Know your rights: Lawyer about the dismissal "of pregnancy"
According to Rosstat, The number of pregnant women in 2014 in Russia was 1 million 826 thousand. How many of them were officially employed at that time, statistics is silent - as, however, she is silent about the number of pregnant employees dismissed by unscrupulous employers.
The problem of dismissal of pregnant women is quite acute: employers are sensitive to such employees because of the economic crisis. "How can we make commitments about pregnant employees when the state cannot guarantee us stability and growth?" - such questions are constantly heard on the sidelines of legal institutions and courts that consider cases of unlawful dismissal of pregnant women - sometimes they are pronounced evil, sometimes with despair. And yet, cases where a pregnant employee is rudely fired because of her position are rare. The workers themselves, as a rule, have weighty reasons to insist on continuing work in the organization - in today's Russian conditions it is very difficult to receive any substantial benefits from the state if a woman is not employed.
Often, the employer does not want to support an employee who for three years will not fulfill their job duties. In addition, it is necessary to find a replacement for it for this period, and this is a difficult and long process, especially if we are talking about rare professions. What to do if you are threatened with dismissal or you have already been illegally fired? In short - do not despair and appeal against the actions of the employer, including with the help of a lawyer (to save nerves and energy). We tell how to protect their rights in different situations.
Situation number 1:
At the initiative of the employer
First and foremost: dismiss a pregnant woman working under an open-ended contract (that is, any employment contract that does not specify its duration), “under the clause”, “for absenteeism”, “inconsistency of the position”, “trips to doctors”, because of that she "became absent-minded and cannot do her job" is, by law, impossible.
If the employer threatens to find any shortcomings in your work, monitor your absence from the workplace, burden you with work that you cannot cope with, or otherwise try to bring your actions under any of the grounds specified in article 81 of the Labor Code Of the Russian Federation ("Termination of an employment contract initiated by the employer"), then its actions can always be appealed. Well, or try to ignore, casually dropping the phrase in the conversation about their illegality.
An employer can terminate an employment contract with a pregnant employee on her own initiative only in the event of liquidation of the enterprise. Moreover, the date of liquidation is considered to be the exclusion of a company from the Unified Register of Companies (the Unified State Register of Legal Entities), and not an announcement of the upcoming liquidation or notification of it (the exception is credit organizations).
Dismissing a pregnant woman due to the fact that she "became absent-minded and could not do her job" is, by law, impossible
Separately, it should be said about the dismissal due to failure to complete a probationary period. Remember: it is not installed for pregnant employees. If you find out that you are pregnant, during a trial period, then you need to bring a certificate of pregnancy. On its basis, your probation period is necessarily terminated, and a regular employment contract is concluded with you. Accordingly, from this moment on, a woman acquires all rights, guarantees and obligations in the same way as if she simply passed a probationary period.
If the contract was urgent (that is, limited to any date) and the parties believe that the employment relationship has exhausted itself, then they are completed in the usual manner. If in this case the woman wants to continue working, then she should write a statement about it and provide a medical certificate confirming her condition. You can extend the employment relationship until the end of the pregnancy, but there is an important condition: you need to submit a fresh medical certificate of pregnancy at the employer's request (but not more often than once every three months). At the end of the pregnancy, the employer may terminate the contract - he must do it within seven days from the time when he became aware of this.
Situation number 2:
By agreement of the parties
Dismissal by agreement of the parties - The most common situation for pregnant employees. Employers often ask a woman to vacate their position, arguing that their plight, unnecessary spending, threatening to dismiss all the same "under the article" or promising mountains of gold in the dismissal. Keep in mind that the dismissal is a right and not an obligation of the employee.
In the event of dismissal by agreement of the parties, the employer is obliged to negotiate with the employee about the conditions for dismissal. It is important that in such a situation you are entitled to demand a "compensation" - a sum of money. It is not limited by law, but, as a general rule, is paid to the employee on the last day of work. In addition, when you are dismissed by agreement of the parties, you can agree on the conditions of working out and its term - it may not even exist.
Even if the woman at the time of dismissal did not know about the pregnancy, she can still withdraw the agreement on dismissal.
In order to unambiguously understand the terms of the contract termination, you need to formalize the agreement in a separate document - here you need to register all the conditions on which you agree to quit, right down to the smallest details. Such an agreement must be signed by both parties - although it is allowed to simply affix the word “Agreed” with the signature of the manager (be careful: only the authorized representative of the employer has the right to affix this resolution). In addition, the employer must issue an order of dismissal by agreement of the parties, and the pregnant employee must familiarize himself with it and sign. If this does not happen, it is believed that the dismissal was made in violation of the law - this is sometimes to the benefit of the dismissed employee. The rest of the dismissal procedure by agreement of the parties depends only on the employer and the employee: neither the amount of compensation, nor the terms of working off are strictly regulated by law.
Judicial practice in the Russian Federation is now shaping up so that even if a woman at the time of dismissal did not know about the pregnancy, she can still withdraw the agreement on dismissal. Such an understanding of the norms of the law is in the definition of the Supreme Court No. 37-KG14-4. This is a unique situation for the protection of women's labor rights: it allows you to renegotiate the terms of the agreement and even withdraw it, which is unacceptable in other cases. This approach supports and develops the definition of the Supreme Court No. 37-КГ16-45: the court finally figured out the situation and demarcated the real agreement between the parties and the situation when the employer forces the employee to quit. In this case, the woman not only went against the established practice, but also obtained an appeal against the decisions in the Supreme Court, and, most importantly, her demands were met.
Situation number 3:
At their own request
Dismissal - it would seem What is difficult in this situation? A woman has the right to work or refuse it. But there are two very important nuances: first, the woman really should want to part with the employer, and, second, the employer should make sure that the woman really wants it. Often employers force a pregnant woman to quit on her own will. But if a woman understands that she wrote a statement under pressure, even if the contract has already been terminated, you can cope with the employer's aggression.
Not so long ago an unprecedented incident occurred in this area. The employee did not get along with the director, filed a letter of resignation at her own request, and was dismissed on the basis of it - quite a common situation. Later, the woman found out that when she was fired, she was pregnant. She filed a lawsuit, despite the fact that there is no practice in such cases. She argued that she was forced to lay off and at that time she was pregnant. The court of first instance refused to satisfy her demands: in his opinion, the woman decided to behave in bad faith and wanted to force the employer to support her during the pregnancy.
If a woman understands that she wrote a statement under pressure, even if the contract has already been terminated, you can cope with the employer's aggression
Fortunately, the woman did not despair and decided to appeal this decision to the Moscow City Court. In August of this year, a decision was made that fundamentally changed the established practice: the court decided to satisfy the complaint, reinstate the woman in the office and recover from the employer in her favor earnings for 336 days of forced absenteeism.
In case of violation of labor rights, in case of illegal and unjustified dismissal, every pregnant woman has the right to file a labor inspection with a complaint, to the prosecutor’s office with a statement or (as practice shows, the most productive) to the district court at the place of residence with a claim to reinstate. This claim is not subject to duties, but it is very important to observe the deadlines and submit an application no later than one month from the date of delivery of a copy of the order of dismissal or from the date of issuance of the employment record.
In any case, it is important to remember that you should never despair. Even if you are unlawfully fired, you can fight - and employers should not shy away from obligations and neglect your rights.
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