During pregnancy and after childbirth, a woman has legal grounds to declare maternity leave if her work activity is officially registered in any organization. She is also entitled to cash payments without having to go to work until the child turns 3 years old.
Therefore, cases of termination of an employment agreement on the personal initiative of an employee on maternity leave are extremely rare. The reasons for this may be either the liquidation of the old enterprise or the transition to a new place of duty.
Is it possible to fire a woman on maternity leave?
Working women preparing for the birth of a baby are given special leave. Labor law calls it maternity leave. However, most often such leave is simply called maternity leave.
During this period it is very difficult for a woman, and one can even say with confidence that it is almost impossible to find a suitable job for herself. That is why the Labor Code of the Russian Federation has established guarantees for them related to dismissal. It is possible to sever an employment relationship with a woman on maternity leave only in extreme cases provided for by law.
Arbitrage practice
One of the courts considered the employee’s appeal for reinstatement in her previous position and payment of compensation for moral damage caused.
During the study of the contents of the petition, it was established that the initiator was appointed to the position in accordance with the signed employment agreement. At a certain point, the worker temporarily interrupted her work due to the need to take care of the newborn child.
Some time later, she received a notification that cooperation would be interrupted due to the liquidation of the organization. The woman did not agree with this position, since the procedure had been started, but the enterprise actually continues to function.
The company representative did not appear for the hearing and did not report the reason for his absence.
During the study of the presented materials, it was established that the defendant organization was declared bankrupt based on a court decision. However, at the time of dismissal and consideration of the appeal, only the beginning of the procedure takes place, and the organization itself actually continues to function.
According to current regulations, the dismissal of the initiator could only take place in the event of actual liquidation.
Based on what was studied, the court made a conclusion and fully satisfied the initiator’s request. The woman was reinstated. In her favor, money was withheld from the organization for moral damages, and expenses for paying for the services of a representative were also reimbursed.
The company was charged funds for considering the appeal.
Is it possible to fire a woman on maternity leave at her own request?
Women on maternity leave retain their jobs. Before going on maternity leave, they receive maternity benefits, and after the birth of a child, the employer pays them a monthly allowance until the baby is 1.5 years old. This allows a woman not to think about finances and devote herself entirely to caring for the child.
In such conditions, women rarely think about quitting, because getting a new job in this situation is quite difficult, and depriving yourself of a job and a stable income is inappropriate.
At the same time, the law does not prohibit an employer from firing women if they themselves express a desire to leave. And sometimes, unscrupulous employers try to use this “loophole” in the law, forcing such women to write a statement of their “own” desire. Of course, there is no need to follow the lead of management in such a situation. But, even if the application was written under threat or pressure from the employer, such dismissal can be challenged in court and reinstated in the workplace.
Reasons for dismissal
Dismissal upon liquidation of an organization (enterprise), termination of the activities of an individual entrepreneur
According to domestic legislation, in the vast majority of situations this is the only reason why you can fire an employee who is on maternity leave.
The procedure in this case is as follows.
- The employer informs all subordinates in advance about the future liquidation of the enterprise, including employees on maternity leave.
- Subordinates familiarize themselves with the documentation and then sign it. If an employee is on maternity leave, the employer informs him that on a certain date the person will need to come to the enterprise and review the documents against signature. After an employee on maternity leave comes to the enterprise, he receives a dismissal order from the employer, after which he signs the relevant documents.
- As soon as 2 calendar months have passed, subordinates receive compensation payments and work books, which indicate the reasons for their dismissal.
If an employee on maternity leave does not come to the enterprise, then all the necessary documents are sent to him by mail at the registration address.
Domestic legislation establishes the employer’s obligation to pay each subordinate a benefit, the amount of which is equal to the average monthly salary. The benefit is transferred within 2 months when the former subordinate searches for employment.
Employees on maternity leave also receive the required funds. The average monthly salary is calculated based on the amount of income for the year that preceded going on maternity leave.
In addition, employees on maternity leave receive the following documentation from the employer upon dismissal:
- work book, which contains the reason for dismissal;
- certificate of salary for the 24 months preceding maternity leave and for the current year;
- certificate in form 2-NDFL for the last 36 months;
- a photocopy of the statement that the employee is going on maternity leave and receiving the appropriate benefits;
- photocopy of sick leave for pregnancy and childbirth.
To receive the last 3 documents, the woman will need to send an application to the employer, since he is not obliged to send them. This documentation is necessary to receive benefits from the social security authorities.
Reorganization of the enterprise, reduction of personnel
Reduction and reorganization are not sufficient grounds for dismissing a woman on maternity leave. The employer only has the opportunity to offer the subordinate another position. If the employee agrees to this, then his previous position will be reduced, and if he refuses, he will be retained until he returns to work after maternity leave.
Agreement of the parties
The maternity leaver and the employer have the opportunity to terminate the employment relationship by mutual agreement. The reason for dismissal will be indicated in the work book. After the employee is fired, the person will receive a work book, additional documents and the funds due to him. The employer also has the opportunity to increase the amount of financial compensation at his own request.
Dismissal under a fixed-term employment contract
If an employee was hired under a fixed-term employment contract and is currently on maternity leave, then he cannot be fired. It does not matter the fact that the contract has come to an end - it is extended until the employee gives birth or leaves maternity leave, after which it is canceled due to the expiration of the validity period.
If the main worker (employee) quits, and a woman on maternity leave is hired in his place, then the employer has the opportunity to fire the woman. The management has the right to fire her when they offered the pregnant employee another vacancy, but the woman did not agree to it. An employer can also fire a woman if the employee does not confirm or deny the transfer to another place of employment.
The temporary employee will be fired when the main employee returns to work.
Dismissal at your own request
During maternity leave, an employee has the right to quit her previous job at any time that suits her.
Usually, there are no obstacles from management in such situations, but if management refuses to accept the resignation letter, then the woman will need to send all the necessary documentation by mail - in a valuable letter with a list of attachments. When the employer receives the letter, a 2-week reporting period will begin, after which he will be obliged to issue the employee a work book and pay him in full.
Dismissal of a woman on maternity leave at the request of management
Termination of employment relationships with pregnant employees at the request of management is prohibited by the Labor Code of the Russian Federation. It will not be possible to dismiss such workers even if there are good reasons for this.
Things are a little different with the dismissal of a woman who has already given birth and is caring for a baby under 3 years old. If she sits at home with the baby, then you can fire her only in the most extreme cases, which will be discussed below. Dismissal of a working mother of a child under 3 years of age can be made for a greater number of reasons, including absenteeism, repeated evasion of obligations imposed on her by an employment contract and other grounds, according to Article 261 of the Labor Code of the Russian Federation.
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Grounds for dismissal, in which cases this is possible
According to the law, dismissal during maternity leave is prohibited. But there are several reasons why termination of work is still possible. Let's look at them:
- Expiration of a fixed-term employment contract.
- Liquidation of the enterprise.
- When submitting fake documents when applying for a job.
- In case of medical contraindications to further work.
- When criminal penalties are brought against the employee.
- On the employee's own initiative.
Expiration of the contract during maternity leave
Things are different if the contract expires. In this situation, two scenarios are possible. If a woman was hired to fill the position of a temporarily absent employee, then with his entry the contract with such an employee may be terminated.
At the same time, management is obliged to offer such a woman another job available to him if she can perform it taking into account her position. However, if it is not possible to provide such work, the dismissal of the maternity leave will be justified.
Confirmation of this rule is also reflected in the judicial practice that has developed in the Russian Federation.
Example.
Natalia
Labor expert
Ruling of the Krasnoyarsk Court in Case No. 33-1067/2018, in which the court found justified the dismissal of a pregnant employee due to the return to work of a temporarily absent employee and the inability of the employer to provide her with another job.
A fixed-term contract concluded for all other reasons must be extended by the employer until the end of the employee’s pregnancy, or until the end of maternity leave, if one is granted to her.
Where should I go if I quit work during this time?
Dismissal of a woman on maternity leave is possible only on the above grounds. In all other cases, the employer’s actions will be illegal, and accordingly they can be appealed.
To restore violated labor rights, a dismissed employee must contact:
- To the State Labor Inspectorate of their region, whose employees are obliged to check the facts stated in the complaint and, if there are grounds, apply administrative measures to the employer, as well as issue a binding order to eliminate violations of the law.
- To the prosecutor's office , whose employees are also empowered to initiate proceedings against the guilty persons regarding an administrative offense, provided for in Part 1 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation.
- To the court with claims for reinstatement at work. Article 392 of the Labor Code of the Russian Federation provides for a shortened period for filing a claim in court for reinstatement at work, which is one month from the date of receipt of the dismissal order or work record book. To restore the missed period, the former employee will have to justify the reasons for the absence (staying in a hospital, caring for an infant, etc.)
Also on our website there are materials about the dismissal of pregnant women and after maternity leave.
What should a pregnant employee do when approaching the end of her contract?
Art. 261 of the Labor Code of the Russian Federation contains the obligation of the employer to extend the contract with the employee until the end of the pregnancy, or until the end of maternity leave, if she presents the following documents:
- Written application for extension of the employment contract;
- A certificate from a medical institution confirming the employee’s position.
It is recommended to prepare and submit all these documents to the employer in advance.
Arbitrage practice!
Natalia
Labor expert
Numerous judicial practice confirms that an employer must renew a contract with a pregnant employee only after she provides the specified documents. Examples include the Determinations of the Nizhny Novgorod Regional Court in Case No. 33-5859/2017, the Saratov Regional Court in Case No. 33-4048. When making decisions, the courts recognized the dismissal of employees who did not provide the employer with the documents required by law as justified, refusing to satisfy the plaintiffs’ demands.
At the same time, there is completely opposite judicial practice, which recognizes the dismissal of pregnant employees as unlawful, even taking into account the fact that they did not submit to their manager the documents established by Art. 261 Labor Code of the Russian Federation.
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How to appeal illegal dismissal
A woman can apply to the following authorities to protect her violated rights.
- Prosecutor's office. You will need to draw up a statement demanding to check whether the employer’s actions were truly lawful and the dismissal was legal. You can write an application directly at the prosecutor’s office - employees will issue all the required forms and samples. After all the necessary investigations have been carried out, the woman will be provided with an answer.
- Labour Inspectorate. It is necessary to write a statement to protect violated rights. Inspectorate employees will begin checking the activities of the enterprise, the legality of the dismissal of other subordinates, the calculation of compensation and other issues.
- Court. If the prosecutor's office and the labor inspectorate did not help, then the woman will have to initiate legal proceedings. The disadvantage of this option is that if the court ruling is negative, the woman will lose the money spent on state fees, as well as time - such proceedings take a long time. But if the dismissal was truly unlawful, then the court’s decision on the applicant’s claim will be positive.
the following information in her claim
- name of the court;
- Full name of the plaintiff;
- amount of claim;
- description of current life circumstances;
- request to be reinstated at work;
- a list of attached documentation that will help the court make an objective decision.
Expiration of the contract term for women raising children under 3 years of age
The Labor Code of the Russian Federation does not contain a requirement for managers to renew contracts with women caring for children under 3 years of age. Upon expiration of their term, such women may be fired. This same rule is confirmed by numerous judicial practices.
Let's look at an example!
Natalia
Labor expert
Rulings of the Sverdlovsk Regional Court in Case No. 33-10366/2018, of the Moscow City Court in Case No. 33-43583/2016, of the Moscow Regional Court in Case No. 33-10869/2015. In all of these cases, employees who were dismissed while caring for a child as a result of the expiration of the contract tried to appeal the actions of their management. However, the courts in all these cases sided with the employers, recognizing such actions as not contrary to the law, and rejected the claims of these women.
Employer against
This happens rarely, but sometimes dismissal during maternity leave is met with a sharply negative reaction from management. Since such a desire of the employee falls under Article 80 of the Labor Code, we must proceed from its provisions. Either calculate in such a way as to write a statement 14 days before the required date, or provide very compelling reasons to convince your superiors. When it comes to deciding on the length of service, the law takes the employer’s side. With regard to the right to dismissal and attempts to retain a valuable specialist, the legislator is clearly against the arbitrariness of managers.
The desire to leave work during maternity leave is rare, and it also rarely encounters resistance from management. Moreover, the very fact that a woman is on a long vacation makes it possible to get around all the rough edges and find the right date without involving inspection authorities and complaints. Perhaps that is why dismissal during parental leave is the most conflict-free way to separate.
Zinovieva Natalya Igorevna
Lawyer at the Legal Defense Board. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and other regulatory documents to regulatory authorities.
