Women in position have quite a lot of social guarantees provided by the state. Labor legislation also provides for various benefits that women are entitled to in the performance of labor functions. However, in practice , cases have recently become more frequent when such workers illegally take advantage of their position, counting on the fact that the employer will be favorable to them in any case and will not be able to terminate the employment agreement. This article discusses the features of dismissing a pregnant woman for absenteeism without a valid reason, measures of influence on such employees, as well as ways to appeal the employer’s decision in case of non-compliance with the employee’s labor rights.
According to labor legislation, the concept of “absenteeism” implies the absence of an employee at the place of work for more than four hours in a row without indicating any serious reasons and without warning his boss. One such violation, as a rule, is enough for employers to decide to end cooperation with an unscrupulous subordinate; however, pregnant employees are an exception.
When it is revealed that a woman is absent from the workplace, the head of the organization, first of all, is obliged to document such an incident properly with the involvement of eyewitnesses. After the employee appears in the organization, she must be asked for a written explanatory note, which provides the right to justify her absence and present to the employer an explanation of the violation committed, indicating a good reason. After reviewing the provided document, the employer must choose a certain measure of influence on the citizen, with the exception of dismissal from the organization, since initiating such a procedure in relation to a pregnant woman is strictly prohibited by labor legislation.
Acceptable grounds for dismissal of a pregnant woman
Chapter 41 of the Labor Code of the Russian Federation ensures that workers expecting a child have the right to appropriate working and rest conditions, and also protects them from illegal dismissal. Yes, Art. 261 of the Labor Code of the Russian Federation prohibits the resignation of an expectant mother at the initiative of the employer. The only reason given here is when an employer fires a pregnant employee himself - this is the liquidation of the company or the closure of the individual entrepreneur.
At first glance, there are no other legitimate grounds for “getting rid” of a pregnant employee. However, employers are constantly looking for and finding opportunities to “leave” such employees.
What is not considered absenteeism for a pregnant woman?
The employer has the right to independently assess whether the reason for the employee’s absence from work deserves respect. Thus, even caring for a sick pet may be considered worthy of attention. But there is also a list of circumstances established by law that exclude dismissal for absenteeism.
Note! For a pregnant woman, as for other categories of workers, the following cannot be considered absenteeism:
- absence from work due to temporary disability. If a pregnant woman has presented a medical certificate or sick leave, her failure to appear for work cannot be called absenteeism,
- short-term absence from work, not exceeding 4 hours, cannot be called absenteeism. Of course, this violation of labor discipline has a bad effect on work results, but it cannot become a reason for dismissal. The duration of absence from work is confirmed by witness testimony.
Dismissal at the initiative of the employer
An employer can fire an expectant mother on his own initiative only upon liquidation of the company (Article 261 of the Labor Code of the Russian Federation). He is obliged to notify the employee in writing two months before the closure of the company. According to the law, on the last working day a woman is entitled to the following payments:
- compensation for unused vacation;
- severance pay equal to average monthly earnings.
Also, the expectant mother will receive an average monthly salary from the funds of her former employer for two months after leaving (in some cases - three months).
Important! When a separate unit is liquidated in another locality, working relations with an employee in the position are terminated in the same manner as during the liquidation of an organization (Article 81 of the Labor Code of the Russian Federation). Reorganization (merger, division) is not grounds for dismissal of the expectant mother.
What is truancy
The conditions for dismissal of employees at the initiative of employers are defined in Art. 81 Labor Code of the Russian Federation. In sub. “a” clause 6 part 1 of this article deals with truancy. Moreover, its concept is the same for all employees, including pregnant women: it means the absence of an employee from the workplace without confirmation of valid reasons for 4 hours during the working day or the entire day if it is shorter than 4 hours according to the schedule.
However, a pregnant employee periodically needs to visit doctors, undergo tests, and also increases the risk of deterioration in her health. According to Art. 254 of the Labor Code, a visit to a doctor by such an employee cannot be considered absenteeism. Moreover, at this time she retains her average earnings.
Absence without good reason.
As a rule, the course of pregnancy for each woman proceeds differently, so it is possible to predict whether she will be able to fulfill her duties in full during the first trimester, but on the eve of maternity leave it is impossible to take the same annual leave.
It should also be noted that illness can occur suddenly, which predetermines the likelihood of leaving work in the middle of a shift, without filing a sick leave.
Of course, the first and second time they forgive the employee and go to the meeting, taking into account her condition, but if such behavior becomes the norm, the attitude changes, and the question is raised about officially registering absence from the workplace, which, within the framework of Article 81 of the Labor Code of the Russian Federation, is already absenteeism .
That is, if a pregnant employee leaves work in the middle of her shift and is absent from her place of work for more than four hours or does not show up for work at all for at least one day.
Is it possible to fire an employee in a position under the article
Closing the company is the employer’s only chance to fire a pregnant woman. Therefore, even if the expectant mother does not fulfill her duties or violates labor discipline, she cannot be fired. The maximum penalty in this case is a reprimand. It is also impossible to fire an employee in a position who was hired on a probationary period, but did not pass the test.
This also applies to staff reductions. The entrepreneur must offer another position that meets the employee’s medical conditions, and if there are no such positions, do not reduce the position occupied by the expectant mother.
Important! A woman expecting a child, at the request of her manager, must confirm her position with medical certificates (no more than once every 3 months).
How can a pregnant employee be punished for absenteeism?
Things are different for pregnant employees. A pregnant woman periodically needs to visit a doctor. The expectant mother may need to undergo tests or consult. When there is a threat to the health or life of a child, the woman goes to the hospital and may not warn management.
In Art. 254 of the Labor Code of the Russian Federation states that a visit to a doctor by such an employee cannot be regarded as absenteeism. Moreover, the woman retains her average earnings. At the same time, the woman is required to provide certificates and other documents confirming that she has been to the doctor.
In addition, even without applying disciplinary punishment, the employer has the right not to assign bonuses and other payments to such an employee that are not guaranteed by law. Such measures in themselves can encourage the truant to fulfill her duties conscientiously.
Some employers record absenteeism precisely for the purpose of dismissing the employee immediately after returning from maternity leave. Such dismissal is illegal, since all statutes of limitations expire by the time you leave maternity leave.
However, the law does not oblige a woman to use maternity leave; she has the right to return to her professional duties at any time. It is not uncommon for a woman to return to work when the child is not even 3 months old. In this case, if absenteeism was committed immediately before going on maternity leave, there is already a risk that the six-month period will not expire by the time she returns to work and the employer will have the right to apply penalties and dismiss the employee.
Unfortunately, pregnancy does not always end with a successful delivery: it may be interrupted or the child may die before, during, or immediately after childbirth. In all these tragic circumstances, the employee does not have the right to parental leave; therefore, after the expiration of the period of temporary incapacity for work, she will return to work.
- Previously, no other disciplinary action had been imposed for absenteeism.
- The statute of limitations for bringing disciplinary action has not expired.
- The fact of absenteeism was duly recorded.
Fortunately, such cases are quite rare, since employers usually show understanding for the difficult situation and difficult morale of the employee and do not impose penalties for absenteeism that occurred during an unsuccessful pregnancy. Nevertheless, judicial practice shows that this is possible, thereby confirming that even a pregnant employee must conscientiously fulfill her duties to the employer.
A medical certificate is required.
As a rule, from the moment of registration, a pregnant woman undergoes a monthly mandatory medical examination, which includes routine tests and a gynecological examination.
Moreover, these procedures can take from several hours to several days, given that the list of medical measures that a woman must undergo is very long.
In particular, by virtue of Order of the Ministry of Health No. 572n, within 30 weeks a woman must visit the following specialists:
- at least 7 times by an obstetrician-gynecologist;
- 2 times therapist;
- 2 times dentist.
At the same time, with the direction of the leading gynecologist, the employee can be sent to any doctor in case of complications during the process of bearing a child, and this is not to mention routine tests and ultrasounds at least 3 times during the following period:
- 11-14 weeks;
- 18-21 weeks;
- 30 weeks.
That is, in fact, after registration, a woman is obliged to undergo the above-described medical measures, and during working hours, which predetermines the need for her absence from the workplace.
That is why, within the framework of Article 254 of the Labor Code of the Russian Federation, her average earnings for the entire time she visited the hospital are retained, but only if she provides confirmation in the form of a certificate issued by a medical institution.
During treatment
In accordance with the norms defined by Article 183 of the Labor Code of the Russian Federation, a worker with health problems retains not only his workplace, but also his position for the entire period of recovery in a medical organization.
In this case, the fact of the disease is confirmed by a certificate of incapacity for work, issued in accordance with the requirements determined by Order of the Ministry of Health No. 1024n and issued in cases determined by Federal Law No. 255.
That is, if a pregnant employee, due to complications while carrying a baby, was placed in a medical institution for observation or other measures and a sick leave was issued to her, the issue of dismissing the pregnant woman for absenteeism is not even considered.
That is, it lets you go a few hours before the end of your shift, allows you to take work home and frees you from a number of burdensome tasks.
However, if an employee initially, due to her special situation, begins to abuse pregnancy and use it as an excuse for not completing the tasks assigned to her, management still has leverage.
So, in particular, carrying a baby does not prohibit the employer from applying the following penalties:
- Issue a reprimand or reprimand under Article 192 of the Labor Code of the Russian Federation;
- Deprive bonus payments, which, in most cases, on the basis of the Regulations on bonuses cannot be transferred in the presence of an order to impose a punishment.
We invite you to read: Statement of claim for labor disputes - sample 2020
That is why you should not abuse your position, but it is best to resolve all issues of absence by reaching a compromise.
From this video you will learn whether it is possible to fire a pregnant employee.
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Dismissal upon expiration of the employment contract
An employer has the right to dismiss a woman at the end of her employment contract if the following conditions are met:
- the employee is registered under a fixed-term employment contract;
- the employer cannot offer the expectant mother another job that is suitable for her medical reasons.
If the expectant mother agrees to the proposed position, the employer must extend the term of her employment contract until the end of pregnancy. It is also impossible to fire a pregnant part-time woman due to the hiring of a person in her place on a permanent basis (Article 288 of the Labor Code of the Russian Federation). Such dismissal falls under Art. 261 Labor Code of the Russian Federation.
Dismissal of a pregnant woman for absenteeism or violation of labor obligations
If Article 261 prohibits a boss from dismissing a pregnant employee for absenteeism, then what should an employer do in this difficult situation? It is necessary to refer to the provisions of Article 192 of the Labor Code, which provides for disciplinary sanctions. They can be applied to a pregnant woman:
- comment;
- rebuke.
Thus, the employer should not turn a blind eye to the unreasonable behavior of his employee, even if she has an “interesting position.” Instead of dismissal, the employer may reprimand or reprimand her. Ladies should understand that reprimands are recorded in the work record book. Pregnancy is a condition that ends after 9 months. Someday a successful mother will need a job. But a female employee who has many reprimands in her work book is unlikely to be needed in a company or enterprise. In addition, a woman may simply not be hired after carefully studying her track record. Therefore, you should not abuse the employer’s patience without good reason. Also, a worker who constantly violates labor standards may be financially punished. For example, the employer may not award her bonuses.
Changing the working conditions of a pregnant employee
According to clause 7, part 1, art. 77 of the Labor Code of the Russian Federation, an employee may refuse to work in an organization if the terms of his employment contract have changed. It is important to note here that when changing working conditions, the employer must have evidence of the technological and organizational need for the changes, otherwise the dismissal will be illegal. If the upcoming changes are justified, the employer is obliged to notify the woman expecting a child about them two months in advance. If she disagrees, she will have to offer other available vacancies that correspond to her state of health (Article 74 of the Labor Code of the Russian Federation).
What punishment is applicable
The state of pregnancy in itself does not mean the emergence of the right to disdain the requirements of discipline in the organization. Although Art. 261 of the Labor Code of the Russian Federation and does not provide the opportunity to dismiss this category of workers, the manager may consider it necessary to use other methods of influence.
Important! The following measures regarding pregnant women do not violate labor legislation:
- remark, warning, reprimand,
- classifying time away from work as unpaid,
- reduction in the size of the bonus (if the bonus regulations in the organization allow this).
All of the listed types of penalties are applied by issuing an order in accordance with Art. 193 Labor Code of the Russian Federation. Regardless of the circumstances, the enterprise administration must invite the pregnant woman to state the reasons for the incident.
The fact of no-show or absence from work must be reflected in the time sheet. Only in this case is it possible to issue an order to impose a penalty.
What are the consequences of foreclosure? Local regulations of the company (collective agreement, internal regulations, regulations on bonuses) may include provisions on depriving a violator of discipline of a bonus.
You also need to take into account that time absent from work will not be paid. Accordingly, the amount of vacation pay when going on maternity leave will be reduced.
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.
Can absence of a pregnant woman be considered absenteeism?
A woman's condition during pregnancy requires medical supervision. It is necessary to undergo regular medical examination and all additional examinations. A visit to the doctor is a valid reason for absence from work.
In this case, a decrease in output may occur, but the law in this case allows the standards to be reduced officially (Article 254 of the Labor Code of the Russian Federation). It should be remembered that work responsibilities not fulfilled by a pregnant woman fall on her colleagues.
Please note! To eliminate the possibility of conflicts and discontent, it is recommended:
- plan visits to the clinic in advance and notify employees about this,
- confirm a valid reason for your absence with certificates,
- submit applications to the employer in advance for the extension of a fixed-term employment contract and for the provision of maternity leave.
Responsibility of the employer for the illegal dismissal of an employee in the situation
The rights of the expectant mother in the sphere of labor are protected by the Labor, Administrative, Civil and Criminal Codes of Russia, as well as a number of other legislative acts. Thus, dishonesty of employers is punishable under Art. 5.27 of the Administrative Code by imposing administrative fines: from 30 to 50 thousand rubles for legal entities and from 1 to 5 thousand rubles for officials (manager, chief accountant, personnel officer). Also, the unlawful dismissal of an employee who is expecting a child falls under Art. 145 of the Criminal Code of the Russian Federation, which provides for a fine of up to 200 thousand rubles. or the salary of the perpetrator for a period of up to 18 months or up to 360 hours of compulsory work.
Author of the article: Irina Smirnova
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What to do if a pregnant woman was fired for absenteeism
statement of claim to declare the dismissal illegal free of charge in word format
A pregnant woman whose interests are violated by illegal dismissal has the right to go to court.
Appeal to other authorities is also possible, but judicial review is still the most effective measure.
This also applies to cases where an employer forces a woman to write a statement about her desire to terminate the employment contract.
Filing a claim requires a good knowledge of substantive and procedural law, so before going to court it is recommended to consult an experienced lawyer.
This can be done by contacting a specialist on the website. You can order a call back at a specific time.
complaints to the Labor Inspectorate about the illegal dismissal of a pregnant woman for free in word format
If the court finds the plaintiff’s demands legal and justified, the employer will be obligated to:
- reinstate the illegally dismissed employee in his position,
- financially compensate for the period of forced absence,
- compensate for moral damage caused by illegal actions.
In addition to these measures, administrative sanctions may also be applied to the employer - a fine in accordance with Art. 5.27 Code of Administrative Offenses of the Russian Federation.
Although the power of a court decision is beyond doubt, the pre-trial procedure for resolving a dispute should not be abandoned. You can contact the Labor Inspectorate.
Recording absenteeism and disciplinary action
In addition to Article 261, which prohibits termination of employment relationships with pregnant women, there is Article 192 in the Labor Code. The normative act provides for the admissibility of administrative punishment. For the application of this article in relation to a pregnant employee, only dismissal is excluded from the list of disciplinary sanctions. The rest can be used, but subject to the correct and timely implementation of the procedure for recording absenteeism:
- Find out the reason for absenteeism. This can be done by phone. If a woman does not answer or tries to mislead with untruthful explanations, the absence must be certified. Invite at least 2 people who will confirm the fact that the employee is absent from the workplace.
- Based on the testimony of witnesses, a truancy report is drawn up. The document is drawn up in free form. It indicates the full name of the employee, position held, date and duration of absence, information about witnesses. The initiator of the act leaves personal data and signs.
- To legally register absenteeism, an explanatory note must be received from the employee who violated labor discipline indicating the reason for the unauthorized absence, the date and duration of the absence. If a woman refuses to write a paper, an act of refusal is drawn up in the presence of witnesses.
- After all the documents have been completed and the necessary evidence of absenteeism has been received, the head of the enterprise issues an order to apply disciplinary measures permitted by law. employee must familiarize herself with the document and put her personal signature.
Recording absenteeism does not give the employer the right to dismiss. He cannot terminate the contractual relationship unilaterally, but for systematic absenteeism, no one will prevent him from reprimanding him with entry into the work book and punishing him financially, depriving him of his bonus or reducing its size. If an employee plans to return to her previous position after maternity leave, it is better not to lead to conflict situations. This may negatively affect future cooperation and create obstacles when looking for a new job.
