Usually, for transparency and clarity of requirements, enterprises create internal documents regulating the entire process of passing the probationary period. The list may be different, but the basis is always the position, plan and report on the completion of the probationary period. The regulations must reflect the goals and objectives of the probationary period and the procedure for completing it. The test plan guarantees an objective assessment according to criteria approved by the employer and allows you to check the qualifications of the subject. The more specific the tasks were, the easier it will be to find the required employee.
The result of passing the tests can be considered a report from a specialist responsible for checking the candidate’s suitability in accordance with the requirements for the applicant for the vacant position. The report gives an idea not only of the professional abilities, but also of the personal characteristics of the applicant. It may contain the following items:
- analysis of difficult situations and how the subject overcame them;
- a conclusion about the candidate’s ability to bring innovation to his work;
- for what reasons he failed to cope with the tasks assigned to him.
In the case where the test was successful and the candidate met all the parameters, the execution of new documents is not required to enter the employee into the company's staff. He simply continues to perform his job duties and is considered to have passed the test by default.
And if you do get fired?
If a woman expecting a child was forced to undergo a probationary period in circumvention of the law and was fired based on its results, such a violation of the law should not be left unpunished: the employer will receive a serious fine, and the expectant mother will be reinstated.
It is enough for an unfairly offended pregnant woman to contact the labor inspectorate, the district prosecutor's office or the court no later than a month from the date of receipt of the employment notice with a dismissal note.
At the same time, she does not need to prove her professional worth: the employer is obliged to prove that the employee dismissed during the test does not meet the requirements. If a dismissed employee is pregnant, such evidence will not help him: after all, the employer does not have the right to conduct tests for women in this position. He will simply receive punishment not under Article 145 of the Criminal Code, but under Clause 5 of Article 27 of the Code of Administrative Offenses of the Russian Federation “Violation of labor and labor protection legislation.”
IMPORTANT! Despite the difficult emotional state, a pregnant subordinate should not succumb to possible provocations of the employer and write a letter of resignation “of her own free will”, in which case it will no longer be possible to challenge unfair dismissal. If pressure is exerted, it is permissible to contact the labor inspectorate or at least warn the obstinate employer about such an intention
What to do in case of illegal actions on the part of the employer
To begin with, a woman should know that administrative and criminal liability is established for illegal actions of an employer in the norms of the Code of Administrative Offenses of the Russian Federation and the Criminal Code of the Russian Federation. For example, Article 145 of the Criminal Code of the Russian Federation provides for sanctions for illegal refusal to hire or dismiss a pregnant woman.
Similar rules protecting the rights of employees in “interesting situations” are contained in Article 5.27 of the Code of Administrative Offenses and 261 of the Labor Code of the Russian Federation. When resolving labor disputes, it is necessary to comply with administrative and judicial procedures.
First, you should write a complaint to the labor inspectorate operating in the relevant territory. It is better if the document is drawn up by a competent lawyer or the correct template is used from the Internet. Also, the inspection itself will provide assistance in the form of consultation, filling out an application, etc. After receiving a complaint, the government agency is obliged to consider it within 30 days and conduct an inspection of the employer for violations.
If any are identified, the inspector decides to apply a specific type of punishment. The liability of the enterprise can be limited only to eliminating violations, according to the instructions of the government agency, or it can be very serious - an administrative fine in the amount of 5,000 rubles. (for officials, individual entrepreneurs) or from 30 to 50 thousand rubles (for organizations).
In addition, if there are more serious violations, the inspector has the right to forward the complaint to the prosecutor's office, which will also conduct an additional inspection.
If the employer’s actions reveal signs of a crime, he will face criminal liability in the form of:
- a fine of up to 200,000 rubles or income received by the guilty official for a period of 1.5 years;
- compulsory work for a period of up to 360 hours, which means free, socially useful work performed by a convicted person in his free time from work.
If the situation is not resolved in favor of the woman, she has the right to go to court, in accordance with Article 391 of the Labor Code of the Russian Federation.
The limitation period for labor disputes begins to count from the moment the dismissal order is issued or the date of issue of the work record book. But it is worth remembering that not all labor disputes are easily resolved.
Before starting a lawsuit with your former boss, it is recommended to get the opinion of a lawyer. You will need to draw up a claim for reinstatement at work, attach the relevant documents and submit them to the district court at the location of the dismissing organization or the employee’s residence address.
- recognize the dismissal as illegal;
- oblige reinstatement in previously held position;
- cancel the entry in the work book confirming the dismissal;
- recover from the employer the average salary for the entire period of its illegal deprivation due to termination of the contract (until the day of reinstatement);
- demand compensation for moral damage.
The court, analyzing the plaintiff’s arguments and the attached evidence, determines which side the law is on in a given situation.
As a result of the consideration, a decision is made that:
- the fact of illegal termination of a contract with a pregnant employee is recognized;
- it is ordered to reinstate her in her position on the conditions that existed before the dismissal (this is subject to execution by the employer on the day the judicial act enters into legal force).
The facts that must be proven are the employer's knowledge that his employee is pregnant, the presence of motive and intent in the official's actions. Each claim of the applicant must be supported by written documents and testimony. This will significantly increase the chance of a positive resolution of the dispute. There is no need to pay state duty in cases affecting labor rights.
Any woman should know that pregnancy cannot interfere with employment or continuation of work during the probationary period and after its expiration. If the opposite is true, you should immediately use all legal levers of influence on the employer through the labor inspectorate, the prosecutor's office and the court.
What is a probationary period according to the Labor Code of the Russian Federation?
Before we talk about the possibility of assigning a probationary period for a pregnant woman, let’s understand the very concept of a probationary period.
Turning to the Labor Code of the Russian Federation, we find that the regulatory document does not contain such a concept as a “probationary period”. At the same time, Article 70 of the Labor Code of the Russian Federation explains the procedure for hiring an employee “with a test,” that is, checking professional suitability.
The letter of the law does not provide clear instructions as to how long an employee can be tested, but notes that no more than six months. Practice shows that the optimal time for “testing” an employee is 3 months.
As a rule, this time is enough to see his strengths and weaknesses not only from the point of view of professionalism, but also to evaluate the quality of interaction with colleagues and management.
The employer has the right to terminate the employment relationship with the “subject” without waiting for the end of the 3-month fixed-term contract. But this requires good reasons, such as
- systematic delays of the “subject”;
- committing aggressive actions against colleagues and management;
- performing work with low quality.
The last reason is valid only if the agreement specifies the criteria for evaluating work.
Pregnancy at different stages of the trial period
A woman can become pregnant at any time, and the employer may not always be aware of it. The law prohibits dismissing a pregnant woman in any situation except:
- complete liquidation of the enterprise;
- termination of the activities of the individual entrepreneur.
To protect her rights, a pregnant woman must be:
- aware of your pregnancy;
- inform the employer about your status;
- document the fact of your condition (provide a certificate from the antenatal clinic).
Let's look at the various conditions that may arise if a woman applying for a probationary job becomes pregnant.
Pregnant woman gets a job
Of course, most employers are not eager to hire a woman who will soon go on maternity leave. However, the law prohibits refusing employment due to pregnancy (Article 145 of the Criminal Code of the Russian Federation). Therefore, if a woman who is expecting the birth of a child is hired, the employer cannot set her a probationary period. Part 4 of Article 70 of the Labor Code of the Russian Federation contains a direct ban on the appointment of tests when employing female employees in the position.
Even if a woman expecting a child writes written consent to undergo a probationary period, and a provision regarding it is included in the employment contract, this will not cancel the legal prohibition of such a procedure.
When getting a job, the expectant mother does not have to undergo any tests, which means that she cannot be fired due to unsatisfactory results of the probationary period.
Got pregnant during probation
The legal time to establish professional suitability is not always short, and it is quite possible for a probationary employee to become pregnant. In addition, by the time of employment, the woman herself may not yet be aware of her condition, which will only be confirmed during the test itself.
At that moment, as soon as the employer learns of this situation of the employee, any probationary period for her is terminated, regardless of the time it was completed and the actual results.
From this moment on, she is considered hired and cannot be released from her position at the initiative of her superiors until she returns from maternity leave.
It happens that due to health reasons, the expectant mother is forced to take sick leave (for example, she needs to go to hospital), and she has not yet informed the employer about her changed status. The time while she is incapacitated for work on the basis of the corresponding certificate is still excluded from the probationary period, even if the employee were not pregnant. After returning to work, she will present a medical report that clearly confirms her condition, and will automatically receive all the benefits and privileges due to a working pregnant woman, including no probationary period.
If pregnancy occurs during the probationary period, it ends as soon as the woman informs the employer about it and documents this fact.
When is it prohibited to fire a pregnant employee?
First of all, the legislation protects a pregnant woman from the whim of the head of an enterprise who wants to fire her without a good reason, “because of pregnancy.” If a woman fulfilled all her duties, and she is fired, then she, in turn, has the right to sue the employer with a demand to renew the employment contract with full wages and even pay compensation for moral damage (if she was pressured by the head of the enterprise) . Unjustified dismissal of a pregnant woman threatens the employer with a fine of up to 200,000 rubles or even correctional labor.
Even if the work is not done properly, there are some nuances. The law really allows expectant mothers quite a lot. In particular, it is prohibited to fire a pregnant woman for absenteeism. Even if there was no written request for excommunication on her part, the employer has the right to apply only a disciplinary sanction. The same applies to theft, damage to property, or showing up to work drunk.
It is prohibited to dismiss a pregnant employee during the probationary period. From the moment a woman presents a pregnancy certificate, she becomes a full-fledged employee of the company, and her illegal dismissal will entail serious fines for the employer.
In cases where a pregnant woman works under a fixed-term employment contract that expires during pregnancy, she is required to apply for an extension of the contractual relationship until the end of the pregnancy. Under such an agreement, she can be fired a week after giving birth.
The employee must provide a pregnancy certificate quarterly and, in the event of termination of pregnancy, immediately report it. If she decides to hide this fact and it later becomes known, the employer can fire her within seven days.
Can a pregnant woman be fired from her job? And again the answer is no! It is impossible to lay off a pregnant woman. In the event of a reduction in the department where she worked, she should be provided with another suitable place of work. If the new vacancy does not suit the employee, she has the right to resign on her own initiative.
Even if the expectant mother provided services to an individual (for example, the services of a nanny or au pair), then the citizen acts as her employer and also cannot fire her on his own initiative.
Labor Code on pregnant women and the appointment of tests
In legislative documents on labor relations, the rights of women, especially those preparing to become mothers, are given special attention. Various articles of the Labor Code of the Russian Federation contain special norms relating to pregnant women:
- Ch. 41 of the Labor Code of the Russian Federation speaks of the special situation of pregnant employees;
- Art. 253 contains a list of types of activities in which an employee who is expecting a child cannot be involved;
- Article 254 speaks of the need to transfer pregnant women to easier work, if this is justified by a medical report, as well as a ban on business trips, night shifts and overtime work for them;
- Part 1 Art. 261 directly prohibits the dismissal of a pregnant woman, except for cases specifically provided for by law.
The law allows a probationary period to be established to ensure that the employee meets the professional requirements of the employer. The law does not use this exact term; it speaks of a “employment test,” but most often the condition of this exam is a certain period of time. The Labor Code of the Russian Federation outlines the principles of its purpose and the specifics of both sides:
- Part 1 of Article 70 of the Labor Code of the Russian Federation says that the employer can set this period only during the employment process, and its possibility is reflected in the employment contract;
- the minimum test period is not established, the maximum varies from 2 weeks to 3 months, in some cases - up to six months;
- Parts 1 and 4 of this article indicate an easy procedure for dismissing an employee while passing the test: an employee who does not pass it is released within 3 days or at his own request;
- Art. 71 of the Labor Code of the Russian Federation explains that if dismissal does not occur during the probationary period, it is considered that it was completed successfully, and the employee was hired on a general basis.
If an employee becomes pregnant during the probationary period
If there is evidence of the employee’s special situation, the organization does not have the right to terminate the employment contract with her, despite the possible unsatisfactory completion of the test.
This general rule applies to both ordinary employees and those who occupy leadership positions (directors, deputies, etc.). The only difference is that when a manager expresses a desire to resign, it is necessary to first gather all the founders of the company and draw up the relevant documents.
We need concrete evidence that the dismissal was made after management learned of the pregnancy. In the absence of compelling arguments and relevant materials (for example, hidden audio or video recordings), government agencies will not conduct an inspection of the stated fact.
Answer
No, you cannot fire a pregnant woman during a probationary period.
Dismissal of a pregnant woman at the initiative of the employer is illegal. An exception to this rule is when a pregnant employee is fired due to:
- liquidation of the organization;
- the end of the term of the employment contract concluded for the duration of the duties of the absent employee (provided that the organization does not have the opportunity to transfer her to another available job before the end of her pregnancy).
In other cases (including for unsatisfactory test results when hiring), a pregnant employee cannot be fired.
This conclusion follows from the provisions of parts 1–3 of Article 261 of the Labor Code of the Russian Federation.
At the same time, the Labor Code of the Russian Federation does not contain explanations about whether it is necessary to release an employee from the probationary period at the moment when the organization learned about her pregnancy.
In oral explanations, employees of the Russian Ministry of Health and Social Development express the opinion that the employee’s pregnancy, confirmed by a medical document, is sufficient grounds for releasing her from the probationary period. This conclusion can be drawn from Article 70 of the Labor Code of the Russian Federation, which states that it is impossible to establish a probationary period for pregnant women. And in accordance with Article 9 of the Labor Code of the Russian Federation, the condition of its testing is automatically invalidated as not complying with current legislation. In this case, it is advisable for the organization to issue an order (instruction) to release the pregnant employee from the probationary period, as well as draw up an additional agreement to the employment contract, excluding the condition for establishing a probationary period.
At the same time, the frequency with which an organization can require an employee to confirm her pregnancy is established by labor legislation for only one case. If a fixed-term employment contract was concluded with the employee, the term of which was extended until the end of the pregnancy. In such a situation, the employer has the right to request from the employee a medical certificate confirming pregnancy no more than once every three months. This procedure follows from Part 2 of Article 261 of the Labor Code of the Russian Federation.
In other cases, the organization has the right, at its discretion, to establish the procedure for submitting the certificate. For example, request it again if there is reason to believe that the employee is unreasonably abusing the guarantees provided to her. However, based on the principle of equality of rights for employees working under employment and fixed-term employment contracts, also request a medical certificate no more than once every three months (Article 2 of the Labor Code of the Russian Federation).
Please note: arguments that allow an organization to fire an employee for unsatisfactory test results if she refuses to provide a certificate confirming her pregnancy (including repeatedly). They are as follows
If an employee refuses to provide a certificate confirming pregnancy (including repeatedly), the ban on her dismissal is not valid. Since the organization has the right to believe that the employee is not pregnant. Moreover, if an employee applies for reinstatement at work, the court may take the side of the organization if it is established that the employee deliberately neglected the obligation to confirm the state of pregnancy (clause 27 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2). To do this, the organization should obtain documentary evidence of the refusal.
However, in this case, the organization should still take into account the responsibility provided for by law for the dismissal of pregnant women, the unambiguity of the rule prohibiting the termination of employment contracts with them, and take all measures to resolve the labor dispute (Chapter 60 of the Labor Code of the Russian Federation).
List of sources
- ipshnik.com
- www.Zarplata-online.ru
- AstroKamen.ru
- ecoafisha.ru
To confirm the professional qualities of candidates for employment, the administration of the enterprise may establish a test when hiring. Can a pregnant woman be fired during a probationary period under the labor code in 2017? The answer to this question can be found in the presented article.
Can a probationary period be established for pregnant women?
The grounds for introducing a test when hiring are regulated by Art. 70 Labor Code of the Russian Federation. The condition for establishing a test must be agreed upon by both parties to the employment relationship, but in practice the employer makes such a requirement to absolutely every job candidate.
This provision of the law provides for categories of citizens in respect of whom the condition of a probationary period cannot be imposed under any circumstances:
- elected officials of enterprises of all forms of ownership;
- minors under 18 years of age;
- employees hired by transfer;
- citizens with whom an employment agreement is concluded for a period of less than two months;
- pregnant women;
- women with young children under the age of one and a half years.
Thus, the legislation clearly excludes pregnant women from the list of candidates for whom a probationary clause may be included in the employment contract.
In order to avoid testing during employment, a woman must have a medical certificate from the antenatal clinic confirming the fact of pregnancy. If such evidence is not presented, the test will be established on a general basis.
The absence of a medical certificate at the time of employment does not deprive a woman of the right to present it during the test. In this case, the employer will be obliged to amend the employment agreement, excluding from it the requirement to complete a probationary period. If management refuses to comply with this legal norm and attempts to fire an employee, the woman has the right to apply for protection of her rights to the following authorities:
- State Labor Inspectorate;
- prosecution authorities;
- judicial authorities.
In the labor inspectorate and the prosecutor's office, a woman can draw attention to the fact of discrimination due to the state of pregnancy and demand the termination of the test and the conclusion of an open-ended employment agreement. In court proceedings, a similar requirement will be examined according to the general rules for considering individual labor disputes.
Thus, pregnant women will not undergo an employment test, and if the fact of pregnancy is established during the probationary period, the terms of the contract will be revised.
Is dismissal allowed?
The grounds for termination of the employment test may be the expiration of its period, or an unsatisfactory result, leading to termination of the employment relationship. In addition, based on the above situation, the probationary period ends upon presentation of a pregnancy certificate approved by a medical institution.
Is it possible to fire a pregnant woman during a probationary period if management does not have reliable information about the fact of pregnancy? In such situations, the duty to notify the employer about the presence of pregnancy is assigned to the woman, and the manager will only be responsible if he knew or should have known about this fact.
The most common situations are when, while a woman is undergoing probation, the employer finds out about the fact of pregnancy and tries to fire her on any possible grounds. Such reasons may be due to the following consequences for the administration of the enterprise:
- concluding a permanent employment agreement with a pregnant woman will inevitably entail the need to provide her not only with pregnancy leave, but also with child care leave for up to three years;
- the presence of a permanent or fixed-term employment agreement with a pregnant woman allows her to be fired only in the event of complete liquidation of the enterprise or official closure of the individual entrepreneur;
- The guarantees provided to this category of citizens significantly limit the possibility of applying liability measures to them for violation of labor laws.
Until a medical certificate is presented to the employer, he formally has the right to try to dismiss the pregnant woman from her probationary period. Possible grounds may include unsatisfactory test results, violations of labor discipline, etc., although the real reason for terminating the employment relationship will be reluctance to have a pregnant woman on staff.
In such a situation, the woman will have to prove that the employer knew or should have known about the state of pregnancy, but for this reason terminated the probationary period early and fired the employee.
Thus, the dismissal of a pregnant woman is not allowed not only during the period of validity of a fixed-term or permanent employment agreement, but also during the probationary period. There is only one exception to this rule - termination of the enterprise’s activities (liquidation), or closure of the individual entrepreneur.
Restoration of violated rights
Since situations involving the dismissal of pregnant women from a probationary period are often encountered in practice, it is necessary to establish in detail the procedure for protecting the violated rights of this category of employees. The moment of violation of rights will be the issuance of an administrative document (order) to terminate the employment agreement with employees as having failed the test.
No later than three days before issuing such an order, the enterprise administration is obliged to notify the woman in writing of the termination of the contract and indicate specific reasons for such a decision. Naturally, among such reasons, such a reason as the employee’s pregnancy will never be indicated, so the dismissed woman will have to subsequently prove this fact.
To protect violated rights, you must perform the following actions:
- file a complaint with the territorial division of the labor inspectorate;
- send an appeal to the prosecutor's office of the Russian Federation;
- submit a claim for reinstatement to the judicial authorities.
Despite the broad powers of the state inspection and prosecutor's office in the scope of labor legislation, their participation can be limited only to sending instructions to the company's officials about violations of the law.
Do these authorities have the right to go to court on behalf of a pregnant woman who was unfairly dismissed while undergoing a test? Formally, these institutions have such powers, but in practice, the woman herself will have to prepare and send documents to the court.
To successfully consider a case in court, at the stage of filing a claim, it is necessary to prepare the following documents and evidence:
- certificates and documents confirming employment on a probationary period (copy of the employment agreement, copy of the order on employment and establishment of probation, etc.);
- job descriptions of the employee for the period of the test;
- a medical certificate from the antenatal clinic reliably confirming the fact of pregnancy at the time of termination of the employment relationship at the initiative of management;
- other indirect and direct evidence that the employer had information about the woman’s pregnancy (results of the initial medical examination when applying for a job, etc.);
- a list of witnesses ready to confirm the plaintiff’s arguments that management had information about the woman’s pregnancy;
- direct and indirect evidence confirming the true reason for interruption of the probationary period and dismissal.
Only with this evidence will the plaintiff have a chance to prove the illegality of dismissal.
What to do in a situation where a woman was actually pregnant at the time of termination of her employment relationship, but due to objective circumstances did not have time to provide the manager with supporting documents from a medical institution? Indeed, in this case, the employer did not and could not know about the pregnancy, and justified the termination of the probationary period with objective indicators of unsatisfactory performance.
The assessment of all legally significant circumstances of the case will be carried out by the judicial authority considering the woman’s claim. To bring a case to trial, it is extremely important to comply with the procedural statute of limitations, which for challenging dismissal during a probationary period is only two weeks.
If the claim is filed later than the specified period, it will have to be reinstated with evidence of the validity of the absence (for example, being in a medical institution for medical reasons).
Since the trial will involve challenging the grounds for dismissal, the defendant’s management will have to prove the legality of the procedural actions. The specific subject of proof will be the fact of ignorance of the employee’s pregnancy at the time of making the decision to terminate the employment agreement.
An analysis of judicial practice shows that in the overwhelming majority of cases the court sides with the woman, even if the employer did not objectively have information about the special status of the employee. This state of affairs is due to the unified policy on the protection of motherhood and childhood, although formally the employer could act absolutely legally when dismissing an employee who did not pass the test.
The greatest difficulty is proving the fact that the company's officials knew or were obliged to know about the pregnancy of their subordinate. Such facts can be proven in the following ways:
- a documented referral of a woman for examination to a medical institution (for example, the enterprise’s medical service identified indirect signs of pregnancy, notified management about this, and sent the employee to an antenatal clinic for examination);
- testimony of witnesses who worked directly with the plaintiff (can confirm the fact that information about pregnancy was orally communicated to the employer);
- data from the initial medical examination, if one was required at the time of employment (during such an examination, the fact of pregnancy can be established and entered into the examination card data, and the conclusion must be submitted to the employer).
In any case, it must be remembered that termination of employment relations with this category of citizens is practically impossible under current legislation, even if there are culpable grounds for the woman’s actions.
Employers are reluctant to hire pregnant women. This is not surprising - soon such an employee will have to look for a replacement, while maintaining her job. But it is impossible to refuse employment to the expectant mother.
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Dismissal, according to the law, is also impossible if a woman is pregnant. But when it comes to probation, other rules come into force.
The legislative framework
The legislation of the Russian Federation protects the rights of working pregnant women.
For this purpose, several rules have been developed, which every employer who has such employees on staff must comply with:
- impossible, under any conditions, even systematic ones;
- according to Article 64 of the Labor Code, a pregnant woman cannot be denied employment if a medical certificate confirming her position is provided;
- Pregnant women and women with children under one and a half years of age must be employed without unpaid internship or probationary period.
If the employer intentionally or unknowingly violated the law by dismissing a pregnant woman, then appealing to the judicial authorities will allow her to be reinstated in her position.
In this case, the employer will be punished for failure to comply with the Labor Code rules.
Privileges for this category of employees
Expectant mothers can enjoy many privileges at work:
- reduction in production rate;
- reduction of working hours, independent regulation of the schedule;
- changing working conditions to more favorable ones that do not pose a threat to the life and health of the unborn baby;
- increasing the number of breaks.
To take advantage of these and other privileges, a woman will need to provide a certificate from the antenatal clinic confirming her pregnancy.
If we talk about more global privileges, then the expectant mother cannot be fired, even with.
She cannot be forced to work on probation. And if this type of employment occurs, then after presenting a certificate of pregnancy, the employer is obliged to transfer the woman to a permanent job.
Dismissal of a pregnant woman during a probationary period
The probationary period allows the employer to evaluate the performance of the hired employee. And the employee, in turn, becomes familiar with the rules of the organization, deciding for himself the advisability of official employment.
Many workers cannot maintain the pace of work and break up. A pregnant woman can do the same.
But if she purposefully goes to find a job in an organization and wants to work there before leaving, then she needs to immediately warn about her situation so that the probationary period does not affect her.
Is it possible to fire?
According to Articles 64, 70 and 261 of the Labor Code, dismissal of a pregnant woman during the probationary period is impossible.
If the employer is aware of the employee’s condition, then he is obliged to officially employ her.
In other words, it is legally impossible to fire an expectant mother.
If the fact was revealed during the test
Often, expectant mothers deliberately hide their situation or do not know about it themselves when applying for a job.
If there is no confirmation of pregnancy, the employer has the right to assign the new employee a probationary period, which lasts from 3 to 6 months.
The discovery of the fact of pregnancy during the trial obliges the employer to cancel the probationary period and conclude a contract with the employee.
If the expectant mother is fired, despite the rules of the Labor Code, the woman will need to go to court with a certificate from the antenatal clinic and prove what happened due to pregnancy.
As a rule, such claims end in a positive decision in favor of the plaintiff.
Dismissal of a pregnant woman is impossible in any case, regardless of her position.
So, if the expectant mother is the head of a department or organization, then by decision of the shareholders and the founding board she cannot be fired.
A woman in a position can only terminate an employment contract.
In case of violation of discipline
Even a gross violation of labor discipline and internal regulations during work or a probationary period cannot cause the dismissal of a female employee in the position.
An expectant mother can be punished financially by imposing penalties or not paying for days off work, but terminating an employment contract is illegal!
If the test fails
Regardless of whether a woman was pregnant when she was hired or found herself in an “interesting” position afterwards, she cannot be fired for failing to pass the test.
An employer may deliberately make working conditions more difficult, which is considered illegal.
As soon as a woman brings a certificate of pregnancy, she must not only be employed on a permanent basis, but also be created with optimal working conditions that do not pose a risk to the unborn child.
Upon liquidation
According to Article 261 of the Labor Code, in the event of complete liquidation of the company, a pregnant employee may be dismissed.
And this is the only legal reason for terminating an employment contract with an expectant mother. If the enterprise ceases its activities, then the employment relationship with all employees is terminated on equal terms.
A similar action is carried out when liquidating a separate branch located in the city where the expectant mother lives.
In this case, the employer is guided by Article 81 of the Labor Code of the Russian Federation.
When contracting
It is impossible to lay off a pregnant woman.
If the company completely eliminates a specific position (which was occupied by a female employee), then she is offered alternative options for available vacancies. Pay and work schedule are subject to change.
The pregnant woman either agrees to the transfer, or resigns of her own free will, or can take advantage of it.
By agreement of the parties
By agreement of the parties, dismissal should be carried out only voluntarily.
If a pregnant employee is pressured or threatened, she will be able to challenge the decision in court in the future.
During this time, the employee can refuse her decision.
How to apply?
The dismissal of a pregnant woman is formalized in a standard manner.
If she independently made such a decision or it was made by agreement of the parties, then the employer acts as follows:
- accepts an application from the employee;
- Signs the application within the established time frame, draws up;
- marks are made in the personal card and work book;
- the employee is given all compensation, wages and a work book.
Documentation
To resign of one's own free will, a woman will only need an application.
When liquidating an enterprise, the employer is obliged to warn all employees about the upcoming dismissal one month before the closure of the company. To do this, a written notice is drawn up and distributed to employees against signature.
A similar entry is made in the work book. At the employee's request, she is given a certificate of income and a resume.
Deadlines
Article 70 of the Labor Code of the Russian Federation states that the probationary period cannot last more than three months from the date of employment.
For managers and accountants, as well as their deputies, the maximum probationary period is 6 months. The exact period is indicated in the employment contract and the order of appointment to the position.
Dismissal of employees is possible only after this period. But employees can terminate their employment contracts on any day, having worked only three days after submitting an application.
Payments
Immediately after the dismissal is completed, the woman is paid a salary for the days worked and.
Last week my sister told me great news - she is pregnant, and there are plans to expand our family. A month ago, my sister got a job in a small commercial company on a probationary period.
Let's start with the main thing - the labor rights of pregnant women. If you become pregnant after employment or got a job while already in an interesting position, then the company cannot:
- dismiss you due to reduction;
- involve you in work on weekends and holidays;
- establish an irregular work schedule;
- oblige to work with overtime;
- involve in hard work or work in harmful conditions.
As we can see, labor legislation provides pregnant women with comprehensive guarantees for comfortable work. If the established procedures are not followed, the employee has every reason to file a complaint with the labor inspectorate.
What is a probationary period according to the Labor Code of the Russian Federation?
Before we talk about the possibility of assigning a probationary period for a pregnant woman, let’s understand the very concept of a probationary period.
Turning to the Labor Code of the Russian Federation, we find that the normative document does not contain such a concept as a “probationary period”. At the same time, Article 70 of the Labor Code of the Russian Federation explains the procedure for hiring an employee “with a test,” that is, checking professional suitability.
The letter of the law does not provide clear instructions as to how long an employee can be tested, but notes that no more than six months. Practice shows that the optimal time for “testing” an employee is 3 months.
As a rule, this time is enough to see his strengths and weaknesses not only from the point of view of professionalism, but also to evaluate the quality of interaction with colleagues and management.
The employer has the right to terminate the employment relationship with the “subject” without waiting for the end of the 3-month fixed-term contract. But this requires good reasons, such as
- systematic delays of the “subject”;
- committing aggressive actions against colleagues and management;
- performing work with low quality.
The latter basis is valid only if the agreement specifies the criteria for evaluating work.
Is a “trial” contract possible for a pregnant woman?
I will answer right away - it is impossible to establish a probationary period for a pregnant woman. This is what the TC says.
This means that an agreement fixing the conclusion of an employment relationship between a pregnant woman and an organization can be drawn up indefinitely (valid until terminated) or for a set period, but without establishing criteria for work, in addition to those provided for by the general requirements of the Labor Code of the Russian Federation.
In order to “skip” the probationary period, provide the HR department with a certificate from a medical institution or a copy of the exchange card confirming pregnancy registration.
To be fair, I note that employers formalize employment relationships with pregnant women very reluctantly. This is not surprising, because, having employed a pregnant woman, the employer cannot lay her off, and moreover, is obliged to provide special working conditions and work schedules.
During private legal consultations, I advise my clients to disclose pregnancy after concluding an employment contract (even one with “trial” conditions). In such circumstances, the probation agreement is canceled and a contract with standard labor guarantees comes into force.
Can a pregnant woman be fired during a probationary period?
As I said earlier, it is impossible to hire a pregnant woman under probationary conditions. But what if you have already been hired and have just learned about your position?
Guided by Art. 261 of the Labor Code of the Russian Federation, a woman, having learned about pregnancy and informed her superiors about it, acquires rights guaranteed to her, including the impossibility of employment on a “trial” basis. The party that hired you must take one of two actions:
- terminate the fixed-term “test” contract and enter into a standard employment contract;
- draw up an additional agreement with the pregnant woman to the “test” contract, excluding the provisions “on the test” and determining its duration or indefiniteness.
I told all this to my sister, who, in turn, notified the employer about the pregnancy and mentioned the need to make changes to the existing labor relations between them.
The employer responded to my sister’s request with understanding and responsibility and issued an open-ended employment contract with general conditions.
But this doesn't always happen. Quite often, companies, in an effort to avoid additional responsibility, offer the pregnant woman to resign or initiate dismissals themselves. If you find yourself in a similar situation, know:
- No one can force you to resign. If your superiors forced you to leave the company with threats and pressure, then this can easily be challenged in court.
- The organization or individual entrepreneur who hired you cannot initiate dismissal. This is impossible, even if you showed poor performance results.
In order to defend your rights in court, make sure you have documentary evidence of your pregnancy (certificate from a medical institution) and notification of your situation to the company (written notice or statement).
Can a pregnant woman be fired during a probationary period? This question interests many, because pregnant women are vulnerable citizens. They are endowed with certain privileges, especially in relation to employment. But not many people know about them, so this needs to be corrected. If rights are violated, it will be possible to complain against the employer, and he will bear some responsibility. What rules are established in Russia regarding Is an employer able to refuse such an employee during the probationary period?
Eternal problems
Employment is an important moment in the life of every citizen. It is only with pregnant women that employers often have problems. The point is that such employees will have certain rights after employment. More on them a little later. And this will prevent, if something happens, from treating the subordinate in the same way as all other personnel in the company.
Therefore, employers, in principle, do not like pregnant women too much and try not to contact them again. Is it possible to fire a pregnant woman during a probationary period? 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.
Probation period: how mandatory is it?
The fact is that a probationary period is something that is not always used in employment. But recently, such a measure has become increasingly popular. In order not to overthink it, it is recommended to choose employment that does not require completion of this period. But it's not that easy to do.
In some cases, the probationary period may be removed, but this is extremely rare. 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 situation” of the new employee. Therefore, a lot depends on the situation.
Not aware of events
Is it possible to fire a pregnant woman during a probationary period? In fact yes. This possibility occurs if we are talking about 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 performing her duties both during and after the probationary period. He will not bear any responsibility.
Only if a woman decides to recover after she finds out about pregnancy, she will have to take it back. After all, in Russia pregnant women have a similar right. What exactly are we talking about? It turns out that an employer cannot refuse to employ a pregnant woman. More precisely, he has no right to do so.
In the know
In general, the probationary period is a difficult question. Many factors can influence the answer. So, there are various rules on this issue. And both the employer and the subordinates have to study them.
If a woman was aware of her pregnancy, she should inform her boss about it. Otherwise there is a risk of dismissal. It is impossible to fire a girl in an “interesting position”. Neither during the probationary 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 latter’s workplace.
But when a woman knew about an “interesting situation”, but did not inform the employer, and he removed her from work or completely broke off the employment relationship, the boss has nothing to fear. He acted according to the law. But, again, the employee must be reinstated at work upon request.
During the probationary period
Can I be fired if I become pregnant during my probationary period? This is also an ambiguous situation. If no one knew about the pregnancy, then the girl can be fired. But at her request, she is then reinstated to her job.
But if a woman was aware of her situation, no one could remove her from work. Neither during the probationary period, nor after that. It turns out that in fact the employer does not have the right to dismiss an employee who is in an “interesting situation.” This right remains with the subordinate. Is it possible to fire a pregnant woman during a probationary period? No. Only at her own request. That is, if she writes a letter of resignation on her own, then the employment relationship with her can be terminated at any time. And nothing more. Similar rules are specified in the Labor Code of the Russian Federation.
Pregnancy and probationary period
So, unless there was a 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. It is impossible to fire a woman who is expecting a child.
But what if she has already come pregnant for employment? By law, the employer cannot deny her this privilege. That is, a new employee in an “interesting position” must be provided with a workplace. This is a fact that has long been known to everyone.
But can a pregnant woman be fired during her probationary period? No. 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 whether there are initial tests for employment in a given company or not.
What about the tests?
There are some other nuances of the situation being studied. For example, a positive answer to the question whether an employer can fire a pregnant woman during a probationary period will be provided that neither the boss nor the expectant mother is aware of the “interesting situation.” And then the employer will have to reinstate the employee at work upon request.
But what if pregnancy is discovered already during the trial period? It was said that it was impossible to 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 should a girl who finds out about pregnancy during testing be entitled to? She has the right to either leave work on her own or start working. In other words, the probationary period must be terminated immediately. Otherwise, you can complain against the employer.
Problems of proof
So, is it possible to fire a pregnant woman during a probationary period? No. And all testing must be stopped immediately. And if the employee was fired, she has every right to complain against her employer. Only here you have to face one problem. We are talking about proof that the employer fired the employee precisely because she was pregnant and that he was aware of her “interesting situation.”
Therefore, it is not always possible to win a court case. After all, many women hide their pregnancy as much as possible, precisely because they are afraid that they will be fired as soon as they find out about it.
Reality
Can a pregnant woman be fired during her probationary period? According to the law - no, but in reality, unfortunately, yes. After all, as already mentioned, reality and legislation sometimes diverge. Employers try to do everything to make it impossible to prove their guilt.
Most often, pregnant women are given a probationary period. Moreover, such an employee will have to work under the same conditions as other subordinates. This is illegal, but this practice is widespread throughout Russia.
If it is necessary to fire an employee who is in an “interesting situation,” then there are several techniques that are actively used by bosses. The first is a regular dismissal. After all, it’s unlikely that anyone will sue. Pregnant women have no time for this.
The second is to bring the employee to an independent decision to quit. Also illegal, but more “honest” technique. After all, according to the Labor Code, you cannot fire a pregnant woman on your own initiative. This is possible only at her request. This means that 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 during a probationary period seems clear. But employers are quite resourceful. Thus, in some situations, companies enter into temporary employment contracts with potential employees. All this is done to hide the probationary period. Accordingly, in court it will be necessary to prove that the contract was concluded officially and without this intent. This is not as easy to do as it seems. For example, the company should have no probationary period at all.
But you should know that even with a temporary employment contract, it is not so easy to fire a pregnant woman. Even if the employer actually concluded such an agreement with a subordinate, it will not be possible to exclude her from the company until the end of her pregnancy. Especially if a woman does not write an application for care of her own free will.
There is a way out
Do they have the right to fire a pregnant woman during a probationary period? Absolutely not. But there is one exception, which is extremely rare in practice. The fact is that a pregnant woman can only be fired upon liquidation of the company, along with all the employees. And this is the only legal basis that exists.
That is, if we are talking about dismissal due to the liquidation of an organization, then pregnant women can be fired. The probationary period is first terminated (after submitting a doctor’s certificate confirming pregnancy), then the girl is given official employment. And only after this does dismissal occur due to the liquidation of the enterprise.
This is perhaps the only case where you can really fire anyone. Otherwise, women in an “interesting situation” have special rights. Every person should know about them.
Rights of pregnant women
What can a pregnant woman expect? What points should you pay attention to first? Pregnant women have the right to:
- job guarantee;
- complete absence of probationary period;
- impossibility (even with absenteeism);
- additional breaks;
- light labor;
- part-time;
- maternity leave;
- allocating time to visit a doctor at the 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 a pregnant employee, otherwise he will pay her in full for periods during which the subordinate did not actually work, but should have. No one can fire her. Such rules are dictated by the Labor Code.
Now it’s clear whether a pregnant woman can be fired during a probationary period. According to the law - no, in practice, unfortunately, this happens. Moreover, many do not hire pregnant women at all. The management then has a lot of problems with them. And despite the illegality of such actions, no one complains about them. After all, even in the case of successful employment, it is possible that the employee will not be brought to the point of resigning at her own request.
