During pregnancy, the thoughts of women are not always busy. Endless trips to doctors, sick leave, long vacations - it is not surprising that some unscrupulous employers try to get rid of such employees. Can a pregnant woman be fired? How can a future mother protect her rights? Is dismissal possible upon liquidation of the enterprise?
Pregnancy and career
Often, getting a new job, a woman does not even think about the imminent expansion of the family, but anything happens in life. Well, while working in a team for quite a long time and having a stable financial situation, almost anyone begins to think about it, especially if she is doing well in her personal life. In general, sooner or later, almost every representative of the fair sex is faced with the issue of combining career and pregnancy.
This period is quite difficult for any woman, even if she is an excellent specialist and professional in her field. It becomes extremely vulnerable both physically and emotionally, so it is not surprising that labor laws are so tough in terms of relations between the employer and the employee who are waiting for the addition.
Meanwhile, for colleagues and superiors, the news of imminent maternity leave may not be so joyful. Despite the fact that in a financial sense, the company does not bear any costs, most small enterprises prefer not to hire young married girls just in connection with the likelihood of an early maternity leave. At the same time, the employer needs to look for a replacement worker, to pay the funds laid down by law, which the social insurance fund will compensate only after some time ... In general, the good relations between the boss and the female subordinate going on maternity leave can deteriorate sharply. And then the expectant mother should worry about protecting her rights and find out what the employer can do to get rid of her.
Possibilities of dismissing pregnant women
Since all the grounds for terminating an employment relationship with an employee listed in Article 81 of the Labor Code of the Russian Federation are not applicable to expectant mothers, the employer does not have many options for getting rid of them. By the way, the law does not distinguish between those workers who became pregnant before being hired and after. However, this does not mean that during the interview you need to withhold this fact in response to a direct question.
Firstly, through pressure and threats, you can try to force a pregnant woman to write a letter of resignation of her own free will. As the Labor Code indicates, dismissal in this case is absolutely legal, but a woman can contact the relevant authorities and report a violation of her rights. The main difficulty is to prove that there was a compulsion to dismiss - this obligation rests with the victim herself.
Secondly, it is a fixed-term employment contract. Many employers consider it a panacea for dismissing an employee after graduation, regardless of whether she is expecting a baby or not. But this is not so, especially if the expectant mother is savvy in matters of labor law. By timely notifying the employer of the fact of her pregnancy, the woman has the right to extend the contract until the end of the pregnancy. However, immediately after childbirth, this document is terminated.
Thirdly, this termination of the contract by mutual agreement. This option almost completely repeats the first, that is, it is impossible to dismiss a pregnant woman in this way completely legally, if she wants to continue to work.
Finally, another possibility is the reorganization or liquidation of the company. And, according to the Labor Code, the dismissal of a pregnant woman only in this case and subject to all her rights will be legal. But since there are peculiarities and difficulties, it is worth considering these options in more detail. Generally speaking, the dismissal of pregnant women during the liquidation of the enterprise is feasible.
Probation
Some employers believe that in the first few weeks after hiring, having discovered the fact of pregnancy, the employee can easily be fired, saying that she is not suitable. But they forget that the probationary period is illegal for expectant mothers and those who have children under 1.5 years old. The task of the woman in this case is to timely notify the employer of the changed circumstances and ask him to make the necessary changes to the employment contract. It is best to send a registered letter to the organization, as well as provide a medical certificate. Thus, it will be possible to protect your rights even in court, proving the fact of timely notification, which took place before the expected end of the trial period.
Liquidation
Sometimes, due to the end of a license or due to bankruptcy, a company ceases to operate. In this case, all employees, without exception, lose their jobs, including expectant mothers, as well as those who are on parental leave. It is necessary to make sure that there is no succession to other legal entities, because in this case pregnant women should be offered a position corresponding to their knowledge and skills. If the transition of rights does not occur, the woman, alas, will lose her job. So the dismissal of pregnant women during the liquidation of the enterprise is completely legal.
By the way, the legislation is similarly valid in the event that branches and representative offices of a company located in another locality are closed. That is, if the head office of the organization is located in Moscow, and the structural unit is in Yekaterinburg, then dismissal in connection with the liquidation of the enterprise, or rather part of it, is absolutely legitimate.
Reorganization
Often there is also a situation where the company undergoes some changes, but does not disappear completely. In this case, the reorganization of the legal entity takes place, and there can no longer be talk about dismissal during the liquidation of the enterprise. There is a successor, which means that all employees are required to offer any positions. Often, at the same time, management tries to get rid of unwanted employees, including pregnant women. It may happen that there will be a demotion, which is possible only with the written consent of the expectant mother. If there is no alternative, the employment contract may be terminated. However, all this applies to the rest of the employees: the emergence of new owners is not the basis for the dismissal of employees. With the liquidation of the enterprise, obviously, everything is different.
If it seems to the pregnant woman that the employer did not offer her a suitable position or in any other way violated her rights, it makes sense to go to court and the labor inspectorate. If dismissal in connection with the liquidation of an enterprise can rarely be challenged, then reorganization is a wide field for fraud. In practice, the court often takes the side of the affected pregnant.
Staff reduction
Another situation that the employer may try to take advantage is the liquidation of the position of a pregnant employee. Of course, the organization has the right to change its staffing, but this does not apply to expectant mothers and women with children up to three years of age - they retain jobs. But it is by law. In practice, the employer can again exert some pressure, forcing the pregnant woman to sign all the necessary documents. Of course, this is unlawful.
Holiday to care for the child
If everything became practically clear with expectant mothers, then with those who have already given birth, the situation is somewhat more confusing, especially for the workers themselves. Women with children under 3 years old cannot be fired on the initiative of management. Of course, they can independently make such a decision, but the employer cannot legally drive them out. An exception is again dismissal in connection with the liquidation of the enterprise. But it is worth remembering that some provisions of the Labor Code apply only to those who are still on vacation, and for those who have left for the workplace, only general grounds are relevant.
The order of dismissal
With the liquidation of the enterprise, the employer, in order to save money, can offer all employees several options, some of which can seriously infringe their rights. This can be compensated for in money, and then it makes sense to think, or it can be presented in an ultimatum form. It is worth remembering that the organization is obliged to pay compensation to employees if employees are dismissed during the liquidation of the enterprise, and do not sign a statement of their own free will.
In addition to signing a notice 2 months before the legal entity ceases activity (in the case of an individual entrepreneur - 2 weeks) and payments that will be discussed in more detail a little later, there is one more peculiarity - you can terminate the employment contract before the expiration of the notice period and receive additional money. But all this is valid only if paragraph 1 of Art. 81 of the Labor Code of the Russian Federation. It is such a record that remains in the workbook if a dismissal occurs on the liquidation of the enterprise.
Payouts
If the expectant mother agrees to write a statement of her own free will or by agreement with the employer, she loses the right to receive all maternity benefits, as well as caring for the child at the place of employment. Most often, she seriously loses money, because through social services she can only achieve a minimum, and even only by collecting a large number of necessary documents.
As for the situation with the liquidation of the enterprise, everything is a little better. Firstly, the employer is obliged to warn about this two months before the termination of activity. Secondly, the average monthly earnings for the period of employment, but not more than 2 calendar months, are maintained. However, the dismissal in connection with the liquidation of the enterprise implies such conditions for all employees, and not only for pregnant women. Incidentally, in this case, the woman retains the rights to all payments due to her from the FSS.
Other rights
A pregnant woman and a young mother, as has already become clear, are practically inviolable in labor relations. The exception is only the dismissal of employees upon liquidation of the enterprise. But what are the rights of those who work under a fixed-term contract?
Under the law, the employer is obliged to arrange for a pregnant woman who was replacing another person to a different position before her birth if the former employee returned to his duties. He can do this only with her written consent, and only if this is not possible, the employment contract can be terminated. Many employers take advantage of this loophole, offering future mothers jobs that do not match their qualifications, citing the fact that there are no other vacancies, and thereby forcing her to quit. In this case, it is better to consult with a competent lawyer and, perhaps, even contact the labor inspectorate, which will help protect your rights or at least compensate for their violation in monetary terms.
Future future
It is incredibly difficult for expectant mothers to find a job, which significantly affects the amount of payments they have received from the state. But even if you failed to protect your rights, do not lose heart. Perhaps the dismissal in this case is an opportunity to do something completely new, for example, to organize a home kindergarten, which have become very widespread in recent years. Such a change of activity can be a step in a new career, which can be much more successful than the previous one.