Can a pregnant woman be laid off in 2021?

Russian legislation provides pregnant women with certain guarantees and preferences regarding labor activity. One of such guarantees can be considered the impossibility of terminating employment relations with this category of employees.

An exception to this rule is the liquidation of the employer’s company (as an option, termination of the activities of an individual entrepreneur). Even if such dismissal is allowed, when it is carried out, the established requirements of the Labor Code of the Russian Federation must be observed. In this article, we will figure out whether it is possible to lay off a pregnant woman if her position is subject to reduction. What should an employer do to avoid breaking the law?

Dismissal as a forced measure

In case of staff reduction, when the position occupied by a pregnant woman is abolished, the employee cannot be fired either. Actions fall under Art. 261 of the Labor Code of the Russian Federation , when at the initiative of the employer it is impossible to issue a work book, but only to provide the employee with a new job within the organization.

Important! A woman in this position can be dismissed from her job only upon liquidation of the enterprise. In fact, she has nothing to offer, since legally the company does not exist.

It is prohibited to influence a pregnant employee psychologically with the help of dummies, threats, or blackmail. These actions already fall under the Criminal Code of the Russian Federation and under Art. 145 , the director faces a fine in the amount of official monthly earnings (or minimum wage) for 1.5 years. When there are no funds, the punishment is replaced by 360 hours of correctional labor.

It is impossible to create unbearable working conditions, although in practice it is enough to comply with the regime requirements:

come to work no later than the established time;
leave strictly minute by minute;
prohibit “smoke breaks” and tea outside the lunch break;
ask for a progress report.

In fact, the employer does not have to do anything reprehensible or illegal. It’s rare that a pregnant woman working in a serious company can cope with the dress code and avoid the stress, anxiety, and pressures that previously existed in her job responsibilities.

Illegal dismissal - is it possible to recover?

If an employer fires a pregnant woman on his own initiative, thereby violating labor laws, the woman can protect her rights and be reinstated at work in court. To do this you will need:

Prepare evidence that she was dismissed at the initiative of the employer, for example, a work book with a corresponding entry or a copy of the dismissal order, which indicates the basis for the dismissal.
File a claim. We will discuss the requirements that can be included in this statement below.
Submit completed documents to the court.

Moreover, it is possible to be reinstated at work if the dismissal order and the work record book indicate the pregnant woman’s own desire as the basis for terminating the employment contract. Even if there is a letter of resignation, the court may conclude that it was written under pressure from the employer, who wanted to get rid of the pregnant employee. As evidence that the employee was actually under external pressure, under the influence of which she made the decision to quit, the court may take into account the following factors:

the woman has no other sources of income;
lack of job offers in other organizations.

Thus, the Moscow City Court, in its appeal ruling dated March 28, 2018 No. 33-13175/2018, based on the listed factors, decided that, by resigning, the woman acted to her detriment. Termination of the employment contract led to the following consequences:

deprived her of the right to receive maternity benefits due to her;
significantly reduced the amount of child care benefits (unemployed citizens receive the minimum established by law).

The woman could not consciously take such a step - this means that her employer forced her to quit, even if of her own free will. The court reinstated the woman in her position and satisfied all her demands.

IMPORTANT! A woman fired during pregnancy can be reinstated at work even if at the time of her appeal to the court the pregnancy was not still present (clause 25 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).

EXPLANATIONS from ConsultantPlus: The employee was dismissed due to layoffs, and all required payments were made to her. A few days later she brought a pregnancy certificate. The employer decided to cancel the dismissal. How can an employer formalize the cancellation of a layoff (what documents to fill out, what entries to make in the work book)? Is it necessary to rehire the employee? How to return the amounts paid upon dismissal? Get trial demo access to K+ and get tips from the experts. It's free.

When there is no work

You cannot fire an employee just by reducing your position. She can be transferred to a similar job (only with her consent and application of Part 2-3 of Article 72.2 of the Labor Code of the Russian Federation ) or with the provision of favorable working conditions. An exception is the situation when an early employee was hired temporarily under a contract, for the duration of another employee’s vacation or at the time of maternity leave.

Then the relationship with the company ends with the end of the contract, but not completely - she is required to announce a list of possible vacancies, and only when she herself refuses all of them can the employer consider himself to have complied with labor laws and fire the pregnant woman.

Complete liquidation of an enterprise means the layoff of all employees without exception. As a legal entity, the company ceases to exist, the office (production) is closed permanently.

A pregnant woman is dismissed on general grounds, namely:

she is notified 2 months in advance and must be signed ( Article 180 of the Labor Code of the Russian Federation );
average monthly earnings are calculated for a period of 2 months from the date of liquidation (compensation for the period of searching for a new job), with the exception of seasonal work, here the compensation period is calculated from 2 weeks of average earnings.

Important! Do not confuse the two concepts - salary and average monthly salary, these are completely different amounts. In addition, if a woman is officially hired at a quarter rate or her “white” salary is small, there is no need to expect significant payments.

Employer's liability for illegal layoffs

Article 145 of the Criminal Code of the Russian Federation qualifies illegal actions of the directory, which are aimed at terminating working agreements with pregnant or maternity workers. Sanction:

corrective labor.

If the court found the layoff of a pregnant woman illegal during a staff reduction, then she must return to her duties and receive compensation for forced temporary unemployment.

The only reason for canceling the punishment is the manager’s ignorance of the woman’s interesting condition. That is, the person did not have a motive to terminate the employment relationship with the person subject to additional social protection.

This is important to know: Transferring a part-time worker to the main job without dismissal

When there is a successor

You should not try to fire a pregnant woman by manipulating the legal status of the company during the reorganization of the enterprise. Any merger of subsidiaries with the parent corporation is not considered a dissolution, nor is a succession in title.

If it is renamed on paper to “Cornflower”, but the greenhouse remains intact, with premises, equipment and employees, even if their positions are now called differently, the pregnant woman must be automatically enrolled in the new-old branch.

Important! According to Art. 261 of the Labor Code of the Russian Federation, it is permissible to independently write an application demanding the provision of a workplace. Even being on probation under Art. 70 of the Labor Code of the Russian Federation does not apply to pregnant women.

Results

So, the answer to the question of whether it is possible to shorten a pregnant woman is negative.
Russian legislation is aimed at protecting motherhood and childhood, therefore working pregnant women have a special set of rights, including in terms of maintaining their right to work in the organization even if management has decided to reduce staff. However, there is only one exception to this rule: a pregnant woman can be fired if the organization completely ceases its activities through liquidation. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

First steps of a pregnant woman

Proof of an interesting situation will be a certificate from a gynecologist. From the moment it is provided to the employer, dismissal and layoff of a woman will become impossible. State protection from unauthorized actions of the director is guaranteed under Art. 261 of the Labor Code of the Russian Federation for all women at any stage of pregnancy. Even when the fact of theft of company property is established or there is chronic absenteeism!

Important! In cases where the decision to reduce the position occupied by a woman was made several months in advance, this does not change the matter. The idea is automatically canceled, and management will have to reconsider its plans.

A special fact is that a woman receives protection from contractions from the day she becomes pregnant. Not from the moment she found out about it or reported it to management, but from minute X, when conception occurred.

It will be more difficult in the case where the employee has already received notice of layoffs and signed while not yet pregnant. Then the first thing you can do is go to the director with Article 261 of the Labor Code of the Russian Federation , but if he firmly decides to stand his ground, go to court.

Elimination of positions

In a situation where the company’s management does not get rid of the number of employees, but permanently eliminates the positions they occupy, the position of a pregnant employee does not play into the company’s hands.

According to the law, there is no difference between the grounds on which a pregnant woman is fired .

If the initiative comes from the management of the company with a documented fact of pregnancy, this is in any case illegal, and such an act is subject to criminal liability.

The best action for the boss would be to offer the employee a request to transfer to another position. By law, the company is obliged to provide her with a place that will be no worse than the previous one.

But you can reach an agreement and, without formally dismissing the employee, significantly reduce the costs of her maintenance . If this fails, you will have to leave the position exclusively for this employee until her pregnancy expires. After this, the position can be safely eliminated.

REFERENCE . You should not think that every employee who has been fired by her employer knows her rights and will definitely go to court. Legal illiteracy opens up a wide field of opportunities for leaders who are not burdened with morality.

Employer action

It is known for certain that for small companies, maintaining a pregnant employee costs a pretty penny. It is much cheaper to liquidate the company, assign it a new legal status and re-hire suitable employees. This is what unscrupulous managers take advantage of due to the legal illiteracy of pregnant women and the fact that rarely anyone dares to sue.

You can reach an amicable agreement and create a position exclusively for a pregnant employee until maternity leave, and then liquidate it. In large corporations, you can transfer a woman to another branch or structural unit.

Pregnancy is always associated with absenteeism, constant visits to doctors, and in severe cases, being kept in hospital. As a good employee for the company, the pregnant woman is lost. Recording the time of absence from the workplace, failure to complete tasks, mistakes that entail financial losses for the enterprise, will make it possible to enter comments in the work book, deprive of bonuses, pay only the official (white) salary or reduce its level.

All these actions are actually legalized harassment of a pregnant employee; it is very difficult to prove the psychological effect on her in court. Therefore, the woman herself prefers to resign due to redundancy and preserve her health and her unborn child.

Punishment for the manager

So we figured out how layoffs at work and pregnancy are connected. Is there any punishment in case of illegal behavior of the employer?

To find out what kind of punishment awaits management who decides on illegal dismissal, you should refer to Article 145 of the Criminal Code of the Russian Federation , which regulates not only unlawful refusals to hire, but also illegal dismissals.

According to this article, a manager who decides to take an illegal action can be punished either with a fine or correctional labor .

The fine can be up to 200 thousand rubles, or it can be replaced with an amount equal to 18 monthly salaries.

Correctional work for a manager can be for a period of up to 360 hours.

Retrenchment and pregnancy are unacceptable. Dismissing a pregnant woman is a step that is not only beyond morality, but also beyond the law .

It is worth thinking several times before putting pressure on an employee, demanding that she leave the company. The law strictly protects the rights of expectant mothers, and you should not risk your reputation, as well as the fate of the company, for the sake of momentary gain.

Life situations

Despite the categorical statements of lawyers about the impossibility of reducing a woman at any stage of pregnancy (and during maternity leave for 3 years), Law 261 of the Labor Code of the Russian Federation does not always work. That is, it does not contain clear instructions on what to do if the employer, following the letter of the law, reduced staff, provided options for other positions, but the woman did not give her written consent, wanting to remain working under the same conditions and salary.

In essence, this is a direct conflict that puts both the woman at a disadvantage (stress is harmful for the child) and the director, who cannot give the employee something that actually does not exist. Here the right remains to resolve the situation amicably, to negotiate privately.

If the rights of a pregnant woman are violated

Retrenchment of a pregnant woman may end in court

In the event of a minor violation of the Labor Code by the employer, it is best to seek protection of rights from the Federal Labor Inspectorate of the Russian Federation. Within a month from the date of application, they are required to go to the employer for a targeted check.

In case of significant violations of the procedure, which provides for staff reduction, when a woman is pregnant (her illegal dismissal), the Labor Code provides for the consideration of disputes by a special commission on labor disputes. It is formed within the organization, consisting of an equal number of employees and employers.

Expert opinion

Novikov Oleg Tarasovich

Legal consultant with 7 years of experience. Specializes in criminal law. Member of the Bar Association.

In addition, you can always go to court to restore justice. For dismissal of a pregnant woman without sufficient grounds, the administration and the employer may be held liable - administratively or criminally.

This is important to know: For how many absences are people fired from work?

What should an employer do if an employee brings a certificate?

In fact, the time at which the employer becomes aware of this fact does not matter.

If a pregnant employee, who was intended to be laid off, found out about her pregnancy after actually signing a notice of dismissal due to staff reduction, and provided the employer with medical documents confirming the fact of pregnancy and its duration, the employer does not have the legal opportunity to terminate the employment relationship with her. The employer can legally demand this document from the employee.

The lawyer answers: Is it possible to lay off a pregnant woman legally when reducing staff?

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How to confirm the status of a “single mother”

In any case, it is necessary to confirm that the mother is single with certain documents, for example, a court decision on deprivation of parental rights, a death certificate, etc. The final decision on whether a woman is a single mother is made based on several circumstances at once. You can confirm your status by contacting social security and presenting the following documents:

Statement from a woman;
Passport;
Children's birth certificate;
Certificate of family composition;
Certificate from the Civil Registry Office No. 25;
Confirmation of the child's citizenship;
Certificate of employment about income;
A working woman, or a certificate from the employment service;
Certificate from the tax office.