So, firing a pregnant woman on TC is impossible, but there are subtleties that we will analyze in this article.

Unsatisfactory result of the trial period

The Labor Code of the Russian Federation in Part 1 of Art. 261 establishes: termination of an employment contract on the initiative of an employer with pregnant women is not allowed, except in cases of liquidation of an organization or termination of activities by an individual entrepreneur.

This norm establishes absolute prohibition on the dismissal of a pregnant woman at the initiative of the employer... In practice, employers often believe that this prohibition applies only to the grounds provided for in Art. 81 of the Labor Code of the Russian Federation.

And can a pregnant woman be dismissed under Art. 71 of the Labor Code of the Russian Federation as not passed the probationary period?

Unfortunately, cases of dismissal of pregnant women under Art. 71 of the Labor Code of the Russian Federation as those who have not passed the probationary period are not uncommon. Meanwhile, according to Part 4 of Art. 70 of the Labor Code of the Russian Federation, a test for hiring for pregnant women is not established. And if the pregnancy began after hiring, the condition on the probationary period should be canceled.

Thus, I. was dismissed from her position under Art. 71 of the Labor Code of the Russian Federation, despite the fact that when she was presented with a dismissal order, she informed the employer about her pregnancy. Disagreeing with the dismissal, I. applied to the Zamoskvoretsky District Court of Moscow, which satisfied her claim to be reinstated at work.

In addition, the grounds for dismissal provided for by Art. 71 of the Labor Code of the TF, is a type of grounds for dismissal at the initiative of the employer. The employer has a choice: to leave the employee at work or, recognizing him as not meeting the requirements, terminate the contract with him on the basis provided for in Art. 71 of the Labor Code of the Russian Federation. Since the criteria by which the question of the compliance of the employee's business qualities with the requirements of the organization is decided is established by the employer himself, such a basis for dismissal is attributed by the legislator to the grounds for dismissal at the initiative of the employer (clause 4 of part 1 of article 77 of the Labor Code of the Russian Federation).

Termination of the activity of an employer who is an individual and dismissal of a pregnant woman

The problem arising from the application of Part 1 of Art. 261 of the Labor Code of the Russian Federation, is that the dismissal of a pregnant woman is allowed only upon termination of the employer - an individual who is an individual entrepreneur. An employer who is an individual who is not an individual entrepreneur cannot make such a dismissal. This decision significantly restricts the rights of such employers, since, refusing to use hired labor for the purpose of personal service and assistance with housekeeping, they have no right to refuse the services of pregnant workers.

This situation leads to numerous violations of the labor rights of both parties to the employment contract. It seems that the absence in the Labor Code of the Russian Federation of a norm allowing, upon termination of the activities of employers - individuals who are not individual entrepreneurs, to dismiss pregnant women is a significant gap and largely explains the reluctance of employers - individuals who are not individual entrepreneurs to formalize labor relations with workers, especially women workers.

Is it possible to dismiss a pregnant woman who is the head of the organization on the basis provided for in paragraph 2 of Art. 278 of the Labor Code of the Russian Federation?

Clause 50 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 "On the Application by the Courts of the Russian Federation of the Labor Code of the Russian Federation" (hereinafter - Resolution No. 2 of March 17, 2004) explains the following. Taking into account that Art. 3 of the Labor Code of the Russian Federation prohibits restricting anyone in labor rights and freedoms depending on their official position, and also, given that the dismissal of the head of an organization in connection with the adoption by the authorized body of a legal entity either by the owner of the organization's property, or by an authorized person (body) of the decision on early termination of an employment contract is essentially a dismissal at the initiative of the employer, and Chapter 43 of the Labor Code of the Russian Federation, which regulates the peculiarities of the work of the head of an organization, does not contain norms that deprive these persons of the guarantees established by Part 6 of Art. 81 of the Labor Code of the Russian Federation, in the form of a general prohibition on the dismissal of an employee at the initiative of the employer during the period of temporary disability and during the period of vacation (except in the case of liquidation of the organization or the termination of activities by the employer - an individual), the employment contract with the head of the organization cannot be terminated according to cl. 2 tbsp. 278 of the Labor Code of the Russian Federation during the period of his temporary disability or being on vacation.

Hence, we can conclude that the general prohibition on the dismissal of pregnant women applies to the heads of organizations.

Part-time job

It is impossible to terminate an employment contract with a pregnant woman and on the grounds provided for in Art. 288 of the Labor Code of the Russian Federation, according to which an employment contract concluded for an indefinite period with a person working part-time may be terminated in the event of hiring an employee for whom this work will be the main one, about which the employer warns the specified person in writing not less than two weeks before the termination of the employment contract.

We quote the law (Article 20 of the Labor Code of the Russian Federation):
“The parties to the labor relationship are the employee and the employer.
... The employer is an individual or a legal entity (organization) that has entered into an employment relationship with an employee ...

For the purposes of this Code, individual employers are:
- individuals registered in the prescribed manner as individual entrepreneurs and carrying out entrepreneurial activities without forming a legal entity, as well as private notaries, lawyers who have established lawyers' offices, and other persons whose professional activities are subject to state registration in accordance with federal laws and (or ) licensing that entered into labor relations with employees in order to carry out these activities (hereinafter referred to as employers - individual entrepreneurs). Individuals who, in violation of the requirements of federal laws, carry out the specified activities without state registration and (or) licensing, who have entered into labor relations with employees in order to carry out this activity, are not released from the duties imposed by this Code on employers - individual entrepreneurs;
- individuals entering into labor relations with employees for the purpose of personal service and assistance in housekeeping (hereinafter - employers - individuals who are not individual entrepreneurs) ... "

As you can see, the specified ground is also a kind of dismissal initiated by the employer, respectively, no matter how paradoxical it may seem, it cannot be applied to a pregnant woman.

When can an employer still terminate an employment contract with a pregnant woman?

It is possible to terminate the employment relationship with such an employee in all cases not related to the initiative of the employer, that is, on the grounds provided for in Art. 77 and 83 of the Labor Code of the Russian Federation.

AND) Liquidation of an organization, branch or representative office:

It should be borne in mind that it is possible to fire a pregnant woman at the initiative of the employer only if one of two conditions is met:

• Liquidation of an organization;
• Termination of activities by an individual entrepreneur.

At the same time, we can talk about liquidation in relation to the provisions of Art. 61 of the Civil Code of the Russian Federation, according to which the liquidation of a legal entity entails its termination without transfer of rights and obligations by way of succession to other persons.

However, according to Part 4 of Art. 81 of the Labor Code of the Russian Federation, pregnant women can be dismissed from representative offices or branches of legal entities or other separate structural divisions located in another locality.

This provision is an exception to the general rule that dismissal under paragraph 1 of Art. 81 of the Labor Code of the Russian Federation can be made only in the event of the liquidation of the organization, i.e., the legal entity as a whole, since Part 4 of Art. 81 of the Labor Code of the Russian Federation allows the termination of an employment contract upon the liquidation of only separate divisions of a legal entity that do not have an independent employer legal personality in relation to employees, they have the right to hire and dismiss only within the limits established in the power of attorney issued in accordance with Art. 55 of the Civil Code of the Russian Federation. At the same time, the legal entity itself remains and continues to operate.

The considered norm is beneficial to employers, since in this case the parent organization located in another locality does not have an obligation to employ employees of a branch or representative office. Thus, if an organization has decided to liquidate a branch or representative office located in another locality, i.e. outside the administrative-territorial boundaries of the settlement where the parent organization operates, the employees of this branch or representative office are dismissed according to the rules provided for cases of liquidation of the organization.

B) Parties agreement:

One of the common grounds should be considered the grounds provided for in paragraph 1 of Part 1 of Art. 77 of the Labor Code of the Russian Federation, in accordance with which an employment contract concluded for both a fixed and an indefinite period can be terminated at any time if its parties - the employee and the employer - come to an agreement on this. In a word, to terminate an employment contract on this basis, an agreed expression of the will of both parties to the employment contract is required, aimed at terminating it.

The Plenum of the Supreme Court of the Russian Federation in the Resolution of 03.17.04 No. 2 explains the following. When considering disputes related to the termination of an employment contract by agreement of the parties (clause 1 of Art. 77, Art. 78 of the Labor Code of the Russian Federation), the courts should take into account that, in accordance with Art. 78 of the Labor Code of the Russian Federation, upon reaching an agreement 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 a period determined by the parties. Cancellation of an agreement on the term and grounds for dismissal is possible only with the mutual consent of the employer and the employee.

The legislator does not provide for any procedures that must be performed by the parties upon termination of the employment contract on this basis (neither warning the parties, nor payment of severance pay, etc.). It is important to determine the day of dismissal (the last day of work), that is, the day that will be indicated in the order of dismissal and on which the work book will be issued and full settlement will be made.

In the event that a special procedure for terminating an employment contract by agreement of the parties is provided for in the contract itself, it must be performed by the parties.

Sometimes employment contracts include a condition for the payment of certain amounts to the employee upon termination. The indicated amounts must be paid by the employer without fail.

Such termination agreements are quite common with pregnant women. However, employers should be aware that a woman who signs such an agreement can challenge it in court. And if she can prove that the agreement was signed under pressure from the employer, she will be reinstated at work. Most often, however, it is extremely difficult to prove the existence of such pressure.

IN) Expiration:

Another reason for terminating an employment contract with a pregnant woman is provided for in paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation: this is the expiration of the term of the employment contract. The application of this basis for dismissal is possible, since, despite the erroneous representation, it is not a basis for terminating the employment contract on the initiative of the employer.

When deciding on the termination of an employment contract with a pregnant woman on this basis, the following conditions must be met.

First, it is necessary to prove the validity of the conclusion of a fixed-term employment contract. We remind that in accordance with Art. 58 of the Labor Code of the Russian Federation, a fixed-term employment contract is concluded when labor relations cannot be established for an indefinite period, taking into account the nature of the work ahead or the conditions for its performance, namely in the cases provided for in Part 1 of Art. 59 of the Labor Code of the Russian Federation. In the cases provided for in Part 2 of Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract can be concluded by agreement of the parties to the employment contract without taking into account the nature of the work ahead and the conditions for its implementation. However, in this case, the condition of the urgent nature of the employment relationship must be reached by the parties prior to signing the contract.

Secondly, the procedure for terminating a fixed-term employment contract, provided for in Art. 79 of the Labor Code of the Russian Federation. Thus, a fixed-term employment contract is terminated upon the expiration of its validity period. The employee must be notified in writing of the termination of an employment contract due to the expiration of its validity period at least three calendar days before dismissal, except for cases when the term of the fixed-term employment contract concluded at the time of the performance of the duties of the absent employee expires.

Failure to comply with this rule may lead to the recognition of the dismissal made in violation of the established procedure and, as a result, to the restoration of the employee at work.

Thirdly, a pregnant woman can take advantage of the guarantee provided by Art. 261 of the Labor Code of the Russian Federation. So, in the event of the expiration of a fixed-term employment contract during a woman's pregnancy, the employer is obliged, upon her written application and upon providing a medical certificate confirming the state of pregnancy, to extend the term of the employment contract until the end of pregnancy. A woman whose employment contract has been extended until the end of her pregnancy is obliged, at the request of the employer, but no more than once every three months, to provide a medical certificate confirming the state of pregnancy. If at the same time the woman actually continues to work after the end of pregnancy, then the employer has the right to terminate the employment contract with her due to the expiration of its validity within a week from the day when the employer found out or should have learned about the fact of the end of pregnancy.

Is the employer obliged to explain to the pregnant woman her right to extend the contract?

In practice, this question often arises. It seems that the employer is not obliged to do this, and if the woman does not apply to him with a corresponding statement, then the dismissal under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation can be produced.

The dismissal of a pregnant woman in connection with the expiration of the term of the employment contract during her pregnancy is allowed if the employment contract was concluded during the performance of the duties of the absent employee and it is impossible, with the woman's written consent, to transfer her to another job available to the employer (as a vacant position or job , corresponding to the woman's qualifications, and a vacant lower position or lower-paid job), which a woman can perform, taking into account her state of health. At the same time, the employer is obliged to offer her all the vacancies that meet the specified requirements that he has in the area. The employer is obliged to offer vacancies in other localities, if this is provided for by the collective agreement, agreements, labor contract.

It should be borne in mind: upon dismissal due to the expiration of the term of the employment contract, the employee may require the grant of leave with subsequent dismissal. In this case, the last day of vacation is considered the day of dismissal. This provision is fraught with problems for the employer, which will be discussed below.

Dismissal of your own free will

Dismissal of a pregnant woman of her own free will (clause 3 of part 1 of article 77 of the Labor Code of the Russian Federation) is another possible reason. Since work is free, a pregnant woman has the right to terminate her employment with the employer by submitting a letter of resignation. In this case, the dismissal must be made in strict accordance with the provisions of Art. 80 of the Labor Code of the Russian Federation. So, the application must be submitted no later than two weeks, unless another period is established by the Labor Code of the Russian Federation or other federal law. The course of the specified period begins on the next day after the employer receives the employee's application for dismissal.

By agreement between the employee and the employer, the employment contract may be terminated even before the expiry of the notice of dismissal.

In cases where the employee's application for dismissal on his initiative (of his own free will) is due to the impossibility of continuing his work (enrollment in an educational institution and other cases), as well as in cases of established violation by the employer of labor legislation and other regulatory legal acts containing labor law norms , local regulations, the terms of the collective agreement, agreement or employment contract, the employer must terminate the employment contract within the time period specified in the employee's application.

However, it should be remembered that the employee has the right to withdraw his application at any time before the expiry of the notice of termination. Dismissal in this case is not made unless another employee is invited in his place in writing, who, in accordance with the Labor Code of the Russian Federation and other federal laws, cannot be denied to conclude an employment contract.

Terminating an employment contract with a pregnant woman at her request, the employer, in accordance with Art. 127 of the Labor Code of the Russian Federation can resolve the issue of granting her leave with subsequent dismissal.

With such a dismissal of a pregnant woman, the employer may have problems.

Firstly, during the vacation, the right to maternity leave may come. Accordingly, the employer will have to accept and pay the certificate of incapacity for work presented by the employee.

Secondly, Art. 124 of the Labor Code of the Russian Federation provides for the extension of vacation in case of temporary disability of an employee.

Is the extension granted to the employee in accordance with Art. 127 of the Labor Code of the Russian Federation leave with subsequent dismissal in case of her temporary disability during the vacation?

The legislator says nothing about this. Since Art. 124 of the Labor Code of the Russian Federation provides for cases of extending the annual paid leave without any exceptions, it can be concluded that there are no grounds for refusing an employee who fell ill during the vacation with subsequent dismissal to extend this leave. However, in this case, the employer will be placed in a very difficult position associated with the need to reissue the documents issued to the employee when granting leave.

Is it possible to equate temporary disability with maternity leave?

This is the third question that arises in this case. It was introduced by the pension legislation. So, in accordance with paragraph 2 of Part 1 of Art. 11 of the Federal Law of December 17, 2001 No. 173-FZ "On Labor Pensions in the Russian Federation" in the insurance experience, along with the periods of work and (or) other activities that are provided for in Article 10 of the law under consideration, the period of receiving benefits under the state social insurance during the period of temporary disability.

E. G. Azarova and Z. A. Kondratyeva, commenting on this law, note: “The current legislation does not contain a single concept of benefits for temporary disability. According to Art. 8 of the Law on the Foundations of Compulsory Social Insurance, insurance coverage for certain types of compulsory social insurance, in particular, is the following benefits: for temporary disability; in connection with work injury and occupational disease; for pregnancy and childbirth; for spa treatment (see sub. 5-7, 12 p. 2, Art.

According to the literal meaning of the provisions of clause 2, part 1 of Art. 11 of the Federal Law of December 17, 2001, the period of receipt of only the first of these benefits can be included in the insurance experience. It is logically impossible to explain this.

In connection with issues arising in practice, the Ministry of Labor of the Russian Federation and the Pension Fund of the Russian Federation informed the territorial bodies that carry out pensions that the period of a woman's maternity leave can be considered as the period of receiving the benefit of the same name during the period of temporary disability (taking into account that that the basis for the appointment of maternity benefits is a certificate of incapacity for work issued in the prescribed manner). Accordingly, it should be included in the length of service, giving the right to early assignment of an old-age pension, as the period of receiving benefits for state social insurance during the period of temporary disability (see joint information letter dated 04.11.02 No. 7392-YL / LCh-25-25 / 10067 / / Pension. 2002. No. 11. P. 31). Obviously, this position can be taken into account when offsetting the period of maternity leave in the insurance experience in the context of paragraph 2 of part 1 of Art. 11 of the Federal Law of 17.12.01 ".

As you can see, when calculating the length of service for a labor pension, the period of a woman on maternity leave is considered as the period of receiving the same benefit during the period of temporary disability (taking into account the fact that the basis for assigning maternity benefits is a certificate of incapacity for work issued in the prescribed manner) ... For labor legislation, the issue has not yet been resolved, but we believe that a similar decision should be made by the legislator. Accordingly, the onset of the right to maternity leave during the period of annual paid leave should extend the leave with subsequent dismissal on a general basis.

D) Employee transfer:

Transfer of an employee at his request or with his consent to work for another employer or transfer to an elective job (position) (clause 5 of part 1 of article 77 of the Labor Code of the Russian Federation): the dismissal of a pregnant woman on this basis is theoretically possible, but in practice it is extremely seldom.

In accordance with the law, any employer has the right to invite an employee to work by sending an invitation for employment directly to the employee or his manager.

For employees invited by transfer to another organization, the Labor Code of the Russian Federation establishes a number of guarantees. So, part 4 of Art. 64 of the Labor Code of the Russian Federation prohibits the refusal to conclude an employment contract to persons invited in writing to work as a transfer from another employer, within one month from the date of dismissal from the previous place of work.

By agreement with the person applying for work, this period may be increased, for example, when moving to work in another area.

Change of ownership

Refusal of an employee to continue work in connection with a change in the owner of the organization's property, with a change in the jurisdiction (subordination) of the organization or its reorganization (Article 75 of the Labor Code of the Russian Federation) - clause 6, Part 1, Art. 77 of the Labor Code of the Russian Federation - another reason for dismissal.

Article 75 of the Labor Code of the Russian Federation is devoted to the regulation of labor relations when the owner of the organization's property changes. In the legislation, both civil and labor, there is no concept of “change of ownership of the organization's property”. In this regard, when defining this concept, it is necessary to refer to judicial practice.

The Plenum of the Supreme Court of the Russian Federation in Resolution No. 2 dated March 17, 2004, by the change of the owner of the property does not mean the alienation of its part to another owner, but the change of the owner of the property of the organization as a whole.

A change of ownership does not imply the termination of employment contracts with employees. As an exception to the general rule, the possibility of termination of labor relations with the head of the organization, his deputies and the chief accountant should be considered (see also paragraph 4 of part 1 of article 81 of the Labor Code of the Russian Federation), which can be made by the new owner of the organization's property no later than three months from day of his ownership.

The possibility of termination of the employment contract with the above executives is an exception to the general rule. As a general rule, a change of ownership of the organization’s property is not a basis for terminating employment contracts with employees of the organization.

Nevertheless, Art. 75 of the Labor Code of the Russian Federation provides that in the event an employee refuses to continue work in connection with a change of ownership of the organization’s property, the labor contract does not terminate at the employee’s own will, but under clause 6, part 1, article 77 of the Labor Code of the Russian Federation - refusal to continue work in connection with the change of ownership of the organization’s property, expressed in writing.

In theory, a pregnant woman can declare her disagreement to continue working for the new owner. Accordingly, in this case, the employment contract with her will be terminated.

D) Changes to the terms of the employment contract:

The reason for the dismissal of a pregnant woman may be the refusal of the employee to continue working in connection with a change in the terms of the employment contract determined by the parties (part 4 of article 74 of the Labor Code of the Russian Federation) - clause 7 of part 1 of article. 77 of the Labor Code of the Russian Federation. As a general rule, secured by Art. 72 of the Labor Code of the Russian Federation, changes in the terms of the employment contract determined by the parties, including transfer to another job, are allowed only by agreement of the parties to the employment contract, with the exception of cases provided for by the Labor Code of the Russian Federation. An agreement to amend the terms of an employment contract specified by the parties is concluded in writing.

Article 74 of the Labor Code of the Russian Federation established an exception to the general rule on the immutability of working conditions established by an employment contract. So, for reasons related to changes in organizational or technological working conditions, it is allowed to change the terms of the labor contract as determined by the parties at the initiative of the employer (i.e., unilaterally) while the employee continues to work without changing the labor function. In this case, the consent of the employee to change such conditions is not required.

It should be borne in mind that any conditions can be changed, both mandatory and additional, with the exception of the condition of the labor function.

As you can see, the legislator does not provide the employer with the opportunity to arbitrarily change the terms of the employment contract. In order for the employer to exercise his right, he must comply with two conditions.

First, the employee must continue to work according to the previous labor function, i.e., the specialty, qualification or position of the employee determined by the labor contract must remain unchanged.

Secondly, it is necessary that the change in the conditions determined by the employment contract was caused by an objective necessity, namely, a change in the organizational or technological working conditions, i.e., by objective production reasons that make it impossible to maintain the conditions previously included in the employment contract.

In the event of a dispute, the employer is obliged to prove that the change in the terms of the employment contract determined by the parties was the result of changes in technology and production technology, improvement of workplaces on the basis of their certification, structural reorganization of production and did not worsen the employee's position in comparison with the terms of the collective agreement, agreement (cl. 21 of the Resolution of 17.03.04 No. 2).

In each specific case, the employer must provide evidence that the working conditions specified in the employment contract could not objectively be preserved.

Is it possible to dismiss a pregnant woman on the basis of her refusal to continue working in connection with a change in the terms of the employment contract?

Let's give a concrete example:

E. worked as secretary of the general director at Santex JSC. In connection with the acquisition of a new office and a change of legal address, the management of Santex AO moved to another district of Moscow, leaving only the warehouse at the previous address. E., referring to her pregnancy, refused to move to a new place of work. The employer offered E. to take the place of the storekeeper in the warehouse. However, E. refused the proposed position. Unable to provide E. with work, the employer decided to dismiss E. from work on the grounds provided for in paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation.

E. appealed against the employer's actions in court, but the court confirmed the legality of his actions, since the dismissal on this basis was not related to the employer's initiative, but was caused by the employee's unwillingness to agree to a change in the place of performance of labor duties.

E) Refusal to transfer to another area:

The employee’s refusal to transfer to work in another locality together with the employer (part 1 of article 721 of the Labor Code of the Russian Federation) is also the basis for dismissal. The legislator provides for the possibility of transferring to work in another locality together with the employer. Such translation is allowed only with the written consent of the employee. If an employee, including a pregnant woman, refuses to be transferred to another locality together with the employer, the employment relationship may be terminated with him under clause 9 of paragraph 1 of Art. 77 of the Labor Code of the Russian Federation.

The other is understood as the area outside the administrative-territorial boundaries of the corresponding settlement (paragraph 16 of the Resolution of 17.03.04 No. 2).

When transferring to work in another locality, the employer is obliged to reimburse the costs of moving the employee, his family members and transporting property (except for cases when the employee is provided with appropriate means of transportation), as well as the costs of settling in a new place of residence.

It cannot be considered as a transfer to work in another locality, transferring an employee to a branch or representative office located in another locality if the parent organization does not move there. Such a transfer is possible on a general basis, with the consent of the employee and with payment of all compensation due to him.

In addition to the reasons considered, an employment contract with pregnant women may be terminated on the appropriate grounds provided for in Art. 83 and 84 of the Labor Code of the Russian Federation.

Summing up the above, we formulate the following conclusion.

3 the legal provider prohibits the dismissal of pregnant women only at the initiative of the employer, i.e., on the grounds provided for in Article 71, 81, 278, 288 of the Labor Code of the Russian Federation. In all other cases, when there is the initiative of the woman herself or the impossibility for one reason or another to maintain employment with a pregnant woman, the law provides for a significant number of grounds for terminating an employment contract.

Can a pregnant woman be fired on probation? The answer to this question can be important for both the employer and the pregnant employee. The legislation of the Russian Federation is aimed at protecting mothers and children, therefore the probationary period when hiring a pregnant woman has a number of nuances. Read about them below.

Features of the probationary period at work during pregnancy of an employee

The organization, recruiting a newcomer, has the right to establish a probationary period to test his professional skills. The test condition must be explicitly stated in the employment contract and the job order. If there is no such entry in the documents, then the new employee is considered accepted without a test.

For ordinary workers, the maximum test period is no more than 3 months; the management team and their deputies prove professional suitability no longer than six months.

A probationary period is not assigned when concluding a fixed-term employment contract with a duration of less than 2 months, and if the contract is concluded for a period of 2 months to six months, then the probationary period is limited to a period of 2 weeks.

And if the employee became pregnant during the probationary period

Dismissal in this case will also be illegal. The test condition must be canceled.

If you hired an employee with a probationary period, and after a few days she brought a certificate of pregnancy, then the question will arise before you: is it possible to dismiss a pregnant woman on a trial period?

In the above circumstances, you should follow one scenario: you must free the woman from the test. The legislation does not provide clear instructions on how best to do this. We recommend that you draw up an order to release the pregnant woman from the probationary period. You can also sign an additional agreement to the employment contract - to exclude from it the phrase about passing the test.

Dismissal of a pregnant woman during a probationary period

Any dismissal of a pregnant woman at the initiative of the company's management is illegal (Article 261 of the Labor Code of the Russian Federation). Exceptions 2:

• liquidation of the company or termination of the IP of its activities;
• expiration of an employment contract, provided that the company cannot transfer the employee to another position before the end of pregnancy

Suppose that you, as an employer, have doubts that the employee is really expecting a child. Then you can ask to submit the certificate from the medical institution again. If she refuses, then the organization has reason to believe that the employee is cheating and not pregnant. So, in this case, the ban on the dismissal of a pregnant woman on a trial period has no effect. If the refusal to submit a supporting document is recorded in writing, then the court will agree with the decision of the organization and will not reinstate the employee in her position (clause 27 of the resolution of the plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

Please note: a pregnancy certificate can be requested no more than once every 3 months - such a norm is set for a pregnant employee, a fixed-term contract with which was extended until the baby is born (paragraph 2 of Article 261 of the Labor Code of the Russian Federation). The same rule of law can also be applied to a woman who is exempted from probation in connection with pregnancy, based on the principle of equal rights for employees (paragraph 6 of article 2 of the Labor Code of the Russian Federation).

Is it possible to fire a pregnant woman as she has not passed the probationary period

If the employer knew that the employee was pregnant, but when she was hired, she still prescribed a test condition. In this case, the test condition will be illegal. Consequently, it is impossible to dismiss a pregnant employee as not having passed the probationary period.

There are also cases when the employer, having learned that the employee became pregnant on a trial period, forces a woman to write a letter of resignation of her own free will. It's illegal. Art. 261 of the Labor Code of the Russian Federation prohibits the dismissal of a pregnant woman, regardless of the presence or absence of a test condition in the employment contract. In this case, the employee has the right to refuse to write a letter of resignation or to go to court and prove that the application was signed against her will. In this situation, the court will take the side of the employee and require the employer to reinstate her in office and pay wages for forced absenteeism (ruling of the Moscow City Court of 18.10.2010 in case No. 33-32308 A). And the labor inspectorate will also fine the company - up to 200,000 rubles. under Art. 145 of the Criminal Code.

You can read more about other sanctions for violation of labor laws in the article "Labor discipline and responsibility for its violation".

Outcome

Learning from an employee about pregnancy on probation , the head of the company must immediately release it from the test. An employer cannot dismiss a woman in a position on his own initiative, even if she is absent from work or poorly performing her job duties. Situations in which the termination of labor relations is legal - the liquidation of the company (or the termination of the IP of its activities), as well as the end of the fixed-term contract.

Can a pregnant woman be fired on probation? This question is of interest to many, because pregnant women are vulnerable citizens. They are endowed with certain privileges, especially with regard to employment. But not many people know about them, respectively, this needs to be corrected. In case of violation of rights, it will be possible to complain to the employer, and he will incur some responsibility. What are the rules established in Russia regarding whether the employer is able to refuse such an employee during the trial period?

Eternal problems

Employment is an important moment in the life of every citizen. Only with pregnant women do employers often have problems. The point is that such employees after employment will have certain rights. About them a little later. And this will prevent, if something happens, to treat a subordinate in the same way as with all other personnel in the company.

Therefore, employers, in principle, do not like pregnant women too much and try not to mess with them once again. Is it possible to fire a pregnant woman on probation? It is difficult to answer this question. After all, there are many different situations, and depending on them, the answer to the question will change.

Probationary period: how obligatory it is

The fact is that the probationary period is something that is not always used in employment. But recently, such a measure has become more and more popular. In order not to hesitate, it is recommended to choose an employment that does not require passing this period. Just do it is not so simple.

In some cases, a trial period may be removed, but this is an extremely rare occurrence. In addition, it should be noted that sometimes not only the employer, but also the pregnant woman herself may have no idea about the "interesting position" of the new employee. Therefore, much depends on the situation.

Not up to date

Is it possible to fire a pregnant woman on probation? In fact yes. This possibility takes place when it comes to a situation in which no one knows about the "interesting situation" - neither the pregnant woman herself, nor the employer.

In this case, the boss has every right to remove the employee from her job duties both during and after the trial period. He will not bear any responsibility.

Only if a woman decides to recover after she finds out about pregnancy, she will have to be taken back. Indeed, in Russia, pregnant women have a similar right. What exactly is it about? It turns out that the employer cannot refuse to employ a pregnant woman. More precisely, it has no right to do so.

In the know

In general, on a trial period is a difficult question. So many factors can influence the answer. So, varied rules on this matter. And both the employer and the subordinates have to study them.

If a woman was aware of her pregnancy, she should inform the boss about it. Otherwise, there is a risk of dismissal. It is impossible to fire a girl in an "interesting position". Neither during the trial period nor after it. Only at the request of the employee herself, which is extremely rare. Therefore, if the employer and employee were aware of the pregnancy, then no one can take away the workplace from the latter.

But when a woman knew about the “interesting situation”, but didn’t inform the employer about it, and the employer removed her from work or completely broke off the employment relationship, the boss has nothing to fear. He did the law. But, again, upon request, they must restore the employee to work.

During the probationary period

Can they be fired if they become pregnant on probation? Also an ambiguous situation. If no one knew about pregnancy, then the girl can be fired. But at her request, then there is a restoration at the workplace.

But if a woman was aware of her situation, no one is able to remove her from work. Not during the trial period, not after that. It turns out that in fact the employer does not have the right to dismiss an employee who is in an "interesting position". This right remains with the subordinate. Can a pregnant woman be fired on probation? Not. Only at her own request. That is, if she independently writes a letter of resignation, then it will be possible to terminate the employment relationship with her at any time. And nothing more. Similar rules are specified in the Labor Code of the Russian Federation.

Pregnancy and probation

So, if there was no personal letter of resignation from the employee herself, the answer to the question whether a pregnant woman can be fired after a probationary period is always negative. You cannot fire a woman expecting a baby.

But what if she has already come pregnant for employment? By law, the employer cannot refuse her this privilege. That is, the workplace should be provided to a new employee in an “interesting position”. This fact has long been known to all.

But can a pregnant woman be fired on probation? Not. And all this is due to the fact that the Labor Code, in principle, prohibits the introduction of these conditions for pregnant women. That is, if a potential employee is already in an "interesting position", the boss must hire her without a probationary period. And it doesn’t matter if there are initial tests during employment in this company or not.

But what about the tests?

There are some more nuances of the studied situation. For example, the answer to the question whether the employer can fire a pregnant woman on a probationary period will be positive provided that neither the boss nor the expectant mother are aware of the “interesting situation”. And then the employer will have to restore the employee at the workplace on demand.

But what if pregnancy was discovered during the trial period? It was said that you cannot fire a woman. But at the same time, one cannot neglect the established laws in the country. The Labor Code for Pregnant Women abolishes all probationary periods.

So what is expected of a girl who finds out about pregnancy while passing tests? She has the right either to leave work on her own, or to start work. In other words, the probationary period must be terminated immediately. Otherwise, you can complain about the employer.

Problems of proof

So, can a pregnant woman be fired on probation? Not. And all tests must be stopped immediately. And if the employee is still fired, she has every right to complain about her employer. Only here we have to face one problem. It is a proof that the employer fired the employee precisely because of pregnancy and that he was aware of her "interesting situation".

Therefore, it is far from always possible to win a lawsuit. Indeed, many women hide their pregnancy to the maximum, just fearing that they will be fired as soon as they find out about it.

Reality

Can a pregnant woman be fired on probation? Legally, no, but in reality, unfortunately, yes. Indeed, as already mentioned, reality and legislation sometimes diverge. Employers are trying to do everything to make it impossible to prove their guilt.

Most often, pregnant women are assigned a trial period. Moreover, such an employee will have to work on the same conditions as other subordinates. This is illegal, but this practice is common throughout Russia.

If it is necessary to dismiss an employee who is in an "interesting position", then there are several tricks that are actively used by superiors. The first is the usual dismissal. After all, hardly anyone will sue. Pregnant women are not up to it.

The second is bringing the employee to an independent decision to quit. Also illegal, but more "honest" trick. Indeed, according to the Labor Code, one cannot dismiss a pregnant woman on her own initiative. Only at her request is this possible. So, in order not to have problems with the law, you just need to bring a person to the point that he himself does not want to work.

Temporary employment contract

Whether a pregnant woman can be fired on probation seems to be clear. But employers are pretty dodgy. So, in some situations, companies enter into temporary employment contracts with potential employees. All this is done in order to hide the probationary period. Accordingly, the court will have to prove that the contract is officially concluded and without this intent. This is not as easy as it seems. For example, a company should have no probationary period at all.

But you should know that even with a temporary employment contract, dismissing a pregnant woman is not so simple. Even if the employer really concluded such an agreement with a subordinate, before the end of pregnancy, it will not be possible to exclude her from the company. Especially if a woman does not write an application for leaving of her own free will.

There is a way out

Do they have the right to fire a pregnant woman on probation? Absolutely not. But there is one exception that is extremely rare in practice. The fact is that a pregnant woman can be dismissed only upon liquidation of the company, together with all employees. And this is the only legal basis that takes place.

That is, if we are talking about dismissal in connection with the liquidation of the organization, then pregnant women can be dismissed. The probationary period is preliminarily terminated (after the presentation of a doctor's certificate confirming the pregnancy), then the girl is formalized for employment. And only after that there is a dismissal in connection with the liquidation of the enterprise.

Perhaps this is the only case when you really can fire anyone. Otherwise, women in an "interesting position" have special rights. Every person should know about them.

Pregnant rights

What can a pregnant woman count on? What points should you pay attention to first? Pregnant women have the right to:

• guarantee of employment;
• complete absence of a probationary period;
• impossibility (even with truancy);
• additional breaks;
• light work;
• part-time work;
• maternity leave;
• allocating time to visit a doctor in an antenatal clinic;
• transfer to a more suitable position while maintaining earnings.

If there are no vacancies that could suit a pregnant woman, you can not go to work at all and still receive money. The employer is obliged to find a place for the pregnant employee, otherwise he will pay her in full the periods during which the subordinate did not really work, but should have. Nobody can fire her. Such rules are dictated by the Labor Code.

Now it is clear whether a pregnant woman can be fired on probation. According to the law - no, in practice, alas, it happens. Moreover, many do not hire pregnant women at all. With them, then a lot of problems arise for the authorities. And despite the illegality of such actions, no one complains about them. Indeed, even in the case of successful employment, it is possible that the employee will not be brought to the letter of dismissal of her own free will.

Almost every Russian company, when hiring new employees, practices the appointment of a probationary period. This is a completely legal measure to determine whether the organization and the employee are suitable for each other. But what about the situation with a pregnant employee? Can a pregnant woman be fired on probation? Management, as a rule, reluctantly hire female employees in position. According to the law, they cannot be dismissed, but the trial period does not imply an official appointment. The answer lies in the labor legislation of Russia.

The state strives by all available means to strengthen the position of pregnant women in the organization. The basis for determining the special status of this category of employees is the labor code.

The essence of his main provisions on this issue is as follows:

• pregnant women should have a special position in the organization (chapter 41);
• outlined the range of duties that are prohibited for employees in the position (article 253);
• temporary relief of working conditions in the form of a ban on night shifts, trips on business trips, etc. (Article 254);
• the impossibility of dismissal, with the exception of cases provided for by law (Article 261, Part 1).

The creation of special conditions for employees to work in a position is one of the reasons for the employer's reluctance to see them in their staff. Another obvious reason is an early long maternity leave, during which you will have to look for a replacement. Even young mothers find it difficult to find a new job. In this case, there are fears that the woman will often take sick leave and poorly concentrate on her official duties.

The main reason for dismissal, pregnancy will never be announced. Otherwise, the employer will face a large fine. At the beginning of the proceedings, he can always refer to the fact that he was not aware of the state of affairs.

Once in a position, at the interview stage, it is unlikely that the employee will ever explain this. After all, then she will immediately be shown the door. In any case, you will have to inform, it is better to do this a little later, some time after the start of the workflow. In this case, the chances of gaining a foothold in the workplace are much greater. If this fact is revealed, an unscrupulous leader may try to dismiss a pregnant woman during a trial period. In some cases, due to legal illiteracy of employees, they succeed.

When new employees are hired, they may be assigned a probationary period. Its duration ranges from 1 month to half a year. During this period, a significant change can occur with women. They may find themselves in a position. Can an employer fire a pregnant employee on probation? Theoretically, this is possible if no one knew about this fact. The court will not apply any sanctions against him, from a legal and practical point of view, the law has not been violated. He doesn't have to be aware of this. The dismissed employee, for her part, having established the fact of pregnancy, can apply to the judicial authorities for reinstatement in her previous position.

The following documents will be required:

• the passport;
• copy of the order of dismissal;
• employment history;
• certificate from the antenatal clinic.

The time for filing a statement of claim should not exceed 2 weeks. If at the time of dismissal the employee was already in position, the management will certainly be obliged to restore her in her original place. According to the law, the level of remuneration must remain the same.

Knowing about the upcoming event, it is impossible to delay the notification of management. The law clearly defines that it is impossible to fire a pregnant woman on probation. No one has the right to do this either during or after it.

At the same time, dismissal is possible on the initiative of the employee. In this case, you only need to notify about it two weeks in advance (the minimum period is 3 days). During this time, you can change your mind and withdraw your application without further dismissal.

By law, a woman expecting a child should not undergo any tests. And the experience, if the pregnant woman is on a trial period, whether they can be fired is unfounded. As soon as the management was informed about this, the employee is immediately obliged to issue staff. Moreover, they have no right to dismiss her even for numerous absenteeism and violations of labor discipline. The maximum that this can entail is non-payment for the days off (if the reason for the absenteeism is not bad health, confirmed by a doctor's note).

Unfortunately, there are often cases when an employee in a position is forced to leave the organization, creating unbearable working conditions for her, exerting moral pressure. Of course, this is a violation of the law, but, as a rule, it is difficult to prove the fact of unlawful actions of the authorities.

If you do not want to shake your nervous system with additional experiences, many write a statement of their own free will.

Sometimes, counting on the fact that pregnant women are not up to court proceedings, the management goes to a direct violation of the law and still signs the order.

This entails serious sanctions:

• penalty payment of 200 thousand rubles;
• 180 hours of forced labor;
• sanction payments in the amount equivalent to wages for one and a half years.

The amount of punishment is determined by Article 145 of the Criminal Code of the Russian Federation.

Sometimes management goes to tricks in order to be able to fire an employee at any time. The most popular way is to conclude a temporary employment agreement. It is difficult to prove intentional infringement of rights in court. You shouldn't count on this job in the future. But you should know that the employer does not have the right to fire a pregnant employee, even if she worked under a fixed-term contract, which has expired. He will have such an opportunity only after the end of this period.

The only legal reason for the dismissal of a woman expecting a child in 2019 is considered to be the liquidation of an enterprise, when everyone without exception falls under the layoffs.

The procedure in this case is as follows:

1. Having learned about the interesting position of the employee, the manager is obliged to end her probationary period and immediately officially enroll in the staff.
2. Inform all employees about the closure of the enterprise at least 1 month in advance. The best way to do this is by sending out written notices.
3. Drawing up and signing the appropriate order on liquidation and dismissal.
4. Entry into the work book.
5. Termination of an employment contract.

If the organization is a subsidiary or branch, and the head office of the company is located in another city, then a pregnant employee cannot expect to work there.

At the request of the hands should issue a package of papers:

• employment history;
• income statement;
• summary;
• copy of the order of dismissal.

Upon termination of employment, a woman in a position must be given the due wages plus compensation for unused leave. In addition, severance pay is calculated, equal to the salary for several months.

By law, a pregnant employee must receive a number of privileges. Due to her physical condition, she cannot work on an equal basis with other workers.

Expectant mother gets benefits:

• not required to take a probationary period before assuming office;
• guaranteed to receive the position previously claimed;
• impossibility of dismissal for any reason, except for the closure of the enterprise;
• half-holiday;
• additional rest breaks;
• long maternity leave;
• allocation of time required for a visit to the antenatal clinic;
• work involving physical stress is contraindicated;
• in the absence of the physical ability to perform the previous job, the employer is obliged to transfer to a more suitable position.

There are specific requirements for a pregnant woman's workplace. It should be comfortable and provide for the possibility of periodic relaxation.

According to the Labor Code, the management is obliged to provide an employee in a position with the necessary work that is feasible to perform. In the absence of such an opportunity, she with full right can not go to work, while receiving full payment for forced absenteeism. The lack of a suitable position is not a reason for dismissal.

Summarizing the above, in the event of pregnancy on a probationary period, can they fire? No, they cannot. However, in practice, this is often the case. There are very few judicial appeals in this regard. Indeed, even in case of restoration in the same place, few people will want to work in the current tense and unpleasant atmosphere. The best option is to try to amicably settle all disagreements.

A probationary period is that period of time during which the employer checks employee on the quality of the implementation of various assignments and tasks.

During the probationary period, the employer and the employee eyeing each other and decide on further possible joint cooperation. Of course, the employer always has the last word. However, the employee also has the right to decide whether he wants to continue to perform work for a specific employer or wants to terminate the existing cooperation.

During the probationary period, the employer closely monitors the professional qualities of the employee during the performance of a particular task. Also, the employer monitors and then how the candidate for a permanent job gets along with other colleagues.

The period of testing depends on the position that a person achieves. The probationary period is usually no more than 3 months... However, applicants for leadership positions can perform test tasks for 6 months.

Employers arrange such tests in order to protect themselves from incompetent, poorly educated employees. And can test tasks be established for women carrying a child? And what are the consequences of non-performance of these works? Should a pregnant woman be afraid of being fired during the test period?

Incompatibility between pregnancy and probation

Russian legislation identifies several cases when tests cannot be assigned to an employee:

• A woman in an “interesting” position;
• Workers who have young children under the age of one and a half years;
• Persons under the age of majority, etc.

Thus, pregnant women in principle it is prohibited to establish a probationary period when applying for a job. Therefore, the question of dismissal during this working period of time cannot exist. However, there are many situations that cause confusion between the employer and the employee.

It happens that when signing a TD with tests, the woman herself does not know that she is in an “interesting” position. Sometimes it happens that a worker deliberately hides your pregnancy from the employer at the conclusion of the TD. An employee may also become pregnant during the course of the probationary period.

In addition, some employers deliberately include probationary work in their employment contract, knowing that the employee is pregnant. What to do in such situations? And can a pregnant employee be fired on probation?

Conclusion by the employer of TD with tests with a pregnant employee

Of course, a woman in an “interesting” position can always leave her place of work at her personal request. However, the question of the legality of the deprivation of the place of work of a pregnant employee is discussed by many. After all, there can be many nuances that fundamentally change the general situation of existing affairs.

In cases where the employer was aware about the "interesting" position of a woman at the time of signing the TD and consciously included in him the condition for performing test tasks, this clause in the contract is considered to be invalid.

Such a condition will be invalidated. And, therefore, it will be impossible to dismiss a pregnant employee due to failure to fulfill this clause of the contract. After all, deprivation of a workplace for an employee carrying a child is prohibited by the legislation of the Russian Federation.

An employee who has entered into an employment contract with trials in an “interesting” position, which she herself did not yet know, also dismiss will not work. The consequences of concluding a TD between a pregnant woman and her employer, whom she did not inform about her “interesting” situation, will be the same.

Even if a woman becomes pregnant while performing test tasks, the employer still has no right to fire her. Indeed, according to the legislation of the Russian Federation it is forbidden to terminate TD with a pregnant woman at the request of the employer.

At the moment when the employer finds out about the pregnancy of the employee, he must stop all testing and officially include her in the staff on a permanent basis.

So from now on, the pregnant woman protected from termination of an employment contract with the employer on his initiative. Until the moment of leaving maternity leave, the employee can be calm. After all, no one has the right to deprive her of her workplace.

Consequences for the employer in case of dismissal of a pregnant woman

Judging by the above, it becomes clear that in any case, it is forbidden by the law of the Russian Federation to terminate a TD with a pregnant woman at the request of the employer.

In case of violation of the law, the employee has the right seek help in court with the requirement to restore her at her previous job. And also she has every right to collect the payment of wages for the period of forced absenteeism.