Maternity leave and maternity benefits for a fixed-term employment contract

Maternity leave for urgent employment

According to Article 59 of the Labor Code of the Russian Federation, a fixed-term employment agreement can be concluded with an employee replacing a temporarily absent employee (for example, on maternity leave). The nature of its action is temporary, it is subject to termination upon the occurrence of appropriate grounds (for example, the departure of a key employee).

Regardless of the nature of the contractual relationship with the company, a woman has the right to apply for maternity leave. In accordance with Art. 261 of the Labor Code of the Russian Federation, if a fixed-term contract expires during the pregnancy of the replacement person, it is extended by the employer.

It is possible to go on maternity leave under a fixed-term employment contract upon application, provided you have a sick leave certificate issued at the antenatal clinic.

Legislative framework for registration of maternity leave under a fixed-term employment contract

The procedure for granting maternity leave and child care leave to women working under a fixed-term employment contract was changed in July 2015. Federal Law No. 201-FZ, approved by the President of the Russian Federation on June 29, 2015 and which came into force 10 days after that, amended some articles of the Labor Code of the Russian Federation. In particular, this normative act changed the provisions of part two of Article 261 of the Labor Code of the Russian Federation.

The new edition, regarding the registration of maternity leave for an employee with a fixed-term employment contract, establishes the following legislative aspects:

1. If the employment contract has expired while the employee is already pregnant, the organization (employer) is obliged to renew it.
2. The basis for extending an expired fixed-term employment contract is a medical certificate confirming the fact that the employee is pregnant and a personal statement.
3. The extension period for a fixed-term employment contract is set before the expiration of pregnancy, childbirth and postpartum leave.
4. To confirm the ongoing pregnancy, an employee with whom a fixed-term employment contract has been extended is required to provide a medical document (certificate indicating the period) once every three months.
5. If the pregnancy is terminated for some reason, but the employee continues to work under an extended fixed-term employment contract, the employer has the right to terminate the relationship with her within one week after notifying her of this fact.

Summarizing the amendments made to the Labor Code of the Russian Federation, it can be noted that if pregnancy occurs and proceeds successfully for an employee with an expired employment contract, the organization must provide the opportunity to continue her work activity until she goes on maternity leave. If the pregnancy was terminated (spontaneously or as a result of medical intervention), the organization has the right to terminate the employment relationship with the employee. The same right is granted to the employer in the case where the employee cannot document the fact of pregnancy at the appointed time. The employer has the right to request a certificate from a medical institution about the continuation of pregnancy no more than once every three months.

Legislative framework on the topic

It is recommended to study the following documents in advance:

Maternity leave for a fixed-term employment contract

As for a fixed-term contract and maternity leave, if the personnel department has issued a prescribed maternity leave to a pregnant employee, the fixed-term contract will need to be extended immediately until the end of this leave. Please note, this is until the end of maternity leave. After the birth of a child, another leave begins - to care for the child, and in this case, the norms of the Labor Code do not force the employer to extend the employment contract. It can be terminated within a week from the day the employer learned (or should have known) about the end of the pregnancy).

If a woman goes on maternity leave under a fixed-term employment contract

Working under a fixed-term employment contract and pregnancy imply the provision of paid maternity leave. The employer is obliged to provide it to the woman upon written request on the basis of a certificate of incapacity for work. Its duration is established by law for certain cases.

Regardless of the conditions under which the woman was registered (under a fixed-term or open-ended contract), she has the right to receive benefits for the entire period of vacation. Like everyone else, an employee hired under a fixed-term agreement goes on maternity leave within the statutory period (28 or 30 weeks).

If a woman replaces an absent employee

However, there are some nuances in which a fixed-term employment contract, dismissal and pregnancy are not mutually exclusive concepts. This applies to cases where the expectant mother replaces a temporarily absent employee who can begin to perform his professional duties at any time.

This means that every day of work of the pregnant woman replacing him may be the last. In this case, according to the law, she should be transferred to another vacant position until the end of the pregnancy. Moreover, this job may pay less or require less qualifications.

If there are no vacancies or the employee refuses them, then, in accordance with the law, her dismissal will be legal.

We make an entry in the work book

Having received an order to hire a new employee, the employer makes a proper entry in the work book. As for employees hired under a fixed-term contract, no special records are required. For example, there is no need to indicate that a contract was concluded with an employee for a period of time. Since any temporary employee can become a permanent employee in the future.

For example, if the main employee decides to quit immediately after her maternity leave. In such a situation, the fixed-term contract is not terminated, it ceases to be fixed-term and is considered to be extended for an unlimited period. Or you can draw up an additional agreement to the contract.

Download: Example of an entry in a work book

The dismissal entry made in the work book must be certified by the signature of the responsible person, the signature of the employee and the seal of the organization.

Is it possible to conclude a fixed-term employment contract with pregnant women?

Hiring of this preferential category of workers is carried out taking into account the provisions of Article 261 of the Labor Code. A sign of such preferential treatment is:

• Prohibition on refusal of employment. An employer cannot refuse simply on the grounds that a woman is pregnant and will soon have to give birth, and, therefore, have to take out maternity leave with all the required payments.
• Prohibition on the appointment of a probationary period. This preferential category of employees is not only accepted without testing, but is also provided with work without overtime and business trips.
• The obligation to extend the validity of the document if the employee submits relevant documents confirming her special status.

How to properly renew a document?

Repeatedly extending a fixed-term employment contract is far from the best idea , because it goes against the norms of the State Labor Code. But for some categories of workers, which also include women expecting a child, an extension is possible.

Previously, maternity leave for women on a fixed-term contract was given only until the end of pregnancy. Now they have every right not only to rest during the prenatal period, but also to rest after childbirth. According to the amendments to it, it is necessary to extend the employment relationship with a pregnant woman not only until the birth of the child, but also for the entire postpartum period.

In total, the rest period is 140 days , 70 days for each period. The duration of leave can be increased by childbirth with complications (86 days for the postpartum part), and the birth of more than one child (194 days in total).

Throughout the duration of the contract, the employer has the right to request a certificate from the pregnant woman confirming that she is still pregnant, but this should not be done too often (maximum once every three months).

Ways to prove pregnancy

Pregnancy will have to be documented

To make it possible to extend an employment contract previously concluded for a limited period, it is required to confirm the pregnancy with documentary evidence. Oral communication is not valid in such a situation.

No external changes will also play a role. When the period is already considerable and a rounded tummy is noticeable, you will still have to take care of the availability of certain documents. Only a certificate from an official medical institution containing the appropriate entry will be evidence of the employee’s special condition.

If the document is not provided, the manager will fire you immediately after the deadline. The certificate must include the following information:

• personal information (full name, date of birth);
• diagnosis (pregnancy);
• gestational age.

It does not matter in what sequence this data will be recorded. The certificate must be issued by a government medical institution. Moreover, it must be brought not on the day of dismissal, when all the documents have already been completed, but in advance.

As soon as a woman receives reliable information about her interesting position, she must immediately provide such a certificate for work. This medical document will have to be brought to work several times. As soon as the employer demands it, you will need to go to the antenatal clinic again for this certificate. This can be repeated several times.

The administration has every right to make sure that the employee is really expecting a child. After all, a big belly can be the result of fraud, and the lady herself can get rid of an unwanted pregnancy.

When can an employee be fired?

There are nuances that allow, in some cases, to fire a pregnant employee on a fixed-term contract.

1. Firstly, this can be done on the initiative of the employee herself. To do this, you must notify your employer in writing of your decision two weeks before your planned departure (or earlier by agreement of the parties).

   At the same time, writing and submitting such an application does not exclude the possibility that a pregnant employee may change her mind and withdraw her application - this is absolutely legal.

2. Secondly, a fixed-term employment relationship can be terminated by agreement of the parties . If no one has anything against the contract not being renewed, you just need to draw up an agreement that confirms mutual agreement.
3. In addition, dismissal will not be illegal if the woman was initially hired temporarily to replace another employee , if the employee did not fulfill the necessary conditions for granting her maternity leave (that is, did not bring documents on time), and if the organization ceased to exist.
4. When an employment contract has been concluded to replace another employee, the employer is obliged, if possible, to offer the pregnant employee another position. The transfer is made with the written consent of the employee. If the transfer is impossible (there is no other job or the employee refuses), the contract will be terminated
5. Attention! It is not necessary to offer equivalent positions; according to the law, even less paid work is suitable, the only condition is that it meets the health requirements.
6. If the employee does not submit an application for renewal of the contract and a certificate of pregnancy on time, the employer also has the right not to make concessions and not to renew the employment relationship (part 2). Three days before dismissal, he must give written notice of dismissal.
7. According to the first part of Art. 261 of the Labor Code of the Russian Federation, if an enterprise is liquidated or an individual entrepreneur ceases its activities, there is no other choice but to terminate contracts with all employees, including those who are preparing to become mothers. In this case, the employer is obliged to notify about this in advance - two months in advance; during this period the contract must be terminated and all compensation paid.
8. The contract must also be terminated if the employee continues to work after the end of pregnancy (this is stated in). Dismissal must occur within a week from the day it became known.

Related documents

• Register of organizations - reliable partners
• Regulations on labor discipline
• Rules “On the procedure for the sale of unclaimed property”
• Act on an employee being intoxicated at the workplace
• Certificate of acceptance of materials (Standard intersectoral form N M-7)
• Act on the suspension of design and survey work for unrealized construction (Unified Form N KS-18)
• Act on taking readings of control and summing money meters (Unified Form N KM-2)
• Act on the recording of material assets received during the dismantling and dismantling of buildings and structures (Standard interindustry form N M-35)
• Act on the assessment of buildings, structures, structures and plantings subject to demolition (relocation) (Unified Form N KS-10)
• Act on the established discrepancy in quantity and quality when accepting inventory items (Unified Form N TORG-2)
• Acceptance certificate for a completed construction facility (Standard intersectoral form N KS-11)
• Record sheet for the issuance of workwear, safety footwear and safety equipment (Standard interindustry form N MB-7)
• Power of attorney (Standard intersectoral form N M-2a)
• Report on the discovery of the fact that an employee was drunk at the workplace
• Journal of registration of acceptance for commission and sale of vehicles (cars, motorcycles) and license plate units (units) (Unified Form N KOMIS-8)
• Work order for the provision of a vehicle (Appendix No. 5 to the Rules for the carriage of goods by road)
• Intangible assets accounting card (Standard interindustry form N NMA-1)
• List of vehicles (cars, motorcycles) and numbered units (units) accepted for commission (Unified form N KOMIS-1a)
• Instruction-obligation (obligation) (Unified form N KR-2)
• Order to remove an employee who was intoxicated at work

Extension of an employment contract during pregnancy

Extension of a fixed-term employment contract while expecting a child is determined by labor legislation and is as follows:

• The employee writes a statement in which she indicates her right to increase the period of work and attaches a certificate of her position.
• The employer enters into an additional agreement with her, which specifies a new deadline for the end of employment. There may be two options here:
  The end of pregnancy, that is, the date of birth;
• End of sick leave due to maternity.

The date will depend on whether the employee is going to go on maternity leave or will continue to work.

The additional agreement is drawn up in two copies and is an integral part of the main agreement.

Renewal terms

The extension period depends on the request stated:

• If an employee requests only maternity leave, the employment relationship with her is terminated upon the birth of the baby or in the event of a miscarriage (abortion). The extension is carried out for a period of 140 to 194 days, depending on the characteristics of childbirth and pregnancy (without complications, with complications or multiple births).
• If the employee also requests a period of maternity leave, the contract with her can only be terminated at the end of this period. Usually this is a period of up to three years from the birth of the baby.
• Also, the extension of labor relations occurs when working in a zone of man-made disasters or the premature birth of a child. And their termination is formalized taking into account the reasons reflected in the Labor Code (childbirth, miscarriage, end of vacation).

How to extend a contract with an employee during maternity leave?

The extension of a fixed-term contract is handled by the personnel department or accounting department on the basis of documentation provided by the pregnant woman and instructions from management.

The contract renewal algorithm consists of sequential actions:

• after the employee sends an application to extend the business relationship and a certificate of her position to management, an additional agreement is drawn up to the agreement on its extension;
• since this document is not available for general review, a personnel order is drawn up, through which interested parties are informed;
• after the employee writes an application for maternity leave and submits a certificate of incapacity for work to the accounting department (the original), an order is drawn up according to the established sample (form T-6 or T-6a);
• Then they calculate and pay all due amounts. Calculations are carried out by the accounting department on the basis of sick leave and data on the woman’s income.

After an employee working under a fixed-term contract goes on maternity leave, it is understood that she will not return to her place of work. That is, the date of dismissal is the last day of sick leave.

The employer must notify the maternity leaver of the termination of the contract 3 days in advance. If a woman fails to show up for documents on the last day, the company also officially informs the employee about the need to pick them up. This will allow you to avoid consequences - liability for failure to issue a work book on time.

The nuances of dismissing a pregnant woman under a fixed-term employment contract

Working under a fixed-term employment contract and pregnancy are common reasons for going to court. It should be borne in mind that the law protects the interests of the expectant mother. Dismissal of a pregnant woman working under a fixed-term employment agreement is possible only in a few cases and must be formalized in accordance with the law.

Firstly, it is necessary to pay attention to the fact that even when a woman initiated her dismissal, but later changed her mind and demanded reinstatement through the court, then most likely the law will be on her side.

To prevent such a situation, the employer can inform the pregnant employee in writing of her right to extend the contract. If the woman has not changed her mind about quitting, then it is better to document this decision.

Secondly, upon dismissal, an employee, regardless of the type of employment contract under which she was signed, has the right to be informed of the employer’s decision at least 3 days before.

As in other cases of termination of an employment agreement, on the day of dismissal she must be issued a work book and make a full payment. Unlike work under an open-ended contract, a fixed-term contract does not entitle a woman to receive child care benefits.

Expiration of the contract

At any enterprise there are employees who carry out activities under a time-limited contract. This is a type of agreement between an employee and his manager, which involves the performance of a labor function for a certain period . For more information on how to hire an employee on a temporary basis, read the article “Hiring under a fixed-term employment contract.”

At the same time, the employer is not relieved of the obligation to pay for work performed on time, to create working conditions, and the employee is not relieved of the obligation to obey internal rules.

According to the rules of a fixed-term agreement between the parties, upon expiration of its validity, the employee must take the payment and leave the manager’s organization. Such a rule is uniform and provided for in Article 59 of the Labor Code.

But sometimes the fact of pregnancy is discovered during a fixed-term employment contract, and in this case completely different articles and regulations come into force, which require different behavior of the employee and the employer.

Pregnancy confirmation

Let's take a deeper look at the issue of a fixed-term employment contract and pregnancy; what documents must be provided in order for this contract to be extended? So, it is necessary that the fact of pregnancy be confirmed. Unfortunately, for an employee, an unfounded statement that she is in an interesting position is not proof. Even a growing belly is not a reason to prolong the relationship.

The fact of pregnancy must be confirmed and this is, first of all, in the interests of the employee herself. Without evidence that the employee is in trouble, the manager has no choice but to fire the subordinate upon expiration of the agreement.

Sample medical certificate of pregnancy:

The employee must bring an appropriate certificate from a government medical institution , which would confirm the fact of pregnancy and determine its exact duration. The legislation does not specify how exactly the certificate should be drawn up, so the employee can provide the document in any form.

A certificate must be provided as soon as the fact of pregnancy has been established. But one single certificate does not guarantee the extension of a fixed-term employment contract. You need to bring more and more new documents about pregnancy several times throughout the entire period and until the birth at the request of the employer.

Maternity leave

Maternity leave for a fixed-term employment contract is paid. However, the rules for his payment do not differ from those that apply to main workers. The amount of the benefit is determined by the length of the insurance period and the woman’s salary.

If the insurance period has not reached six months, then the benefit, as well as sick leave for other reasons, will be calculated based on the minimum wage established in the region. The enterprise will pay directly only the first three days of benefits, and the rest will be paid by the Social Insurance Fund. It is not possible to dismiss an employee before the end of maternity leave.

An employer's refusal to pay for maternity leave is illegal and can be appealed in court.

A fixed-term employment contract and pregnancy require an understanding of certain nuances from both the employer and the woman herself. In most cases, the law reserves the expectant mother’s right to work until the end of pregnancy or the end of maternity leave. But when a woman is employed on a replacement basis, the departure of the absent employee gives the employer the full right to terminate the employment agreement with her.

To avoid unfounded accusations in court, the employer should be extremely careful about the procedure for dismissing a pregnant employee. And in order not to be illegally fired, the expectant mother needs to know her rights and, if they are infringed, feel free to go to court, since the law protects her interests.

Benefit amount

The amount of cash payments to the expectant mother depends on her average income. At the same time, it is established within certain limits, less or more of which the state does not compensate. These boundaries change annually. For 2021 they are:

1. For early registration at the hospital - 655.48 rubles. (one-time use).
2. At the birth of a baby - 17,479.72 rubles. (one-time use).
3. Payment for sick leave (prenatal leave) – from RUB 51,918.9. (minimum value) up to RUB 417,232.88. (the maximum that can be paid for a multiple pregnancy).
4. Maternity capital – 453,026 rubles.

Remember, the calculation of benefits depends on the minimum wage, as well as the average earnings of the worker. But above the maximum established level, even if the real salary confirms this, the state will not compensate.

Maternity payments

The procedure for maternity payments for permanent and temporary employees, provided that all the above conditions are met, is the same. It is established by Federal Law No. 81-FZ, according to which a pregnant woman has the right to the following payments:

• a one-time benefit assigned for early registration at the antenatal clinic (Article 9);
• social benefits for pregnancy and childbirth (Article 6);
• one-time benefit for the birth of a child (Article 11, amount of benefit – Article 12);
• monthly child benefit up to one and a half years (Article 12).

Thus, we can conclude that if pregnancy occurs during the period of validity of a fixed-term contract, it does not deprive the woman of the right to receive benefits and legal registration of maternity leave.

Dismissal of a pregnant conscript temporarily occupying the position of a permanent employee is possible only after she is offered vacant positions. The legal reason for the dismissal of a pregnant employee is her refusal of offered vacancies or the complete liquidation of the enterprise.

Amount of maternity payments in 2019-2020

Normal birth:

• maternity leave period - 140 days;
• volume of maternal (maternity) payments, minimum
• (according to the minimum wage) - 35,901.37 rubles;
• maximum volume of maternal (birth) payments (according to the insurance base) - 265,827.63 rubles.

Complicated childbirth:

• period of maternity leave - 156 days;
• volume of maternal (maternity) payments, minimum (according to the minimum wage) - 40,004.38 rubles;
• maximum volume of maternal (birth) payments (according to the insurance base) - 296,207.93 rubles.

Birth of 2 children or more:

• period of maternity leave - 194 days;
• volume of maternal (maternity) payments, minimum (according to the minimum wage) - 49,749.04 rubles;
• maximum volume of maternal (birth) payments (according to the insurance base) - 368,361.15 rubles.

Attention! The new edition in fact provides expectant mothers working on the basis of time-limited employment contracts with guarantees of entitlement to:

1. full maternity leave;
2. full maternity payments, correlated with the total duration of the period of inability to work according to the maternity certificate of incapacity for work.

We remind you that previously the employer had the right to terminate a labor contract limited by a time frame immediately after relief from the burden, even if the woman was still on maternity leave.

Maternity benefits were paid for prenatal leave issued after the fact:

• duration 70 (normal labor);
• 84 days (complicated childbirth or the appearance of 2 or more babies in case of multiple births).

The above-mentioned rule on prolonging the legal existence of a term-limited labor act until childbirth or maternity leave, taking into account the 2021 edition, has not yet been extended to cases where a pregnant woman works, temporarily filling the position of a short-absent employee.

Then Art. 261 of the Labor Code allows the employer to dismiss a pregnant woman at the end of a fixed-term contract if it is impossible to transfer her:

• to another position with the written consent of the worker herself (as corresponding to her qualifications);
• to a lower or lower paid one) taking into account the woman’s physical health and medical criteria, contraindications.

• Dear readers!
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Advantages and disadvantages

Expert opinion

Irina Vasilyeva

Civil law expert

A temporary employment contract can be automatically extended if, after its expiration, neither party has made a demand to terminate the relationship, the employee continues to work, and the employer continues to pay wages.

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End of a fixed-term employment contract during pregnancy

If a woman was not hired to replace another employee, then provided she provides a medical certificate of pregnancy and an application to extend the employment agreement, her dismissal will be illegal, even if the contract has expired. The employer will be able to return to this issue only after the birth of the baby or the end of pregnancy for other reasons.

In order to continue working, you must submit an application addressed to the head of the enterprise with a request to extend the employment agreement and attach a medical certificate of pregnancy to it. If such actions are not taken, then the employer may well try to terminate the employment contract. But if the employee appeals to the judicial authorities, most likely the court will side with her.

The employer retains the right to control the situation by requiring the woman to provide a certificate every 3 months. If he does not do this or requests the document more often, then the woman is not obliged to satisfy his requests and bring the certificate again on her own initiative.

Manager's responsibility for dismissal

If the employer neglected the legislation of our country and still fired the employee, then she can go to court to restore her rights and labor functions. The court will oblige the employer not only to restore the employee to her rights, but also to pay a fine.

Often, in practice, the following situation occurs. Due to being busy or unable to leave work, the employee cannot provide a certificate proving the fact of pregnancy.

The employer does not accept her application due to lack of evidence and tears up the previously drawn up document at the time of expiration of the employment contract. Later, the dismissed workers go to court, where, already having the appropriate certificate in hand, they prove the illegality of the manager’s actions. The law in this situation acts on the side of the subordinate in an interesting position.

Features of dismissal

Labor legislation provides two grounds for terminating an employment relationship with a pregnant employee. This:

• Closure of an organization or enterprise (liquidation) or termination of business activities.
• The employee herself expressed a desire to leave and reflected it in a corresponding statement.

We should not forget about the special status of an employee on sick leave.

The employment relationship with him cannot be terminated until he returns to work. This rule applies to all employees, including pregnant employees.

If the contract term is coming to an end and this document is valid only for a certain period (it is urgent), the manager notifies the employee at least three days before the date of dismissal.

During these days, included in the period of waiting for the final payment, the woman must submit an application and attach supporting documents issued at the clinic. The day the document is submitted is the date indicated by the employee in the application.

The document does not have a unified form, so it is drawn up in free form. The main thing is that the woman briefly outlines her request and lists supporting documents. For example: “I ask you to extend the validity of contract No. 01/15 dated January 15, 2015 until the end of pregnancy. I am attaching a certificate from clinic No. 168 dated July 1, 2016.”

If a woman, for some personal reason, does not want to continue working, she must record this fact in writing. Only in this case will the employer be able to avoid lawsuits in the future.

It should be understood that pregnant employees are protected by the state as persons belonging to a socially vulnerable category of workers. At a certain point, a woman cannot continue to work and support herself. Therefore, the state takes care of its social well-being.

According to Article 161 of the Labor Code, with any structural changes in an organization or enterprise, an agreement concluded with a pregnant employee must be revised taking into account her interests. Management is obliged:

• establish at least a part-time working week for the employee;
• take care of her transfer to a free place, if there is one in the organization or enterprise (it is necessary to obtain the woman’s consent to the transfer!).

The employer must notify the employee in writing of any change in working conditions. If she does not agree with the changes, a refusal is written, which serves as the basis for terminating the contract.

Termination of the agreement

A fixed-term contract is valid for a certain period

A fixed-term contract is called that because it is valid for a specified period. The text of the contract must indicate the start date of work and the time of completion. Instead of an end date, the amount of work that needs to be completed can be specified.

The temporary nature of labor relations does not relieve management from standard responsibilities: pay labor on time, create working conditions that comply with standards. The employee is also obliged to fulfill all the terms of the contract and obey the internal regulations of the company.

When such a contract expires, the employee/employee ceases to be considered to be working here. At the same time, he receives a payment. The dismissal procedure is included in Article 59 of the Labor Code. However, things don't always go according to plan.

If, during the duration of the fixed-term contract, it is discovered that the employee is pregnant, other rules come into play. Only in order to extend an employment contract, you must prove the fact of pregnancy.

Possible problems

• An employee cannot apply for an extension of her employment relationship if she was initially hired for a temporarily vacant workplace. Immediately after the absent employee returns to work, the contract terminates.
• But in the case of a pregnant employee, the employer cannot simply part with her based on the above reasons. He must take care to provide another place for work that corresponds to the lost place to one degree or another.
• If he refuses to do this, the woman can safely contact the labor inspectorate or the courts, since Article 261 of the Labor Code (part three) has been violated.
• Exception of bankruptcy with subsequent liquidation of a legal entity. In this case, the employer is physically unable to provide a suitable vacancy for the pregnant employee.
• Another possible violation of an employee’s rights concerns the provision of a leave period to care for a child. There is no indication in the law that the employer is obliged to provide it. However, if such a request is reflected in the application, management does not have the right to ignore it.

What are the consequences for an employer of wrongful dismissal?

The law strictly protects the rights of current and future mothers , so illegal dismissal in such a case can have unpleasant consequences for the employer. In particular, he may be brought to criminal liability.

Such an employee can be dismissed only in specially specified cases and must be formalized by law. We must also remember that even if the application for termination of the contract was written by the employee herself, she may change her mind and demand reinstatement to her position - and this will be within the law.

Important! It is necessary to inform the employee of the decision to dismiss at least three days before the planned event (better, of course, earlier), and on the day of dismissal the employee should be fully paid and a work permit issued.

If, nevertheless, the rights of a pregnant employee were violated, she should seek help from the court. Groundless dismissal of a pregnant woman may result in a fine. Its size can be up to two hundred thousand rubles or will be equal to several months’ salary. In addition, the offender may be sent to compulsory labor.

Holiday to care for the child

The law does not oblige business managers to give pregnant women maternity leave. At least, there is no article in the legislation with direct instructions for such an action. However, if an employee asks for leave in her application, such a request cannot be ignored, otherwise the employee may go to court, where her case will be proven.

Parental leave lasts 70 calendar days in the absence of aggravating facts , which means that during this entire period the employer is obliged to make payments to the employee and cannot terminate a fixed-term employment contract with her.

The contract between the parties is terminated on the day the vacation ends, but the employer needs to warn the new mother about this event in advance.

Notice of termination of the contract is given one week in advance. The minimum period for notification is 3 days. You can notify the employee either in person or by means of a notification letter.

Answers to frequently asked questions

Question No. 1: A pregnant woman did not apply for an extension of a fixed-term agreement. Can she be fired?

Yes, the employer has the right to fire her legally.

Question No. 2: If a woman did not provide a pregnancy certificate at the employer’s request, but wrote an application to extend the contract, can she be fired?

Yes. The employer has the right to refuse to renew her agreement if there is no such certificate, or if there is one, but the woman refuses to provide it at all, or every 3 months.

Arbitrage practice

According to Art. 79 of the Labor Code of the Russian Federation, the basis for terminating an agreement with a temporary worker is the actual departure of the absent employee. Absence due to maternity leave may be followed by absence due to childcare. Thus, the departure date of a permanent employee is delayed. The courts take the position that if the employee does not actually go to work, then the agreement with the temporary employee cannot be terminated in the absence of other significant circumstances.

There is an inaccuracy in concluded contracts with the wording “until the expiration of maternity leave”. Since the duration of the work for which a replacement person is hired is not determined solely by the duration of absence due to pregnancy and childbirth. The period is increased at the request of the woman in connection with caring for the child.

This fact does not depend on the company. Therefore, the nature of the contract is defined as concluded during the absence of a permanent performer. Despite the inaccuracies that are made when hiring, the duties of a substitute cannot be diminished. And the job must be reserved for him if the permanent performer does not actually return to work. When considering such cases, judges carefully examine this fact.

An example is one of the proceedings in the city of Belgorod. A woman hired for a temporary job to replace an employee on maternity leave was fired. The reason was the fact that the maternity leave was earlier than scheduled. She decided to take maternity leave later.

The dismissed employee felt that her rights were violated, and that the organization’s administration was obliged to change the terms of the contract with her or conclude a new one. She filed a claim for reinstatement at work. She was refused on the grounds that the plaintiff’s demands were unfounded. The judge concluded that the dismissal was legal and that the organization had no grounds to change the terms of the agreement.

If, at the time of drawing up the document on termination of the agreement with the replacement person in connection with the end of the main employee’s maternity leave, the employer had information about the further absence of the permanent employee due to child care, the dismissal is considered illegal. If a temporary performer is pregnant, this fact is not decisive, provided that she was hired for the replaced position.

The position of the judicial authorities is unanimous regarding the terms of performance of the duties of a substitute, which expire at the time the main employee actually returns from vacation. The release dates specified in the agreement do not matter, and the permanent contractor began his duties later or earlier than the prescribed deadlines. This rule is intended to protect the rights of the key employee.

Preliminary indication of specific start and end dates of employment is not prohibited. But at court hearings, the actual time of departure of the permanent contractor is established, based on which the legality of the dismissal is established.

Thus, there are no grounds for dismissing a temporary person if the main employee has not taken up his official duties. At the same time, if he starts them earlier than planned, the contract with the replacement person is legally terminated.

Important! Before terminating an agreement with a pregnant conscript, the organization is obliged to offer her available vacancies that correspond to her qualifications, including lower-level ones. The replacement employee should be explained her rights to fill another vacant position, as well as subsequent dismissal in the event of refusal. An act is drawn up, where a note is made about these clarifications, the fact of refusal is recorded against the signature of the conscript.

These actions must be taken in order to provide all the evidence in the event of litigation that the employer took into account the employee’s rights, which will indicate his reliability.

Sample

Typically, the preparation of the text of a fixed-term contract is carried out by the manager’s secretary or an employee of the legal or personnel department. Sometimes such a document is drawn up directly by an individual entrepreneur.

To quickly and correctly draw up a contract, it is worth using an example. A sample employment contract for the period of maternity leave of the main employee is worth looking in the archives of the enterprise. If the company uses a corporate template, then there should be no problems with drawing up a temporary contract.

A sample of a fixed-term employment contract for an employee who is hired instead of the main employee who is on maternity leave is available.