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When hiring women, employers often ask if they have children — this is due not only to the stereotype about the numerous hospitals of the future employee, but also the fear that it will not be possible to terminate the contract with the employee if necessary, and the person can take advantage of the employer’s law-abiding and use the situation solely for their own benefit. What labor immunities an expert told aif.ru about pregnant women and how to punish an employer for illegal dismissal.
What are the labor guarantees for pregnant women?
All rights and obligations of employees, including pregnant women, are enshrined in the Labor Code (Labor Code of the Russian Federation). Art. 261 of the Labor Code of the Russian Federation prohibits the employer, on his own initiative, from terminating an employment contract with women in position and workers who have children. The only exception is when the organization is liquidated or the individual entrepreneur stops working.
“It is important that the rights of pregnant women are enshrined not only in law, but also repeatedly confirmed by judicial practice and explanations of the Supreme Court”, — commented lawyer Angelina Malysheva.
Is it possible to fire a pregnant woman during a reduction in staff or position?
No. The Ministry of Labor put an end to this issue in a letter dated August 10, 2020 No. 14-2/OOG-12666, lawyer Angelina Malysheva told aif.ru. “Despite the fact that the employer has the right to manage his organization and regulate the number of employees as necessary, no one has canceled labor guarantees for certain categories. In accordance with the position of the Ministry of Labor, when carrying out the reduction procedure, the employer is obliged to take into account the guarantees enshrined in the Labor Code of the Russian Federation. Thus, the management cannot send a notice to the pregnant woman about the reduction in the number or staff, even if the date of dismissal is planned after the birth, because mothers of children under the age of three cannot be reduced either, — explained the lawyer.
Is it possible to fire a pregnant woman if the term of the employment contract has expired?
The grounds for termination of an employment contract at the initiative of the employer are enshrined in Art. 81 of the Labor Code of the Russian Federation. According to Malysheva, the expiration of the employment contract is not included there and refers to the general grounds for dismissal. However, in this case, the legislator has provided special conditions for expectant mothers.
“If the employment contract is concluded for a certain period, for example, for three years, then when the employee confirms the status of a pregnant woman, management must extend the contract until the end of pregnancy or until the end of maternity leave/leave to care for a child at the age of 3 years” ;, — explained the expert. Malysheva identified three basic rules that must be observed so that a pregnant woman is not fired at the end of the employment contract:
- there must be a certificate of pregnancy;
- the desire to extend the employment contract must be expressed in writing;
- throughout the pregnancy, the status must be confirmed by medical documents — the employer does not have the right to demand them more often than once every three months.
Can a pregnant woman be fired from a temporary position?
Temporary positions are often called maternity — a vacant position is formed when the employee who occupied it goes on maternity leave or parental leave, the lawyer explained. “If a woman who was hired for the period of the main employee’s decree also finds herself in a position, she risks being fired when the newly-made mother enters the main position — guarantees, part 2, art. 261 of the Labor Code of the Russian Federation does not apply to it, – Malysheva said. However, according to the expert, in accordance with Part 3 of Art. 261 of the Labor Code of the Russian Federation, the employer, before dismissal, is obliged to offer the pregnant woman another job — dismissal will follow only in case of refusal of all the proposed options.
Is it possible to dismiss a pregnant woman if she does not work well?
No. As Malysheva explained to aif.ru, no matter how poorly a pregnant employee works — the maximum sanction in the form of dismissal cannot be applied to her in any case. “Despite this, it is possible to impose disciplinary sanctions on an unscrupulous employee, to deprive bonuses,” — explained the expert.
Is it possible to fire a woman after the decree?
Malysheva explained that the law names three cases when a woman can be fired:
- at the end of pregnancy;< /li>
- at the end of maternity leave;
- at the end of parental leave.
“If the pregnancy was terminated, if the employee gave birth and immediately returned to work or left parental leave before the child was three years old — can be fired», — the lawyer explained.
What threatens the employer for illegal dismissal?
As the lawyer told aif.ru, the main type of liability to which the employer can be held for the illegal dismissal of a pregnant woman, — administrative. According to Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, he is threatened with either a warning or a fine: for IP — from one to five thousand rubles; for organizations — from 30 to 50 thousand rubles. “It is important that the employer can be punished without trial and the police — you need to apply to the labor inspectorate with a statement about the violation of labor rights. Inspection staff will conduct an inspection, and if the violations are confirmed, a protocol on an administrative offense will be drawn up and a decision will be issued on bringing to responsibility, — summed up the lawyer.
Sources: consultant.ru, consultant.ru/cons, git77.rostrud.gov.ru
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