Lawyer's opinion: is it permissible to fire a pregnant woman for absenteeism without a good reason?

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Published: 05/09/2017

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Russian labor legislation categorically prohibits dismissing pregnant employees on negative grounds, since their status is especially protected at the state level.

However, the rights of employers are protected by law in relation to negligent employees.

• Truancy legislation
• Rights of pregnant women
• How to punish a pregnant woman for absenteeism?
• Dismissal upon return from maternity leave
• Arbitrage practice

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Is it possible to fire a pregnant woman for absenteeism under the law?

Truancy is a term that, according to the Labor Code of the Russian Federation, has several characteristics:

• the person is absent from work for more than 4 hours without a valid reason;
• he did not notify his employer in advance of his absence.

Thus, absenteeism is the absence of an employee at the place of work without a good reason and advance warning of this to the employer for more than 4 hours. Absenteeism is a gross violation and is punishable by financial penalties, demotion or dismissal. To document the fact of absenteeism, the employer must draw up a special act, this must be done in the presence of 2 or more witnesses, take explanations from the employee and familiarize him with the dismissal order. If the employee brings the boss a certificate from the doctors, the violation is declared invalid, and the punishment is removed from the person due to illegality. Even a single absence gives the employer the right to part with the employee by dismissing the guilty person. The legislator allows the dismissal of an unscrupulous employee if the employer provides evidence of the staff’s guilt. For example, evidence may include an act of refusal to provide an explanation for absenteeism from the violator, written in writing, or the consent of the culprit with the violation, created in a similar form. It is allowed to fire an employee for absenteeism within six months from the moment his misconduct was discovered. The employer is obliged to prove that absenteeism occurred during the person’s work shift, which is confirmed by the work schedule signed by the employees. That is, during the period specified in the schedule, the employee was not at the enterprise, in its specific division or at the site.

Dismissal for absenteeism is not the only punishment that can befall a negligent employee. In this sense, the legislator gave some right of choice to the employer. He can financially punish an employee, but not fire him. It is difficult to say how correct this is. An employer can take advantage of a personal relationship with a specific person, for example, for the same violation, fire one and punish the other financially. This is probably not entirely fair. If the employer is limited to a reprimand, then it is entered into the work book. If the reprimand was made orally, then without entering it into the work book. A reprimand is issued on the basis of an order or instruction issued by the head of the enterprise. But the employer is obliged to require an explanatory paper from the employee, in which the latter sets out the reasons that prompted him to act in this way: to violate labor laws.

The Labor Code of the Russian Federation has established a number of conditions and guarantees for pregnant women. In particular, at the request of expectant mothers:

• the working day can be reduced to 6 hours;
• PC work time is reduced to 3 hours a day;
• a woman is freed from difficult work, physical exertion, and from working under harmful and dangerous working conditions;
• a woman is exempt from official travel;
• A pregnant woman cannot be forced to work overtime without her consent;
• a pregnant employee has the right to count on annual leave (paid) if her work experience in the organization is more than 6 months.

An employment contract cannot be terminated unilaterally by the employer. Termination of labor relations is possible only with the consent of the parties. A pregnant woman is not deprived of her rights and guarantees even if she violates legal norms. Not for all women this is an incentive to work normally, without violations.

If a woman abuses her position, the employer can impose a disciplinary sanction on her, but a pregnant woman cannot be fired!! This is evidenced by Article 261 of the Labor Code of the Russian Federation, which imposes a ban on the employer from dismissing a pregnant woman.

What to do if a woman is absent from work without a good reason?

The first thing the employer needs to do is find out the reason for the employee’s absence. To do this, it is recommended to send a written notification to her registration address.

The notice must ask you to appear at your place of work and explain the reasons for your absence from work. It must be sent by registered mail with acknowledgment of receipt.

Until the reasons for absence from work are clarified, the code “NN” is entered on the report card. If an employee brings sick leave, then they can be changed to “B”.

When an employee is absent from work for an unknown reason and does not inform management, an appropriate act is drawn up in case of absence, and a memorandum of absence from work is also written.

It is impossible to fire an employee, since Art. 261 of the Labor Code of the Russian Federation prohibits the dismissal of pregnant women.

However, management has the right to appeal to Art. 192 of the Labor Code of the Russian Federation, which provides for disciplinary sanctions. It is entirely possible to reprimand or reprimand pregnant workers. Order of disciplinary action for absenteeism without dismissal.

An employer has no obligation not to respond to an employee's unreasonable behavior, even if he is in an interesting position.

Important! It is impossible to fire a pregnant woman, but applying punishment in the form of a reprimand or reprimand is quite acceptable.

How to formalize the dismissal of an employee?

It is impossible to formalize the dismissal of an expectant mother on the initiative of the enterprise management for absenteeism.

If the organization does this, the woman will be reinstated to her place of work through the courts, and the employer will be held accountable.

Even if the director persuades the expectant mother to resign of her own free will and the woman files a lawsuit, the judge will side with her.

The best option in such situations is to come to an agreement with the employee and formalize the termination of the contract by agreement of the parties, or simply send her on leave until she goes on maternity leave.

When a worker, after maternity leave, is going to return to her previous place of work, it is not in her interests to conflict with the employer and abuse her position.

According to judicial practice, a pregnant woman is always reinstated at work due to her dismissal due to missing a couple of days.

Often, employers themselves go to court in order to fire a pregnant employee because she does not come to work without good reason.

In such circumstances, the employee is simply offered to take leave without pay in order to maintain her place of employment and the required benefits.

Useful video

Whether an employer can legally fire a pregnant employee is explained in detail in this video:

Dismissal of a pregnant woman for absenteeism or violation of labor obligations

If Article 261 prohibits a boss from dismissing a pregnant employee for absenteeism, then what should an employer do in this difficult situation? It is necessary to refer to the provisions of Article 192 of the Labor Code, which provides for disciplinary sanctions. They can be applied to a pregnant woman:

• comment;
• rebuke.

Thus, the employer should not turn a blind eye to the unreasonable behavior of his employee, even if she has an “interesting position.” Instead of dismissal, the employer may reprimand or reprimand her. Ladies should understand that reprimands are recorded in the work record book. Pregnancy is a condition that ends after 9 months. Someday a successful mother will need a job. But a female employee who has many reprimands in her work book is unlikely to be needed in a company or enterprise. In addition, a woman may simply not be hired after carefully studying her track record. Therefore, you should not abuse the employer’s patience without good reason. Also, a worker who constantly violates labor standards may be financially punished. For example, the employer may not award her bonuses.

Truancy - what is it?

Absenteeism (or time off) is the actual absence of an employee without any good reason and without warning to management during the entire shift or lasting longer than 4 hours. Such an act falls into the category of gross violations and management has the right to punish an undisciplined employee. The woman will either pay a fine, or receive a reprimand, demotion, loss of bonus, or face dismissal.

Moreover, pregnancy cannot be presented as a reason for leaving the workplace without permission.

To punish a negligent employee, the employer needs to document the fact of absence as absenteeism. Draw up an act in the presence of two or more witnesses, indicating the date and duration of the employee’s absence.

Of course, if the employee returns and provides a medical certificate, then the violation will automatically be recognized as canceled and it will no longer be possible to punish her. After all, in the certificate the doctor will indicate what reason forced the pregnant woman to skip work.

Rights and guarantees of pregnant women at work

1. Articles 64, 70 of the Labor Code - stipulate the guarantees that are provided to pregnant women when concluding an employment contract. For example, it is prohibited:
   • deny employment to women for reasons related to her pregnancy;

   establish a probationary period for pregnant women.

When concluding an employment contract, a pregnant woman has the right to the following guarantees and benefits:

• part-time work (the number of hours of work per shift accepted for this category of workers is reduced;
• incomplete week (the number of working days is reduced compared to the week established for this category of workers), the duration of the shift remains the same;
• combination of modes: allowed by labor legislation, while the number of hours of work per shift established for this category of workers is reduced, while the number of working days per week is reduced.

A woman can send a request to the employer with a request to determine a part-time working day for her during employment, as well as in the future if she realizes that a full-time schedule is difficult for her. According to Article 93, Part 1, the employer has no choice but to satisfy the request. Part-time working hours can be determined either without a time limit or at any convenient time.

These are a number of provisions prescribed in the Labor Code of the Russian Federation, prohibiting employers from hiring women in the following positions:

• to work per day, to overtime work;
• to work on non-working days;
• to work on a rotational basis.

According to Article 259, paragraph 1, an employer cannot send pregnant women on business trips. In addition, if a woman expresses a desire that she should

• One of the most important guarantees is the guarantee that the pregnant employee will retain her average salary. The law defines several cases in which the employer is obliged to do this: the period during which a woman in a position performs easier work, despite this, the work must be paid for the previous work, which may be much more difficult;
• the period during which a worker is exempt from work due to the harmful effects of hazardous production factors on her. These days must be paid;
• time of examination in a medical institution (mandatory, dispensary).

What is considered absence from work from the point of view of Russian legislation?

Absenteeism is a worker not going to work without warning.

According to Article 81 of the Labor Code of the Russian Federation, Part 1, absenteeism can be recognized as:

• A worker is absent from work for more than four hours.
• Absence from work for a full working day without a valid reason.

If at least one person is not at his workplace in conditions of strict staffing planning, this can negatively affect the overall result of the company.

How can a pregnant woman be punished?

An employer has no right to fire a pregnant woman even for absenteeism. If this happens, the pregnant woman has every reason to go to court, the Labor Inspectorate or the prosecutor's office to protect her violated rights. But the employer has the right to reprimand the pregnant woman verbally or in writing, as well as write a reprimand. In any case, the employer’s patience should not be abused. Especially if a woman plans to return to work after maternity leave in the same company.

Subtleties and nuances

If a woman becomes pregnant, she must notify her employer about this. The expectant mother receives a number of privileges:

• she cannot be fired;
• the employer must reconsider the expectant mother's schedule;
• The amount of working time cannot be increased; on the contrary, a pregnant woman may ask for a lighter workload;
• she cannot be appointed as a rotational employee;
• She should not be forced to work on weekends or holidays.

The employee can count on a full 28-day paid vacation. It doesn't matter how long she worked. Moreover, maternity leave will be included in the general period so that HR officers calculate the duration of the main leave.

https://youtu.be/WuaieSNrP08