Is it possible to lay off an employee who is pregnant or on maternity leave?

Special position

Can a pregnant woman be laid off?
To correctly answer this question, you need to carefully study the current Labor Code of the Russian Federation. For an employer, having pregnant employees is a huge problem in most cases. The Labor Code actively protects the interests and rights of women in “interesting” situations.

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The main problem for the boss is the dismissal of the studied category of subordinates. The thing is that removing a pregnant woman from work is not as easy as it seems.

But that is not all! Termination of an employment contract with pregnant employees is permitted under certain and unavoidable circumstances. These include the liquidation of a company or termination of the activities of an individual entrepreneur.

According to current laws, a girl in an “interesting” position can be fired at the request of her boss only due to the liquidation of the corporation. Perhaps this is one of the few cases in which an employee is forcibly removed from work.

Is it possible to fire an expectant mother due to a reduction in staff or position?

What is staff reduction? This is when an enterprise eliminates a certain position from the staffing table.

According to the general provisions, it is impossible to lay off a pregnant woman when reducing staff at an enterprise.

If a woman’s employment contract was terminated, but she brought a certificate of pregnancy after dismissal, and it confirms that the woman was pregnant at the time of dismissal, then the employer is obliged to reinstate the pregnant woman to work.

Under no circumstances should you put pressure on a pregnant woman to write a resignation letter of her own free will. This already entails criminal liability.

Also, at the end of an employment contract with a pregnant woman, the employer is prohibited from dismissing her, even if he does not need her services, he must provide her with a workplace.

If none of the positions are suitable for a pregnant woman, then the company can safely lay off her.

In the event of a complete cessation of the activities of a legal entity or individual entrepreneur, the pregnant woman, like all employees, is laid off.

Only the liquidation process imposes certain obligations on the employer:

• It is necessary to notify both the pregnant employee and all other employees about the liquidation of the enterprise two months in advance. The notification is drawn up in any written form;
• Pay actual wages, as well as compensation for unused vacation;
• Pay severance pay for two months

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A pregnant employee who is laid off as a result of the liquidation of an enterprise must be issued the following documents:

• A work book, which reflects that the reduction during the liquidation of the enterprise;
• Education documents;
• Medical book;
• A certificate confirming the average monthly income of a pregnant woman;
• The order on the basis of which the reduction took place

Is it possible to lay off a pregnant employee?

A pregnant woman has special protection from the state. It consists, among other things, in the impossibility of dismissing such an employee. Women in this situation receive the guarantees reflected in Part 1 of Article 261 of the Labor Code of the Russian Federation. It just says that the employer cannot fire an employee during pregnancy, maternity leave and the child reaches 3 years of age. The exception is situations when the company is liquidated. Then the pregnant woman, like other employees, is dismissed with severance pay.

A reduction is not a sufficient reason for a pregnant woman to leave. If the company plans to reduce the number of jobs, then it should in no way affect female employees.

The legislative framework

Do pregnant women have priority rights when making redundancies?

If the management of an enterprise has decided to reduce the number of its employees, it must act in full compliance with the law. The sequence of actions is prescribed in Articles 81 – 180 of the Labor Code of the Russian Federation. In general, the procedure looks like this:

1. the authorized body decides on the need to reduce staff (due to lack of financial reserves, expediency, reduction in production volumes or for other reasons);
2. appropriate changes are made to the staffing table of the enterprise;
3. it is determined which of the employees occupying the same position has a preferential right to retain their job;
4. employees being laid off are notified of the decision in advance in writing;
5. All necessary papers are drawn up, and at the time of dismissal, compensation payments are made.

When considering candidates for layoff, a pregnant woman should be excluded from the possible list, since her dismissal would be illegal. Moreover, such employees do not have a preferential right to retain their position - in principle, they are not candidates for dismissal.

Desire of a subordinate

Let's start with the most common case - dismissal at the initiative of the employee. This form of termination of employment relations with the employer takes place. Usually it implies a voluntary decision that has no connection with staff reduction.

However, some employers try not to fire pregnant women. The Labor Code of the Russian Federation actively protects such employees. And if the latter can prove that their decision regarding dismissal was forced (the employer created conditions that prompted the termination of the employment contract, blackmailed, threatened, and so on), the labor inspectorate will be on the woman’s side. In this case, the employee will have to be reinstated in her position.

We invite you to read: Dismissal of a pregnant woman under a fixed-term employment contract: important nuances

Do they have the right to lay off a pregnant woman? We can say for sure that a woman is able to take the initiative and quit. But what if there are plans to reduce the workforce soon?

Normative base

Article 254 of the Labor Code of the Russian Federation stipulates that an employee for medical reasons can apply for a reduction in working hours. Pregnancy is one of these indications. The employer has the following obligations to the pregnant woman:

• Reducing the duration of a shift at the request of an employee.
• Reducing production standards, if they are present in production.
• Transfer to a workplace with the most favorable conditions.
• Protecting the employee from harmful and dangerous types of production that can negatively affect the woman and the fetus.
• If it takes time to find a suitable vacancy for an employee, she is released from dangerous work throughout the entire period, but receives a full salary.

IMPORTANT! Despite the change in the work schedule, the pregnant woman retains her full salary. If an employee needs to undergo examination or treatment in a hospital setting, she retains her original job and salary for the entire period.

Article 93 of the Labor Code of the Russian Federation stipulates the procedure for reducing shifts. It is determined depending on the wishes specified in the employee’s application. The employer can reduce:

• shift while maintaining a full week;
• shift and week.
• week while maintaining the same shift duration.

How to set up a part-time (shortened) working week ?

Similar benefits are provided to the following groups of persons:

• People who have adopted children.
• Persons with registered guardianship of a child under 14 years of age.
• Employees raising a disabled child under 18 years of age.
• Persons caring for sick relatives (a medical certificate will be required to receive benefits).

ATTENTION! When working hours are reduced, there is no deduction of vacation pay. The length of service is calculated without changes. Salaries are calculated in the same manner: based on hours worked or the totality of work performed.

How to fire a pregnant woman during a layoff?

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In general cases, it is better for an employer not to try to fire a pregnant woman, but to find alternative solutions to the problem. For example, if several people work in the same position, then it is better to choose a “redundant” from the remaining ones. However, there are cases when it is a pregnant woman who needs to be fired (for example, if she is the only one working in a specific position). What to do in such situations? There are several options here:

• Try to negotiate with the employee about dismissal. Few pregnant women will take this step, because then they will lose their job. You can contribute to making a positive decision by providing impressive compensation (here you need to first weigh all the benefits). Moreover, the initiative must come from the employee (at his own request - the ideal option).
• Offer the pregnant woman another position in the company. Then the dismissal of a pregnant woman due to staff reduction will not happen in principle, she will simply move to a new position, receive new responsibilities, a different salary. If a woman refuses a new job, the employer will also not be able to fire her.
• Help in finding another job - for example, recommend a woman to another employer. Then it is quite possible that she will agree to quit.

For pregnant women temporarily performing duties, a slightly different procedure applies. For example, if an employee was hired while another employee was on maternity leave, then the company management may fire the pregnant woman if the first employee returns from maternity leave. However, the employer will first have to offer the pregnant woman another vacant position.

Destruction of a company and dismissal of a woman who is expecting a child

The only legal dismissal of an employee who is carrying a child is the complete liquidation of the institution in which she is listed as a member of the workforce. In the event that the company is completely liquidated, and not just the legal entity of its management is changed, then the owners are not obliged to provide their employees with a new place of work, including pregnant women.

But, nevertheless, the management of a company that is subject to liquidation is obliged to do the following:

1. Notify all your employees about the liquidation in advance. This must be done at least 2 months in advance. It is during this period of time that the pregnant woman will be able to find another place for her activities.
2. All employees must be paid severance pay, which consists of one salary.
3. A woman who is carrying a child, like all other employees, should receive compensation, the amount of which is equal to two monthly salaries.

But, if the company is subject to a merger with another company, or is transferred into the ownership of another legal entity, or is absorbed by other organizations, or sold, then they do not have the right to dismiss an employee who is expecting a child from the workplace, even if the position where she worked is being laid off.

Inevitable

It is still difficult to answer this question unambiguously. As already mentioned, the boss can terminate the employment contract with a pregnant employee due to external circumstances related to the working relationship. There really is such a right, but in practice it is quite rare.

It is allowed to terminate an employment contract with a pregnant woman:

• if the employee whose position was temporarily replaced by a pregnant woman returns to work;
• upon expiration of the concluded employment agreement;
• when a pregnant woman refuses to be transferred to another location and the terms of the employment contract change;
• if a woman is declared unable to continue working.

In reality, everything is not so simple. For example, dismissing a woman because she refuses to be transferred to another location is permitted only when the company as a whole is moving its operations to another location.

When is it possible to fire a pregnant woman?

Dismissal of a pregnant employee is possible only in two cases:

• Upon complete liquidation of the enterprise and termination of its existence as a legal entity.
• Upon expiration of a fixed-term contract for hiring a replacement.

The first point also includes the liquidation of entire divisions of enterprises located in other regions or districts. Upon dismissal, a pregnant woman must therefore be offered a new job, or be paid an allowance in the amount of the average salary for three months.

The second point implies that the employee was employed temporarily, as a replacement for an absent employee, and a fixed-term contract was concluded with her, the end of which coincided with the onset or during the course of pregnancy. Here, the employer has the right to offer another vacancy with her written consent. If it is not possible to find such a vacancy, then the dismissal is considered justified and does not entail any consequences for the administration.

Liquidation of the enterprise

As mentioned earlier, this is one of the possible cases of dismissal of a pregnant woman along with other employees.

Liquidation implies:

• complete cessation of the enterprise's activities;
• abolition of individual divisions in full;

Before the immediate liquidation of the organization, employees must be notified in writing and at least two months in advance. In this case, pregnant women, like everyone else, are entitled to severance pay in the amount of average income. Even if the expectant mother has already received maternity benefits, she is still entitled to benefits by law.

The first severance pay is issued upon dismissal, the second - no earlier than two months after, and the third - after three, if the former employee is not yet employed and is registered with the employment exchange, which is confirmed by a corresponding certificate.

It is worth noting the fact that if a forced dismissal has already occurred, and there is approximately a month left before maternity leave, then the former bosses are not legally obligated to pay for it.

Fixed-term employment contract with a pregnant woman

If an employee works in an organization under a fixed-term employment contract and is pregnant at the time of its expiration, then the employer is obliged to extend the relationship with her until the end of the pregnancy.

You can terminate cooperation in the following cases:

• on the initiative of the employee herself;
• by mutual agreement;
• if the employee was hired as a replacement and, upon expiration of the contract, it is not possible to offer her another position;
• if the pregnant woman has not completed the necessary measures to extend the contract, namely a written application with an attached certificate of pregnancy;

Possible consequences

If an employer, knowing that his employee is pregnant, fires her anyway, he must be prepared for litigation (and the woman will certainly be reinstated in her position and demanded to pay wages for the entire time of the unjustified dismissal). But this is not the worst thing that management will expect. Responsibility for such an act is provided for in Article 145 of the Criminal Code of the Russian Federation. It could be as follows:

• fine - up to 200,000 rubles or in the amount of 18 salaries of the perpetrator;
• compulsory work – up to 360 hours.

We suggest you read: The day of dismissal falls on a day off: is it possible to fire an employee?

If a woman was laid off, and then it turned out that she was pregnant, then it is better for the employer not to wait for the court’s decision, but to try to resolve the issue peacefully - to cancel the layoff order and restore the employee to her position.

Responsibility of the employer for illegal dismissal from work during layoffs

Article 145 of the Criminal Code of the Russian Federation regulates all unlawful refusals of employment, as well as facts of illegal dismissals.

According to this article, an employer who decides to take illegal dismissal actions may be punished either with a fine or correctional labor.

Penalties are up to 200,000 rubles. The amount can be replaced by the amount of 18 monthly salaries.

It also provides for punishment in the form of correctional labor for the manager for a period of up to 360 hours.

Dismissal of a pregnant woman is an action that contradicts the Labor legislation of the Russian Federation. It is necessary to think carefully before putting pressure and moral pressure on a woman in a position, demanding that she quit. The law strictly protects the rights of pregnant women, so you should not commit a crime for a small gain.

To summarize, we note that a reduction is a reduction in the number of employees due to the reduction of positions or the exclusion of any unit from the staffing table. Dismissing a pregnant woman due to a reduction in headcount or staffing is prohibited by law. Dismissal is possible only if the organization is completely liquidated. If an employer dares to break the law, he will face severe punishment in the form of a fine or correctional labor.

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As it turned out, it is strictly prohibited to lay off a pregnant woman at an enterprise. But if the head of the enterprise decided to fire her, then the mind will face certain punishment.

If a pregnant woman is illegally fired, you should seek help from Article 145 of the Criminal Code of the Russian Federation, which talks about illegal refusal, hiring, as well as illegal dismissal.

According to this article, the head of an enterprise who decides to illegally lay off a pregnant woman will face either fines or correctional labor.

Thus, we conclude that pregnancy and contraction are simply unacceptable. Before cutting a pregnant woman, you need to think things through very carefully. The law very strongly protects the rights of women who are expecting a child, so there is no point in risking the company’s reputation.

Employer initiative

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:

• fine - up to a maximum of 200,000 rubles;
• 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.

Do they have the right to lay off a pregnant woman? Theoretically, the employer himself can terminate the employment relationship with his subordinates. For example, if they do not meet work requirements.

But in the case of pregnant women, everything is somewhat different. Current labor legislation prohibits employers from dismissing employees in an “interesting” position. This is only possible in the situations listed above.

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:

1. If a pregnant woman worked for an Individual Entrepreneur, and he ceases his commercial activities due to the expiration of the state registration certificate;
2. 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.

3. 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.
4. 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.

Does pregnancy time affect contraction?

When reducing staff, the employer must first find out whether any of the employees are expecting a child. This will avoid problems in the future. If someone finds themselves in a situation, then it is necessary to request the appropriate certificate and, on its basis, exclude the employee from the list for layoffs.

The woman herself has the right to report pregnancy not only before immediate notice of layoff, but also in later periods - two months before dismissal and even after dismissal.

It happens that an employee becomes pregnant after receiving a layoff notice. But even then they won’t be able to fire her. Then the reduction procedure is suspended, for which a special order is issued. And management is looking for alternative options to reduce staff.

Due to stress or other reasons, a woman may lose her child before a court decision is made on her restoration. Even then, she does not lose the right to return to work, since the fact of unlawful dismissal remains, because at the time of dismissal the employee was expecting a child.

If a woman becomes pregnant immediately after dismissal, then the employer’s actions will be considered lawful and the court will refuse to reinstate the former employee. This is perhaps the only acceptable reduction option.

Procedure for dismissal of a pregnant employee or maternity position

To protect yourself from dismissal according to Art. 261 of the Labor Code, a woman must provide her management with a document issued by a medical institution confirming her physiological condition. From the moment the employer is notified, the employment of a pregnant woman is protected by law, even if the employee was notified of the termination of the employment relationship before she brought the certificate.

During vacation

During the absence of a woman expecting a child, her job, according to the law, is reserved for her. There are two types of leave granted to her sequentially:

1. For pregnancy and childbirth - given two months before the expected date of birth. May last from 4 to 6 months.
2. Child care – up to 3 years.

During none of these periods does the Labor Code allow a woman to be fired. Dismissal is possible only if:

• the emergence of her own desire to quit;
• Liquidation of company;
• the company is declared bankrupt;
• termination of the entrepreneur's activities.

If one of the last three options occurs, then the employee must be notified in writing two months in advance; she confirms the fact of familiarization with her signature. During this period, a woman has the opportunity to find another job or register with the labor exchange: this way she will retain the child care benefit that she is entitled to by law.

But if the reduction does occur, then on the last day she is given a work book, a certificate of income for two years, and also makes all the necessary financial deductions. For example, if a dismissal occurs due to the liquidation of a company, then the following is charged:

• payment for the entire period worked and unused vacation;
• financial assistance in the amount of a month’s salary;
• compensation for sick leave for pregnancy and childbirth.

IMPORTANT! For other reasons, a reduction in maternity leave is impossible under any pretext. The employee's length of service and position are retained until she returns to work.

When it comes to reducing the position occupied by a pregnant woman, and not about the staff reduction procedure, the law also provides some guarantees. In this case, she must be provided with another suitable site and a volume of work that will satisfy her.

After leaving maternity leave

At the end of her maternity leave, the employee must return to her workplace to perform the same duties. The form of labor relations during this period should not change at the initiative of the employer, but there are cases when a proposal is received from management to move to another similar or higher position. This can happen with the woman’s written consent (writing a statement), but only after the termination of the maternity leave.

However, sometimes at the end of the vacation period, employers no longer need such an employee. They justify their decisions by the fact that during her absence changes have occurred that she cannot cope with: supposedly professional skills and abilities have been lost. In this case, the woman is recommended to go to court, which is highly likely to be on her side. It will be very difficult for the employer to prove her incompetence.

ATTENTION! An employer has no right to force a young mother to leave maternity leave early.

Downsizing - is it dangerous?

Do they have the right to lay off a pregnant woman? If you carefully study all the previously listed features and refer to the Labor Code of the Russian Federation, you can come to the conclusion that the category of personnel being studied is one of the most protected. It will not be possible to simply terminate the employment relationship with her. There must be good reasons for this.

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Despite the fact that staff reduction is often a forced measure, the employer cannot use it to get rid of a pregnant employee. Retrenchment is not a legal basis for terminating an employment contract. This means there is nothing to be afraid of.

Real picture

Now it’s clear whether a pregnant woman can be laid off. The legislation of the Russian Federation indicates that the employer does not have the right to do this. Regular employees are allowed to be laid off, but vulnerable categories of subordinates cannot be touched.

Often the real situation is somewhat different. There are not many conscientious employers in Russia. The majority of them try not to get involved with girls who are planning a pregnancy or who are already in an “interesting” situation. And if a subordinate was able to find a job, then she is more likely to have problems in the future.

Can a pregnant woman be laid off? In case of reduction, this category of citizens cannot be touched by law. But not everyone knows about this. Therefore, pregnant girls often become victims of illegal dismissal.

You should also pay attention to the fact that employers often force their employees to quit on their own. According to the laws of the Russian Federation, the boss is obliged to transfer a pregnant woman to light work and, at the woman’s initiative, provide a shortened working day. In practice, this does not always happen. Rather, everything turns out exactly the opposite - the boss does not make any concessions to pregnant women, creating uncomfortable working conditions.

Due to such circumstances, women simply quit of their own free will. The corresponding entry is made in the work book, the employer remains safe. After all, the Labor Code does not prohibit subordinates from independently leaving their previous place of work. This is the most favorable outcome.