Is it possible to fire a pregnant woman during a probationary period? Can a pregnant woman be fired during a probationary period: grounds, reasons

The labor rights of women who are pregnant are regulated by the state in a special way thanks to the action government programs for the protection of motherhood and childhood. Among the privileges that expectant mothers enjoy is the right to get a job without a probationary period. However, not all employers strive to comply with this rule.

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 work competencies of the newly hired employee, and the employee himself evaluates new company from the point of view of working conditions, characteristics of the team and other significant factors for it. The length of the probationary period may vary depending on the wishes of both parties and other working conditions. Work for 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, agreements on a probationary period are considered invalid from the moment of presentation 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

Is it legal to dismiss a pregnant woman during a probationary period if upon hiring management did not have information about the fact of pregnancy?

Articles 81 and 261 of the Labor Code of the Russian Federation state that the employer does not have the right to initiate the dismissal of a woman carrying a child. As already noted, a woman is not obliged to notify anyone about her situation when applying for a job. Thus, even in a situation where management did not have information about the fact of pregnancy, it is still impossible to fire a woman. The only exceptions to this rule include dismissal due to the liquidation of an individual entrepreneur or enterprise. In addition, the employee has the right to resign and at will.

From the moment the employer receives a medical certificate confirming pregnancy, the employee cannot be dismissed from her position during the previously appointed probationary period as having failed the test, since this case will also apply to dismissal on the initiative of management.

An employer who nevertheless dares to add a probationary period clause to an employment contract with a woman who is expecting a child, and subsequently release her from her position as not corresponding to this position, becomes a violator of the law, and, like any violator, will be held accountable legally responsible for your actions.

Video: dismissal during pregnancy

Consequences for an employer for illegally dismissing a woman carrying a child

The dismissal of a pregnant woman from a position at the initiative of the employer is prohibited not only by the Labor Code (see Article 261 of the Labor Code of the Russian Federation), but also by the Criminal Code (see Article 145 of the Criminal Code of the Russian Federation). In addition, the labor rights of women in an interesting position are also protected by the Administrative and Civil Codes of Russia and other legislative acts.

For violating the labor rights of a woman in position, the employer faces punishment. First of all, the employer is charged with reinstating the pregnant woman to her position with payment average salary for the period that she was listed as dismissed (see parts 1 and 2 of Article 394 of the Labor Code of the Russian Federation). A woman has the right to reinstatement at work even if at the time of the hearing of the lawsuit on this issue the pregnancy has not continued (see Resolution No. 1 of the Plenum Supreme Court RF dated January 28, 2014).

A pregnant woman also has the right to demand compensation moral damage caused by illegitimate dismissal (see Part 9 of Article 394 of the Labor Code of the Russian Federation).

For the illegal dismissal of an employee who is expecting a child, the employer may also be brought to administrative liability (Article 5.27 of the Code of the Russian Federation on Administrative Offenses). The law provides for penalties for the employer. The fine in some situations can reach 50 thousand rubles.

Video: dismissal of a pregnant woman from work

What should a pregnant woman do if she is fired, where to go and how to challenge it

Situations concerning violations of the labor rights of women in this situation are under the jurisdiction of the State Labor Inspectorate. A woman whose rights have been violated can also turn to this authority for help in resolving conflict situation. The list of regional labor inspection offices in Russia can be easily found by following the link to official portal services. Practice shows that it is an appeal to this authority that brings the greatest effect in the struggle of pregnant women for their labor rights. The inspection staff will thoroughly check the submitted complaint and take measures to eliminate any violations found. Based on the results of the complaint, the employer may be held administratively liable, and the case materials may be transferred for further work to the prosecutor's office or other law enforcement agencies to make a decision on initiating a criminal case under Article 145 of the Criminal Code of the Russian Federation. A sample complaint to the labor inspectorate is shown in the illustration below. A complaint form can also be obtained from your local inspectorate office.

However, reinstatement in her position will only happen by a court decision, therefore, if a woman was illegally fired during pregnancy, she must file a statement of claim demanding that the dismissal be declared illegal, reinstated at work, and pay wages for unintentional absences. Then it is recommended to file this claim with the district court within a period not exceeding 30 days. To draw up a statement of claim, it is recommended to refer to Articles 131–132 of the Labor Code of the Russian Federation. In this case, the plaintiff-employee is also exempt from paying state duty. You can draw up an application yourself or with the help of lawyers. It is recommended that an order from the labor inspectorate be attached to the statement of claim as supporting materials.

The law does not prohibit the protection of one’s rights from submitting applications simultaneously to various authorities, therefore, in parallel, according to the wishes of the pregnant woman, she can also apply to the police department at the place where the offense was committed.

Video: employer's responsibility for dismissing a pregnant woman

The rights of pregnant women in the field of employment are protected by the state in a special way. For example, an employer does not have the right to establish a probationary period for pregnant women when hiring, and also cannot dismiss a pregnant woman from her position, even if he considers that she has not completed the probationary period established before receiving news of pregnancy. In the article, we talked about what liability an employer may face if he or she risks violating the law and dismissing a pregnant woman. In addition, we have provided a number of recommendations, following which an expectant mother who has been illegally fired can restore her rights and receive monetary compensation, including for moral damage. A woman expecting the birth of a child must be able to fight for her rights, because soon she will have to answer not only for herself, but also for her baby.

A probationary period is necessary to check a person’s suitability for the position held. Based on the results of this period, the employer decides whether to keep the employee on staff or fire him.

The Labor Code of the Russian Federation contains the basic rules for conducting inspections. It also reflects some categories of workers who have special conditions in. Among them, women are distinguished in a special position.

The law provides for various subtleties of labor relations with such workers. Employers often ask whether it is possible to fire a pregnant woman during a probationary period. The Labor Code of the Russian Federation does not give an explicit answer to them. Therefore, each case must be considered individually.

General information

Relations between employee and employer are regulated by the Labor Code of the Russian Federation. It also notes the procedure for completing the probationary period by a candidate for a position. It is worth noting that the law, in principle, does not include the concept of “probationary period”. Article 70 of the Labor Code of the Russian Federation notes the procedure for an employee to undergo a “test”, without indicating its duration.

The law (Part 1 of Article 70) determines the possibility of establishing a test when hiring a person only if this rule is reflected in the employment contract. The maximum check can last from two weeks to six months. The term is influenced by the position held by the employee and the nature of the relationship with the employer.

The test most often lasts no longer than three months. There is no minimum limit for the duration of the inspection. Therefore, the employer can set it even as one day.

If there is a note in the employment agreement about completing a probationary period, the employee may be fired if he does not meet the requirements. The employee may also independently express a desire to stop labor Relations.

In order for an employer to legally dismiss a person, he needs to prove that he is unsuitable for the position he holds. This is necessary to make it impossible to challenge his actions in court.

Upon dismissal, the parties notify each other of this decision no later than three days in advance. In accordance with the requirements of Part 3 of Article 14, a calendar count is carried out.

If the employer does not notify the employee of dismissal after the expiration of the probationary period, then the work activity will be continued legally. Dismissal in the manner prescribed by law will be considered impossible.

Privileges for pregnant women

Special conditions have been created for expectant mothers during the implementation of labor activity.

It could be:

the production rate per day has been reduced;
working hours have been reduced;
given the opportunity to independently regulate the work schedule;
working conditions have been changed, as a result of which there is no threat to the health of mother and child;
Additional rest breaks have been introduced.

These benefits are only available with official proof of pregnancy. This is a certificate issued by a gynecologist at the antenatal clinic.

Significant privileges include the inability to fire a pregnant woman even in the event of a staff reduction. Also, pregnant women are not required to undergo a probationary period. When providing a certificate confirming pregnancy, the employer must accept the employee for permanent place.

Establishing a trial period for this category of employees

Chapter 41 of the Labor Code of the Russian Federation does not clarify the issue of establishing testing for pregnant workers. But in accordance with Part 4 of Article 70 of the Labor Code of the Russian Federation, there is a ban on such a period during pregnancy.

In accordance with legal regulations, an employer cannot:

establish a probationary period for the employee;
include a clause on mandatory testing for pregnant women in the employment contract;
accept written consent from the employee to complete the probationary period.

It is important to note that the employer cannot check the presence or absence of pregnancy at the time of employment of a woman. Likewise, the employee should not notify management about this fact. At the same time, it is impossible to exclude the possibility of conception occurring already at the time of completion of the probationary period or hiring.

If a woman finds out that she is pregnant during the test, then her rights and guarantees cannot be limited. This norm is reflected in Part 2 of Article 9 of the Labor Code of the Russian Federation.

In accordance with the law, it can be concluded that a probationary period cannot be established for a pregnant woman in principle. If this fact is found out at the time of its completion, the inspection should be stopped and the employee hired.

Is it possible to fire a pregnant woman during a probationary period?

The test is not established for workers who are pregnant and have children under 1.5 years of age. If the fact is revealed during the inspection, then after providing a supporting certificate, the employee must be transferred to a permanent place.

Some employers do not know whether it is possible to fire a pregnant woman during a probationary period. Doing this is strictly prohibited. After all, if a woman goes to court, she can easily recover.

On the basis of Article 64 of the Labor Code of the Russian Federation, refusal of registration to the expectant mother will also be considered unlawful. Even if a woman hid the fact of bearing a child from her employer, he should be able to find a job without any problems.

If an employee is dismissed during the probationary period, the fact of whose pregnancy was unknown to the employer, it is possible to reinstate her in her position through the court. If management is unaware, compensation payments will not be accrued.

In some cases, to prevent such situations, employers during the probationary period sign not an employment contract, but a civil law contract with the employee. If the verification is successfully completed, a full-fledged employment agreement is concluded.

If the employee does not pass the test, the document may not be renewed. But if a woman notifies management about her situation and subsequently decides not to enter into an employment contract, the employer may be held liable. After all, the labor inspectorate will be on the side expectant mother.

The judicial authorities have a similar opinion. The employer will have to document each of his actions so that a less severe punishment will be applied to him.

Sample employment contract with probationary period:

If no one knows

But the expectant mother, having learned about the fact of pregnancy, will be able to make attempts to be reinstated in her position. Russian legislation provides for the obligations of organizations and individual entrepreneurs to accept an employee and the absence of the right to refuse.

Violation of discipline and unsatisfactory passing results

An employee can be fired if:

absenteeism;
failure to fulfill one's own obligations;
other circumstances.

This rule is prescribed in Article 81 for all employees. But the norm does not single out pregnant women as a separate item. In this case, you need to focus on Article 361, which does not give such a right to the employer. He can only reprimand the woman, reprimand her, or refuse to pay for absenteeism.

It is impossible to terminate the employment relationship under any circumstances. The period when the employer learned about the interesting situation of the employee or the woman became pregnant is not taken into account.

Some bosses refuse a woman due to inadequacy for her position. But Article 71 of the Labor Code of the Russian Federation provides that a pregnant employee is prohibited from creating unacceptable working conditions. If the norm is not followed, the official can be held criminally liable.

Liquidation of an enterprise or reduction of staff

It is possible to fire an expectant mother only in one case - during the liquidation of the organization or its bankruptcy. The norm is prescribed in Article 61 of the Labor Code of the Russian Federation. This applies to cases where the company completely ceases to exist, rather than becoming the property of another owner.

The woman must be notified in advance. The employer must do this no later than two months before dismissal. The employee can count on severance pay, the amount of which is equal to the average monthly salary, as well as compensation for non-employment during the month.

Dismissal is possible if a pregnant woman joins the staff of a company branch located in another subject of the state. The law provides for such rules to ensure that the employer is not responsible for the employment of unemployed persons.

In some cases, the company continues to exist, but positions are subject to reduction. It is impossible to exclude a pregnant woman from the staff in this manner.

If the position still needs to be reduced, the pregnant woman should be offered another one. It cannot worsen the situation of the expectant mother and affect her health.

Salary for a new position may differ and be lower. Often this option is used so that the employee does not agree to the conditions and quits of her own free will.

By agreement of the parties and at your own request

In accordance with Article 77 of the Labor Code of the Russian Federation, relations between the parties can be terminated by mutual consent. The opportunity is provided at any time.

IN in this case No notice of dismissal is required. The woman will not be able to count on severance pay after the relationship ends. On the last workday, the employee is given documents and a payment is made.

Pregnant women can challenge the decision in the courts. If she proves that the employer put pressure on her at the time of signing the agreement (which is very difficult to do), then she will be reinstated.

In accordance with Part 3 of Article 77 of the Labor Code of the Russian Federation, the dismissal of a pregnant woman may be due to her personal desire. In this case, she writes a statement addressed to management 14 days in advance. Processing is carried out from the next day when the document is transferred to the personnel service.

Within two weeks, the expectant mother may change her decision. But the dismissal will be made anyway if another employee has already been hired in her place by appropriate order.

Some women go on vacation followed by dismissal. The employer may encounter difficulties if a pregnant woman goes on leave under the Labor and Employment Regulations during this period. Then workplace she is retained after sick leave is granted.

Employer's liability

If a pregnant woman is illegally fired, the employer may be subject to criminal liability. It will occur in accordance with Article 145 of the Criminal Code of the Russian Federation.

The norm reflects that unlawful refusal is punishable by a fine, maximum size which is 200,000 rubles. The employer can also pay the state wages for 1.5 years. In more severe cases, he will be required to undergo correctional labor for 180 hours.

Sometimes the punishment is mitigated for the employer. This is possible if he manages to prove a state of ignorance regarding the fact of the woman’s pregnancy upon dismissal.

Protection of rights in court

Employees often turn to judicial authorities to have them reinstated if they are fired during pregnancy. For example, citizen Semenova A.V. a claim was filed. It reflected that she was hired at Colosseum LLC with a probationary period of four weeks. At the end of the inspection, the employer decided not to continue the employment relationship due to inconsistency with the position held.

The woman provided a certificate confirming the fact of pregnancy within the above four weeks. In accordance with all the circumstances, a court decision was made to reinstate the woman in her position and hire her at Colosseum LLC.

A woman must go to court to consider the case within 14 days after dismissal.

Pregnant women cannot not only be fired, but also generally required to undergo a probationary period. They can sever their employment relationship with their employer at their own request or when.

Almost every Russian enterprise practices a probationary period when hiring new employees. This is a completely legal measure to determine whether the organization and the employee are a good fit for each other. But what about a pregnant employee? Can a pregnant woman be fired during a probationary period? Management, as a rule, is very reluctant to hire workers in this position. According to the law, they cannot be fired, but the probationary period does not imply official appointment to the position. The answer lies in Russian labor legislation.

The state strives for everyone available means strengthen the position of pregnant women in the organization. The basis for determining the special status of this category of employees is the labor code.

The essence of its main provisions on this issue is as follows:

pregnant women should have a special position in the organization (Chapter 41);
outlines the range of duties that employees are prohibited from performing in the position (Article 253);
temporary relief of working conditions in the form of a ban on night shifts, business trips, etc. (Article 254);
impossibility of dismissal, except in cases provided for by law (Article 261, Part 1).

Creation special conditions for female employees in this situation is one of the reasons for the employer’s reluctance to see them on their staff. Another obvious reason is the imminent long maternity leave, during which you will have to look for a replacement. Even for young mothers it is difficult to find new job. In this case, fears arise that the woman will often take sick leave and have difficulty concentrating on her job responsibilities.

Pregnancy will never be stated as the main reason for dismissal. Otherwise, the employer will face a large fine. When starting proceedings, he can always refer to the fact that he was not aware of the state of affairs.

Once in this position, it is unlikely that the employee will ever explain this at the interview stage. After all, then they will immediately show her the door. In any case, you will have to report, but it is better to do this a little later, some time after the start of the work process. In this case, the chances of gaining a foothold in the workplace are much greater. If this fact is revealed, an unscrupulous manager may try to dismiss a pregnant woman during her probationary period. In some cases, due to the legal illiteracy of their employees, they succeed.

When hiring new employees, they may be assigned a probationary period. Its duration ranges from 1 month to six months. During this period, significant changes can occur in women. They may find themselves in a position. Can an employer fire a pregnant employee during a probationary period? Theoretically, this is possible if no one knew about this fact. The court will not apply any sanctions against him, from legal and practical point The law was not violated. He doesn't have to be aware of this. The dismissed employee, for her part, having established the fact of pregnancy, can apply to the judicial authorities for reinstatement in her previous position.

The following documents will be required:

passport;
a copy of the dismissal order;
employment history;
certificate from the antenatal clinic.

The time for filing a claim should not exceed 2 weeks. If at the time of dismissal the employee was already in a position, management will certainly be obliged to restore her to her previous position. The level of remuneration according to the law must remain the same.

Knowing about the upcoming event, you cannot delay in notifying management. The law clearly states that it is impossible to fire a pregnant woman during a probationary period. No one has the right to this either during or after its passage.

At the same time, dismissal is possible at the employee’s initiative. In this case, you only need to notify about this two weeks in advance (the minimum period is 3 days). During this time, you can change your mind and withdraw your application without subsequent dismissal.

According to the law, a woman expecting a child does not have to undergo any tests. And worries about whether a pregnant woman can be fired are unfounded. As soon as management was informed about this, the employee was immediately required to be placed on staff. Moreover, they do not have the right to fire her even for numerous absenteeism and violations of labor discipline. The maximum that this can entail is non-payment for absent days (if the reason for absenteeism is not poor health, confirmed by a doctor’s certificate).

Unfortunately, there are often cases when an employee in this situation is forced to leave the organization, creating unbearable working conditions for her, exerting moral pressure. Of course, this is a violation of the law, but, as a rule, it is difficult to prove the existence of illegal actions by superiors.

If you do not want to undermine your nervous system additional experiences, many write a statement of their own free will.

Sometimes, counting on the fact that pregnant women have no time legal proceedings, the management commits a direct violation of the law and still signs the order.

This entails serious sanctions:

fine payment of 200 thousand rubles;
180 hours of forced labor;
sanction payments in an amount equivalent to one and a half years’ salary.

The amount of punishment is determined by Article 145 of the Criminal Code of the Russian Federation.

Sometimes management goes to great lengths to be able to fire an employee at any time. The most popular way is to conclude a temporary employment agreement. It is difficult to prove intentional infringement of rights in court. You shouldn't count on this job in the future. But you should know that the employer does not have the right to fire a pregnant employee, even if she worked under a fixed-term contract whose time has expired. He will have such an opportunity only after the end of this period.

The only legal reason for the dismissal of a woman expecting a child in 2019 is the liquidation of the enterprise, when everyone without exception falls under layoffs.

The procedure in this case is as follows:

Having learned about the interesting position of the employee, the manager is obliged to terminate her probationary period and immediately officially enroll her in the staff.
Notify all employees of the closure of the enterprise at least 1 month in advance. The best way do this by sending written notices.
Drawing up and signing the appropriate order for liquidation and dismissal.
Making an entry in the work book.
Termination of an employment contract.

If the organization is a subsidiary or branch, and the company's head office is located in another city, then a pregnant employee cannot count on working there.

Upon request, the following documents must be handed over:

employment history;
income certificate;
summary;
a copy of the dismissal order.

After termination of work, a woman in this position must be given the wages due plus compensation for unused vacation. Additionally, severance pay equal to several months' salary is accrued.

By law, a pregnant employee must receive a number of benefits. Due to its physical condition she cannot work on an equal basis with other workers.

The expectant mother receives benefits:

is not required to undergo a probationary period before taking office;
is guaranteed to receive the position for which she previously applied;
impossibility of dismissal for any reason, except for the closure of the enterprise;
half-holiday;
additional rest breaks;
long maternity leave;
allocating the time required for a visit to the antenatal clinic;
work involving physical stress is contraindicated;
if there is no physical ability to perform the previous job, the employer is obliged to transfer to a more suitable position.

There are specific requirements for the workplace of a pregnant woman. It should be comfortable and provide the opportunity for periodic relaxation.

According to the Labor Code, management is obliged to provide the employee with necessary work, feasible to perform. In the absence of such an opportunity, she has every right not to go to work, while receiving full payment for forced absences. Lack of a suitable position is not a reason for dismissal.

Summarizing the above, if pregnancy occurs during the probationary period, can they be fired? No, they can't. However, in practice this often happens. There are very few court filings on this matter. After all, even if they are restored to their previous place, few people will want to work in the current tense and unpleasant atmosphere. The best option– try to amicably resolve all differences.

Some employers do not know whether it is possible to fire a pregnant woman during a probationary period. Doing this is strictly prohibited. After all, if a woman goes to court, she can easily recover.

Can a probationary period be established for pregnant women?

In accordance with legal regulations, an employer cannot:

establish a probationary period for the employee;
include a clause on mandatory testing for pregnant women in the employment contract;
accept written consent from the employee to complete the probationary period.

If a woman finds out that she is pregnant during the test, then her rights and guarantees cannot be limited.

Features of the work of pregnant employees

Special conditions have been created for expectant mothers when carrying out work activities.

It could be:

the production rate per day has been reduced;
working hours have been reduced;
given the opportunity to independently regulate the work schedule;
working conditions have been changed, as a result of which there is no threat to the health of mother and child;
Additional rest breaks have been introduced.

These benefits are only available with official proof of pregnancy. This is a certificate issued by a gynecologist at the antenatal clinic.

Significant privileges include the inability to fire a pregnant woman even in the event of a staff reduction. Also, pregnant women are not required to undergo a probationary period.

A pregnant employee cannot be recalled from vacation, sent on business trips or on shifts. Regardless of how long a pregnant woman has worked in an organization, she has the right to go on annual paid leave before going on maternity leave or immediately after it.

Pregnancy at different stages of the trial period

A woman can become pregnant at any time, and the employer may not always be aware of it. The law prohibits dismissing a pregnant woman in any situation except:

complete liquidation of the enterprise;
termination of the activities of the individual entrepreneur.

To protect her rights, a pregnant woman must be:

aware of your pregnancy;
inform the employer about your status;
document the fact of your condition (provide a certificate from the antenatal clinic).

Let's consider various conditions, which may arise if a woman applying for a probationary job becomes pregnant.

Pregnant woman gets a job

Of course, most employers are not eager to hire a woman who will soon go on maternity leave. However, the law prohibits refusing employment due to pregnancy (Article 145 of the Criminal Code of the Russian Federation). Therefore, if a woman who is expecting the birth of a child is hired, the employer cannot set her a probationary period. Part 4 of Article 70 of the Labor Code of the Russian Federation contains a direct ban on the appointment of tests when employing female employees in the position.

Even if a woman expecting a child writes written consent to undergo a probationary period, and a provision regarding it is included in the employment contract, this will not cancel the legal prohibition of such a procedure.

When getting a job, the expectant mother does not have to undergo any tests, which means that she cannot be fired due to unsatisfactory results of the probationary period.

Got pregnant during probation

The legal time to establish professional suitability is not always short, and it is quite possible for a probationary employee to become pregnant. In addition, by the time of employment, the woman herself may not yet be aware of her condition, which will only be confirmed during the test itself.

At that moment, as soon as the employer learns of this situation of the employee, any probationary period for her is terminated, regardless of the time it was completed and the actual results.

From this moment on, she is considered accepted into the staff and cannot be relieved of her position on the initiative of her superiors until she leaves maternity leave.

It happens that due to health reasons, the expectant mother is forced to take sick leave (for example, she needs to go to hospital), and she has not yet informed the employer about her changed status. The time while she is incapacitated for work on the basis of the corresponding certificate is still excluded from the probationary period, even if the employee were not pregnant. After returning to work, she will present a medical report that clearly confirms her condition, and will automatically receive all the benefits and privileges due to a working pregnant woman, including no probationary period.

If pregnancy occurs during the probationary period, it ends as soon as the woman informs the employer about it and documents this fact.

When is it prohibited to fire a pregnant employee?

First of all, the legislation protects a pregnant woman from the whim of the head of an enterprise who wants to fire her without a good reason, “because of pregnancy.” If a woman fulfilled all her duties, and she is fired, then she, in turn, has the right to sue the employer with a demand to renew the employment contract with full wages and even pay compensation for moral damage (if she was pressured by the head of the enterprise) . Unjustified dismissal of a pregnant woman threatens the employer with a fine of up to 200,000 rubles or even correctional labor.

Even if the work is not done properly, there are some nuances. The law really allows expectant mothers quite a lot. In particular, it is prohibited to fire a pregnant woman for absenteeism. Even if there was no written request for excommunication on her part, the employer has the right to apply only a disciplinary sanction. The same applies to theft, damage to property, or showing up to work drunk.

It is prohibited to dismiss a pregnant employee during the probationary period. From the moment a woman presents a pregnancy certificate, she becomes a full-fledged employee of the company, and her illegal dismissal will entail serious fines for the employer.

In cases where a pregnant woman works under a fixed-term employment contract that expires during pregnancy, she is required to apply for an extension of the contractual relationship until the end of the pregnancy. Under such an agreement, she can be fired a week after giving birth.

The employee must provide a pregnancy certificate quarterly and, in the event of termination of pregnancy, immediately report it. If she decides to hide this fact and it later becomes known, the employer can fire her within seven days.

Can a pregnant woman be fired from her job? And again the answer is no! It is impossible to lay off a pregnant woman. In the event of a reduction in the department where she worked, she should be provided with another appropriate place labor. If the new vacancy does not suit the employee, she has the right to resign on her own initiative.

Even if the expectant mother provided services to an individual(for example, the services of a nanny or au pair), then the citizen acts as her employer and also cannot fire her on his own initiative.

What tricks do employers use?

Even the most decent directors want to get rid of such a colleague as a pregnant woman. Even knowing that by law it is almost impossible to do this, employers begin to come up with more and more original reasons for dismissal, which are considered unlawful:

A woman works part-time, which means a second employer can take responsibility for her.
They report that such a decision (on dismissal) was made by the owner of the enterprise or the board of shareholders.
Dismissal is prohibited even if disciplinary sanctions have been applied to the girl.
The most intractable bosses begin to create unbearable working conditions for expectant mothers, forcing them to leave their place of work of their own free will. Such actions are contrary to labor law.
As you know, heavy work is contraindicated for pregnant women and the employer is obliged to provide easier work, but he can refuse an easier position, citing the lack of a suitable vacancy. It is worth knowing that according to the law, in this case, a woman can be exempted from fulfilling her duties. job responsibilities due to health reasons, while she retains a full-fledged income.
A woman in this position cannot be fired even for absenteeism, immoral behavior at work or violation of labor discipline.
Also, theft committed by a pregnant woman or disclosure of a trade secret will be an insufficient basis for dismissal.

Why does an employer have the right to fire a pregnant woman?

In order to fire a pregnant subordinate, the manager must not take the initiative. Dismissal at his request is a taboo. An acceptable basis may be a reason independent of the will of the employer (liquidation of a legal entity, termination of an individual entrepreneur, bankruptcy, etc.), as well as the initiative of a pregnant woman.

If no one knows

But the expectant mother, having learned about the fact of pregnancy, will be able to make attempts to be reinstated in her position. Russian legislation provides for the obligations of organizations and individual entrepreneurs to accept an employee and the absence of the right to refuse.

Violation of discipline and unsatisfactory passing results

An employee can be fired if:

absenteeism;
disciplinary violations;
failure to fulfill one's own obligations;
other circumstances.

It is impossible to terminate the employment relationship under any circumstances. The period when the employer learned about the interesting situation of the employee or the woman became pregnant is not taken into account.

Dismissal at your own request

A woman in a position, in fact, like everyone working under an employment contract, can terminate it at any time by notifying the employer of her intention 2 weeks in advance.

In this case, the desire to quit must be your own, and not arise due to conditions deliberately created by the employer. The practice of managers blackmailing or creating unbearable psychological working conditions is quite common. In this case, the pregnant woman can complain to the State Inspectorate or the prosecutor's office, after which an inspection will be carried out. But the burden of proving that the application was written under duress of one’s own free will rests with the person who resigned in accordance with the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by courts Russian Federation Labor Code of the Russian Federation"

The two-week period does not have to be completed if the woman is hospitalized for health reasons. That is, in essence, she is sent on sick leave, and the time of forced absence from work (sick leave, vacation) is counted towards this two-week period. Therefore, if in such a situation it is not possible to personally take the application to the employer, the pregnant employee can write a statement, and her relatives will send it by mail to the employer’s address.

That is, it is important that the paper is already on the employer’s desk during these 2 weeks while you are in the hospital. An oral statement that you could make in person or telephone conversation with the employer does not count.

Please keep in mind that during the two-week period that must pass from the date of filing the application, the employer has the right to send the employee on leave. Then the amount of vacation pay during the calculation upon dismissal will be less.

Employees “in position” can withdraw their resignation letter before the expiration of the specified period - for them this is not fraught with any consequences.

Dismissal by agreement of the parties

An alternative to voluntary dismissal at the request of a pregnant employee may be termination of the contract with her by agreement of the parties.

The table will help you understand the difference between dismissal at the request of a pregnant woman and by agreement of the parties.

	Statement	Agreement of the parties
How is it processed?	In the form of a statement from a pregnant employee with her signature. The employer issues an order.	In the form of an agreement on behalf of two parties (can be drawn up by one of them, but the second party must check it). The document is drawn up in 2 copies and signed by both parties. Upon dismissal, the employer issues an order.
What if the parties do not agree?	An employer cannot refuse to dismiss an employee at his own request if he has worked for a two-week period after submitting an application.	If the employer or the pregnant woman does not agree with the provisions in the agreement, they have the right not to sign it. Then dismissal on this basis is impossible. Alternatively, in case of disagreement, you can draw up a protocol of disagreement, but if the parties do not reach a consensus, dismissal will not occur.
date of dismissal	The date of dismissal is not the date of drawing up the resignation letter, but the day of expiration of the two-week period from the date of its submission.	The date of dismissal is negotiable, that is, whatever both parties decide, so it will be. By agreement of the parties, a pregnant woman can quit without working for two weeks.

What is common between dismissal on these two grounds is that it is voluntary, and therefore does not contradict the Labor Code of the Russian Federation.

On the issue of dismissal of a pregnant woman by agreement of the parties, there is a Ruling of the Supreme Court of the Russian Federation dated 09/05/2014 N 37-KG14-4. According to its provisions, it can be concluded that a woman who signed a dismissal agreement between the parties, who did not know about her pregnancy at that time, can send an application to the employer to invalidate the agreement due to a significant change in circumstances (pregnancy), if the day of dismissal indicated has not yet arrived in the agreement.

Dismissal from a temporary position (under a fixed-term employment contract)

Allows the dismissal of a pregnant woman working under a fixed-term employment contract, if the following conditions are met: following conditions:

The employment contract was concluded for the duration of the duties of the absent employee.
It is impossible, with the written consent of the woman, to transfer her to another job available to the employer that is suitable for her health before the end of her pregnancy.
The employer offered her everything available vacancies in this area.
The pregnant woman refused to be transferred to a vacancy in another area.

By revising specific situation All conditions must be met for dismissal from a maternity position (and most often fixed-term employment contracts are concluded precisely for the duration of another employee’s maternity leave) to be considered legal.

In other cases, the employer does not have the right to dismiss a pregnant woman from her maternity position. If a woman proves that she is carrying a child by providing a medical certificate, the employer is obliged to extend her fixed-term employment contract. Even if an employee goes on maternity leave, the pregnant woman must be assigned to another job. It is assumed that a transfer to a place with a lower salary is possible. In this case, the woman must decide for herself whether to remain in a position where they will pay less, or write an application of her own free will.

Are pregnant women subject to layoffs?

Reducing the staff of an organization is the initiative of the employer, which means that dismissal of a pregnant woman on this basis is impossible; such mistakes are punishable by fines in accordance with Part 1 of Art. 5.27 Code of Administrative Offenses of the Russian Federation. In addition, for the unjustified dismissal of a pregnant woman, Art. 145 of the Criminal Code of the Russian Federation provides for criminal liability.

Dismissal upon liquidation of a legal entity or termination of an individual entrepreneur

Dismissal during the liquidation of a pregnant woman is regulated by Article 180 of the Labor Code of the Russian Federation. The employer must notify her that the company will be liquidated at least 2 months in advance. Not verbally, but always against signature.

If there is not a liquidation, but a change of owners (the company is bought out, it is transferred to other persons), the woman cannot be fired due to liquidation. By law, she must continue to work under new management, unless, of course, she herself wants to quit.

they are entitled to severance pay in the amount of average monthly earnings;
they receive compensation for unused vacation;
they retain their salary for two months;
calculation is made wages for actually worked days of the current month.

According to paragraphs 10, 11 of Resolution No. 865 of December 30, 2006, maternity benefits after liquidation will no longer be paid by the employer, but by the social security department at the place of residence of the pregnant woman.

Is it possible to be fired under an article?

Labor legislation does not contain such wording as “dismissal under an article.” This is popularly understood as dismissal for committing a disciplinary offense, that is, in the course of imposing a disciplinary sanction, or due to professional incompetence.

An employer cannot fire a pregnant woman for absenteeism or other violations of labor discipline, but he has the right to impose one of the other penalties.

According to Art. 192 of the Labor Code of the Russian Federation, the following penalties may be applied to an employee:

comment;
rebuke;
dismissal.

Therefore, if a woman in a position violates labor discipline, she may be reprimanded or reprimanded. In addition, there are no restrictions on the deprivation of bonuses. Pregnant women may be deprived of bonuses at the discretion of the employer.

Comparison table for reasons for dismissal

Reason for dismissal of a pregnant woman	In what cases is dismissal possible?	Sequencing
On the personal initiative of the employer	Impossible	A woman has the right to file a lawsuit demanding reinstatement and payment of compensation.
If the pregnant woman has not passed the probationary period	Impossible	After presenting a pregnancy certificate, a woman automatically goes through a probationary period
For violation of discipline	Impossible	Only disciplinary action or reprimand is possible
During company reorganization	Impossible	Another position must be provided
As a result of the liquidation of the company	Possibly upon complete liquidation of the organization or closure of the individual entrepreneur.	Paid: severance pay, vacation pay, average salary retained for two months
After fixed-term contract	Possibly if the woman did not provide a certificate before her dismissal.	If the certificate is provided on time, the employment contract should be extended until the end of the pregnancy
If a permanent employee returns to work and was replaced by a temporary employee who finds herself in a situation	Possibly if the employer cannot offer the pregnant woman another position, or if she refuses it	An employee has the right to apply for another position in the company (with suitable conditions labor)
At the initiative of an employee	It's always possible	The application must be submitted two weeks in advance, work is required, maternity benefits are not paid

Employer's liability

For violation of the rights of pregnant women committed by an employer, including in connection with illegal dismissal, the law provides for liability in the form of a fine. So, for example, if you fire a pregnant woman for absenteeism, the employer may pay a fine of up to 50 thousand rubles.

Issues related to violations of the labor rights of pregnant women are within the competence of the State Labor Inspectorate. It is the specified public authority that must be contacted if the rights of workers of this category have been violated in any way.

Labor law is a rather specific field that requires knowledge of the nuances of current legislation. That is why, to protect employee rights in this area, it is recommended to contact experienced specialists.

The lawyers of our site are ready to answer any question regarding the protection of the labor rights of pregnant women. On the site you can ask a lawyer a question completely free of charge and receive a competent and qualified answer in the shortest possible time.

Female employees who are pregnant require special protection of their labor rights and interests. Only competent lawyers can provide reliable protection and provide real help to restore violated rights.

What to do if an employer violates the labor rights of a pregnant woman

Despite the guarantees for pregnant women enshrined in the Labor Code of the Russian Federation, cases of unjustified dismissals are not that uncommon.

An employee can appeal the employer's actions to:

State Labor Inspectorate;
the prosecutor's office;

Unjustified dismissal of a pregnant woman threatens the employer with administrative and even criminal liability:

According to Art. 5.27 of the Code of Administrative Offenses of the Russian Federation with a fine of 1,000 to 5,000 rubles for officials and individual entrepreneurs, as well as from 30,000 to 50,000 for legal entities.
In accordance with Art. 145 of the Criminal Code of the Russian Federation with a fine of 5,000 to 200,000 rubles or in the amount of salary/income for 18 months or compulsory work from 60 to 360 hours.

The employer is brought to administrative responsibility by the State Inspectorate, and if necessary, transfers the inspection materials to the prosecutor's office in order to bring the culprit to criminal liability. But this procedure is not mandatory - the victim can herself contact the prosecutor’s office with a complaint.

In addition, she has the right to file a lawsuit against the employer, where, of course, her violated rights will be restored:

She will be reinstated, and may require the issuance of a duplicate work book, where there will be no record of dismissal.
She will be paid compensation for her forced absence.
The employer will have to compensate for moral damage if it is proven.

According to Art. 393 of the Labor Code of the Russian Federation, an employee is exempt from paying state duty when defending labor rights in court.

If you have questions about the topic of the article, please do not hesitate to ask them in the comments. We will definitely answer all your questions within a few days. However, carefully read all the questions and answers to the article; if there is a detailed answer to such a question, then your question will not be published.

Protecting rights in court: an example

The woman provided a certificate confirming the fact of pregnancy within the above four weeks. In accordance with all the circumstances, a court decision was made to reinstate the woman in her position and hire her at Colosseum LLC.

A woman must go to court to consider the case within 14 days after dismissal.

Pregnant women cannot not only be fired, but also generally required to undergo a probationary period. They can sever their employment relationship with their employer at their own request or upon liquidation of the organization.

Employers are not eager to hire a pregnant woman, and they are also not happy about the news about the impending addition to the family of their employees. After all, having found herself in an “interesting” situation, a woman receives from the state additional protection and benefits, while the employer will be forced to solve the problems that arise in connection with this. For example, you will have to endure and pay for sick leave if the pregnancy is problematic, turn a blind eye to possible omissions and delays, without being able to apply serious sanctions for them, and, finally, look for an employee to replace a woman who has gone on maternity leave, while keeping her job place.

The state is trying to take care of the more vulnerable category of workers. Expectant mothers constitute a separate subject of attention in labor law.

This article contains all the nuances regarding the admissibility of dismissal of a woman expecting offspring if she is on.

Labor Code on pregnant women and the appointment of tests

In legislative documents devoted to labor relations, the rights of women, especially those preparing to become mothers, are given Special attention. Various articles of the Labor Code of the Russian Federation contain special rules relating to pregnant women:

Ch. 41 of the Labor Code of the Russian Federation speaks of the special situation of pregnant employees;
Art. 253 contains a list of types of activities in which an employee who is expecting a child cannot be involved;
Article 254 speaks of the need to transfer pregnant women to more light work, if this is justified by a medical report, as well as a ban on business trips, night shifts and overtime work for them;
Part 1 Art. 261 directly prohibits the dismissal of a pregnant woman, except for cases specifically provided for by law.

Probation The law allows for the employee to meet the professional requirements of the employer. The law does not use this exact term; it speaks of a “employment test,” but most often the condition of this exam is a certain period of time. The Labor Code of the Russian Federation outlines the principles of its purpose and the specifics of both sides:

Part 1 of Article 70 of the Labor Code of the Russian Federation says that the employer can set this period only during the employment process, and its possibility is reflected in the employment contract;
the minimum test period is not established, the maximum varies from 2 weeks to 3 months, in some cases - up to six months;
Parts 1 and 4 of this article indicate an easy procedure for dismissing an employee while passing the test: an employee who does not pass it is released within 3 days or at his own request;
Art. 71 of the Labor Code of the Russian Federation explains that if dismissal does not occur during the probationary period, it is considered that it was completed successfully, and the employee was hired on a general basis.

Pregnancy at different stages of the trial period

A woman can become pregnant at any time, and the employer may not always be aware of it. The law prohibits dismissing a pregnant woman in any situation except:

complete liquidation of the enterprise;
termination of the activities of the individual entrepreneur.

To protect her rights, a pregnant woman must be:

aware of your pregnancy;
inform the employer about your status;
document the fact of your condition (provide a certificate from the antenatal clinic).

Let's look at the various conditions that may arise if a woman applying for a probationary job becomes pregnant.

Pregnant woman gets a job

RESULT: When getting a job, the expectant mother does not have to undergo any tests, which means that she cannot be fired due to unsatisfactory results of the probationary period.

Got pregnant during probation

At that moment, as soon as the employer learns of this situation of the employee, any probationary period for her is terminated, regardless of the time it was completed and the actual results.

From this moment on, she is considered hired and cannot be released from her position at the initiative of her superiors until she returns from maternity leave.

RESULT: if pregnancy occurs during the probationary period, it ends as soon as the woman informs the employer about it and documents this fact.

A pregnant woman can't behave badly

Violation of labor discipline is a good reason for dismissal for any employee, except for a woman expecting a child. The law does not consider absences from work related to pregnancy to be absenteeism. For a working expectant mother, any violations that could lead to dismissal can only result in mild administrative measures - a reprimand, or, in extreme cases, a reprimand.

FOR YOUR INFORMATION! Despite the fact that the law maximally protects employees in this position from dismissal, it should be remembered that they will have to leave maternity leave at some point, so it is better to try not to aggravate relations with their superiors.

What if you do get fired?

If a woman expecting a child was forced to undergo a probationary period in circumvention of the law and was fired based on its results, such a violation of the law should not be left unpunished: the employer will receive a serious fine, and expectant mother will be reinstated.

It is enough for an unfairly offended pregnant woman to contact the labor inspectorate, the district prosecutor's office or the court no later than a month from the date of receipt of the employment notice with a dismissal note.

At the same time, she does not need to prove her professional worth: the employer is obliged to prove that the employee dismissed during the test does not meet the requirements. If a dismissed employee is pregnant, such evidence will not help him: after all, the employer does not have the right to conduct tests for women in this position. He will simply receive punishment not under Article 145 of the Criminal Code, but under Clause 5 of Article 27 of the Code of Administrative Offenses of the Russian Federation “Violation of labor and labor protection legislation.”

IMPORTANT! Despite the difficult emotional state, a pregnant subordinate should not succumb to possible provocations of the employer and write a letter of resignation “of her own free will”, in which case it will no longer be possible to challenge unfair dismissal. In case of pressure exerted, it is permissible to contact labor inspection or at least warn the obstinate employer about such an intention.

Didn't have time to sign the contract?

The employer is in no hurry to formalize your employment relationship, promising to do this after completing the probationary period? The news of a potential employee's pregnancy will not add to his enthusiasm.

Many women believe that since an employment contract has not been signed, then the employer has the right to show them the door at any time. This is not true: the actual performance of work means the oral conclusion of an employment contract. The employer is obliged to formalize everything, and if he does not agree, he must contact the labor inspectorate. Of course, you will need to prove the fact that you have started work: for this you can invite witnesses or provide any documentary evidence.