FIXED-TERM CONTRACT WITH A PREGNANT WOMAN: WHEN NOT TO RENEW, AND WHEN TO RENEW

Although it is believed that in our country there is no discrimination based on gender, nevertheless, many employers are reluctant to hire young girls who do not have children. However, young mothers cannot relax either. For those who already have at least one child, HR specialists invariably ask whether more children are planned. This is due to the fact that employers do not want their employees to go on maternity leave. It is also possible to understand them: a valuable employee who is in her place and effectively performs her duties in the event of pregnancy will have to look for a replacement. And this is a waste of time, resources, paperwork, etc.

But if pregnancy does occur, what should the employer do in this case? Is it possible to fire an employee working under a fixed-term contract, part-time or on a probationary period? Let's look at these and some other situations in more detail.

Question: Can an employer fire a pregnant part-time employee in connection with the hiring of an employee for whom this work will be the main one? View answer

What does the law say about dismissing a pregnant woman?

Since the rights of women expecting a child are protected in a special way, from the point of view of the law, it is almost impossible to fire an employee who becomes pregnant, regardless of her position and status. That is, if a woman does not want to leave her job, then the opposite desire of the employer does not matter. However, this is clearly interpreted if a pregnant woman is on the staff of the enterprise, but what if not?

How to fire a pregnant woman during liquidation of an organization ?

Dismissal of a pregnant woman working under a fixed-term contract

All of the above also applies to those pregnant women who previously entered into a fixed-term contract with their employer. It is strictly forbidden to fire a conscript if she:

expressed in writing a desire to extend the validity of a fixed-term employment contract, that is, wrote a corresponding application;
provided a certificate from a medical institution confirming pregnancy.

Important! A certificate of pregnancy must be brought to the employer every three months, until the birth.

In cases where a young woman on a fixed-term contract continues to work after the birth of a child, the employer has every right, on his own initiative, to terminate this contract with her due to its expiration.

Question: Is it legal to dismiss a pregnant woman due to the expiration of the employment contract (Clause 2, Part 1, Article 77 of the Labor Code of the Russian Federation), if she did not apply for its extension and did not provide a medical certificate confirming pregnancy? View answer

When an employment contract with a pregnant woman expires, the employer is faced with a dilemma: fire or keep? Of course, many, guided by moral principles, do not even raise this issue, but this is not all. And besides, a lot also depends on what documents she presents, and on the reason for which the fixed-term contract was concluded. Let's look at the question of how to comply with the law without imposing on yourself an extra employee who will have to be provided with work for an indefinite period.

According to Part 1 of Art. 79 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), a fixed-term employment contract is terminated when its term expires. However, Part 2 of Art. 261 of the Labor Code of the Russian Federation establishes special rules for pregnant women - they are not fired if the contract period, determined by a specific date, expires during pregnancy. In such a situation, you will have to extend the contract until the end of the pregnancy, regardless of the reasons, and if a child is born, until the end of maternity leave. In other cases, such as abortion, miscarriage, etc., you can fire a woman within a week from the day you learned or should have learned about the end of pregnancy (part 2 of article 261 of the Labor Code, paragraph 27 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 28, 2014 No. 1, hereinafter referred to as Resolution of the Plenum of the Armed Forces of the Russian Federation No. 1).

Note. Extend a fixed-term contract with a date until the end of pregnancy if there is a written statement from the woman and a certificate of pregnancy. Fire a pregnant woman due to the departure of a key employee if you have no other job that she can do due to health reasons. If the pregnancy is over, obtain supporting documents from the employee. This will indicate to the court your integrity.

What to do with a pregnant conscript?

To protect yourself from potential abuse, explain to the pregnant woman in writing her right to extend the term of her employment contract. If he refuses, record this fact in writing.

To extend the contract, ask the pregnant employee for a written application and a medical certificate confirming pregnancy. Then she must bring such a certificate no more than once every three months (Part 2 of Article 261 of the Labor Code of the Russian Federation).

Familiarize the woman with written requests for a medical certificate to be signed. If he doesn’t want to sign, draw up a document about it. After all, if you did not demand a certificate from the employee, then she is not obliged to present it. By the way, the form of a medical certificate confirming pregnancy is different in each region.

Conclude an additional agreement to the employment contract on its extension in connection with pregnancy. Fix the new validity period (paragraph 4, part 2, article 57, article 72 of the Labor Code of the Russian Federation). Then issue an order in any form to extend the term of the employment contract.

If the woman did not express a desire to extend the contract and did not submit an application and certificate, notify her three calendar days before the expiration of the contract and dismiss her (Part 1 of Article 79 of the Labor Code of the Russian Federation). Employers who terminate fixed-term employment contracts in such cases are usually supported by the courts (Appeal ruling of the Nizhny Novgorod Regional Court dated June 20, 2017 in case No. 33-5859/2017). Do not make an entry in the work book about the term of the employment contract (Letter of Rostrud dated 04/06/2010 No. 937-6-1).

“Clearing space” for the main employee

In the case where a fixed-term contract was concluded to replace an absent employee, the pregnant woman can also be fired. But only if it is impossible to transfer her to another job before the end of pregnancy, which she can perform taking into account her health condition.

Offer vacancies that correspond to the qualifications of the employee, as well as lower-level positions or lower-paid work (part 3 of article 261 of the Labor Code of the Russian Federation, paragraph 2 of paragraph 27 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 1). If a vacancy was offered and the employee refused the transfer, the dismissal will be legal (Resolution of the Presidium of the Volgograd Regional Court dated January 25, 2017 No. 44G-17/2017, Appeal ruling of the Vladimir Regional Court dated November 30, 2017 in case No. 33-4729/2017). A fixed-term employment contract with a pregnant employee is also terminated if the employer does not have another job for the employee, including a lower-paid one.

If you do not offer the employee vacant positions, the court will reinstate her until the end of her pregnancy. In this case, the courts usually apply Part 2 of Art. 261 of the Labor Code of the Russian Federation - on the extension of the contract until the end of pregnancy (Appeal ruling of the Supreme Court of the Chuvash Republic dated October 29, 2014 in case No. 33-4282/2014).

But the Moscow City Court in a number of cases reinstated workers until the end of pregnancy, regardless of whether the employer followed the dismissal procedure (Appeal rulings dated May 24, 2017 in case No. 33-19292/2017, dated January 16, 2017 in case No. 33-0880/ 2017).

There are two approaches to the dismissal day. First, the day of dismissal of a pregnant woman is considered the last working day preceding the day of dismissal of the main employee (Part 3 of Article 79 of the Labor Code of the Russian Federation, Letter of Rostrud dated October 31, 2007 No. 4413-6). The second approach is that the date of dismissal will be the day the main employee returns to work (Appeal rulings of the Altai Regional Court dated May 29, 2013 in case No. 33-4093/13, Stavropol Regional Court dated May 7, 2013 in case No. 33-2268/2013). Both positions do not contradict the law.

“Did I give birth, or didn’t I give birth?”

If the pregnancy has ended and the woman continues to work, then she can be fired due to the expiration of the contract within a week from the day the employer learned or should have known about the end of the pregnancy. The end of pregnancy means the birth of a child, miscarriage, abortion for medical reasons, etc. (Part 2 of Article 261 of the Labor Code of the Russian Federation, paragraph 1, 3, paragraph 27 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 1).

Neither the law nor regulatory authorities explain how an employer should find out about the end of pregnancy. But if the company decides that the pregnancy is over, based on external signs, without documentary evidence, the court will declare the dismissal illegal.

The employer learns about the termination of pregnancy from a document presented by the woman. It could be:

- certificate from the registry office about the birth of a child (until October 23, 2018 - according to form No. 24, approved by Decree of the Government of the Russian Federation of October 31, 1998 No. 1274, from October 24, 2018 - according to form No. 1 (No. 3 - on the birth of a still child), approved By Order of the Ministry of Justice of Russia dated October 1, 2018 No. 200);

- child’s birth certificate (from 10/01/2018 - in the form approved by Appendix No. 1 to Order of the Ministry of Justice dated 08/13/2018 No. 167);

— an extract from the medical record of an outpatient or inpatient patient according to form 027/u (approved by Order of the USSR Ministry of Health dated October 4, 1980 No. 1030 (Letter of the Ministry of Health and Social Development of Russia dated November 30, 2009 No. 14-6/242888));

— discharge summary containing information about the course of pregnancy, childbirth, the postpartum condition of the mother in labor, all data about the newborn immediately after birth and during discharge from the hospital (height, weight).

If the employee does not bring any documents, then it is difficult to prove the end of the pregnancy. After all, she is obliged to confirm with a medical certificate no more than once every three months, as we have already discussed above, her condition, but not the end of pregnancy (Part 2 of Article 261 of the Labor Code of the Russian Federation).

In practice, some employees do not notify about the birth of a child or another reason for the end of pregnancy, so as not to be fired. The court may recognize this as an abuse of right and refuse to extend the term of the contract or reinstatement at work (paragraph 2, paragraph 27 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2). But he may not admit it.

If the employee does not provide the required documents, exercise caution and proceed as follows. Request in writing another medical certificate confirming pregnancy, provided that the previous woman brought it no earlier than three months ago. But even if the employee does not submit a certificate on time, this is only an indirect sign of the end of the pregnancy. The company's position in court will still be vulnerable.

To reduce the risk of a dispute, it is better to establish in a local act the payment of significant one-time financial assistance to workers with whom fixed-term contracts have been concluded. They will receive a cash payment upon dismissal if they present a document confirming the end of their pregnancy. This measure motivates workers to bring the necessary documents.

Extend a fixed-term contract with a date until the end of pregnancy if there is a written statement from the woman and a certificate of pregnancy. Fire a pregnant woman due to the departure of a key employee if you have no other job that she can do due to health reasons. If the pregnancy is over, obtain supporting documents from the employee. This will indicate to the court your integrity.

In conclusion, we note: the legislation does not prevent the termination of an employment contract with a pregnant woman on the initiative of the employee herself (clause 3, part 1, article 77 of the Labor Code of the Russian Federation) or by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation). The first case is possible only if the employee herself wishes, expressed in a written statement addressed to the head of the organization (Article 80 of the Labor Code of the Russian Federation). Dismissal is possible both after the two-week work period established in the Russian Federation, and by agreement between the employee and the employer on any day. If an employee changes her mind about quitting and withdraws her application, she cannot be fired (Part 4 of Article 80 of the Labor Code of the Russian Federation).

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.

Dismissal of a pregnant woman on probation

Obviously, it is almost impossible for a woman with a noticeably rounded tummy to get a job. But if a personnel employee did not immediately notice the signs of pregnancy, but paid attention to them already during the probationary period, what can be done in this case?

As the law says, if the fact of pregnancy was discovered while the woman was on probation, then she cannot be fired.

However, to confirm pregnancy, a woman must present a corresponding certificate from a doctor. Thus, the employer organization will have to cancel the probationary period and maintain the woman as a staff member until the birth.

What are the features of dismissing a pregnant woman upon expiration of a fixed-term employment contract ?

Forewarned is forearmed

A pregnant woman should be aware of her rights and responsibilities if working under such an agreement. After all, ignorance of the law, let us remind you, does not exempt her from responsibility. This is the first time, and secondly, knowledge of the legal subtleties will help protect yourself and your child if necessary. Even if the employer feels that you, as they say, are on top of things, then these are only additional “pluses” in your favor.

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.

Maternity leave

Maternity leave for a fixed-term employment contract is paid. However, the rules for his payment do not differ from those that apply to main workers. The amount of the benefit is determined by the length of the insurance period and the woman’s salary.

If the insurance period has not reached six months, then the benefit, as well as sick leave for other reasons, will be calculated based on the minimum wage established in the region. The enterprise will pay directly only the first three days of benefits, and the rest will be paid by the Social Insurance Fund. It is not possible to dismiss an employee before the end of maternity leave.

An employer's refusal to pay for maternity leave is illegal and can be appealed in court.

A fixed-term employment contract and pregnancy require an understanding of certain nuances from both the employer and the woman herself. In most cases, the law reserves the expectant mother’s right to work until the end of pregnancy or the end of maternity leave. But when a woman is employed on a replacement basis, the departure of the absent employee gives the employer the full right to terminate the employment agreement with her.

To avoid unfounded accusations in court, the employer should be extremely careful about the procedure for dismissing a pregnant employee. And in order not to be illegally fired, the expectant mother needs to know her rights and, if they are infringed, feel free to go to court, since the law protects her interests.

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:

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

You can't get fired!

The issue of unilateral termination of employment relations with a pregnant woman signed under a fixed-term contract does not require additional clarification. After all, an employer does not have the right to fire a pregnant woman on his own initiative. The guarantees of a pregnant woman in this case are enshrined in Art. 261 Labor Code of the Russian Federation. The only exception to this rule are cases when we are talking about the liquidation of an organization or enterprise, or the termination of the activities of a private entrepreneur. It should be noted that in practice there are cases of liquidation of a company in order to legally dismiss a pregnant woman. But these are most likely exceptions to the rules and rare cases.

Most employers are lenient towards pregnant employees, and try to resolve all controversial issues through calm and mutually beneficial negotiations. Believe that this will be the case in your case too.

Especially for beremennost.net Elena TOLOCHIK