When hiring an employee and concluding an employment contract with him, the employer has the right to assign a probationary period. However, for some categories of persons, the law prohibits the verification stage - for example, this applies to pregnant women.
As soon as the employee informs the manager about her position, the probationary period ends and is considered completed. At the same time, a woman carrying a child can be fired only by her decision and in some cases specified by law.
Labor Code on pregnant women and the appointment of tests
In legislative documents on labor relations, the rights of women, especially those preparing to become mothers, are given special attention. Various articles of the Labor Code of the Russian Federation contain special rules relating to pregnant women:
- Ch. 41 of the Labor Code of the Russian Federation speaks of the special situation of pregnant employees;
- Art. 253 contains a list of types of activities in which an employee who is expecting a child cannot be involved;
- Article 254 speaks of the need to transfer pregnant women to easier work if this is justified by a medical report, as well as a ban on business trips, night shifts and overtime work for them;
- Part 1 Art. 261 directly prohibits the dismissal of a pregnant woman, except for cases specifically provided for by law.
Plaintiff B.Yu. filed a lawsuit against the Federal State Budgetary Institution “State Scientific Center of the Russian Federation Federal Medical Biophysical Center named after. A.I. Burnazyan" FMBA of Russia on reinstatement, recovery of wages for forced absence and compensation for moral damage, motivating their demands by the fact that since **.**.****, an employment contract N *** was concluded between the parties dated **.**.****, the year in which the plaintiff was hired for the position of **** in the pathology department at her main place of work. **.**.****, a fixed-term employment contract N *** was concluded with the plaintiff, according to which the latter was hired for the position of **** part-time at 0.5 rates, for a period from **.**. **** to **.**.**** Fixed-term employment contract N *** dated **.**.**** was terminated on **.**.*** * g., however, the dismissal procedure was violated. **.**.****, the employment contract No. *** dated **.**.**** was terminated in accordance with Part 1 of Art. 71 of the Labor Code of the Russian Federation, since the dismissal procedure was violated, no evidence was provided of the employee’s inadequacy for the position held. View the court decision
a probationary period to be established to ensure that the employee meets the professional requirements of the employer. The law does not use this exact term; it speaks of a “employment test,” but most often the condition of this exam is a certain period of time. The Labor Code of the Russian Federation outlines the principles of its purpose and the specifics of both sides:
- Part 1 of Article 70 of the Labor Code of the Russian Federation says that the employer can set this period only during the employment process, and its possibility is reflected in the employment contract;
- the minimum test period is not established, the maximum varies from 2 weeks to 3 months, in some cases - up to six months;
- Parts 1 and 4 of this article indicate an easy procedure for dismissing an employee while passing the test: an employee who does not pass it is released within 3 days or at his own request;
- Art. 71 of the Labor Code of the Russian Federation explains that if dismissal does not occur during the probationary period, it is considered that it was completed successfully, and the employee was hired on a general basis.
Question: An employment contract was concluded with the employee, which contained a probationary condition; the probationary period was three months. After the employee had worked for a month and a half, the employer decided to terminate her employment contract due to the fact that the employee could not pass the test. After the employer warned the employee about terminating her employment contract, she provided a certificate of pregnancy. Does an employer have the right to terminate a probationary employment contract with a pregnant employee? View answer
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.
Pregnancy at different stages of the trial period
A woman can become pregnant at any time, and the employer may not always be aware of it. The law prohibits dismissing a pregnant woman in any situation except:
- complete liquidation of the enterprise;
- termination of the activities of the individual entrepreneur.
To protect her rights, a pregnant woman must be:
- aware of your pregnancy;
- inform the employer about your status;
- document the fact of your condition (provide a certificate from the antenatal clinic).
Let's look at the various conditions that may arise if a woman applying for a probationary job becomes pregnant.
Pregnant woman gets a job
Of course, most employers are not eager to hire a woman who will soon go on maternity leave. However, the law prohibits refusing employment due to pregnancy (Article 145 of the Criminal Code of the Russian Federation). Therefore, if a woman who is expecting the birth of a child is hired, the employer cannot set her a probationary period. Part 4 of Article 70 of the Labor Code of the Russian Federation contains a direct ban on the appointment of tests when employing female employees in the position.
Even if a woman expecting a child writes written consent to undergo a probationary period, and a provision regarding it is included in the employment contract, this will not cancel the legal prohibition of such a procedure.
RESULT: when getting a job, the expectant mother does not have to undergo any tests, which means that she cannot be fired due to unsatisfactory results of the probationary period.
Got pregnant during probation
The legal time to establish professional suitability is not always short, and it is quite possible for a probationary employee to become pregnant. In addition, by the time of employment, the woman herself may not yet be aware of her condition, which will only be confirmed during the test itself.
At that moment, as soon as the employer learns of this situation of the employee, any probationary period for her is terminated, regardless of the time it was completed and the actual results.
From this moment on, she is considered hired and cannot be released from her position at the initiative of her superiors until she returns from maternity leave.
It happens that due to health reasons, the expectant mother is forced to take sick leave (for example, she needs to go to hospital), and she has not yet informed the employer about her changed status. The time while she is incapacitated for work on the basis of the corresponding certificate is still excluded from the probationary period, even if the employee were not pregnant. After returning to work, she will present a medical report that clearly confirms her condition, and will automatically receive all the benefits and privileges due to a working pregnant woman, including no probationary period.
RESULT: if pregnancy occurs during the probationary period, it ends as soon as the woman informs the employer about it and documents this fact.
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.).
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.
Generally accepted rules and privileges
When a woman becomes aware of her pregnancy, she receives many benefits provided by law.
These are the privileges:
- According to the presented certificate from the antenatal clinic, the pregnant woman must perform less work.
- Must be transferred from an area with unfavorable production factors to one where there is no threat to her health. The average fee for the same location remains the same.
- A woman has the right to more breaks, which remain paid.
- If a desire is identified, the employee can switch to a part-time work schedule. Salaries will be calculated based on the amount of time worked. The right to tariff holiday is retained.
Since the main requirement is to maintain the health of yourself and the baby, managers should change the working conditions for the employee.
The basis may be one of the following facts:
- If its activity consists of diving underground.
- Suitable for lifting heavy objects.
- Spending more than 3 hours on a PC.
- Prolonged sitting or standing position.
- There is contact with ionizing radiation or chemicals.
- If the room is noisy and stuffy, with disturbed humidity levels. Business travel required.
- The work is performed at night (from 22 o'clock).
This is also important to know:
In what cases is the day of dismissal considered a working day?
A woman retains the right to overtime work standards if her health condition allows.
She may also request to change a schedule that does not suit her. Having written an application, the pregnant woman has the opportunity to undergo all medical examinations during working hours
What if you do get fired?
If a woman expecting a child was forced to undergo a probationary period in circumvention of the law and was fired based on its results, such a violation of the law should not be left unpunished: the employer will receive a serious fine, and the expectant mother will be reinstated.
It is enough for an unfairly offended pregnant woman to contact the labor inspectorate, the district prosecutor's office or the court no later than a month from the date of receipt of the employment notice with a dismissal note.
At the same time, she does not need to prove her professional worth: the employer is obliged to prove that the employee dismissed during the test does not meet the requirements. If a dismissed employee is pregnant, such evidence will not help him: after all, the employer does not have the right to conduct tests for women in this position. He will simply receive punishment not under Article 145 of the Criminal Code, but under Clause 5 of Article 27 of the Code of Administrative Offenses of the Russian Federation “Violation of labor and labor protection legislation.”
IMPORTANT! Despite the difficult emotional state, a pregnant subordinate should not succumb to possible provocations of the employer and write a letter of resignation “of her own free will”, in which case it will no longer be possible to challenge unfair dismissal. If pressure is exerted, it is permissible to contact the labor inspectorate or at least warn the obstinate employer about such an intention.
Is it possible to fire an employee if the fact of pregnancy was established during the test?
As mentioned earlier, the manager does not have the right to terminate the employment contract with the employee even in this case. In order for the probationary period to be cancelled, she needs to bring a certificate from the antenatal clinic, and then dismissal will become completely impossible.
This is also important to know:
How is dismissal under an article for drunkenness carried out: the procedure
If an employer insists on dismissal during a probationary period because an employee is pregnant, this is unlawful, and she can file a complaint with the prosecutor's office. However, not everything is so simple here: in order to bring her manager to justice, she will have to prove that the reason for not passing the test was precisely her position.
No less important is the question of whether it is possible to fire a pregnant woman manager. When establishing a probationary period for the general director of an enterprise, the same rules apply as for ordinary employees, so it is impossible to terminate the employment contract in this case either. If a woman herself expresses a desire to resign, then for this it is necessary to assemble a board of founders and sign the appropriate termination agreement, after which she is paid three times the severance pay (Article 278 of the Labor Code of the Russian Federation).
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.
Is a “trial” contract possible for a pregnant woman?
I will answer right away - it is impossible to establish a probationary period for a pregnant woman. This is what the TC says.
This means that an agreement fixing the conclusion of an employment relationship between a pregnant woman and an organization can be drawn up indefinitely (valid until terminated) or for a set period, but without establishing criteria for work, in addition to those provided for by the general requirements of the Labor Code of the Russian Federation.
In order to “skip” the probationary period, provide the HR department with a certificate from a medical institution or a copy of the exchange card confirming pregnancy registration.
To be fair, I note that employers formalize employment relationships with pregnant women very reluctantly. This is not surprising, because after employing a pregnant woman, the employer cannot lay her off, and moreover, he is obliged to provide special working conditions and work schedules.
During private legal consultations, I advise my clients to disclose pregnancy after concluding an employment contract (even one with “trial” conditions). In such circumstances, the probationary agreement is canceled and a contract with standard labor guarantees comes into force.
Absenteeism during pregnancy
The legislation protects the rights of pregnant workers so much that some unscrupulous people consider themselves entitled to take advantage of it. It is clear that pregnancy is a difficult period from all points of view. It may be accompanied by poor health, chronic fatigue, weakness, nausea, etc.
Expectant mothers enjoy such privileges as:
- visiting an antenatal clinic during working hours without loss of wages or risk of dismissal;
- the possibility of not showing up for work due to poor health with impunity;
- changing the work schedule according to a more convenient scenario (shorter shift, transfer to easier work, etc.);
Situations are often made public when an enterprise illegally fired a pregnant woman, thereby violating her rights, and she, with self-esteem, is forced to restore justice in court. Stories about pregnant violators are much less common.
There are special cases when a woman, being pregnant, simply stops showing up at work without explaining the reasons or providing any documents.
In practice, there are examples where such absenteeism lasted from the beginning of pregnancy until childbirth. Then the unscrupulous employee appeared at the enterprise with a child’s birth certificate and an application for leave to care for him. The situation, of course, was outrageous, but the management had no choice but to grant leave according to the law. It is clear that after the end of the specified period, no one will continue to cooperate with such a person.
Using your position as a guarantee against dismissal under any circumstances is not the best solution.
Yes, according to labor law, an employer does not have the right to fire a pregnant woman on his own initiative, but if the case is out of the ordinary, he may well:
- All absences from work should be reflected in the timesheet, thus paying wages only for hours or days worked. Without any documents confirming absence for a valid reason, this method is quite reasonable. If a reason for absenteeism is provided, such as sick leave, naturally, everything will be paid for by recalculation next month.
- To deprive the bonus for such an attitude towards official duties.
- Dismiss such an employee under the article after childbirth and maternity leave.
When skipping work hours, you should not lose sight of the fact that the amount of income during pregnancy, or rather, its average value, directly affects the amount of child care benefits.
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.
Cases when it is possible to fire
It is allowed to fire a pregnant employee for several reasons:
- personal initiative;
- consent of both parties;
- closure of an organization;
- expiration of the contract (if the woman has not previously extended it).
When staffing is reduced, the employee retains her position if her vacancy is completely filled. Management is obliged to provide a vacant position (schedule and salary may change) . The only way to refuse an offered position is through dismissal.
A woman who is preparing to become a mother can be fired provided that she was temporarily replacing an employee . In this case, management is obliged to find an alternative. If there is no suitable job available, the girl is fired.
Liquidation of an organization means complete closure. This does not include renaming, division or relocation of the organization. If the closure occurred due to bankruptcy, the dismissal occurs by court decision. The employee is notified 2 months before dismissal.
Management may require a certificate from a medical institution confirming the visit (no more than once every 3 months). In case of refusal, the employment agreement may be terminated at the initiative of the employer.
