Article 261 of the Labor Code of the Russian Federation. Guarantees for a pregnant woman and persons with family responsibilities upon termination of an employment contract (current version)

Pregnant woman - can she be fired?

Dismissing a woman who is expecting a child is a possible process, but only if she herself wishes it or agrees to a compromise. All other options are eliminated. But there is one exception. A pregnant woman may be dismissed from her position without her consent if the enterprise where she works is completely liquidated. There should be no reorganization or merger.

Attention

If the company continues its activities at least in some form, the expectant mother cannot be fired.

What to do if a pregnant woman was illegally fired?

When illegally fired, girls like Yulia try to fight for their rights and the job they were deprived of. This is correct, since the law is on their side. To return to work, you must file a claim with the court for reinstatement at work (Article 391 of the Labor Code of the Russian Federation).

The law (Article 392 of the Labor Code of the Russian Federation) gives the dismissed woman only one month to file a claim. This period must be calculated either from the date of issuance of the dismissal order or from the date of issue of the work book.

The claim is filed in the district court:

• at the location of the organization;
• or at the place of residence of the dismissed woman.

It is advisable to state two demands to the defendant (former employer):

1. On recognition of dismissal as illegal and reinstatement at work.
2. On the recovery from the employer of average earnings during the illegal deprivation of the opportunity to work.

The second requirement is based on Art. 234 Labor Code of the Russian Federation. This provision allows you to recover average earnings for the entire period from the moment of dismissal until the moment of reinstatement.

The employer must execute the court decision on reinstatement immediately, the next day after it is issued.

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Thus, a pregnant girl cannot be fired even if the employer did not know that the employee was expecting a child. If the dismissal was made, when going to court, the rights of the pregnant woman will be restored.

Normative base

The Labor Code has the following articles that directly or indirectly relate to pregnant women:

• 64 – on the impossibility of refusing to conclude a contract indicating employment (if the reason is pregnancy);
• 70 – about the inadmissibility of assigning a probationary period if they are hired;
• 78 – about dismissal, the reason for which is the agreement of the parties;
• 80 – about settlement on individual initiative;
• 180 – on compensation for damage during the liquidation of a company;
• 234 – on compensation in case of dismissal not according to the law;
• 261 – on the impossibility of settlement if the employer takes the initiative (liquidation of a company is an exception, Article 81).

There is also Article 145 in the Criminal Code, which comes into force if the expectant mother is unjustifiably not hired or improperly fired. Next, we will consider different types of dismissal.

Is it possible?

Art. 261 of the Labor Code of the Russian Federation indicates that an employment contract with an employee during her pregnancy cannot be terminated at the initiative of the employer , with the exception of two cases:

1. The individual entrepreneur ceases his business activities or the organization is liquidated - either on its own or by a court decision (read about the specifics of dismissing a pregnant woman when liquidating an organization before maternity leave).
2. If a woman works under a fixed-term contract during the absence of the main employee and she cannot be transferred to another job taking into account her state of health (you can find out whether a pregnant woman employed under a fixed-term employment contract can be fired from her job here).

In all other cases, the answer to the question “is it possible to fire a pregnant woman?” is negative. Even if she entered into a fixed-term contract and its duration has already expired, the employer is obliged to extend the contract until the birth or until the end of the maternity leave.

Reference. The law does not give the employer the right to dismiss such an employee even for absenteeism - he only has the right to subject her to other disciplinary punishments provided for by the internal regulations of the enterprise and not contrary to the law (for example, to deprive her of a bonus, etc.).

Read more about whether it is possible to fire a pregnant woman for absenteeism in our material.

But does this mean that a pregnant woman cannot terminate the employment contract herself? No. Art. 261 does not contain such a restriction, which means that the provisions of Art. 80 Labor Code of the Russian Federation. Even during pregnancy, an employee has the right to submit an application and resign at her own request. However, both parties to the employment contract need to take into account a number of features regarding such dismissal.

We recommend that you read our other articles about whether a pregnant employee can be expelled or laid off:

• on probation;
• according to the article;
• on staff reduction;
• when the state is disbanded.

Reduction

If the staff at an enterprise is reduced, this does not affect expectant mothers. But the pregnancy needs to be confirmed. For this purpose, a certificate is obtained from a medical institution. Mere appearance is not a basis for having a legal defense.

If the necessary document is available and the position in which the pregnant woman works is reduced, she is selected for another type of activity that corresponds to her position. If this is not possible, she continues to work in her place.

Read more about reducing maternity positions here.

For absenteeism or under article

A pregnant employee who has confirmed this with an official document has many privileges. They also apply to violations of labor discipline. If a woman commits absenteeism (absent from work for more than four hours), she must explain the reason. In case of refusal, it is impossible to dismiss her for this under the article. However, some enforcement measures are provided:

• comment;
• rebuke;
• fine;
• deprivation of bonus.

Information

A prerequisite for this is the drawing up of an act proving that the employee was really absent without good reason.

Liquidation of the company

The only case that provides for the dismissal of a woman expecting a child without her consent is the liquidation of the organization. If she is already on maternity leave, the dismissal will still happen. A mandatory condition is a written warning. It is made two months before settlement. The woman must read the document and sign.

Attention

If only a branch of an enterprise closes, the pregnant woman is offered work in other branches or in the central office. If she is not satisfied with this, a settlement is made.

Agreement of the parties

An agreement between the parties is a process in which the employer and the dismissed woman come to a common opinion on the following issues:

• settlement date;
• amount of monetary compensation;
• other points important for both parties.

Everything that the parties agreed on is indicated in the official document that they sign. It is created in two copies. One remains with the manager, the second - with the dismissed person.

Important

In this case, the duty of the pregnant woman is to submit an application for settlement, indicating the reason - the agreement of the parties.

The legislative framework

When appealing unlawful actions against pregnant women, the following legislation should be referred to:

1. “Labor Code of the Russian Federation” dated December 30, 2001 N 197-FZ.
2. “Civil Procedure Code of the Russian Federation” dated November 14, 2002 No. 138-FZ.
3. “Criminal Code of the Russian Federation” dated June 13, 1996 N 63-FZ;
4. “Code of the Russian Federation on Administrative Offenses” dated December 30, 2001 N 195-FZ.
5. Federal Law “On the procedure for considering appeals from citizens of the Russian Federation” dated May 2, 2006 N 59-FZ;
6. Federal Law “On the fundamentals of protecting the health of citizens in the Russian Federation” dated November 21, 2011 N 323-FZ.

Completion of a fixed-term contract

The peculiarity of a fixed-term contract is its conclusion for a specific period of time. Therefore, in the normal course, a person is automatically dismissed upon completion. If, in the process of fulfilling duties under a fixed-term contract, a woman becomes pregnant, the specifics of the legislation come into force.

They consist in the fact that the fixed-term contract with her is extended until the end of the pregnancy. If she decides to go on maternity leave, it is definitely granted. And only after its completion can the woman be fired. If pregnancy occurs during a fixed-term contract, she is obliged to:

• confirm it with a certificate from a medical institution;
• write an application requesting to extend the contract;
• if the employer asks, officially confirm the pregnancy every three months.

If a woman does not provide a certificate confirming her pregnancy by the end of the fixed-term contract, she is dismissed from her position. Also, dismissal can occur if the contract was concluded before the departure of the main employee. In this case, the pregnant woman is offered a different position. If she refuses, the contract terminates.

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.

Dismissal procedure

The main reasons for the settlement of pregnant women are: their own desire, agreement of the parties and liquidation of the enterprise. In each case, the calculation procedure provides for some features.

Own wish

1. The woman writes a statement 14 days before she plans to quit.
2. Works for two weeks.
3. An order is issued.
4. The work book is properly prepared (an entry is made).
5. Necessary payments are made.

Agreement of the parties

1. An agreement is concluded (written type).
2. If there was an agreement to work off, it is fulfilled.
3. A woman writes an application for settlement.
4. An order is issued.
5. The work book is properly prepared (an entry is made).
6. Compensation is paid in the form of cash.

Liquidation of the enterprise

1. The employee is notified in writing of dismissal (period - two months).
2. An order is issued.
3. The work book is properly prepared (an entry is made).
4. Compensation is paid in money.

Working off

If a person quits his job because he wanted to, the law requires him to continue his work for another two weeks. This also applies to women expecting a child if they feel normal.

If a woman is admitted to a hospital for treatment, no work is carried out (the period of treatment is included in the work). In this case, the expectant mother must send an application to the enterprise by letter.

Information

If a woman is productive, but for some reason wants to quit immediately, this needs to be discussed with the manager. In fact, dismissal based on agreement between the parties is more suitable here.

What payments are due?

If a woman quits her job during pregnancy, she should know what payments she is entitled to:

1. Salary for the part of the month worked.
2. Compensation for unused vacation (for the part of the year worked).

However, you need to remember: the former employer is no longer obliged to pay benefits for pregnancy, childbirth and child care from the moment of dismissal.

The exception is cases when “maternity leave” occurred less than a month after dismissal, and in this case the dismissal at one’s own request was associated with certain circumstances recorded by order of the Ministry of Health and Social Development of Russia dated December 23, 2009 No. 1012n. These include:

• Moving to your husband or with your husband to his new place of work.
• An illness that makes it impossible to continue working or living in a given area.
• Caring for sick family members.

Here you should also be guided by Art. 1.4 and paragraph 2 of Art. 5 No. 255-FZ concerning insurance (in this case, medical and social) coverage.

What is paid upon dismissal?

If a regular settlement occurs at the woman’s request, the money she earned is paid, which she did not receive at the time of leaving the enterprise. Compensation for vacation that was not used is added to this. If the release from work occurred by agreement of the parties, some other payments may be added to this amount. This is stipulated in a document signed by the manager and the dismissed person.

Attention

If the business is liquidated, severance pay is added in addition to normal statutory payments. Its calculation is based on the average monthly salary of the employee.

Payment of severance pay is maintained for 2 months, in the absence of employment at a new place of work.

Leave on your own or set conditions?

Dismissing a pregnant woman at her own request is the best solution for a manager. But! Any coercion on the part of the employer is unacceptable and is punishable by law; the expectant mother must write a statement voluntarily!

An alternative to leaving on your own is termination of employment relations by agreement of the parties (Articles 77, 78 of the Labor Code of the Russian Federation). The initiator of the agreement can be a woman expecting a child or an employer. The agreement implies the mutual desire of the parties to terminate the employment contract and contains a number of important conditions for the expectant mother:

• amount of compensation;
• term of termination of employment, etc.

A pregnant employee can terminate the agreement unilaterally if she became aware of her situation after signing the agreement.

Important! When leaving at her own request, the employee does not receive any additional payments, except compensation for unused vacation and payment.

Wrongful dismissal of a pregnant woman is the employer’s responsibility

An employee who is planning to take maternity leave in the future sometimes begins to experience psychological pressure from her manager. Indeed, due to her position, she will no longer be able to fulfill her duties in the future. This means she will have to find a temporary replacement. This may not suit the employer, who wants his subordinates to fully devote themselves to work. Therefore, a pregnant woman is given conditions in which it is difficult for her to work. This is done in order to bring her to a state in which she herself wants to leave the enterprise.

Some people really can’t stand the pressure and write such a statement. But this is unlawful, since in fact the person wanted to continue his activities. Therefore, as soon as a woman receives a work book, she has the right to protection in court. However, it will be necessary to prove that the dismissal actually occurred against her will.

Attention

If a pregnant woman was fired for reasons such as staff reduction or the end of a fixed-term contract, this is illegal. For this, the employer is held liable (Criminal Code, Article 145). For unlawful actions, he may be ordered to pay a fine (up to 200 thousand rubles or another amount). Mandatory work up to 360 hours is also possible.

Dismissal of a pregnant woman working part-time

If a pregnant woman works as a part-time worker, then in accordance with the Labor Code of the Russian Federation, it is not possible to dismiss her on legal grounds.

When do courts allow the dismissal of pregnant women ?

However, if suddenly there is an employee in her place who is ready to work on a permanent basis, then the woman must be given an alternative in the form of another position.

Exception: in a situation where a part-time woman replaces another employee who is temporarily absent due to maternity leave, illness, business trip and for some other reasons, she can be fired as soon as the one at whose workplace she is returned.