Acceptable grounds for dismissal of a pregnant woman
Chapter 41 of the Labor Code of the Russian Federation ensures that workers expecting a child have the right to appropriate working and rest conditions, and also protects them from illegal dismissal. Yes, Art. 261 of the Labor Code of the Russian Federation prohibits the resignation of an expectant mother at the initiative of the employer. The only reason given here is when an employer fires a pregnant employee himself - this is the liquidation of the company or the closure of the individual entrepreneur.
At first glance, there are no other legitimate grounds for “getting rid” of a pregnant employee. However, employers are constantly looking for and finding opportunities to “leave” such employees.
Dismissal at the initiative of the employer
An employer can fire an expectant mother on his own initiative only upon liquidation of the company (Article 261 of the Labor Code of the Russian Federation). He is obliged to notify the employee in writing two months before the closure of the company. According to the law, on the last working day a woman is entitled to the following payments:
- compensation for unused vacation;
- severance pay equal to average monthly earnings.
Also, the expectant mother will receive an average monthly salary from the funds of her former employer for two months after leaving (in some cases - three months).
Important! When a separate unit is liquidated in another locality, working relations with an employee in the position are terminated in the same manner as during the liquidation of an organization (Article 81 of the Labor Code of the Russian Federation). Reorganization (merger, division) is not grounds for dismissal of the expectant mother.
Successful examples from the practice of our lawyers
Let us describe several real situations in which the participation of lawyers helped bring the perpetrators to justice.
First example. A woman was admitted to the hospital with her first pregnancy. The doctor inadvertently missed the moment when it was necessary to perform a caesarean section. Therefore, during a natural birth, the child died, and a source of infection arose in the mother’s womb, due to which the uterus had to be removed. The woman not only lost her child and was injured, but was also deprived of the opportunity to conceive, bear and give birth to a baby.
The victim turned to our company for legal assistance. The lawyer sent a request for an examination and received a conclusion with an established cause-and-effect relationship between the doctor’s inaction and the consequences for the mother in labor. We filed an application and succeeded in initiating a criminal case. As a result, the doctor was prosecuted, and the medical institution paid compensation in the amount of 10 million rubles - this is how much surrogacy services cost.
Second example. During the period of monitoring the pregnancy, doctors did not notice any abnormalities, and the child was born with congenital heart disease and clubbed hands.
The lawyer turned to the expert and received from him an opinion that such pathologies are always detected during a mandatory ultrasound. This means that the doctor made a mistake, which led to serious consequences. We prepared a statement to the police, succeeded in initiating a criminal case and sentencing the doctor - he was brought to criminal liability. We also helped the victim satisfy a civil claim for 5 million rubles for damage to health.
Is it possible to fire an employee in a position under the article
Closing the company is the employer’s only chance to fire a pregnant woman. Therefore, even if the expectant mother does not fulfill her duties or violates labor discipline, she cannot be fired. The maximum penalty in this case is a reprimand. It is also impossible to fire an employee in a position who was hired on a probationary period, but did not pass the test.
This also applies to staff reductions. The entrepreneur must offer another position that meets the employee’s medical conditions, and if there are no such positions, do not reduce the position occupied by the expectant mother.
Important! A woman expecting a child, at the request of her manager, must confirm her position with medical certificates (no more than once every 3 months).
How to deal with the problem?
The main mistake is inaction on the part of pregnant women and women in labor. Despite the fact that 9 out of 10 women face unprofessionalism, rudeness and even physical violence, almost no one defends their rights. In the first place is taking care of your own health and the life of the baby. Do not forget that the law is on your side and if you act consistently, you can hold the doctor, junior medical staff, and even the medical institution accountable.
Example: if 10 women in labor write a complaint against the same obstetrician, he will be fired, subject to disciplinary, administrative or criminal liability if the doctor’s actions constitute a crime or administrative offense. Any physical impact (even a push towards a woman in labor) is violence, subject to criminal liability. The main thing is to draw up a complaint legally, send it to the correct authority and monitor the reaction of the authorized bodies. This way you will protect not only yourself, but also other women in labor.
It is much more difficult to deal with the consequences of postpartum or obstetric injuries. The definition of birth injury is not contained in any regulatory legal act, so one must be guided by medical definitions. From a medical point of view, it means damage to the tissues and organs of the fetus during childbirth, a holistic reaction of the body to damage, causing a violation of compensatory and adaptive mechanisms.
The cause may be congenital diseases of the mother, lifestyle, difficult pregnancy, genetic predisposition, but in legal practice only situations caused by unprofessional or negligent attitude of medical personnel are considered. It is more logical to consider the definition of obstetric injury, which is caused by improper performance by physicians of their duties in the management of pregnancy or delivery. The result of the injury is serious harm to the health of the newborn, fetal death and other consequences.
Statistics show that postpartum injuries or complications in 95% of cases occur due to the fault of doctors. They will never admit it, but it is a civic duty to seek justice. Qualified legal assistance significantly increases the chances of success. An experienced lawyer will help not only bring medical staff to criminal liability, but also obtain financial compensation from the maternity hospital or other medical institution. In cases with serious consequences - up to lifelong imprisonment for the injured party.
Dismissal upon expiration of the employment contract
An employer has the right to dismiss a woman at the end of her employment contract if the following conditions are met:
- the employee is registered under a fixed-term employment contract;
- the employer cannot offer the expectant mother another job that is suitable for her medical reasons.
If the expectant mother agrees to the proposed position, the employer must extend the term of her employment contract until the end of pregnancy. It is also impossible to fire a pregnant part-time woman due to the hiring of a person in her place on a permanent basis (Article 288 of the Labor Code of the Russian Federation). Such dismissal falls under Art. 261 Labor Code of the Russian Federation.
Reasons for seeking legal assistance
Practice shows that it is very difficult to prove the involvement of medical staff in causing an obstetric injury - special examinations are required, and the issue lies more in the plane of medicine than jurisprudence. Our specialists have experience in solving such cases and know in which cases it is worth seeking help. We have compiled a list of the most common violations by obstetricians.
When monitoring pregnancy:
- Rude attitude.
- Negligence – refusal to order tests or additional examinations.
- Incorrectly chosen treatment, which leads or has already led to the appearance of congenital pathologies in the fetus.
- Poorly performed diagnostics, which should have revealed the presence of abnormalities, but did not reveal them. The result is an incorrect method of delivery, severe injuries to the mother and baby.
- Lack of direction to continue pregnancy for medical reasons, which led to severe complications or miscarriage.
During childbirth:
- Rude and sometimes cruel attitude on the part of doctors and medical staff.
- Superficial examination of the mother and child.
- Unnecessarily the presence of strangers - medical students or other people - at the examination or during the birth. In this case, the woman in labor receives psychological trauma, because this is too intimate a process.
- Conducting examinations not in a separate room, but in the aisle of the maternity ward.
- Unreasonable referral for caesarean section when, according to medical conditions, the woman in labor can give birth on her own.
- Postpartum complications caused by incorrect diagnosis, negligence of medical staff or incorrectly prescribed treatment.
Changing the working conditions of a pregnant employee
According to clause 7, part 1, art. 77 of the Labor Code of the Russian Federation, an employee may refuse to work in an organization if the terms of his employment contract have changed. It is important to note here that when changing working conditions, the employer must have evidence of the technological and organizational need for the changes, otherwise the dismissal will be illegal. If the upcoming changes are justified, the employer is obliged to notify the woman expecting a child about them two months in advance. If she disagrees, she will have to offer other available vacancies that correspond to her state of health (Article 74 of the Labor Code of the Russian Federation).
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Leave on your own or set conditions?
Dismissing a pregnant woman at her own request is the best solution for a manager. But! Any coercion on the part of the employer is unacceptable and is punishable by law; the expectant mother must write a statement voluntarily!
An alternative to leaving on your own is termination of employment relations by agreement of the parties (Articles 77, 78 of the Labor Code of the Russian Federation). The initiator of the agreement can be a woman expecting a child or an employer. The agreement implies the mutual desire of the parties to terminate the employment contract and contains a number of important conditions for the expectant mother:
- amount of compensation;
- term of termination of employment, etc.
A pregnant employee can terminate the agreement unilaterally if she became aware of her situation after signing the agreement.
Important! When leaving at her own request, the employee does not receive any additional payments, except compensation for unused vacation and payment.
Customer Reviews
Review by Lurie L.D. I, Lurie L.D., want to express my gratitude and gratitude for the competent advice and cordial attitude towards me as a client.
Gratitude from Bolotin V.S. I thank Alexander Viktorovich Pavlyuchenko for the work done as part of the investigation into the administrative case. I am especially grateful that almost all activities within the framework of the case were carried out by Alexander personally, without my involvement, which significantly saved my time. I would also like to note the efficiency with which the work was completed. I would like to wish Alexander further success in his professional activities and the successful completion of all current and subsequent cases, restoring justice to his clients.
Bolotin V.S., 02/12/2017
Gratitude from Kikkas V.P. Kikkas V.P. I am grateful to the Legal Agency of St. Petersburg for understanding the situation and timely assistance in my seemingly hopeless situation, personally to Denis Yuryevich Stepanov, I hope to continue to cooperate.
Kikkas V.P. 08.11.2018
Gratitude to Kavalyauskas V.A. from Astafieva A.S. I express my gratitude to the Legal Agency and in particular to lawyer Vasily Anatolyevich Kavaliauskas for the skillfully done work. Vasily Anatolyevich advised and prepared all the documents necessary for court proceedings. As a result of the consideration of the consumer rights case, the result and the high amount exceeded all my expectations. Thank you very much for your qualified work and professionalism.
Sincerely, Astafieva A.S., 03/01/2019
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Thanks a lot. 07/09/2019
From Pravikovskaya N.B. I express my gratitude to the staff of the legal consultation: Andrei Valerievich and Dmitry Konstantinovich, who helped me resolve the unpleasant situation with the Pyaterochka store.
The issue was resolved in my favor without delay and quickly. They apologized to me and I received monetary compensation, all without lengthy litigation. Once again, thank you very much!
Review by Gavrichkova A.N. I would like to express my deepest gratitude to Yuri Vladimirovich Sukhovarov for his humane attitude towards my problem and detailed professional advice on solving it. I wish I could meet such people in my life more often.
Sincerely, Gavrichkov Alexander Nikolaevich.
Gratitude to the team I express my gratitude to the legal team. department of St. Petersburg. for the service provided in terminating the loan agreement for the purchase of space. funds that I had the imprudence to enter into with one of the unscrupulous companies. The lawyers responded quickly, paid a visit to the company and filmed it. Once again I express my endless gratitude and wish you continued prosperity.
Gratitude from Plisetsky V.V. I would like to express my gratitude to Sergei Vyacheslavovich Mavrichev for his sensitive attitude and understanding towards clients. The issue was resolved within one day. I am very grateful to Sergei Vyacheslavovich.
Plisetsky V.V. October 19, 2018
Gratitude from Matvey Fomin I, Matvey Alekseevich Fomin, am grateful to Vasily Anatolyevich Kavalyauskas for the timely legal advice and prompt assistance in resolving my issue. Calm and decisive. Thank you.
Fomin M.A.
Responsibility of the employer for the illegal dismissal of an employee in the situation
The rights of the expectant mother in the sphere of labor are protected by the Labor, Administrative, Civil and Criminal Codes of Russia, as well as a number of other legislative acts. Thus, dishonesty of employers is punishable under Art. 5.27 of the Administrative Code by imposing administrative fines: from 30 to 50 thousand rubles for legal entities and from 1 to 5 thousand rubles for officials (manager, chief accountant, personnel officer). Also, the unlawful dismissal of an employee who is expecting a child falls under Art. 145 of the Criminal Code of the Russian Federation, which provides for a fine of up to 200 thousand rubles. or the salary of the perpetrator for a period of up to 18 months or up to 360 hours of compulsory work.
Author of the article: Irina Smirnova
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What benefits and guarantees are stipulated in the law?
Let us recall that labor guarantees for pregnant women are provided for in local regulations of the employer, collective agreements, and industry agreements. But the minimum that all organizations and individual entrepreneurs with hired employees must adhere to is prescribed in the Labor Code of the Russian Federation. We will focus on its norms.
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