Is it possible to lay off a pregnant employee?
A pregnant woman has special protection from the state. It consists, among other things, in the impossibility of dismissing such an employee. Women in this situation receive the guarantees reflected in Part 1 of Article 261 of the Labor Code of the Russian Federation. It just says that the employer cannot fire an employee during pregnancy, maternity leave and the child reaches 3 years of age. The exception is situations when the company is liquidated. Then the pregnant woman, like other employees, is dismissed with severance pay.
A reduction is not a sufficient reason for a pregnant woman to leave. If the company plans to reduce the number of jobs, then it should in no way affect female employees.
Downsizing - is it dangerous?
Do they have the right to lay off a pregnant woman? If you carefully study all the previously listed features and refer to the Labor Code of the Russian Federation, you can come to the conclusion that the category of personnel being studied is one of the most protected. It will not be possible to simply terminate the employment relationship with her. There must be good reasons for this.
Despite the fact that staff reduction is often a forced measure, the employer cannot use it to get rid of a pregnant employee. Retrenchment is not a legal basis for terminating an employment contract. This means there is nothing to be afraid of.
Do pregnant women have priority rights when making redundancies?
If the management of an enterprise has decided to reduce the number of its employees, it must act in full compliance with the law. The sequence of actions is prescribed in Articles 81 – 180 of the Labor Code of the Russian Federation. In general, the procedure looks like this:
- the authorized body decides on the need to reduce staff (due to lack of financial reserves, expediency, reduction in production volumes or for other reasons);
- appropriate changes are made to the staffing table of the enterprise;
- it is determined which of the employees occupying the same position has a preferential right to retain their job;
- employees being laid off are notified of the decision in advance in writing;
- All necessary papers are drawn up, and at the time of dismissal, compensation payments are made.
When considering candidates for layoff, a pregnant woman should be excluded from the possible list, since her dismissal would be illegal. Moreover, such employees do not have a preferential right to retain their position - in principle, they are not candidates for dismissal.
How to fire a pregnant woman during a layoff?
In general cases, it is better for an employer not to try to fire a pregnant woman, but to find alternative solutions to the problem. For example, if several people work in the same position, then it is better to choose a “redundant” from the remaining ones. However, there are cases when it is a pregnant woman who needs to be fired (for example, if she is the only one working in a specific position). What to do in such situations? There are several options here:
- Try to negotiate with the employee about dismissal. Few pregnant women will take this step, because then they will lose their job. You can contribute to making a positive decision by providing impressive compensation (here you need to first weigh all the benefits). Moreover, the initiative must come from the employee (at his own request - the ideal option).
- Offer the pregnant woman another position in the company. Then the dismissal of a pregnant woman due to staff reduction will not happen in principle, she will simply move to a new position, receive new responsibilities, a different salary. If a woman refuses a new job, the employer will also not be able to fire her.
- Help in finding another job - for example, recommend a woman to another employer. Then it is quite possible that she will agree to quit.
For pregnant women temporarily performing duties, a slightly different procedure applies. For example, if an employee was hired while another employee was on maternity leave, then the company management may fire the pregnant woman if the first employee returns from maternity leave. However, the employer will first have to offer the pregnant woman another vacant position.
The expectant mother is almost untouchable
Dismissal of a pregnant woman due to staff reduction is possible only upon liquidation of the enterprise
And indeed it is. If a pregnant woman works under an employment contract with an indefinite term, then she belongs to one of the categories of citizens most protected from almost any dismissal. According to Article 261 of the Labor Code, initiated
Termination of a contract with a pregnant woman by an employer is unacceptable. The exception is cases of liquidation of an organization or termination of activities by an individual entrepreneur.
Guarantees when working conditions change
According to Article 74 of the Labor Code, with significant changes (structural, organizational, etc.) occurring in the organization, the terms of the employment contract can be revised. That is, with significant changes taking place at the enterprise, working conditions, pay, and work hours may be changed for individual employees. Moreover, if the threat of staff reduction or staff reduction looms over the organization, then the employer can switch to forced measures: introducing a part-time working week (day) for no more than 6 months, transferring to another position.
In this case, the administration is obliged:
- justify in detail all upcoming innovations, put them in writing and inform the employee no later than two months before the start of the changes>
- if the employee expresses her disagreement with the innovations, the employer must offer an existing vacant position, while demotion of a pregnant woman due to staff reduction is possible only with the consent of the employee herself.
This is important to know: 2 Personal income tax upon dismissal: for what period
If there is no alternative, dismissal occurs. However, it is impossible to lay off a pregnant woman, or one who is on maternity leave, has children under three years of age, and is raising a child on her own (single mother)!
So what's going on? The employer notifies employees of upcoming changes. A woman belonging to a preferential category does not agree with these changes. The employer cannot fire her...>
Unfortunately, this point is not clearly stated in the legislation. If you follow the letter of the law, the employer is obliged to leave the “beneficiary” under the same working conditions. But will a woman want to aggravate her relationship with her employer? Maybe it's better to resign due to redundancy?
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Guarantees for pregnant women under threat of dismissal
Dismissal of a pregnant woman due to staff reduction is possible with the consent of the expectant mother
In Art. 261, part 1 of the Labor Code contains a ban on the employer’s dismissal of a pregnant woman due to staff reduction or other reasons. This is in some way a labor benefit aimed at supporting motherhood and childhood.
This increased protection is aimed at preventing possible discriminatory actions by unscrupulous employers. Yes, there are also those who seek to avoid the need to provide women with maternity leave, child care, and other guarantees and benefits provided for by law. At the same time, for a pregnant woman, finding a job is extremely difficult, since employers are reluctant to provide work to this category of applicants.
Some nuances that may arise in connection with such circumstances:
- Whether the employer knew about the pregnancy of the dismissed employee at the time of making the decision to reduce staff does not matter. This circumstance does not affect compliance with the guarantees provided by law when dismissing pregnant women at the initiative of the administration.
- The ban on dismissal or layoff of a pregnant woman does not depend on the employer’s knowledge. Even if an employee found out about her pregnancy after signing a notice of dismissal due to staff reduction, and provided the administration with a medical certificate that confirms the state of pregnancy, the employer cannot fire her.
- If the dismissal has already taken place, then after providing such a certificate the employee must be reinstated. However, before making a decision, the administration must make sure that the period of pregnancy indicated in the certificate confirms its presence on the date of dismissal due to staff reduction.
The implementation of guarantees and benefits provided by the Labor Code to employees must comply with the general legal principle of the impossibility of abuse of their rights by employees. That is, if at the time of dismissal from a pregnant woman’s job she knew about her pregnancy, but hid this fact from the administration, the employer formally has the right to refuse to reinstate her at work.
The question of whether layoff notices are given to pregnant women has a negative answer, since a pregnant woman cannot be fired due to staff reduction.
Possible consequences
If an employer, knowing that his employee is pregnant, fires her anyway, he must be prepared for litigation (and the woman will certainly be reinstated in her position and demanded to pay wages for the entire time of the unjustified dismissal). But this is not the worst thing that management will expect. Responsibility for such an act is provided for in Article 145 of the Criminal Code of the Russian Federation. It could be as follows:
- fine - up to 200,000 rubles or in the amount of 18 salaries of the perpetrator;
- compulsory work – up to 360 hours.
If a woman was laid off, and then it turned out that she was pregnant, then it is better for the employer not to wait for the court’s decision, but to try to resolve the issue peacefully - to cancel the layoff order and restore the employee to her position.
Does pregnancy time affect contraction?
When reducing staff, the employer must first find out whether any of the employees are expecting a child.
This will avoid problems in the future. If someone finds themselves in a situation, then it is necessary to request the appropriate certificate and, on its basis, exclude the employee from the list for layoffs. The woman herself has the right to report pregnancy not only before immediate notice of layoff, but also in later periods - two months before dismissal and even after dismissal.
It happens that an employee becomes pregnant after receiving a layoff notice. But even then they won’t be able to fire her. Then the reduction procedure is suspended, for which a special order is issued. And management is looking for alternative options to reduce staff.
Due to stress or other reasons, a woman may lose her child before a court decision is made on her restoration. Even then, she does not lose the right to return to work, since the fact of unlawful dismissal remains, because at the time of dismissal the employee was expecting a child.
If a woman becomes pregnant immediately after dismissal, then the employer’s actions will be considered lawful and the court will refuse to reinstate the former employee. This is perhaps the only acceptable reduction option.
Procedure for dismissing a pregnant woman
Providing an official pregnancy certificate provides a woman with legal protection in the event of dismissal. In fact, after this, the employer will not be able to terminate the employment relationship with the employee, and she will continue to be registered with the company. Most women do not want to resign voluntarily under such circumstances, and it is quite understandable why.
As already noted, the only option is to liquidate the company, but for reputable enterprises, such a step is unacceptable. Firms with a bad reputation easily close their doors, since it is cheaper for them to open a new LLC than to keep an employee in a position. The advantage of this option is that it is impossible to prove in court the connection between the old and new companies.
There is another way - they begin to record all violations against the employee, even the most minimal ones. This does not give the right to fire her, but it does allow her to reduce her salary or reduce bonus payments. As a result, the expectant mother cannot stand it and writes a letter of resignation.
