Is it possible to fire a pregnant employee?

Dismissal of a pregnant employee

The possibility of dismissing a pregnant woman does not depend on whether the employer was notified of her condition.
The only thing that matters is the fact of pregnancy on the day the employee is fired. The Labor Code prohibits termination of an employment contract with pregnant women at the initiative of the employer, unless this is caused by circumstances related to:

with the liquidation of the organization;
termination by an individual entrepreneur of his activities.

But in practice, employers find other legal ways to say goodbye to such workers.

So, you can terminate an employment contract with a pregnant employee:

by agreement of the parties;
at the initiative of the employee;
if she worked under a fixed-term employment contract and its validity period has expired.

note

If a woman agrees to resign of her own free will, she does not receive any additional payments other than calculation and compensation for unused vacation.

Features of a probationary period at work during pregnancy of an employee

An organization, when hiring a newcomer, has the right to set a probationary period to test his professional skills.
The probationary condition must be expressly stated in the employment contract and employment order. If there is no such entry in the documents, then the new employee is considered accepted without testing. For ordinary employees, the maximum probationary period is no more than three months; The management team and their deputies prove their professional suitability for no longer than six months.

A probationary period is not assigned when concluding a fixed-term employment contract lasting less than two months, and if the contract is concluded for a period of two months to six months, then the probationary period is limited to a period of two weeks.

All these norms are specified in Art. 70 Labor Code of the Russian Federation. Among other things, this article contains a direct unconditional ban on establishing a probationary period for pregnant women and women with children under one and a half years old.

What to do if a pregnant woman gets a job?

If your company hires a pregnant employee, you do not have the right to refuse to hire her (Article 64 of the Labor Code of the Russian Federation). In addition, if a pregnant woman comes to your company to find a job, then you will have to hire her without a probationary period.

However, there is a nuance. Art. 65 of the Labor Code of the Russian Federation establishes a list of documents that an employer must request when hiring. There is no medical certificate about pregnancy or its absence. Thus, you cannot check whether the applicant is pregnant. In addition, refusal to hire due to the delicate position of the candidate is illegal (Part 2, Article 3 of the Labor Code of the Russian Federation). Moreover, if the applicant has the right not to undergo a probationary period due to pregnancy, then she must bring a certificate from the antenatal clinic herself.

You can read even more about the probationary period for various categories of employees in the article “Probationary period when hiring (nuances).”

What if an employee becomes pregnant during the probationary period?

Dismissal in this case will also be illegal. The probation clause must be annulled.

If you hired an employee on a probationary period, and a few days later she brought a certificate of pregnancy, then you will be faced with the question: is it possible to fire a pregnant woman on a probationary period?

In the above circumstances, you should act according to one scenario: you must release the woman from the test. The legislation does not contain clear instructions on how best to do this. We recommend drawing up an order to release the pregnant woman from probation. You can also sign an additional agreement to the employment contract to exclude from it the phrase about passing the test.

If a pregnant woman is on a fixed-term employment contract

Dismissal of a pregnant woman under a fixed-term employment contract is possible only if (Part 3 of Article 261 of the Labor Code of the Russian Federation):

the contract was entered into to replace an absent employee;
It is not possible to transfer an employee to another job before the end of her pregnancy. Before dismissal, the manager is obliged to offer the pregnant employee another job - vacant positions that correspond to her qualifications, as well as lower positions or lower-paid work that the woman can perform taking into account her state of health;
There are no available positions in the company.

In other situations, the employer is obliged to extend the term of the employment contract if the employee submits a corresponding application and a medical certificate indicating her pregnancy. Based on these documents, the company is obliged to extend the term of the contract with the employee until the end of pregnancy, and if she is granted maternity leave in the established manner (based on a certificate of incapacity for work), until the end of such leave.

Actions of the employer if he became aware of the employee’s situation

No probationary period can be assigned to a pregnant woman.

Important! If the employer finds out about the employee's situation, all tests must be canceled.

You can do this:

by canceling the probation clause in the employment contract;
or by signing an additional agreement to the contract, according to which the trial is terminated early;
and issuing an Order terminating the trial early.

Also, the employer can, with the consent of the employee, transfer her to another position that will meet the SanPin requirements (level of light, heat, etc.).

Regulatory regulation of probationary period

Article 70 Test for employment of the “Labor Code of the Russian Federation” dated December 30, 2001 N 197-FZ regulates the procedure for establishing and the terms of the probationary period.

Articles 235 Works in which the use of women’s labor is limited and 254 Transfer to another job of pregnant women and women with children under the age of one and a half years “Labor Code of the Russian Federation” dated December 30, 2001 N 197-FZ regulate the types of work that can be a pregnant employee was hired.

In what cases do they have the right to terminate the contract?

Termination of an employment relationship with a pregnant employee is permissible only in certain situations:

with its voluntary decision;
with the consent of the parties;
upon liquidation of the organization;
when closing an individual enterprise;
when the organization moves and the employee refuses to change her place of residence.

Due to failure to complete the probationary period, it is prohibited to fire a woman in the position.

Even if there are disciplinary offenses, she retains her job; mild penalties, such as a reprimand, are possible. It is unacceptable to put pressure on an employee, inducing her to leave of her own free will. In this case, the woman is recommended to send a complaint to the labor inspectorate or the prosecutor's office, presenting evidence of coercion (witness testimony, correspondence, audio or video recording).

If it becomes known that an employee who was undergoing testing under a fixed-term contract is pregnant, dismissal is also unacceptable. After the contract expires, a woman can write an application for its extension and attach a certificate of her situation. The manager is obliged to extend the employment relationship until the end of maternity leave, if it has been taken out.

Can this be done at the request of the employee?

A pregnant woman has the right to end a working relationship on her own initiative or by consent of the parties at any time. The dismissal procedure is carried out as standard:

The employee sends a letter of resignation, drawn up in any form, to the manager in person or by mail.
A dismissal order is issued with the woman’s mandatory review (under signature).
Entries are made in the employee’s personal card and work book.
On the final day of work, documentation is issued, payments are calculated and accrued.

Completion of an employment relationship usually involves two weeks of work (Article 80 of the Labor Code). During the probationary period, the period is shorter - 3 days.

If an employee informed the employer that she was pregnant and confirmed this with documents, the general rules for employment contracts apply, because pregnant women cannot be on probation.

An employee who is on sick leave or on vacation can avoid working time. This period will be counted as working off. A personal agreement with management is also possible. Read about working out and other subtleties of dismissal during the probationary period here.

How to terminate an employment agreement at the initiative of the employer?

The management of the enterprise does not have the right to dismiss a pregnant woman, even during a probationary period, due to the discrepancy between her professional qualities and the position she occupies, or the presence of disciplinary offenses - that is, if she fails to pass the test.

If a woman violates labor discipline (for example, absenteeism), administrative sanctions may be imposed on her - a reprimand, a fine. However, the workplace remains hers.

In some situations, the manager can still, by his own decision, end the working relationship with a pregnant woman. According to Art. 261 of the Labor Code, it is permissible to dismiss a pregnant employee at the end of the contract period if it was signed during the absence of another employee and it is not possible to provide another position that corresponds to her qualifications and state of health.

If the management of an organization has doubts about an employee’s pregnancy, it is permissible to require confirmation (once every 3 months). If you refuse to provide evidence, there are grounds to consider the status unreliable. Then the employer has the right to terminate the employment relationship with the woman, including during the testing period.

The refusal to provide medical documentation about the stay in the situation must be recorded - it may be required in court proceedings.

Some employers ask pregnant women to write consent to undergo testing or make such a note in the employment contract. However, these actions are considered unlawful and have no legal force, since they contradict legislative norms. In this case, it is unacceptable to terminate the employment relationship for failure to pass tests.

If the employer nevertheless illegally fired an employee who is in a situation, it is advisable for her to file a claim in court for reinstatement in her previous place and payment of average earnings for the time missed due to the fault of the organization (Article 394 of the Labor Code). Possible criminal liability, imposition of penalties on the manager - up to 200 thousand rubles. (Article 145 of the Criminal Code), recovery of wages of the accused for 18 months or 360 hours of forced labor.

When contracting

The law prohibits dismissing a pregnant woman due to staff reduction. If the organization eliminates a position held by an employee in the position, she must be offered alternative options. At the same time, it is permissible to change the conditions of employment (mode, working conditions), but not to the detriment of the woman’s health and capabilities.

It is unacceptable to fire an employee during the reorganization of the company's structure. During mergers and acquisitions, the employee retains her position, even if her services are no longer needed.

Upon liquidation

Liquidation of an organization or its branch is a legal basis for the dismissal of an employee in a position. In this case, the decision to terminate the company’s activities must be complete, without reservations. That is, renaming, joining, dividing and other transformation of an organization does not constitute its liquidation. If the basis was bankruptcy, then there must be a court decision.

Termination of a working relationship with a pregnant employee during the liquidation of a company is possible at any time. In this case, a general algorithm for the procedure is used.

The employee must be informed of dismissal at least 2 months in advance.

The personnel service prepares orders for liquidation and dismissal. The document on termination of the working relationship must indicate:

date of dismissal;
cause;
guarantee of payment of compensation specified by law.

Familiarization with the order is certified by the signature of the employee on an individual or collective form. If a woman is absent from work, she is informed by mail - by registered letter with acknowledgment of receipt. Next, entries are made in the employee’s personal card and work book. A full settlement with the employee is made and working documentation is issued.

We recommend reading articles about the dismissal of an employee after a probationary period, including when he did not pass it.

Common Employer Tricks

Despite the fact that it is quite difficult to fire a pregnant woman, employers come up with various tricks to circumvent the law.

The most commonly used methods are:

When applying for a part-time position, responsibility is transferred to the second manager.
They tell the employee that the decision to cancel her contract was made by the board of shareholders or the legal owner of the organization.
They scare the expectant mother with disciplinary sanctions, supposedly making dismissal possible.
They create unbearable working conditions, forcing the employee to write a letter of resignation of her own free will. Such actions by the employer are also illegal.
Due to special health conditions, hard work is contraindicated for expectant mothers. According to the legislation of the Russian Federation, in such a case, the employer is obliged to offer her a position that does not involve such stress. Many bosses deliberately do not do this, claiming that there are no vacancies. A woman needs to know that in such a situation she has the right to be relieved from performing her official duties for health reasons while maintaining a full salary.

This is also important to know:
Dismissal during a probationary period

Such tricks do not give the manager the legal right to fire a woman. However, by their actions they are trying to prove the opposite to the expectant mother in order to minimize the risk of her subsequent going to court.

Employer's liability

If inspectors from the labor inspectorate or the prosecutor's office, as well as the court, reveal a violation of the labor rights of a pregnant woman, the employer will be held accountable.

First of all, he will have to reinstate the employee in an “interesting position” in her position. He will also be obliged to pay her compensation for forced absence. He will also pay a fine.

Negligent employers are fined under Art. 5.27 Code of Administrative Offenses of the Russian Federation. Inspecting inspectors or the court may impose a monetary penalty:

per official in the range from 1 to 5 thousand rubles;
an individual entrepreneur will have to pay the same amount;
The company will be charged a fine ranging from 30 to 50 thousand rubles.

The amount of the penalty will depend on the “seriousness” of the offense.

Results

Having learned from an employee about pregnancy during the probationary period , the head of the company must immediately release her from the trial.
An employer cannot fire a woman in this position on her own initiative, even if she is absent from work or poorly performs her job duties. Situations in which termination of employment relations is legal are the liquidation of a company (or termination of an individual entrepreneur’s activities), as well as the end of a fixed-term contract. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

If an employee becomes pregnant during the probationary period

If pregnancy occurs after the conclusion of the contract, but during the trial, it is recommended to immediately provide the employer with a confirming medical certificate.
If there is evidence of the employee’s special situation, the organization does not have the right to terminate the employment contract with her, despite the possible unsatisfactory completion of the test.

This general rule applies to both ordinary employees and those who occupy leadership positions (directors, deputies, etc.). The only difference is that when a manager expresses a desire to resign, it is necessary to first gather all the founders of the company and draw up the relevant documents.

The fact that the employer insists on terminating the contract due to pregnancy is illegal, and therefore the employee can complain about him to the labor inspectorate and the prosecutor's office.

We need concrete evidence that the dismissal was made after management learned of the pregnancy. In the absence of compelling arguments and relevant materials (for example, hidden audio or video recordings), government agencies will not conduct an inspection of the stated fact.

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.

When and under what conditions can you fire a pregnant employee?

Force majeure and unforeseen situations occur in the work of every enterprise. Now let's consider those cases when the dismissal of a lady in an interesting position is possible, regardless of her opinion and desire. There are a number of objective reasons for this:

If a pregnant woman worked for an Individual Entrepreneur, and he ceases his commercial activities due to the expiration of the state registration certificate;
Dismissal of a pregnant employee is also possible if the employer company is liquidated. In this case, a certain procedure must be followed.
Firstly, you need to warn the pregnant employee about the upcoming fact in advance, or rather two months before the closure of the organization, against signature. Secondly, pay severance pay in the amount of the average monthly salary. In addition, it is necessary to maintain her average monthly salary for the duration of her job search (but not more than two months).
If everything is carried out in strict accordance with the letter of the law, then no sanctions from the labor inspectorate should follow in the event of claims from a pregnant employee.
Liquidation of a branch or representative office is also a legal basis for terminating the employment relationship with a lady in an interesting position. Even if the head office continues to operate as usual, employees of branches and representative offices are subject to dismissal in full. At the same time, the employer, in order to avoid violations, must be guided by the same recommendations as in the previous paragraph.
Dismissal at your own request. If a pregnant employee expresses her own will for dismissal, then the employer has no right to contradict her. To do this, the lady just needs to write a written statement requesting her resignation, and after two weeks this fact can be considered accomplished. However, if for some reason a woman changes her mind about quitting, she has every right to withdraw her application. In this case, you just need to write an application to withdraw your resignation letter and set a specific date. You can withdraw your resignation letter only before the expiration of the two-week “working off period”.

Based on all of the above, we can draw the following conclusion: each case of dismissal of a pregnant woman from work should be considered individually. If forced dismissal occurs in situations not provided for by law, then, as a rule, it costs negligent employers, which is called “more expensive for themselves.” If the dismissal is legal and justified, then it must be carried out in full accordance with the strictly established procedure.

General information

The procedure for accepting an applicant for a particular position is reflected in the Labor Code of the Russian Federation - the main document regulating the relationship between employees and immediate superiors.
It should be noted that key laws, in principle, say nothing about the so-called probationary period. Article 70 of the Labor Code of the Russian Federation prescribes the procedure for a candidate to undergo testing activities. In this case, the applicant may be exempt from the relevant verification if this is specified in the employment contract. Typically, the test is completed after three months. The minimum time interval from the start of checking a person’s suitability for the assigned work until the end of the test is not provided for by law at all, so all employers without exception have the right to set it even as one working day.

If the concluded employment contract contains a clause on completing a probationary period, the employee may be deprived of his position due to non-compliance with the requirements. Also, an employee can independently terminate an employment agreement if he has good reasons for doing so.

It is almost impossible for an employer to legally deprive a person of his job without proving that he is unsuitable for the job. Upon dismissal, both parties are required to notify each other of their decision no later than three days in advance.

If the employee has not received notice from the HR department of dismissal after the expiration of the probationary period, then he retains his job and has legal grounds to continue working. When it comes to dismissing a pregnant woman during a probationary period, regulations come into force that guarantee the protection of the rights of a woman carrying a child.

Is it possible to fire a pregnant woman at the initiative of the employer?

There are often situations when, for some reason, a pregnant woman cannot cope with her responsibilities or makes her doubt her competence. It is not surprising that in these cases, the employer prefers to see in her place a more successful and efficient employee who performs the job fruitfully.

However, in accordance with the law, regardless of the reasons prompting the employer to voluntarily part with an employee who is expecting a child, this is impossible.

Thus, as can be seen from all of the above, it is impossible to fire a pregnant woman:

not in case of poor quality work performed during the probationary period;
not in case of termination of a fixed-term employment contract;
not when working part-time;
not at the will of the employer unilaterally;
not even if the employee fails to fulfill her job duties.

If the dismissal does occur, the pregnant woman has the right to sue the employer . As practice shows, the courts almost always side with the plaintiff, and the employer, in addition to everything, also bears administrative responsibility.

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.