A pregnant woman, when applying for a job, assumes that she will not be a desirable employee. Therefore, when getting a job, she can hide her position. The employer also tries to protect himself, because, having taught the specifics of the work to a new specialist, he will soon have to provide leave in accordance with labor legislation, which will lead to the need to find a new employee and train him. Thus, when applying for a job, employers are forced to decide whether to hire a person on a probationary period. The probationary period for employment is an urgent procedure to determine suitability for the position held, which can be established for any employee. Let's consider the possibility of hiring a pregnant woman under the terms of a probationary period and whether she can be dismissed as having failed the test.
Regulatory regulation of probationary period
Article 70 Test for employment of the “Labor Code of the Russian Federation” dated December 30, 2001 N 197-FZ regulates the procedure for establishing and the terms of the probationary period.
Articles 235 Works in which the use of women’s labor is limited and 254 Transfer to another job of pregnant women and women with children under the age of one and a half years “Labor Code of the Russian Federation” dated December 30, 2001 N 197-FZ regulate the types of work that can be a pregnant employee was hired.
Rights of pregnant women
What can a pregnant woman expect? What points should you pay attention to first? Pregnant women have the right to:
- job guarantee;
- complete absence of probationary period;
- impossibility of dismissal at the initiative of the employer (even during absenteeism);
- additional breaks;
- light labor;
- part-time;
- maternity leave;
- allocating time to visit a doctor at the antenatal clinic;
- transfer to a more suitable position while maintaining earnings.
If there are no vacancies that could suit a pregnant woman, you can not go to work at all and still receive money. The employer is obliged to find a place for a pregnant employee, otherwise he will pay her in full for periods during which the subordinate did not actually work, but should have. No one can fire her. Such rules are dictated by the Labor Code.
Now it’s clear whether a pregnant woman can be fired during a probationary period. According to the law - no, in practice, unfortunately, this happens. Moreover, many do not hire pregnant women at all. The management then has a lot of problems with them. And despite the illegality of such actions, no one complains about them. After all, even in the case of successful employment, it is possible that the employee will not be brought to the point of resigning at her own request.
Grounds for employment with a probationary period
An employer, when concluding an employment contract with an employee, may provide for the condition of employment on probationary conditions (both in the employment contract and in an additional agreement to the employment contract concluded before the start of work).
The probationary period is established by current legislation, the terms of the collective agreement, agreements, local regulations and should not exceed three months, with the exception of cases applicable to senior managers, lasting no more than six months.
Article 70 reflects the circle of persons for whom a test for employment is not established, these include:
- persons elected through a competition to fill the relevant position;
- pregnant women and women with children under the age of one and a half years;
- minors;
- persons who have received secondary vocational education or higher education in accredited educational programs and are entering work for the first time in their specialty within one year from the date of receiving vocational education;
- persons elected to elective positions for paid work;
- persons invited to work by way of transfer;
- persons concluding an employment contract for a period of up to two months;
- other persons in cases provided for by the collective agreement.
Incompatibility between pregnancy and probationary period
Russian legislation identifies several cases when tests cannot be assigned to an employee:
- A woman in an “interesting” position;
- Workers who have young children less than one and a half years old;
- Persons under the age of majority, etc.
Thus, pregnant women are in principle prohibited from establishing a probationary period for employment. Therefore, the question of dismissal during this working period cannot exist. However, there are many situations that cause misunderstanding between the employer and the employee.
It happens that when signing a TD with tests, the woman herself does not know that she is in an “interesting” position. Sometimes it happens that an employee deliberately hides her pregnancy from her employer when concluding a labor contract. An employee can also become pregnant during the probationary period.
In addition, some employers deliberately include test work in the employment contract, knowing that the employee is pregnant. What to do in such situations? And can a pregnant employee on probation be fired?
Hiring pregnant women for a probationary period
When seeking employment, women are not interested in providing information to the employer about their pregnancy, and they may not even know about their situation. Even if the employer has information about the situation, the employer cannot refuse to hire because of pregnancy. After getting a job with a probationary period, which can be up to three months, an employee can provide a certificate of pregnancy. In this situation, the employer does not have the right to fire her, but must transfer her to work without a probationary period by concluding an additional agreement to the contract.
Probation period and its features
A probationary period is a period of time during which the employer checks the employee for the quality of performance of various orders and tasks.
During the probationary period, the employer and employee take a closer look at each other and decide on further possible joint cooperation. Of course, the employer always has the final say. However, the employee also has the right to decide whether he wants to continue to perform work for a particular employer or whether he wants to terminate the existing cooperation.
During the probationary period, the employer closely monitors the employee’s professional qualities during the performance of a particular task. The employer also monitors how the candidate for a permanent job gets along with other colleagues.
The probationary period depends on the position the person is seeking. The probationary period, as a rule, is no more than 3 months . However, applicants for management positions may perform probationary assignments for a period of 6 months.
Employers arrange such tests in order to protect themselves from incompetent, poorly educated employees. Can test tasks be set for women carrying a child? And what are the consequences of not doing this work? Should a pregnant woman be afraid of being fired during her probationary period?
Conditions for dismissing a pregnant employee
Dismissal of a pregnant woman is impossible even if the pregnancy occurred after employment with a test condition; she cannot be fired even if she did not pass the test - this is considered unjustified dismissal (a dismissed employee can be reinstated through the court if she notified the employer by providing a certificate from antenatal clinic).
An exception to this situation may be:
- termination of activity (liquidation) of entrepreneurial activity
- expiration of the fixed-term employment contract, but upon provision of a certificate, the employer must extend the fixed-term contract until the end of the pregnancy
- expiration of the term of a fixed-term employment contract for the period of replacement of an employee for the period of illness or maternity leave when the main employee returns to work, provided that the employer is obliged to offer an existing vacancy, and if a pregnant employee refuses it, she must apply for resignation of her own free will
- change of working conditions (for example, relocation, working conditions) and the existing position is not suitable and the employer receives a refusal, you also need to submit a resignation letter
- own initiative when submitting an application for dismissal at your own request
In case of complete liquidation of the enterprise, the employer must notify all employees two months before the occurrence of this event, based on a decision made by management, formalized accordingly.
Can a pregnant woman be fired during her probationary period?
As a rule, an internship during hiring lasts up to six months, but this rule cannot be applied to a pregnant woman. According to the Labor Code of the Russian Federation, this rule applies only if the woman knows about her situation and has notified the employer. If the employee finds out about her situation during the probationary period, she can provide the manager with a certificate from the antenatal clinic, then it will be cancelled.
Dismissal of a pregnant woman during a probationary period - judicial practice
Not many employers respect the rights of pregnant women under the law, finding arguments to fire them. If the expectant mother has been fired, she has every right to file a lawsuit.
True, there is one caveat - you need to prove with the help of witnesses and documents that the woman did not successfully complete the internship precisely because of her interesting position. The expectant mother can also be dismissed by court decision, but only if during the internship she committed theft of any property.
Is it possible to fire a pregnant woman who has not completed her probationary period?
Article 81 of the Labor Code of the Russian Federation clearly defines situations when an employee can be fired. It is considered that the employee has not completed the internship if:
- He was systematically absent;
- Did not fulfill his duties;
- There were disciplinary actions;
- The employer has lost confidence in the employee;
- Other reasons.
However, not a single paragraph states that this also applies to pregnant employees. If a woman has somehow violated labor discipline, the employer can only make a reprimand or reprimand and apply fines. It is strictly prohibited to fire an employee with the wording: she has not completed her probationary period!
Answers to common questions
Question No. 1 : An employee was hired on the terms of a fixed-term employment contract for the period of maternity leave with a probationary period. During this period, the main employee returned from maternity leave. A certificate from the antenatal clinic has been provided, but an additional agreement to cancel the probationary period is still being developed. What to do?
Answer : Sign an additional agreement to the test cancellation agreement and offer a suitable position. If you are not satisfied with the position and the employer receives a refusal or there are no available vacancies, then you can fire the employee.
Question No. 2 : The employee got a job with a probationary period, and when visiting the antenatal clinic she received a certificate of pregnancy. The employee is irresponsible, is late for work, often takes time off, citing the graying of the clinic. Is it possible to fire someone for violating internal labor regulations?
Answer : A pregnant employee is not a violator of labor discipline; she cannot be fired.
Upon presentation of a certificate from the antenatal clinic, the employer is obliged to cancel the probationary period. The extreme measure of punishment is disciplinary action or reprimand. Rate the quality of the article. Your opinion is important to us:
Is there a probationary period for the employment of a woman expecting a child?
A probationary period during employment is understood as a period during which both the employer and the employee have the opportunity to literally test each other in action. The employer evaluates the level of working competencies of the newly hired employee, and the employee himself evaluates the new company from the point of view of working conditions, characteristics of the team and other factors significant to him. The length of the probationary period may vary depending on the wishes of both parties and other working conditions. Working on a probationary period has become a common occurrence in Russia, however, when it comes to the employment of women in interesting positions, the practice changes somewhat.
According to the adopted legislation (see Part 4 of Article 70 of the Labor Code of the Russian Federation), it is not allowed to establish a probationary period for pregnant women, as well as for women with children whose age does not exceed one and a half years. At the same time, it is important to remember that the law does not require a woman to inform a potential employer about her existing pregnancy when joining a new company. Moreover, if a woman did not want to notify about her pregnancy before concluding an employment contract, or she herself learned about her condition only during her probationary period of work, she has the right to inform management about her situation when she deems it necessary. To do this, you must present the employer with a medical certificate from the antenatal clinic, which confirms that you are pregnant. In such circumstances, probationary agreements are invalidated upon presentation of the medical document. Of course, it is recommended to do this before deciding whether the test period at work can be considered completed.
Video: Women's labor rights in an interesting situation
Employer's liability for illegal dismissal
Illegal dismissal of an expectant mother is punishable by law. The Criminal Code of the Russian Federation (Article 145) states that the following sanctions (measures) can be applied to a negligent employer:
- a large fine of 200 thousand rubles;
- a fine equal to the official’s earnings for 1.5 years (18 months);
- forced community service of 360 hours.
It happens that management forces an employee to write a letter of resignation of her own free will in order not to pay for maternity leave. In such cases, the woman must, within 1 month from the date the order is issued, go to court to be reinstated at work and pay for unplanned absences.
Advice! In order to prove that you had to quit under pressure, you need to stock up on arguments. This could be testimony from colleagues, correspondence with the administration, for example, on social networks, by email, or recordings of telephone conversations.
In such cases, the participation of the prosecutor is mandatory.
If the court accepts the woman’s arguments and sides with her, then in addition to compensation for forced absences, it will be possible to recover compensation for moral damage from the administration. Let's summarize briefly: it is prohibited to employ an expectant mother under the condition of a preliminary check, and dismissal of a pregnant woman during a probationary period is unlawful. Violation of the law is subject to criminal prosecution. The only basis for terminating an employment relationship with a pregnant woman is the complete liquidation of the enterprise or individual entrepreneur. If the administration uses illegal measures, then you should not be afraid, but go to defend your rights in court.
Eternal problems
Employment is an important moment in the life of every citizen. It is only with pregnant women that employers often have problems. The point is that such employees will have certain rights after employment. More on them a little later. And this will prevent, if something happens, from treating the subordinate in the same way as all other personnel in the company. Therefore, employers, in principle, do not like pregnant women too much and try not to contact them again. Is it possible to fire a pregnant woman during a probationary period? It is difficult to answer this question. After all, there are many different situations, and depending on them, the answer to the question will change.
General Provisions on the Probation Period
The Labor Code of the Russian Federation on the territory of Russia is the main document regulating the relationship between the employee and the employer, including the issues of the employee passing the test. Particularly noteworthy is the fact that the Labor Code of the Russian Federation talks about testing when hiring (Article 70 of the Labor Code of the Russian Federation), while the Labor Code of the Russian Federation does not contain an independent concept of “probationary period”. Considering that an essential condition of the trial is its duration, it can be assumed that the concept of “probationary period” is analogous to the concept of “test” and is used colloquially.
The Labor Code of the Russian Federation determines that a probationary period can be established for an employee:
- only when the latter is hired;
- only in writing by reflecting such a condition in the text of the employment agreement with the employee (Part 1 of Article 70 of the Labor Code of the Russian Federation).
While granting the employer the right to establish a probationary period for the employee, the Labor Code of the Russian Federation also provides for the maximum duration of such a period - from 14 days to 6 months, depending on the term of the employment contract and the position of the employee. As a general rule, the probationary period cannot be more than three months. The Labor Code of the Russian Federation does not establish its minimum duration; the probationary period can be even one day.
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If the probationary period is provided for in the contract, then before its end the employee can be dismissed as having failed the test, as well as at his own request without restrictions on the grounds for such dismissal (parts 1 and 4 of Article 71 of the Labor Code of the Russian Federation). The only condition for the legality of dismissal during a probationary period for the employer is the presence of unsatisfactory results of the employee’s work and, if necessary, the ability to prove such unsatisfactory results, since the employee can challenge the dismissal in court (Part 1 of Article 71 of the Labor Code of the Russian Federation). Both the employee and the employer must notify the other party to the employment contract in writing at least 3 days in advance of dismissal during the probationary period. Taking into account the requirements of Part 3 of Art. 14 of the Labor Code of the Russian Federation, we can conclude that in the event of dismissal of an employee during a probationary period, we are talking about calendar days.
If the probationary period has passed, and the employee continues to work and was not notified 3 calendar days in advance of his dismissal or did not decide to resign, then the employee is considered to have successfully completed the probationary period and the employment contract can no longer be terminated in the special manner specified in Art. 71 of the Labor Code of the Russian Federation.
