Dismissal of a pregnant woman in 2021

Can a pregnant woman be fired at her own request?

Labor legislation provides for separate guarantees aimed at ensuring the protection of the labor rights of pregnant women. In parallel with this, the Labor Code of the Russian Federation (hereinafter referred to as the Code) contains a rule that provides the opportunity for any employee to terminate the employment relationship on his own initiative.

How do these two principles interact, and does an employee in a position have the right to pay off work if she has such a desire? What responsibility awaits the employer who deliberately influenced a pregnant woman, inducing her to resign?

Note! The Code in Article 261 defines the prohibition of the employer’s initiation of dismissal of an employee in the provision, but at the same time contains instructions on exceptions to this rule:

when an individual entrepreneur ceases his activities, or when an organization where a pregnant woman works is subject to liquidation in accordance with the procedure established by law (liquidation can occur either at the initiative of the organization or in accordance with a court decision),
when a woman is employed under the terms of an employment contract with the replacement of the main specialist for the period of his absence, however, on the condition that the employee cannot be replaced with another job that she could perform with an emphasis on her health.

In any other situation not covered by these exceptions, dismissal will be prohibited and, if carried out, illegal.

When a pregnant employee has entered into a fixed-term contract, but it is coming to an end, the employer must extend its term until the moment of childbirth or until the end of the granted leave in connection with pregnancy (childbirth).

The law prohibits the dismissal of employed employees, even if she commits absenteeism. However, this does not deprive the employer of the opportunity to apply a disciplinary sanction determined by the terms of the internal action documents, provided that this does not contradict the law.

For example, a woman is deprived of the bonus that is usually awarded, etc. Does this mean that the employee has no opportunity to independently terminate the employment relationship with the employer? Of course not. Article 261 of the Code does not define such restrictions; therefore, the provisions of Article 80 of the Code apply.

And during pregnancy, employees have the right to independently initiate dismissal and pay in full. But in this case, both parties to the terminated employment relationship must take into account many features of such a decision.

On the right of pregnant women to unilaterally refuse an agreement to terminate an employment contract

Most recently, I had the opportunity to represent and defend in court a position with which I, as a lawyer, did not fully agree. I don’t know about you, dear colleagues, but from my almost eight years of judicial practice I have never remembered a similar case in which I would have had to come out with a point of view that was alien to me. And this cognitive dissonance immersed me in some reasoning, pushing me to present some thoughts by writing this material.

At the stage of the client contacting me, I expressed and first of all determined for myself a fairly high probability of resolving this case in court not in favor of the client, and I already wanted to refuse it. But since the issue was quite delicate, and the client definitely had the intention of going to court and expressed a desire for me to represent his interests, it was decided to nevertheless appear in court to defend this position. At the same time, the client, having been informed of the ambiguity of the position, was well aware of the prospects of this case.

That's all about the sentimental part, let's get down to business.

The case that I had to work with in practice is the following: the employer and the employee entered into an agreement to terminate the employment contract (Article 78 of the Labor Code of the Russian Federation), which was the basis for issuing the corresponding order and terminating the employment contract under paragraph 1 of part one of Article 77 of the Labor Code RF.

One and a half months later from the date of actual termination of the employment contract, the employee learns that she is pregnant for a period of 7-8 weeks. On this basis, a decision was made to contact the former employer with a request to terminate the previously concluded agreement to terminate the employment contract.

Being a complete civilist and not often practicing in labor disputes recently, I was faced with the idea of the impossibility and inadmissibility of unilaterally terminating such an agreement, as it does not express the mutual and agreed will of the parties.

The same idea was confirmed in paragraph 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation,” which states that when considering disputes related to the termination of an employment contract by agreement of the parties (clause 1 of part one of Article 77, Article 78 of the Labor Code of the Russian Federation), courts should take into account that in accordance with Article 78 of the Code, when an agreement is reached between the employee and the employer, an employment contract concluded for an indefinite period or a fixed-term employment contract can be terminated at any time within the period determined by the parties. Cancellation of an agreement regarding the period and grounds for dismissal is possible only with mutual consent of the employer and employee.

A similar position was reflected in the ruling of the Constitutional Court of the Russian Federation dated October 13, 2009 N 1091-О-О “On the refusal to accept for consideration the complaint of citizen Anatoly Nikolaevich Preminin about the violation of his constitutional rights by Article 78 of the Labor Code of the Russian Federation,” in which, in in particular, the following was stated: “Freedom of labor also implies the possibility of terminating an employment contract by agreement of its parties, i.e. based on the voluntary and agreed expression of will of the employee and employer. Reaching an agreement to terminate an employment contract on the basis of a voluntary agreement of its parties allows for the possibility of annulment of such an agreement solely through the agreed expression of will of the employee and the employer, which excludes the commission by both the employee and the employer of arbitrary unilateral actions aimed at abandoning a previously reached agreement. Such legal regulation is aimed at ensuring a balance of interests of the parties to the employment contract and cannot be considered as violating the constitutional rights of the employee.”

Well, at this point, a good lawyer would probably put an end to the case and go on to deal with more promising cases. But it was not there. The study of judicial practice on this issue also revealed a different position, and not just anywhere, but in the Supreme Court itself (!!!), which considered a case with a similar plot and overturned judicial acts of lower courts that refused to an employee who learned about the state of pregnancy after the conclusion of the agreement on termination of the employment contract, the right to reinstatement at work, expressing the following position: “In accordance with Part 1 of Article 37 of the Constitution of the Russian Federation, labor is free; Everyone has the right to freely use their ability to work and choose their type of activity and profession.

As follows from the legal position of the Constitutional Court of the Russian Federation, set out in resolutions of December 27, 1999 No. 19-P and March 15, 2005 No. 3-P, the provisions of Article 37 of the Constitution of the Russian Federation, stipulating the freedom of the employment contract, the employee’s right and the employer, by agreement, to resolve issues related to the emergence, change and termination of labor relations, predetermine, at the same time, the obligation of the state to ensure fair conditions of employment and dismissal, including adequate protection of the rights and legitimate interests of the employee, as the economically weaker party in the labor relationship, when termination of an employment contract at the initiative of the employer, which is consistent with the main goals of the legal regulation of labor in the Russian Federation as a social legal state (Part 1 of Article 1; Article 2 and the Constitution of the Russian Federation).

According to paragraph 1 of part one of Article 77 of the Labor Code of the Russian Federation, the basis for termination of an employment contract is the agreement of the parties (Article 78 of the Labor Code of the Russian Federation).

Article 78 of the Russian Federation establishes that an employment contract can be terminated at any time by agreement of the parties to the employment contract.

Part one of Article 261 of the Labor Code of the Russian Federation provides that termination of an employment contract at the initiative of an employer with a pregnant woman is not allowed, except in cases of liquidation of the organization or termination of activities by an individual entrepreneur.

By virtue of Part 3 of Article 11 of the Code of Civil Procedure of the Russian Federation, in the absence of rules of law regulating a disputed relationship, the court applies rules of law regulating similar relations (analogy of law), and in the absence of such rules, resolves the case based on the general principles and meaning of the legislation (analogy of law) .

Protection of pregnancy, including through the establishment of guarantees for pregnant women in the world of work, is, according to the International Labor Organization Convention No. 183 “On the Revision of the Maternity Protection Convention (Revised), 1952” (concluded in Geneva on June 15, 2000) general responsibility of governments and society (preamble).

In paragraph 25 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated January 28, 2014 No. 1 “On the application of legislation regulating the work of women, persons with family responsibilities and minors” it is explained that since the dismissal of a pregnant woman at the initiative of the employer is prohibited, the employer’s lack of information about her pregnancy is not a basis for refusing to satisfy a claim for reinstatement at work,” and further, “Within the meaning of the rules of substantive law to be applied to the disputable relations of the parties, the statement of Sharanova E.V. refusal to fulfill the agreement reached with the employer to terminate the employment contract due to her pregnancy, which she did not know about at that time, indicates that the agreement of the parties to terminate the employment contract cannot remain in effect due to the lack of expression of will employee.

A different interpretation of these regulatory provisions would lead to a limitation of the scope of labor rights of an employee who has entered into an agreement with the employer to terminate the employment contract and is deprived of the opportunity, due to the prevailing circumstances, to refuse to fulfill the agreement, and, as a consequence, to a refusal to provide legal guarantees to the employee, in particular guarantees from dismissal to a pregnant woman. Consequently, the guarantee in the form of a ban on dismissal of a pregnant woman at the initiative of the employer, provided for in part one of Article 261 of the Labor Code of the Russian Federation, is also subject to application to relations arising upon termination of an employment contract by agreement of the parties (clause 1 of part one of Article 77 of the Labor Code of the Russian Federation)” (see definition Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation No. 37-KG14-4 dated September 5, 2014).

I tracked the history of this case (fortunately, all the judicial acts of the lower courts were posted in the State Automated System of Justice), in which, during a new consideration of the case by the court of first instance (after it was returned there by the Investigative Committee for Civil Cases of the Armed Forces of the Russian Federation), a decision was now diametrically opposed - to satisfy claims of citizen Sharanova E.V. with the motivation verbatim reproducing the indicated position of the RF Armed Forces.

Summarizing the above, it should be concluded that the Supreme Court of the Russian Federation (in the absence of legal regulation and in view of this) formulated a legal position that from the general rule on the inadmissibility of unilateral cancellation of an agreement to terminate an employment contract there is (or should be) an exception, and the subject of this exceptions are pregnant women.

As it turned out, the position on the admissibility of refusal to terminate an employment contract under a previously concluded agreement on this and the need to satisfy the requirement for unilateral refusal by pregnant women was reflected in judicial practice earlier, before the above-mentioned ruling was made by the Investigative Committee in civil cases of the Armed Forces of the Russian Federation, but there were also equally opposite judicial acts. Moreover, this position of the judicial panel of the Armed Forces of the Russian Federation was adequately perceived later by the courts at the level of the constituent entities, and also, among other things, by the Tyumen Regional Court, which overturned the decision of the Leninsky District Court of the city of Tyumen (the same one where we had to go to trial, but within the framework of another similar case) about the refusal to satisfy the relevant demands of the plaintiff and reinstated him at work, while completely reproducing the specified position of the Armed Forces of the Russian Federation.

It would seem that now I have something to go to court with, but my harmfulness did not allow me to agree with the legal justification of the analogy of law applied by the Supreme Court, namely, I could not accept for myself the application of part 3 of article 11 of the Code of Civil Procedure of the Russian Federation (the norm governing procedural relations) to labor relations (material relations). And what kind of analogy we were talking about is not entirely clear, since dismissal on the initiative of the employer and dismissal by agreement of the parties, in my opinion, are not analogous.

But I did not see the fault of the RF Armed Forces, because from the point of view of social justice, expressed primarily in the preservation of social guarantees provided by law to pregnant women, such judicial activism in the absence of direct legal regulation and demonstrated paternalism in relation to the weaker side of the labor relationship, and even in such a special position, one can only welcome. After all, probably no one will argue with the fact that it would be fair if a woman received benefits from the Social Insurance Fund, which was formed, incl. and through deductions from her salary, and did not beg, deprived of this opportunity (realization of this right), because in general, the unemployed do not have the right to receive maternity benefits, and also have the right to receive child care benefits up to 1.5 years only in the minimum possible amount. At the same time, it should be noted that the employer in this case does not bear any negative financial consequences, since, as indicated, the source of these payments is the Social Insurance Fund. I saw another problem and another culprit for this state of affairs - our law writer, who, alas, ignored many of the gaping issues of labor legislation. In relation to the case under consideration, I believe that it is necessary to discuss and resolve issues about the possibility of applying the analogy of law and the analogy of law in labor relations, since practice periodically runs into gaps in their regulation and the courts, occupying a role that is not typical for them, are forced to fill it. A more detailed regulation of the relations that arise regarding the conclusion of an agreement to terminate an employment contract deserves special attention, since the current legislation, other than indicating the possibility of terminating an employment contract on such grounds, does not contain any additional regulation. Thus, the law does not contain answers to questions about what form this agreement should be concluded, whether there should be any conditions essential for such an agreement and, if so, what they should be, how long before the expected termination can be such an agreement has been concluded, is it possible to unilaterally terminate such an agreement or refuse it (cancellation) before its actual termination, as well as after and, if the answer is in the affirmative, then which of the parties and on what grounds.

Above, I began my story with the fact that I was initially struck by the thought of the impossibility and inadmissibility of terminating such an agreement unilaterally, as it does not express the mutual and agreed will of the parties. However, in the process of working on the case, I wondered how, in fact, such a position on the inadmissibility of unilateral refusal to terminate a previously concluded agreement could be justified. And I did not find such a justification. After all, equality of the parties is still the guiding principle of civil relations, whereas in labor relations the employee is the socially and economically weaker party, requiring more legal protection from the state. And so I came to the conclusion (rather at the level of conviction) that the position of the Constitutional Court and the Supreme Court stated above about the impossibility of unilateral refusal (cancellation) of an agreement to terminate an employment contract cannot be considered justified, since neither the general principles, nor the goals, nor the objectives , nor directly the norms (which, in general, do not exist) do not imply or contain such a prohibition. These circumstances again speak in favor of the need for special regulation of such relations.

Of course, special regulation is also required in relation to the termination of an employment contract by agreement of the parties with pregnant women (in the context of the social significance of the issue raised and the preservation of guarantees for pregnant women). For example, I believe it is necessary to regulate the possibility of granting pregnant women the right to unilateral refusal (cancellation) of such an agreement, fixing the deadline for filing an application for annulment of the agreement from the moment the woman learned about the state of pregnancy, in order to eliminate the possibility of abuse of the right, based on the fact that that failure to apply without good reason within the prescribed period should be qualified as a woman’s voluntary refusal of state guarantees related to pregnancy and childbirth.

With regret, it must be admitted that our legislators and subjects who have the right to legislative initiative have neglected these (no doubt important) issues.

In conclusion, it should be noted that in this material I deliberately omitted special cases and specific circumstances of the above case, which, of course, influenced the decision made by the court, but are still obiter dictum, and, in turn, tried to focus attention on those its circumstances, regarding which it is necessary to develop universal rules.

Dismissal due to a fixed-term employment contract and other unavoidable circumstances

There are also other situations when the fact of dismissal of an employee, regardless of her position, is provided for by the terms of the contract or occurs regardless of the circumstances. What is meant:

the period during which the employment contract (hereinafter referred to as TD) is valid expires, in accordance with paragraph 2 of Article 77 of the Code,
Despite the fact that women in this position are legally provided with labor guarantees, this category of workers can still be fired. As a standard, in order to terminate the employment relationship of the parties, the completion of the TD is sufficient. But this rule for pregnant women has an exception.

When the parties consider that the employment relationship has come to an end, the standard procedure for ending it occurs. But if the employee takes the initiative and, with a separate statement, expresses her desire to extend the TD, the employer is obliged to fulfill her request, even when it comes to a fixed-term contract.

All a woman needs is to fill out an application and provide honey to confirm her pregnancy. document from the institution where she is being observed. In the future, such a certificate will need to be periodically submitted to the employer if the latter requests it. The document is provided with a maximum frequency of once every three months.

Note! The completion of pregnancy provides the employer with the legal right to terminate the relationship with the employee within a week from the moment of notification of this circumstance.

When a pregnant employee worked in the place of a separate specialist, performing his job duties, then from the moment of his release, the woman is offered any of the vacancies in the organization that she could fill, taking into account her qualifications and medical indications.

If she refuses all the jobs offered by the employer, the employee is already legally dismissed - a change in the terms of the labor contract previously determined by the parties (clause 7 of Article 77 of the Code), as well as reluctance to transfer work if the employer moves to another area (clause 9 of Article 77 of the Code) .

When the labor conditions initially determined by the employer during the conclusion of the TD change, including the employer’s move to another location, then the termination of the employment relationship with an employee expecting a child is also recognized as legal.

Is it possible to fire a pregnant woman for absenteeism?

When an organization moves to completely transfer its activities to another location, or the labor conditions (organizational and technical) are fundamentally changed, which the pregnant employee, due to her position, is not able to comply with, the labor relationship is terminated.

What exactly will happen in the event of a fundamental change in the organizational and technological process in the organization, if the position held by the pregnant woman is reduced, or if the new conditions turn out to be unacceptable for the expectant mother?

Under such circumstances, the employee must be provided with all possible conditions for continuing to work in the organization, including transfer to an acceptable position. If not a single offer from the employer is accepted and there are no other possible vacancies, the TD is subject to termination.

Other circumstances that cannot depend on the will of the parties (Article 83 of the Code)

Important! In labor legislation, there are some additional grounds for which an employee in this position may be fired:

if the position held by the employee is restored on the basis of a court decision of the previous employee,
the employee’s incapacity for work has been officially recognized, and therefore she cannot continue to work,
cases of disqualification or expiration of the period during which the admission (license) is valid, if necessary to perform job duties, etc.

Such circumstances are not a manifestation of the employer’s initiative and can be used as reasons for dismissal, but with one caveat - one way or another, the employer is obliged to offer the pregnant woman an alternative position comparable to her position.

Watch the video. Rights of a pregnant woman at work:

When can a pregnant woman be fired legally?

Attention! Let's consider specific situations when the law allows the dismissal of a woman in the following position:

the process of liquidation of the organization, its separate division, where the pregnant employee worked, the individual entrepreneur was closed, or the legal entity is being completed. the person went bankrupt;
if the employee was employed on the basis of a fixed-term contract and presented the employer with a certificate confirming pregnancy - only from the end of its validity period;
dismiss a temporary employee (despite her position) when the period of validity of her TD comes to an end, and the main specialist takes over the position, and the pregnant woman refused the offered place in the organization, or there are no other suitable positions in the organization;
the working conditions were changed (the office moved, other technical requirements were imposed, etc.) and, despite the fact that the employee was offered to extend the TD (including the offer of another position), nothing worked;
A pregnant woman has the right to submit an application for payment on her own initiative. However, there are cases when pregnant women who left “of their own free will” later reported pressure on them, claiming that management exerted influence on them by insisting on filing a statement. For this reason, many employers are wary of such things. They are in no hurry to count on an employee, so as not to end up in a problematic legal situation and with a substantial fine. The safest way to dismiss in this situation is by agreement of the parties.

Dismissal during maternity leave

Since the legislation directly prohibits the dismissal of pregnant women who are on maternity leave from their positions, the departure of such categories of workers is possible only at their request, or when the organization ceases to function.

It is necessary to distinguish between two related concepts: “maternity leave” and “parental leave”. The first is issued with the presentation of a sick leave certificate, for a total of 140 (one hundred and forty) days (half of these days are provided before childbirth, half - after). The number of days indicated may vary depending on the course of labor, since complications, multiple births, etc. cannot be ruled out.

The second is issued to care for a newborn child until he turns three years old. It begins to operate from the moment the previous one ends (on sick leave), when the mother in labor issues a benefit for caring for the baby until he turns 1.5 years old.

During the period of these vacations, each organization, in accordance with labor standards, reserves a workplace for a woman.

Is it permissible to fire an employee on maternity leave if she herself wants it? The law provides for this possibility. In order for a woman to resign while on maternity leave (up to 3 years), she needs to draw up and submit an application in advance (14 days), reflecting her desire to leave on her own initiative.

The specified two-week period is necessary for the employer to prepare documents, make all payments (compensations) and send an announcement about the vacancy to the labor exchange (necessary for an accelerated search for a replacement). On the 14th day of the specified period, according to the internal order, the dismissed woman is given all the documents and the full settlement is made with her.

Criminal liability for dismissal of a pregnant woman.

There are situations when a trade union is terminated with the immediate termination of labor relations that do not provide for work - then the preparation of all papers and full settlement with the employee is carried out on the day when she submitted the corresponding application for dismissal.

The inability to come independently to receive documents is not a reason for frustration, just contact your employer with a request to send all the papers to your postal address. As a last resort, another person will be able to receive documents instead of you if you have a power of attorney.

Where to go if there was a violation of the law?

If a woman in a situation was fired without the grounds specified by law, it is advisable to contact:

Directly to management. It is recommended to draw up a complaint in any form with reference to legal acts.
To the labor inspectorate. The authority will conduct an inspection of the organization, and if violations are identified, it will issue demands to the employer to eliminate them. Penalties may be imposed. If necessary, the inspection will inform you that you need to go to court.
To the prosecutor's office. The woman needs to provide facts of violation of her rights: medical and work documentation; if there is pressure or threats from the employer, video, audio recordings, witness statements and other evidence of forced dismissal will be suitable.
To court. It is required to file a claim for illegal dismissal and reinstatement. Additionally, you can recover compensation from the employer for the missed period in the amount of average earnings and for moral damage (Article 394 of the Labor Code).

It is permissible for an illegally dismissed woman to apply to several authorities at the same time, but she can only go to court within a month from the date of receipt of the dismissal order or work record book.

It is possible for the labor inspectorate to impose administrative liability on the employer, which involves penalties under Art. 5.27 Code of Administrative Offenses of the Russian Federation:

1–5 thousand rubles. — for officials, individual entrepreneurs;
30–50 thousand rubles. - for organizations.

Moral damage is assigned and assessed by the court.

We invite you to familiarize yourself with the dismissal materials:

Nuances and procedure for dismissal after maternity leave.
The pros and cons of a maternity position, as well as 3 reasons for dismissing the person who occupies it.
How to calculate compensation if a maternity leaver quits?
The nuances of dismissal during maternity leave at will, reasons and procedure.
Rules and procedures for dismissal during and after parental leave.

Application for resignation

resignation letter of one's own free will in word format

In accordance with Article 80 of the Code, termination of a trade union at the initiative of an employee working in an organization is carried out only when he submits an application in the established form.

It is from this step that the procedure for dismissing a woman in this position can begin (we discussed earlier in what cases the dismissal of this category of employees is allowed).

This document is submitted by the interested woman:

to the personnel department at the place of work,
to the management of the department in the organization where the employee works,
the chief director (manager) of the organization or an individual entrepreneur.

The established procedure for submitting an application is determined by a local regulatory act adopted and in force in the organization.

Fine for illegal dismissal

The actions of an employer who fired a pregnant employee qualify as an administrator. offense, the following sanctions are imposed:

responsible managers who authorized such dismissal are punished with a fine in accordance with Article 5.27 of the Code of Administrative Offenses of the Russian Federation - in the amount of 5,000 rubles;
for individual entrepreneurs the sanctions are similar;
legal persons face more significant fines - from 30,000 rubles. up to 50,000 rub.

Need to know! The Labor Inspectorate has the authority to impose administrative fines in the labor sphere.

Procedure for dismissing an employee

Need to know! As soon as an application is sent to the employer, the following package of documents is drawn up:

internal order of the appropriate form (T-8/T8a) for dismissal. This document reflects the basis on which the employee is hired - “at her own request.” Plus denotes Article 80 of the Code, which regulates dismissal. With the prepared order, you must familiarize yourself with the affixing of a personal signature,
a certificate confirming the amount of salary accrued for the past two current months. She is issued with a work book,
in the work book the entry is indicated exactly with the wording used in the order,
a note with calculation (according to the established form No. T-61) for paying the employee the funds due to her,
a certificate reflecting the data sent to the Pension Fund of the Russian Federation (in accordance with Federal Law No. 27 - subclause 2-2.2 of Article 11),
entry made in the employee’s personal card (according to form No. T-2). The employee must be made aware of this record. The fact of familiarization is certified by a signature.

The forms listed above are used provided that the organization does not have its own developed and approved forms. The employer has acquired such a right since 2013. Despite this possibility, many organizations find it more convenient to use existing forms, since they take into account all the nuances (they have been approved since 2004 by the State Statistics Committee of the Russian Federation).

The last working day is used by the employer to pay all funds that are due to the pregnant woman, but were not paid to her. In addition to all settlements with the dismissed woman, she is also given a work book.

When the employee was absent from work on her last working day, then she will receive all payments calculated to her as soon as she applies for payment - on the very next day.

When should you be fired?

Article 80 of the Code does not exclude the use of the standard rule - the dismissed employee must work in the organization for the last two weeks after the notice of resignation. This means that as soon as a woman writes a statement, the next day a two-week period will begin, after which the employee will receive a full payment. This period is necessary for the employer to find another employee for the vacant position.

As soon as this period comes to an end, the woman has the right not to continue performing her work duties - the last 14th day of the period ends her work in the organization.

However, the period determined by Article 80 of the Code is not mandatory - termination of a TD may occur earlier than the specified period. This is where the peculiarity of the application of the norm lies - despite the employer having the right to dismiss an employee, such a condition is not provided for by law.

Note! In the absence of permission from the employer (head of the organization or individual entrepreneur), the pregnant woman will still need to comply with the “two weeks” rule.

How to quit without working

The following points stand out from the structure of Article 80 of the Code:

when TD is terminated at the initiative of the employee, the employer has no right to influence her opinion, and his wishes in this regard are not taken into account. The employer cannot refuse dismissal
the two-week period is not related to the employee’s direct performance of his or her job duties. Simply put, such “working off” cannot be considered mandatory; dismissal can occur without the employee fulfilling his job duties.

For example, when an employee who is on sick leave (on vacation) writes a letter of resignation two weeks before the scheduled date, which coincides with his return from vacation, then from the moment he returns from vacation, it must be calculated. That is, the two-week period is counted on vacation or sick leave.

As can be seen from the above cases, a woman in this position has the right to quit without working the standard two weeks. Such actions will be completely legal.

When a woman wants to leave her job, but is not on vacation (on sick leave), but continues to work in the organization, then the only way out of dismissal without work is an agreement with the employer.

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In accordance with the Labor Code of the Russian Federation, this procedure is quite difficult and complex. An employer has the right to get rid of pregnant women at work only in exceptional situations. In addition, every company must understand that a pregnant employee must be sent to antenatal clinics. After all, the employer does not have the right to prohibit a citizen from visiting medical staff.

But the employer has the right to require a certificate from the person confirming the visit to the medical company.

This is a violation of the law, which will entail certain consequences.

If the management wishes to terminate the employment relationship under an open-ended contract, then you can contact the labor inspectorate with a corresponding complaint. This will lead to the company earning an administrative fine or even criminal liability.

But there is a certain peculiarity here. If a woman works under a fixed-term employment contract, then she has the right to dismiss her upon expiration of the document. But current legislation makes it possible to prolong the employment relationship and thereby benefit pregnant women. The employer has no right to refuse such a request.

Some companies are changing their working conditions. For example, moving to another area or changing working conditions. It is possible to fire a pregnant woman in this situation. The main thing is to follow the basic rule - notify the citizen about available vacancies. If she does not agree to them, then take a written refusal and fire her.

The Labor Code of the Russian Federation stipulates all the grounds for dismissing a pregnant employee. The main thing for the employer is not to violate this information when terminating the employment agreement.

In case of reduction, the employer has the right to dismiss all employees. But he must leave the pregnant women and transfer them to another position with an appropriate salary.

Many citizens are expelled from the company under the article. This is done only if there are specific serious violations of the law. Dismissal of a pregnant woman under this article is not allowed if she confirms her absenteeism with medical certificates. That is, if a citizen was at an appointment with medical personnel, then this is not considered absenteeism.

Important nuances

Despite the possibility of applying the procedure for dismissing a pregnant employee on her personal initiative, there is still a misunderstanding of the legislative norms at this point.

A number of organizations, well aware of how suspiciously Labor Inspectorates regard such practical cases, try in every possible way to avoid them. A real situation from practice - a woman subsequently writes a statement to the competent authorities about her employer forcing her to quit - the inspectorate will be on her side.

The procedure for dismissing an employee in a position on her personal initiative is used in practice, as an option - she is given the opportunity to resign simultaneously with the end of the vacation period. However, even in such conditions, situations arise when a pregnant woman’s regular leave ends and maternity leave begins.

When, during the period of the next leave with further dismissal of the pregnant woman, leave granted for pregnancy (childbirth) begins, then the next one is extended for the entire period of the woman’s incapacity for work. In this case, the sick leave is transferred by the woman to the management of the organization in order to receive the necessary benefits.

Note! Only when the leave granted to the employee in connection with pregnancy (childbirth) and the next vacation period ends, the woman is considered dismissed.

If a woman declares such an intention, she may be fired on the basis of a transfer (clause 5 of Article 77 of the Code). Alternatively, the reason for dismissal may be a change in the owner of the property used by the enterprise (clause 6 of Article 77 of the Code).

Legislation

This issue is regulated by the Labor Code of the Russian Federation.

Dismissal of a pregnant woman in current legal acts:

article by the Russian Investigative Committee;
Article 394 of the Labor Code of Russia;
Article 145 of the Criminal Code of Russia, which spells out the consequences of illegal dismissal - a violation. Typically this is a fine;
Article 261 of the Labor Code of Russia.

What payments are due?

When a woman makes such a serious decision - to quit during her pregnancy - first of all, she needs to know what payments she will qualify for:

salary for part of the days worked in the current month,
the amount of compensation due if a woman does not take leave before dismissal (in proportion to the part of the year that the woman actually managed to work).

Important! But here an important nuance should be taken into account - when a pregnant woman is fired, she will no longer be able to claim benefits accrued in connection with pregnancy (childbirth).

An exceptional case is the onset of “maternity leave” less than a month from the date of dismissal, if the reason for leaving was a number of individual circumstances provided for in the order of the Ministry of Health and Social Development 1012n (dated December 23, 2009).

Such circumstances should include:

when an employee was forced to leave work to move with her husband or with him, due to his change of place of work,
the reason for dismissal was an illness due to which the woman was unable to continue working in specific working conditions or live in a specific area,
need to care for family members due to illness.

In these moments, you must additionally be guided by Article 1.4 and paragraph 2 of Article 5 of Law No. 255. The norms defined in these articles relate to insurance (in this particular case, social and medical) coverage.

Attention! Our qualified lawyers will assist you free of charge and around the clock on any issues. Find out more here.

Can an employer refuse to fire a pregnant woman?

There is another side to the issue under consideration - does the management of an organization (individual entrepreneur) have the right to deny an employee a position if she decides to pay off her job? Will it be legal for an employer to refuse to terminate a contract? Labor legislation does not provide for such grounds.

Regardless of the woman’s condition, Article 80 of the Code contains no derogations in this regard - the employee is prohibited from evading termination of the employment contract if the pregnant employee wishes to leave.

Article 4 of the Code expressly prohibits the practice of forced labor. It is under this article that a violation of an employer who wishes to refuse to dismiss an employee against her wishes will be qualified.

When a dismissed employee is assessed by the employer as a highly qualified specialist, he has no right to create obstacles to her departure. The only acceptable request is to remain at the same job.

What to do if you find out about pregnancy after dismissal

The law does not contain any clarifications on this matter. There are individual situations that, even within the same locality, turn out to be different.

In this matter, everything depends on the specific circumstances that make up the situation:

What reason was given for the woman's dismissal? How the employee was treated at the company;
Why does a woman want to be reinstated in her previous job? Is it the fear of lack of other work or the feeling of establishing justice that is decisive in this matter?
Was the woman really pregnant at the time of her dismissal? Is this fact confirmed by honey? documentation.

If you want to be reinstated at work, then you should get a certificate from the antenatal clinic confirming the duration of your pregnancy and be patient. It is likely that the employer will choose the most acceptable option for himself - he will try to avoid conflicts and reinstate the dismissed woman to her position without questions.

If the circumstances are difficult, then you can get advice from the Labor Inspectorate. Here, specialists will provide support in solving problematic issues.

Actions must be prompt. As soon as a month has passed since the dismissal, there is no point in starting a labor dispute.

What to do if management forced an employee to quit

The law provides for “maternity leave” for this category of employees - in connection with pregnancy (childbirth), and separately - for caring for a newborn child. For the entire specified period, the woman is on the employer’s staff, therefore, all due payments to the funds must be made for her - it is for this reason that employers consider such situations as unprofitable.

Rights of pregnant women at work under the Labor Code.

It is this kind of dissatisfaction that prompts some employers to put pressure on employees in this situation - they force them to pay off their jobs, supposedly “on their own initiative.” What should a woman do if her employer insists on dismissing her during pregnancy?

The following steps should be followed:

Under no circumstances should you submit any statements under pressure from others. Remember, if the document is drawn up, even under pressure from the employer, the fact that the employee wrote it independently, with his own hand, reduces the possibility of subsequent restoration and receipt of compensation to “no”. However, there is a chance, but it is insignificant,
record the fact of external pressure. To do this, you will need to find witnesses who are ready to confirm your words. The presence of audio recordings or videos will significantly influence the decision. Other evidence is also acceptable. The collected evidence must confirm the existence of demands to resign,
draw up a separate complaint about the employer’s illegal actions and submit it to regulatory authorities. An effective approach would be to contact the Prosecutor's Office. When making a complaint, outline in detail all the circumstances of the violation and demand that the culprit be held accountable,
If your dismissal has taken place, contact the judicial authorities to protect and restore your rights.

You can DOWNLOAD samples of applications to the above authorities using the links below:

Complaint to the Prosecutor's Office
Statement of claim for recognition of dismissal as illegal

Remember, the employer does not have the right to fire a pregnant employee on his own initiative. Even if she violates discipline, termination of the TD is possible if the employee herself wishes, or the parties reach an agreement in this regard.

Manager's responsibility

Dismissal of a pregnant woman for absenteeism is not allowed. If there was a violation, the organization is fined 200,000 rubles or the authorized person is held accountable - 360 days of enforcement.

The employer has the right to demand termination of the employment contract at any time. But when it comes to pregnant women, then everything is not so simple. According to current labor legislation, it is impossible to fire a woman in this position on the initiative of her superiors.

Employer's liability

Any cases of pressure exerted by the employer on an employee in this position (including uttering threats and blackmail) will entail holding him accountable.

In such circumstances, the employee is expected to receive the appropriate type of sanction:

administrative - illegal actions are qualified under Article 5.27 of the Code of Administrative Offenses of the Russian Federation,
criminal - acts are qualified under Article 145 of the Criminal Code of the Russian Federation.

Administrative norms determine liability only for facts of discrimination, while criminal norms indicate the obvious groundlessness and illegality of the fact of dismissal of a pregnant employee.

The guilty person faces the following sanctions:

fine - up to 200,000 rubles. or other income received for a period of 1.5 years,
compulsory work – up to 360 hours.

It should be borne in mind that although liability for a crime is very modest compared to other criminal articles, the imposition of sanctions means a real conviction and other legal consequences.

Watch the video. What to do if you are forced to resign of your own free will:

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Dismissal of a pregnant woman: features and consequences for the employer

In accordance with the current legislation of the Russian Federation, if an employer fires a pregnant woman, his actions are qualified as a violation of labor legislation. For the employer, this is fraught with undesirable legal consequences.

Note! The law establishes that labor relations with a pregnant woman can be terminated only in two cases:

on her personal initiative;
by agreement of the two parties.

The only exceptions to this rule can be considered the circumstances of the liquidation of the organization and the absence of the pregnant employee’s intentions to renew the fixed-term contract, and therefore it terminates (Part 1 of Article 261 of the Labor Code of the Russian Federation, hereinafter referred to as the Code).

Violations of these labor rules will result in legal liability for the guilty party. For example, a case of violation of legal requirements and the dismissal of a pregnant employee contrary to the requirements of labor legislation threatens the company with a substantial fine.

When it is revealed and proven that a pregnant employee was fired from the organization precisely because of her situation, the culprit will face criminal charges - 145 of the Criminal Code of the Russian Federation.