As you know, pregnant women are protected in every possible way by the legislation of the Russian Federation, including from dismissal. When hiring such an employee, the employer does not have the right to establish a probationary period (Article 70 of the Labor Code of the Russian Federation), or even refuse to employ her because of her pregnancy - this is a gross violation, which is also fraught with criminal liability under Art. 145 of the Criminal Code of the Russian Federation.
It often happens that a woman gets a job, is given a probationary period, and only learns about her interesting position some time after her imprisonment. employment contract, about which he notifies the manager by providing the appropriate certificate. Can an employer fire a pregnant woman for probationary period, if the fact of pregnancy was discovered after employment? According to labor law, termination labor relations V in this case impossible under any circumstances, with the exception of the liquidation of the organization, the dismissal of an employee by agreement or by at will However, such procedures also have a number of nuances.
Advantages of pregnant women at work
According to current legislation, even with a reduction in staff, the employer is obliged to provide another position while maintaining the average wages Precisely for pregnant women in the first place. In addition, such workers have a number of other privileges:
- They have the right to perform less work by providing a certificate from the antenatal clinic.
- If a pregnant woman works in a hazardous industry, she must be transferred to another position where the working conditions will not harm her health and the health of the unborn child, while average salary is saved.
- A woman can ask for more breaks per shift/working day, but all of them remain paid.
- If the employee has expressed a desire to switch to a part-time work schedule, the employer must comply with her requirements, but the salary in this case will depend on the amount of time worked. This also includes shift work: if an employee wants to work only during the day, but the collective agreement provides for only daily shifts, she must be transferred to daytime work.
Thus, the main task of the employer in this case is to create favorable conditions for the work and preservation of the health of a pregnant woman, and if necessary, he can change her working conditions in better side, if there are reasons for this:
- The worker spends 3 hours a day or more at the PC, she has to carry heavy objects or dive underground.
- To perform work, an employee must stand or sit for a long time, come into contact with chemicals and other harmful means, being in a too stuffy or noisy room, going on business trips or working night shifts.
It is worth noting that an employee in this position, if she wishes, can also do overtime work, because this is not prohibited by law. In addition, she has the right to have a work schedule that suits her and to attend medical examinations at work time.
Dismissal during a probationary period during pregnancy: legislative nuances
Many employers believe that they have the right to dismiss a pregnant employee during the probationary period due to failure to complete it, but this is not so: the Labor Code of the Russian Federation directly states that if the fact of pregnancy is revealed, they are obliged to cancel the test and immediately place her in the main position in this case , if the appropriate certificate has been provided. Even if the woman’s situation was not previously known, dismissal is impossible.
In order to receive any of the above benefits (increasing the number of breaks, changing work schedules, etc.), pregnant women need to do the following:
- If you need to change your work schedule, you should write a statement to your manager, indicating the most convenient time for work. You must keep one copy for yourself.
- If the employer refuses to provide the benefits required by law, this can be challenged with the Labor Inspectorate or through the prosecutor's office. Along with the application, a certificate of pregnancy must also be submitted to the authorities.
- If you cannot achieve justice with the help of the prosecutor's office or the Labor Inspectorate, you should go to court.
Important! If, during employment and the establishment of a probationary period, a woman did not inform about her situation, the employer will not bear any responsibility for the appointment of the probationary period. As soon as the employee provides him with a certificate, he is obliged to issue an order to cancel the probationary period.
Is it possible to fire an employee if the fact of pregnancy was established during the test?
As mentioned earlier, the manager does not have the right to terminate the employment contract with the employee even in this case. In order for the probationary period to be cancelled, she needs to bring a certificate from the antenatal clinic, and then dismissal will become completely impossible.
If an employer insists on dismissal during a probationary period because an employee is pregnant, this is unlawful, and she can file a complaint with the prosecutor's office. However, not everything is so simple here: in order to bring her manager to justice, she will have to prove that the reason for not passing the test was precisely her position.
No less important is the question of whether it is possible to fire a pregnant woman manager. When establishing a probationary period for general director enterprises apply the same rules as for ordinary employees, so it is impossible to terminate the employment contract in this case. If the woman herself expresses a desire to resign, then to do this it is necessary to gather the board of founders and sign the appropriate termination agreement, after which she is paid severance pay threefold (Article 278 of the Labor Code of the Russian Federation).
Is it possible to fire someone in such a situation?
Some managers believe that they can fire a pregnant employee if she violates labor discipline, but this is not at all true: even if she has disciplinary sanctions, missed a shift/day, does not fulfill her job duties, or has committed some other offense, termination of employment contract with her for these reasons is illegal. The only thing the employer has the right to is to reprimand her or not pay her for absenteeism, provided that he has the relevant acts or memos signed by two witnesses as evidence of the violation committed by the woman.
Often, when dismissing pregnant women, employers refer to their failure to complete the probationary period, but these actions also violate the law, because such a reason in this case does not constitute grounds for termination of the employment contract.
In what cases is it still possible to fire a pregnant employee:
- If the company is completely liquidated. This should not be confused with reorganization, in which ownership rights are transferred to other persons: in this case, the employee cannot be fired, because the company will continue to operate. If liquidation is planned, the employer is obliged to notify the employee 2 months in advance. This also includes the cessation of work of a branch of an enterprise if a woman is employed in it. Legal entities in the future, they are not required to engage in employment of employees dismissed due to the liquidation of the company.
- By agreement of the parties: to do this, you need to make a written or oral proposal for dismissal, then enter into an agreement that will indicate all the conditions for dismissal. For example, it can include the amount of compensation or other payments provided for by law. This method of dismissal is good for the manager in that he does not have to pay severance pay, and the date of termination of the employment contract can be determined independently.
- At her own request: if a pregnant woman herself wants to quit, the employer does not have the right to refuse her this. To terminate the employment relationship, she must notify the manager about this 2 weeks before the expected date of dismissal, and during the entire period of service she has the right to withdraw her application.
It often happens that directors put pressure on their subordinates and force them to resign at their own request or by agreement of the parties, but if this fact is proven in court, they face liability, and the employees can be reinstated.
In practice, there are many situations where managers fire their employees during the probationary period precisely because the fact of pregnancy has been revealed, but such actions are considered illegal. To defend their rights, women need to contact the prosecutor's office or the Labor Safety Inspectorate: the likelihood that they will be reinstated at work is quite high, because A pregnant employee can only be fired in exceptional cases.
If, nevertheless, it was possible to reach a consensus and the employee herself expressed a desire to quit, the employer’s actions are very simple:
- It is necessary to issue a dismissal order and familiarize the employee with it against signature.
- On the last day of work, give the employee a completed work book and make a full settlement with her.
Knowing their rights, it will be easier for pregnant women to defend themselves in court in case of illegal dismissal, and employers, in turn, will know in which cases they have the right to dismiss employees in this situation, and in which cases they may be subject to administrative or administrative action for violating their rights. even criminal liability.
Can a pregnant woman be fired during a probationary period? This question interests many, because pregnant women are vulnerable citizens. They are endowed with certain privileges, especially in relation to employment. But not many people know about them, so this needs to be corrected. If rights are violated, it will be possible to complain against the employer, and he will bear some responsibility. What rules are established in Russia regarding Is an employer able to refuse such an employee during the probationary period?
Eternal problems
Employment - important point 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.
Probation period: how mandatory is it?
The fact is that a probationary period is something that is not always used in employment. But recently, such a measure has become increasingly popular. In order not to overthink it, it is recommended to choose employment that does not require completion of this period. But it's not that easy to do.
In some cases, the probationary period may be removed, but this is extremely rare. In addition, it should be noted that sometimes not only the employer, but also the pregnant woman herself may have no idea about the “interesting situation” of the new employee. Therefore, a lot depends on the situation.
Not aware of events
Is it possible to fire a pregnant woman during a probationary period? In fact yes. This possibility occurs if we're talking about about a situation in which no one knows about the “interesting situation” - neither the pregnant woman herself nor the employer.
In this case, the boss has every right to remove the employee from performing her duties both during and after the probationary period. He will not bear any responsibility.
Only if a woman decides to recover after she finds out about pregnancy, she will have to take it back. After all, in Russia pregnant women have a similar right. What exactly are we talking about? It turns out that an employer cannot refuse to employ a pregnant woman. More precisely, he has no right to do so.
In the know
In general, the probationary period is a difficult question. Many factors can influence the answer. So, there are various rules on this issue. And both the employer and subordinates have to study them.
If a woman was aware of her pregnancy, she should inform her boss about it. Otherwise, there is a risk of dismissal. It is impossible to fire a girl in an “interesting position.” Neither during the probationary period nor after it. Only at the request of the employee herself, which is extremely rare. Therefore, if the employer and employee were aware of the pregnancy, then no one should take away workplace the latter cannot.
But when a woman knew about an “interesting situation”, but did not inform the employer, and he removed her from work or completely broke off the employment relationship, the boss has nothing to fear. He acted according to the law. But, again, the employee must be reinstated at work upon request.
During the probationary period
Can I be fired if I become pregnant during my probationary period? This is also an ambiguous situation. If no one knew about the pregnancy, then the girl can be fired. But at her request, she is then reinstated to her job.
But if a woman was aware of her situation, no one could remove her from work. Neither during the probationary period, nor after that. It turns out that in fact the employer does not have the right to dismiss an employee who is in an “interesting situation.” This right remains with the subordinate. Is it possible to fire a pregnant woman during a probationary period? No. Only at her own request. That is, if she writes a letter of resignation on her own, then the employment relationship with her can be terminated at any time. And nothing more. Similar rules are specified in the Labor Code of the Russian Federation.
Pregnancy and probationary period
So, unless there was a personal letter of resignation from the employee herself, the answer to the question whether a pregnant woman can be fired after a probationary period is always negative. It is impossible to fire a woman who is expecting a child.
But what if she has already come pregnant for employment? By law, the employer cannot deny her this privilege. That is, a new employee in an “interesting position” must be provided with a workplace. This is a fact that has long been known to everyone.
But can a pregnant woman be fired during her probationary period? No. And all this is due to the fact that the Labor Code, in principle, prohibits the introduction of these conditions for pregnant women. That is, if a potential employee is already in an “interesting position,” the boss must hire her without a probationary period. And it doesn’t matter whether there are initial tests for employment in a given company or not.
What about the tests?
There are some other nuances of the situation being studied. For example, a positive answer to the question whether an employer can fire a pregnant woman during a probationary period will be provided that neither the boss nor future mommy I’m not aware of the “interesting situation”. And then the employer will have to reinstate the employee at work upon request.
But what if pregnancy is discovered already during the trial period? It was said that it was impossible to fire a woman. But at the same time, one cannot neglect the established laws in the country. The Labor Code for pregnant women abolishes all probationary periods.
So what should a girl who finds out about pregnancy during testing be entitled to? She has the right to either leave work on her own or start working. In other words, the probationary period must be terminated immediately. Otherwise, you can complain against the employer.
Problems of proof
So, is it possible to fire a pregnant woman during a probationary period? No. And all testing must be stopped immediately. And if the employee was fired, she has every right to complain against her employer. Only here you have to face one problem. We are talking about proof that the employer fired the employee precisely because she was pregnant and that he was aware of her “interesting situation.”
Therefore, it is not always possible to win a court case. After all, many women hide their pregnancy as much as possible, precisely because they are afraid that they will be fired as soon as they find out about it.
Reality
Can a pregnant woman be fired during her probationary period? According to the law - no, but in reality, unfortunately, yes. After all, as already mentioned, reality and legislation sometimes diverge. Employers try to do everything to make it impossible to prove their guilt.
Most often, pregnant women are given a probationary period. Moreover, such an employee will have to work under the same conditions as other subordinates. This is illegal, but this practice is widespread throughout Russia.
If it is necessary to fire an employee who is in an “interesting situation,” then there are several techniques that are actively used by bosses. The first is a regular dismissal. After all, it’s unlikely that anyone will sue. Pregnant women have no time for this.
The second is bringing the employee to independent decision quit. Also illegal, but more “honest” technique. After all, according to the Labor Code, you cannot fire a pregnant woman on your own initiative. This is only possible if she wishes. This means that in order not to have problems with the law, you just need to bring a person to the point that he himself does not want to work.
Temporary employment contract
Whether a pregnant woman can be fired during a probationary period seems clear. But employers are quite resourceful. Thus, in some situations, companies enter into temporary employment contracts with potential employees. All this is done to hide the probationary period. Accordingly, in court it will be necessary to prove that the contract was concluded officially and without this intent. This is not as easy to do as it seems. For example, the company should have no probationary period at all.
But you should know that even with a temporary employment contract, it is not so easy to fire a pregnant woman. Even if the employer actually concluded such an agreement with a subordinate, it will not be possible to exclude her from the company until the end of her pregnancy. Especially if a woman does not write an application for care of her own free will.
There is a way out
Do they have the right to fire a pregnant woman during a probationary period? Absolutely not. But there is one exception, which is extremely rare in practice. The fact is that a pregnant woman can only be fired upon liquidation of the company, along with all the employees. And this is the only legal basis that exists.
That is, if we are talking about dismissal due to the liquidation of an organization, then pregnant women can be fired. The probationary period is first terminated (after submitting a doctor’s certificate confirming pregnancy), then the girl is given official employment. And only after this does dismissal occur due to the liquidation of the enterprise.
This is perhaps the only case where you can really fire anyone. Otherwise, women in an “interesting position” have special rights. Every person should know about them.
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 (even with 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 get cash. 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.
The issue of labor relations is always of interest to both employers and employees. Their relationship was settled in Russian Federation with the help of the Labor Code, which regulates the rights and obligations of both subordinates and managers. This article will focus on the issue of pregnancy and probation at work.
Expectant mothers do not always know their benefits and privileges in the workplace. It is often very easy to offend and even deceive a woman in this position.
So, what to do if during the probationary period it turns out that one of the employees is pregnant? Let's find out.
What period is this
According to the Labor Code of the Russian Federation, a probationary period is the necessary period of time during which the head of an enterprise looks closely at his employee in order to find out whether he is suitable for the position held. Typically, this period lasts no more than six months.
All provisions of the probationary period are regulated by Russian legislation. For example, the Labor Code allows an employer to fire an employee he doesn’t like quite quickly and without delay, without coordinating this decision with the trade union.
In accordance with the Labor Code of the Russian Federation, a probationary period allows an employee to take a closer look at a position that interests him, try himself in a new business and try to get comfortable in the workplace. Even if for some reason a person is not suitable for the head of the enterprise, he will still be a winner, since for the period worked he will receive not only a salary, but also official seniority, work experience and the necessary skills.
In this article we will discuss a situation when a woman goes to work and finds out during her probationary period that she is pregnant.
What should an expectant mother do?
First of all, such an employee must provide the manager with a certificate confirming the “interesting” position. If pregnancy is discovered during the trial period, the woman should contact the antenatal clinic at her place of residence as soon as possible and obtain a document from the gynecologist as proof of her pregnancy.
Why is this necessary?
Letter of the law
According to Russian law, it is very difficult to fire a pregnant woman. This especially applies to the dismissal of a pregnant woman at the initiative of the employer. What do both expectant mothers and their employers need to know?
First of all, it is impossible to fire such an employee without her desire, even if she was employed temporarily. Therefore, to the question: can a pregnant woman be fired during a probationary period without her consent, the answer is unequivocal - no.
Yes, the state in every possible way takes care and supports women who are in such a sensitive position, and guarantees them some privileges and benefits.
Moreover, according to the Labor Code, expectant mother It is impossible to hire with a probationary period, that is, if the employer knows about the situation of the hired employee, then he is obliged to conclude a permanent employment contract with her. Although in practice this rarely happens, since business managers do not like to hire young or expectant mothers, every self-respecting woman should know about this right.
Yes, according to the law, a probationary period when hiring a pregnant woman is not established. But what if the pregnancy became known a little later?
What happens next
So, we looked at whether a pregnant woman can be fired during a probationary period. It turns out not. Therefore, if the time period agreed upon upon entering the workplace is coming to an end, and a woman finds out that she is expecting a child and wants to continue working, then she has every right to remain at the enterprise in her place and in her position. After presenting a certificate from the antenatal clinic, a permanent employment contract will be signed with such an employee.
When can you be fired? Own wish
Yes, the Labor Code of our Motherland does not prohibit expectant mothers from resigning at their own request. Therefore, unscrupulous managers may force such an employee to write a letter of resignation or create such working conditions for her that she will be forced to leave.
However, if a pregnant employee wants to work in this particular company and in this particular place, then she must arm herself with labor legislation and prove her rights and benefits. Moreover, a woman can go to a union or court to complain about harassment at work. Judges often side with expectant mothers.
If he works in someone else's place
Can a pregnant woman be fired during a probationary period if she is employed instead of another employee, and that employee expresses in writing a desire to return to her workplace? If, when applying for a job, it was stated in the employment contract that the woman is employed in someone else’s place, then fire her is allowed, even though she is expecting a child. However, there are some subtleties here.
The employer must offer the pregnant employee an alternative position. That is, we are not talking about dismissal, but about transfer from one position to another. The proposed option must correspond to the woman’s position, that is, it does not involve carrying heavy objects (over 2.5 kilograms), staying at the computer for more than three hours a day, contact with substances hazardous to life and health (for example, chemicals), being in damp or damp room, in drafts and so on. Also, such a place should not involve business trips, night shifts, overtime, etc.
If a woman is offered a job under the conditions described above, she has the right to refuse it, justifying her negative answer in writing, and wait for further offers.
If a pregnant woman was offered a job taking into account her position, and she refused it, then the woman can be fired, and this will be in accordance with current legislation.
Other cases
Can a pregnant woman be fired during a probationary period for other reasons? Yes, and this is also regulated by law. The third reason for the dismissal of the expectant mother can only be the complete liquidation of the enterprise or the termination of the employer’s work as an individual entrepreneur.
In such cases, the pregnant woman, like other employees, should be paid compensation.
The woman continues to work
Most often this is what happens. However, an expectant mother who has retained her permanent job should be prepared for the fact that in the future the employer will require her to provide a certificate from the antenatal clinic confirming the presence of pregnancy. Such supporting documents will need to be brought to the employer no more than once every three months.
If you do get fired
Yes, there are also cases when an employer acts in gross violation of the law, in the hope that the expectant mother either does not know her rights or does not want to fight for them.
What can be said in this case? If a woman wants to continue working at the enterprise and wants to defend her rights, she can turn to special authorities that will help her restore justice.
To do this, a woman in this position has two options.
Labor Inspectorate
This is important government agency, which protects enterprise workers, to which a pregnant woman can contact in three ways: in person, via the Internet (official website) or by mail (necessarily using ordered letter). To her written complaint, the expectant mother must attach a photocopy of documents such as a passport, work record book, a contract drawn up upon joining a job, an order for appointment to a certain position and dismissal from it, a certificate from a gynecologist confirming the presence of pregnancy.
The Labor Inspectorate independently conducts an investigation based on the submitted documents. If it turns out that the expectant mother's employer broke the law by firing her, he will be held accountable.
Trial
Here it must be said that going to court is the main and decisive step for a woman to be restored to her previous position. Since only the judge’s decision can return her lost place.
It is recommended to file a claim for reinstatement immediately after dismissal, attaching the documents mentioned above. The meeting takes place on the appointed day. Both parties are invited to attend - the pregnant woman and her former employer.
According to the claim for reinstatement, the judge reviews the case and makes a decision. Most often, the employer will be obliged to take the woman back, having previously paid her financial compensation for forced absenteeism, as well as the costs of a lawyer, lawyer and court costs.
After the meeting
Based on the decision made by the court, the woman again turns to her former employer and presents him with a document - a court verdict, on the basis of which the employer cancels her dismissal and enters into an employment contract with the expectant mother. The woman signs the decree, a corresponding entry is made in her work book, and then the pregnant woman is allowed to perform her official duties.
In some cases, the employer may not comply with the verdict rendered by the judge. He can appeal it or ignore it. In the latter case, the unscrupulous employer will be forced to comply with the court order and will be held administratively liable. However, such cases are extremely rare.
Rights of a pregnant woman
Within the framework of this article, it is impossible to analyze all the controversial situations that may occur with the expectant mother at her place of work. However, let's briefly mention the rights of a pregnant woman that you need to know and defend.
First of all, it should be remembered that it is very difficult to fire a woman who is expecting a child. Even if she violated discipline, work schedule, and so on. Absenteeism and tardiness also cannot be the reason for the dismissal of the expectant mother.
What else can be said about the privileges of pregnant women? Such workers may ask to be transferred to light work, the basis for which is a special certificate from the antenatal clinic.
To undergo regular examinations by a gynecologist, as well as tests, the expectant mother is provided with paid working time. However, she must bring a certificate from the antenatal clinic confirming the need for such manipulations.
Also, an employee expecting the birth of a baby may be given additional breaks or the working day may be shortened at her request.
Also, such an employee is assigned leave to prepare for childbirth and the actual delivery. The period of paid leave depends on how the pregnancy progresses and how the birth went.
A few words in conclusion
This article introduced us to modern Russian legislation regulating the relationship between an employer and a pregnant employee. From the question discussed above, whether a probationary period is established for pregnant women and whether such women can be fired during the probationary period, it becomes clear that the state protects motherhood and mothers, as well as their newborn children.
The expectant mother has a rather impressive list of rights and privileges in her workplace. For example, it is impossible to fire a pregnant woman without her consent, unless we are talking about a complete closure of the enterprise. Also, the expectant mother cannot be fired even if she temporarily works in the place of another person who begins his work duties. Such an employee must be given a new position.
With regard to the probationary period, the employer is obliged to employ such an employee on a permanent basis, providing her with the necessary benefits and privileges corresponding to her new position.
As we see, a girl expecting a child should know her rights well and be able to boldly defend her rights. Since employers do not always make concessions and can take advantage of the poor health of the pregnant woman or her ignorance of the laws. Therefore, do not rush to agree that your rights are being infringed upon or that you are being treated unfairly. Contact higher authorities: court and labor inspectorate. Most often, they stand up for the pregnant woman and reinstate her at work.
The purpose of a probationary period for any employee is to check professional competencies and establishing suitability for the position held. Conditions, features and exceptions of the probationary period are regulated Labor Code RF. The Labor Code of the Russian Federation reflects categories of persons who are not assigned a probationary period. This group includes pregnant women. Let's look at whether it is possible to fire a pregnant woman during a probationary period and what to do if she is fired.
Chapter 41 of the Labor Code of the Russian Federation contains provisions that regulate the implementation of additional guarantees and provide for exceptions from general rules for working pregnant women. It is worth noting that Article 70 of the Labor Code of the Russian Federation prohibits the establishment of a probationary period for pregnant women.
The opportunity to take advantage of benefits and guarantees for pregnant workers is provided only if the woman:
- Knows about her pregnancy;
- Report your situation to your employer;
- Will provide confirmation of pregnancy.
According to the law, upon employment, the employer is not obliged to check whether a woman is pregnant or not. A woman being hired similarly has the right not to inform her superiors about her pregnancy. If the employer and the employed woman do not know about pregnancy, then in this case the boss has the authority to remove the employee from her position during and after the probationary period. If a woman decides to reinstate herself after learning about her pregnancy, the employer will have to take her back.
Additional Information
If a situation arises when a woman becomes pregnant or finds out about her situation during the probationary period, she must bring a confirming certificate to the administration. In this case, dismissal will be impossible and the probationary period will be cancelled. Due to pregnancy, the employer legally does not have the right to deprive an employee of work before giving birth.
The dismissal of a pregnant woman from her position is provided for in Article 261 of the Labor Code of the Russian Federation. If a woman was hired during the absence of the main employee, then termination of the employment contract is permissible if the previous employee wishes to return. Also, by law, the employer is obliged to offer the dismissed person the vacancies available in the organization. In this case, positions that correspond to the qualifications of the employee, as well as less qualified ones, may be offered. The employer must only offer work that the woman is able to perform due to her pregnancy.
An important place in the list of guarantees established by the Labor Code of the Russian Federation is the ban on dismissal of a pregnant woman. The exception to the ban is:
- Dismissal of a pregnant employee in the event of a reduction in the number of employees in the organization;
- Termination of activities or liquidation of an organization;
- Dismissal at your own request;
- Dismissal by agreement of the parties.
In other cases, the employer does not have the right to dismiss an employee in the position on his own initiative.
Organizations can also enter into temporary employment contracts, which allows them to hide the probationary period. It is important to note that with a temporary employment contract, it is problematic to fire a pregnant employee. If the employer has entered into such an agreement with the employee, then dismissal from the organization is impossible until the end of pregnancy.
In the video, experts talk in detail about the rights of pregnant women
Dismissal of a pregnant woman during a probationary period
In legal practice, there are often situations in which employers demand that pregnant employees resign at their own request, and also intimidate and threaten. Such actions are illegal and, with the help of evidence, are subject to appeal in court.
For violation of the rights of pregnant women in connection with illegal dismissal, administrative liability is provided in the form of penalties. If an employee becomes pregnant during a probationary period, and the employer decides to fire the woman for absenteeism, then the head of the organization will pay a fine of up to 50 thousand rubles.
It is important to consider that if the employer did not know about the employee’s condition or she deliberately hid her situation, then the employer may be exempt from paying a fine for illegal dismissal.
For a complaint, it is important to collect evidence confirming the employee’s pregnancy, as well as confirm the facts that management was notified of the employee’s situation. Then you need to contact the labor inspectorate. Based on Article 356 of the Labor Code of the Russian Federation, the State Labor Inspectorate:
- Receives and considers complaints, applications and other requests from citizens indicating violations of labor rights;
- Takes measures to eliminate offenses and also contributes to the restoration of the rights of citizens.
Ask questions in the comments to the article and get an expert answer
Can a pregnant woman be fired during her probationary period? The answer to this question may be important for both the employer and the pregnant employee. The legislation of the Russian Federation is aimed at protecting motherhood and childhood, therefore the probationary period when hiring a pregnant woman has a number of nuances. Read about them below.
Features of a probationary period at work during pregnancy of an employee
An organization, when hiring a newcomer, has the right to set a probationary period to test his professional skills. The probationary condition must be expressly stated in the employment contract and employment order. If there is no such entry in the documents, then the new employee is considered accepted without testing.
For ordinary employees, the maximum probationary period is no more than 3 months; The management team and their deputies prove their professional suitability for no longer than six months.
A probationary period is not assigned when concluding a fixed-term employment contract lasting less than 2 months, and if the contract is concluded for a period of 2 months to six months, then the probationary period is limited to a period of 2 weeks.
All these norms are specified in Art. 70 Labor Code of the Russian Federation. Among other things, this article contains a direct unconditional ban on establishing a probationary period for pregnant women and women with children under 1.5 years of age. Thus, if a pregnant woman comes to your company to find a job, then you will have to hire her without a probationary period.
However, there is a nuance. Art. 65 of the Labor Code of the Russian Federation establishes a list of documents that an employer must request when hiring. There is no medical certificate about pregnancy or its absence. Thus, you cannot check whether the applicant is pregnant. In addition, refusal to hire due to the delicate position of the candidate is illegal (Part 2, Article 3 of the Labor Code of the Russian Federation). Moreover, if the applicant has the right not to undergo a probationary period due to pregnancy, then she must bring a certificate from the antenatal clinic herself.
You can read even more about the probationary period for various categories of workers in the article.
If you hired an employee on a probationary period, and a few days later she brought a certificate of pregnancy, then you will be faced with the question: is it possible to fire a pregnant woman on a probationary period? In the given circumstances, you should act according to one scenario: you must free the woman from the test. The legislation does not contain clear instructions on how best to do this. We recommend drawing up an order to release the pregnant woman from probation. You can also sign an additional agreement to the employment contract to exclude from it the phrase about passing the test.
Dismissal of a pregnant woman during a probationary period
Any dismissal of a pregnant woman at the initiative of the company management is illegal (Article 261 of the Labor Code of the Russian Federation). Exceptions 2:
- liquidation of a company or termination of an individual entrepreneur’s activities;
- expiration of the employment contract, provided that the company cannot transfer the employee to another position until the end of her pregnancy.
Let's assume that you, as an employer, have doubts that your employee is really expecting a child. Then you can ask to submit a certificate from a medical institution again. If she refuses, then the organization has reason to assume that the employee is deceiving and is not pregnant. This means that in this case the ban on dismissing a pregnant woman during the probationary period is not valid. If the refusal to provide a supporting document is recorded in writing, then the court will agree with the organization’s decision and will not reinstate the employee in her position (clause 27 of the plenum resolution Supreme Court RF dated March 17, 2004 No. 2).
Please note: a pregnancy certificate can be requested no more than once every 3 months - this norm is established for a pregnant employee whose fixed-term contract has been extended until the birth of the baby (paragraph 2 of Article 261 of the Labor Code of the Russian Federation). The same legal norm can be extended to a woman released from probation due to pregnancy, based on the principle of equal rights for workers (paragraph 6 of Article 2 of the Labor Code of the Russian Federation).
There are also cases when an employer, having learned that an employee on probation has become pregnant, forces the woman to write a letter of resignation of her own free will. This is illegal, and the woman can go to court and prove that the application was signed against her will. In this situation, the court will side with the employee and demand that the employer reinstate her in her position and pay her wages for forced absence (decision of the Moscow City Court dated October 18, 2010 in case No. 33-32308 A). A Labour Inspectorate The company will also be fined up to 200,000 rubles. according to Art. 145 of the Criminal Code of the Russian Federation.
You can read more about other sanctions for violation of labor laws in the article.
Results
Having learned from an employee about pregnancy during the probationary period , the head of the company must immediately release her from the test. An employer cannot fire a woman in this position on her own initiative, even if she is absent from work or performs poorly. job responsibilities. Situations in which termination of employment relations is legal are the liquidation of a company (or termination of an individual entrepreneur’s activities), as well as the end of a fixed-term contract.
