Termination of an employment contract at the initiative of an employer with a pregnant woman is not allowed, except in cases of liquidation of the organization or termination of activities by an individual entrepreneur.
If a fixed-term employment contract expires during a woman’s pregnancy, the employer is obliged, upon her written application and upon provision of a medical certificate confirming the state of pregnancy, to extend the term of the employment contract until the end of pregnancy, and if she is granted maternity leave in the prescribed manner - until the end such a vacation. A woman whose employment contract has been extended until the end of her pregnancy is obliged, at the request of the employer, but not more than once every three months, to provide a medical certificate confirming the state of pregnancy. If the woman actually continues to work after the end of her pregnancy, then the employer has the right to terminate the employment contract with her due to its expiration within a week from the day the employer learned or should have learned about the end of the pregnancy.
It is permissible to dismiss a woman due to the expiration of an employment contract during her pregnancy, if the employment contract was concluded for the duration of the duties of an absent employee and it is impossible, with the written consent of the woman, to transfer her to another job available to the employer before the end of her pregnancy (as a vacant position or a job corresponding to the woman’s qualifications, and a vacant lower-level position or lower-paid job), which a woman can perform taking into account her state of health. In this case, the employer is obliged to offer her all the vacancies that he has in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.
Termination of an employment contract with a woman who has a child under the age of three, with a single mother raising a disabled child under the age of eighteen or a young child - a child under the age of fourteen, with another person raising these children without a mother, with a parent (another legal representative of the child) who is the sole breadwinner of a disabled child under eighteen years of age or the sole breadwinner of a child under three years of age in a family raising three or more young children, if the other parent (other legal representative of the child) is not employed relations, at the initiative of the employer is not allowed (except for dismissal on the grounds provided for in paragraphs 1, 5 - 8, 10 or 11 of part one of Article 81 or paragraph 2 of Article 336 of this Code).
Under what articles of the Labor Code can the persons specified in Art. 261 TK?
Workers named in Art. 261 of the Labor Code, except pregnant women, can be dismissed on some grounds presented in Art. 81 TK:
- clause 5, part 1 – for repeated failure to fulfill duties;
- clause 6, part 1 – for gross violation of labor discipline, even once;
- clause 7, part 1 – for guilty actions of an employee servicing commodity or monetary assets, which resulted in a loss of trust;
- clause 8, part 1 – for committing an immoral act by an employee performing educational functions;
- clause 11, part 1 – for false information provided during employment.
In addition, the provisions of Art. 81 Labor Code, providing for special responsibilities for management.
More about dismissals under Art. 81 of the Labor Code, find out: “Termination of an employment contract at the initiative of the employer .
Commentary on Article 261 of the Labor Code of the Russian Federation
Guarantees for termination of an employment contract at the initiative of the employer, enshrined in Art. 261 Labor Code, applies to:
- for pregnant women;
- women with children under the age of three, and single mothers raising a child under the age of 14 (disabled child under 18);
- other persons raising these children without a mother.
Termination of an employment contract at the initiative of an employer with pregnant women is not allowed, except in cases of liquidation of the organization, as well as termination of activities by an individual entrepreneur - the employer of a pregnant woman. Another case when it is possible to terminate an employment contract with a pregnant woman is associated with the expiration of the employment contract concluded with her during the performance of the duties of an absent employee.
In the original version of Part 2 of the commented article of the Labor Code, in the event of expiration of a fixed-term employment contract during a woman’s pregnancy, the employer was obliged, at her request, to extend the term of the employment contract until she became entitled to maternity leave. In accordance with the amendments introduced by Federal Law No. 90-FZ of June 30, 2006, upon expiration of a fixed-term employment contract during a woman’s pregnancy, the employer must extend the term of the employment contract not until the woman’s right to maternity leave, but until the end pregnancy. Moreover, the specified extension of the employment contract is carried out on the basis of both a written application from the woman and a medical certificate confirming the state of pregnancy. At the same time, the employer has the right to request a medical certificate from a pregnant woman confirming the state of pregnancy, but not more than once every three months. In turn, the woman is obliged to provide the employer with such a certificate upon his request. It is also provided that if a woman actually continues to work after the end of her pregnancy, the employer has the right to terminate her employment contract due to its expiration within a week from the day he learned or should have learned about the end of the woman’s pregnancy. If the employment contract is not terminated within the above period, it will be transformed from a fixed-term contract into a contract for an indefinite period. Accordingly, subsequent termination of such an agreement is permitted only on the grounds and in the manner provided for employment contracts concluded for an indefinite period.
The employer is not responsible for the delay in issuing a work book when dismissing a woman whose employment contract was extended until the end of her pregnancy (Article 84.1 of the Labor Code).
According to Part 3 of the commented article, it is permissible to dismiss a woman due to the expiration of the employment contract during her pregnancy, if the employment contract was concluded for the duration of the duties of the absent employee and it is impossible, with the written consent of the woman, to transfer her to another job available to the employer before the end of her pregnancy ( both a vacant position or work corresponding to the woman’s qualifications, and a vacant lower position or lower paid work) that a woman can perform taking into account her state of health. In this case, the employer is obliged to offer her all the vacancies that he has in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract. This basis for dismissal is not related to the employer’s initiative to dismiss a pregnant woman and is regulated by Art. 79 of the Labor Code, according to which an employment contract concluded for the duration of the duties of an absent employee is terminated when this employee returns to work.
When pregnant women are dismissed in the event of liquidation of the organization or termination of the activities of the employer - individual entrepreneur, assistance in selecting suitable work and employment is provided to them by the state employment service in accordance with current legislation. When dismissing a pregnant woman on these grounds, the law does not require the employer to provide her with mandatory employment, as was previously provided for in the Labor Code. A pregnant woman can independently contact the state employment service in order to find a suitable job. It should be noted that contacting this body guarantees the pregnant woman, as well as other employees released on the basis in question, the preservation of average earnings for the third month of employment (if the pregnant woman is not employed), provided for in Art. 178 of the Labor Code, and obtaining unemployed status, which gives a woman the right to receive unemployment benefits.
Termination of an employment contract with women who have children under three years of age, with single mothers raising a child under 14 years of age (a disabled child under 18 years of age), as well as with other persons raising children without a mother, at the initiative of the employer, as and with pregnant women is not allowed. The exception is cases of dismissal on the grounds provided for in clauses 1, 5 - 8, 10, 11, part 1, art. 81 or clause 2 of Art. 336 TK.
In practice, the question arises as to whether it is permissible to dismiss a pregnant woman for committing a disciplinary offense, and above all for absenteeism. When answering this question, one should, along with the Labor Code, take into account the legal position of the Constitutional Court of the Russian Federation, expressed by it in the Determination of 04.11.2004 N 343-O <1>, where the Constitutional Court indicated that Part 1 of Art. 261 of the Labor Code, which prohibits the dismissal of pregnant women (except for the above cases), is one of the special norms that provides pregnant women with increased guarantees compared to other Labor Code norms regulating the issues of termination of an employment contract, both general and providing for the specifics of regulating the labor of women and persons with disabilities. family responsibilities. At its core, it is a benefit aimed at providing support for motherhood and childhood in accordance with Part 2 of Art. 7 and part 1 art. 38 of the Constitution. This kind of increased protection is provided by the legislator to pregnant women as those in need of special social protection in the world of work. On the one hand, in order to prevent possible discriminatory actions by unscrupulous employers seeking to avoid in the future the need to provide women with maternity leave, as well as childcare leave, and other guarantees and benefits provided by law in connection with maternity, and on the other hand, because even if there is a ban on refusing to conclude an employment contract for reasons related to pregnancy or the presence of children (Part 3 of Article 64 of the Labor Code), finding a job for a pregnant woman is extremely difficult.
——————————— <1> NW RF. 2004. N 51. Art. 5263.
At the same time, in contrast to the benefits provided upon termination of an employment contract at the initiative of the employer to other categories of workers with family responsibilities (Part 3 of Article 261 of the Labor Code), the ban on dismissal of a pregnant woman at the initiative of the employer is significantly limited in time. In addition, Art. 192 of the Labor Code provides for other (in addition to dismissal) disciplinary sanctions that an employer has the right to apply to a pregnant woman if she commits a disciplinary offense.
Thus, the norm contained in Part 1 of the commented article cannot be considered as establishing a disproportionate restriction of the rights of employers guaranteed by Part 1 of Art. 34 and part 1, 2 art. 35 of the Constitution of the Russian Federation.
Criminal legislation provides for criminal liability for the unjustified dismissal of a woman on the grounds of her pregnancy, as well as the unjustified dismissal from work of a woman with children under three years of age for these reasons. According to Art. 145 of the Criminal Code provides for the following punishment for committing this crime: a fine of up to 200 thousand rubles. or in the amount of wages or other income of the convicted person for a period of up to 18 months or compulsory work for a period of up to 360 hours.
The guarantees for women with children provided for in the commented article also apply to fathers raising these children without a mother, and to guardians (trustees) of minors (Article 264 of the Labor Code).
What is the employer's procedure if the employment contract with a pregnant employee has expired?
The employer is obliged to extend an expiring fixed-term contract if the employee has requested this in writing. The period is extended at least until the end of pregnancy. At the same time, since, according to the established procedure, the employer is also obliged to provide the employee with maternity leave (Maternity leave), the contract is legally extended immediately until the end of the Maternity leave. In this case, the employer may require confirmation of the employee’s condition by providing her with relevant medical documents.
For details on concluding fixed-term employment contracts, see: “We are drawing up a fixed-term employment contract - sample for 2016. ”
Prosecutor explains the law
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How can an employee confirm that he belongs to persons who have guarantees under Art. 261 TK?
Usually, if the organization has established personnel and accounting records, then the employer already has information about the presence of children and marital status. And he is obliged to take it into account, for example, when preparing cuts.
However, in a difficult economic situation, it would be useful to play it safe and transfer to the HR department (or the person responsible for personnel records) copies of additional documents confirming the right to use the guarantees under Art. 261 TK. For example,
- certificate of a large family;
- a certificate from the Employment Fund and an extract from the spouse’s work record book (if the second spouse does not work);
- a certificate from the medical and social examination bureau confirming the child’s disability, etc.
You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.
Second commentary to Art. 261 of the Criminal Code of the Russian Federation
1. For forest and other plantings, see commentary to Art. 260 CC.
2. Destruction means the complete burning of a forest or specified plantings or their complete transformation into dead wood due to the influence of pollutants and toxic substances, waste, emissions and discharges. Damage is the partial combustion of tree and shrub vegetation, which is the subject of the crime in question, its degradation in certain areas of the forest to the point of cessation of growth, infection with diseases that cause leaf fall and damage to wood, a significant loss of its quality due to the proliferation of pests in the contaminated forest, etc. .d.
3. Careless handling of fire or other sources of increased danger means failure to comply with the requirements of fire safety rules in forests, resulting in a fire.
Sources of increased danger may include vehicles, electrical equipment, flammable and explosive substances, etc.
4. The subjective side is characterized by careless guilt.
7. The subject of the crime is a person who has reached the age of 16.
8. A generally dangerous method, in addition to arson, is the use of explosives, poisons, defoliants, bacteriological agents, etc., which can lead to the destruction or damage of forests and other plantings.
The concept of “pollution” in this case is similar to the same-named sign of the crime provided for in Art. 254 CC.
Other negative impacts on forests and other plantings may occur as a result of the use of harmful substances, waste, emissions, and waste.
