
Company management resorts to it when it is necessary to expel an unscrupulous employee without scandals. Once the agreement is signed by the employee and the employer, it is quite problematic to cancel it. If the employer does not wish to continue working with this individual, it is almost impossible to do so.

Dismissal upon liquidation of an organization

Please note that company reorganization, new management and department reform cannot be considered grounds for dismissal of individuals. The only legal condition for terminating an employment contract is the liquidation of the company. This process has some features. For example, the date of completion of the liquidation commission’s work is considered to be the exclusion of the organization from Rosreestr.

If there is a suitable position to which a pregnant employee can be transferred, then dismissal is called into question. If the schedule, salary, part-time job and other conditions suit her, then the transfer is carried out (step-by-step instructions are contained in the Labor Code of the Russian Federation and in the relevant legislative acts).

The employer takes responsibility for:

1. Warn the employee about the liquidation of the company no later than two months in advance.
2. Provide severance pay and additional payments in full.
3. Within two months after termination of the contract, pay compensation and child care benefits.

If a legal entity declares itself bankrupt, then in all documentation it is listed as “liquidated,” that is, ceased to exist.
It is illegal to dismiss a girl in a position if the organization was bought out by another company. If this happens, the employee has the right to terminate the contract with her own hand.

Voluntary dismissal?

Upon dismissal of one's own free will, an individual loses his previously held position, while the official termination of employment obligations involves the conclusion of a bilateral agreement. Thus, the desire to leave this place of work should come from the pregnant woman, and not from the company management. Violation of an employee's rights, threats and deliberate distortion of a woman's actions will not lead to anything good.

Dismissal on your own involves signing a document (agreement), and the paper

drawn up in two copies (one copy is given to the employer, the other to the employee).

In this case, the document must contain the following points:

• the amount of payments due to the employee in connection with the loss of his job;
• deadlines for completing the labor obligations of the parties;
• additional nuances (unused vacations, working days).

Please note that the agreement is drafted either by a third party or by the pregnant woman. The company's management cannot influence the main aspects of this document and make amendments to it.

If there are controversial issues, they should be discussed on a bilateral basis. In this case, all decisions are recorded in a special protocol.

Dismissal by agreement of the parties

Termination of employment obligations on a bilateral basis is often used in private small and medium-sized businesses.
This type of dismissal leads to automatic loss of a job, even if at a particular point in time the worker is on vacation or sick leave. Even during a period of incapacity for work, an individual can be dismissed by agreement of the parties. That is why this method of canceling employment agreements is one of the most convenient for the employer. However, it is worth remembering that this requires the consent of both parties. This rule applies to the following categories of employees:

1. Key workers and persons combining this activity with other work;
2. Seasonal workers (individuals temporarily occupying a lower or middle management position);
3. Pensioners, teenagers and foreign citizens;
4. Persons with disabilities;
5. Pregnant and young mothers.

A document signed by the employer and employee confirms the termination of the employment contract. The first sheet must indicate the date of separation, that is, the last day of work.

The contract must also define compensation and other payments, as well as the deadline for their transfer.

Inadmissibility of dismissal

According to Article 81 of the Labor Code of the Russian Federation, there are reasons on the basis of which dismissal can be carried out at the initiative of the employer.
These are:

• liquidation of the enterprise;
• when reducing positions or staffing levels;
• when an employee does not correspond to the position he occupies;
• when there is a change of ownership of the company;
• when an employee regularly fails to fulfill his or her job duties, in the absence of valid reasons;
• violation of labor discipline on an ongoing basis;
• absenteeism from work.

Important!
None of the above grounds (except 1) can be applied to a woman who is pregnant. This is due to the fact that such termination of employment relations is carried out in a special manner and can be challenged by filing a claim in the courts. An exception in the case of termination of the contract at the initiative of the employer is that the company’s activities are being liquidated.

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Article 81 of the Labor Code of the Russian Federation “Termination of an employment contract at the initiative of the employer”

The main reasons for dismissal of pregnant women

Let's consider the main reasons for the dismissal of a pregnant woman. An analysis of common situations and reasons for the dismissal of a pregnant woman will identify possible problems in this matter, which can lead to lengthy litigation between the employee and the employer.

There are several main reasons for dismissal of pregnant women:

• on the basis of the personal desire of the employer - illegal, since the interests of the employee are not taken into account (if desired, a woman has the right to go to court with a demand to reinstate her in her position or provide a similar place of work);
• failure to fulfill obligations within the framework of the probationary period is not a reason for dismissal (if an employee has provided information in advance that she has become pregnant, she is automatically tested for professional suitability);
• administrative offense - it is only possible to impose a disciplinary sanction or reprimand against a pregnant woman. If absenteeism, theft, or forgery due to negligence occur, then with the consent of the parties, she can be placed in another position or transferred to part-time work (part-time);
• reorganization of the company - the employee should be given the opportunity to obtain another position with approximately equal wages. Liquidation of an enterprise is the only legal condition for the dismissal of all employees, without exception, with payment of vacation pay and severance pay;
• expiration of a fixed-term contract is possible if the girl did not take care of collecting the necessary documentation in a timely manner. However, the manager is obliged to familiarize the employee with all the nuances of the work, and about drawing up an extension agreement in the event of pregnancy;
• When a full-time employee returns to work, a pregnant woman can be fired only if certain obligations are met. Thus, the removal of an individual from a position is possible by offering a different option for work activity. Dismissal is allowed only in the absence of such. When transferred to a higher position, a woman (like any other applicant) must undergo a competitive selection;
• dismissal at the initiative of an employee is carried out regardless of other factors. In such a situation, you need to submit an application two weeks before you are supposed to leave, work for this period and receive severance pay on the last working day.

In conclusion, it is worth noting that the dismissal of pregnant employees has certain risks for employers, since the law is on the side of expectant mothers. This is why many companies do not hire young girls. On the other hand, their fears have no basis, because employees, on the contrary, are interested in keeping their jobs after returning from maternity leave.

Dismissal due to article or absenteeism

Labor legislation states that a pregnant woman can only be fired upon liquidation of the company or its branch. Even if a pregnant woman skips work or her labor discipline is violated, management can only issue a reprimand. This suggests that such a measure as dismissal for absenteeism cannot be used.

However, it is worth noting that the pregnancy status must be confirmed through certificates issued by medical organizations. Visible signs of pregnancy are not taken into account. Termination of employment relations with a pregnant woman is not allowed, even if she did not return to work and did not provide documentation confirming the reason for her absence.

This provision also applies to the probationary period. It is not installed for pregnant women. When a staff reduction occurs, the employer offers the pregnant woman to take a position that meets her health indicators at the time of the reduction. If there are no such positions, then it will not be possible to reduce the position occupied by the pregnant woman.

Grounds for dismissal such as staff reduction can be used with the consent of the woman.

Is it possible to fire a pregnant woman if the contract prohibits pregnancy?

Sometimes, when hired, employees sign a contract that stipulates certain conditions for future work.
But all of them should not contradict current legislation. An employee can sign a document prohibiting pregnancy and her subsequent maternity leave. This condition is classified as an illegal requirement and has no legal force. An employer can respond to a woman’s pregnancy with a fine, dismissal, or separately note in the paper that in the event of an interesting situation for a certain period (for example, 2-3 years), the employee will not be paid for maternity leave. Even if a woman agrees to the conditions put forward and her signature is on the document, she can refute the contract at any time, because it is against the law. If the manager decides to fire a pregnant woman, she can safely file a complaint with the labor commission, which will solve the problem.

An employer does not have the right to demand that a pregnant woman leave her position because of her position.