Is it possible to fire a pregnant employee for absenteeism? Rules for imposing disciplinary sanctions. Dismissal of an employee after pregnancy ends

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The question of whether it is possible to formalize the dismissal of a pregnant woman for absenteeism under an article of the Labor Code of the Russian Federation is popular both among employers and among the employees themselves who are in interesting position.

According to Art. 81 of the Labor Code of the Russian Federation, absenteeism is the absence of an employee from the workplace without confirmation of a valid reason for more than 4 hours during the working day. Facts required to register truancy:

absence of the mercenary from the workplace for more than 4 hours;
the employee has not completed an application for leave;
the employee did not prove that the reason for his absence was truly valid (bill, certificate to see a doctor, certificate of visit to a medical facility, etc.).

The procedure for dismissal for absenteeism involves the following steps:

drawing up an absenteeism report (the employee gets acquainted with signature) and taking an explanatory note from the employee;
drawing up an order for disciplinary action (the truant gets acquainted in writing);
Based on the discipline order, a dismissal order is issued.

Even if the fact of absenteeism was established once, it is considered a serious violation of discipline and gives the employer the right to severely reprimand the truant or even fire him.

At the same time, Russian labor legislation especially protects pregnant women, providing them with a number of guarantees, including those related to the sphere of labor relations.

Art. 254 of the Labor Code of the Russian Federation gives a pregnant employee the right to visit a doctor, necessary tests etc. The employee receives this right upon providing a certificate of visit to the doctor. The time she is absent is not considered absenteeism and is even paid from the average salary.

Art. 261 of the Labor Code of the Russian Federation states that the dismissal of an employee who is expecting a child at the initiative of the employer is strictly prohibited.

It is possible to sever an employment relationship with a woman preparing to become a mother only in 3 cases:

termination of the activities of the individual entrepreneur;
liquidation of the company;
return to work of an employee whose position was temporarily occupied by a pregnant woman.

Therefore, to the question of whether it is possible, the answer is clearly negative. All methods of dismissing a pregnant woman, if they do not relate to the above points, are unlawful and may entail administrative liability for the management of the organization.

What rights does a pregnant woman have?

Let's consider the guarantees that ensure the safety of a woman in an interesting position:

possibility of reducing working hours to 6 hours a day;
the ability to reduce computer time to 3 hours a day;
eliminating the possibility of involving a pregnant employee in harmful and difficult work;
the impossibility of sending the expectant mother on a business trip, involving her in overtime work and shift work.

Also, a pregnant employee has the right to receive basic paid leave in the amount of 28 calendar days regardless of how long you have worked for the company. The maternity leave period is also included in the leave calculation period.

Knowing her rights, the expectant mother can easily protect her interests by, if necessary, turning to the labor inspectorate or court.

Rules for imposing disciplinary sanctions

How to punish a pregnant employee for absenteeism without dismissal?

There are cases when an employee abuses her position by breaking the rules labor discipline and being absent from the workplace for no reason. Even if the fact of absenteeism is established, it is impossible to fire a pregnant woman for absenteeism without a good reason. This rule is indicated in Art. 261 of the Labor Code of the Russian Federation, while leaving the employer the opportunity to impose other types of disciplinary sanctions not related to termination employment contract. The director has the right to reprimand an unscrupulous employee, issue a reprimand, deprive her of a bonus, part of her salary, or impose other fines.

The requirements for registering absenteeism for a pregnant employee do not differ from those that apply to other employees. Let's consider the procedure for imposing a disciplinary sanction:

Drawing up an absence from work report. The document must be endorsed by several company employees. In some cases, the act is drawn up on the basis of a memo prepared by the manager of the absent employee and submitted to the personnel department. If there are explanations from the employee, they are included in the absenteeism report. Absence from work is reflected in the time sheet, which gives the employer the right not to pay for the time when the employee was actually absent from work.
Familiarization of the culprit with the act of truancy and obtaining explanations. If this clause is not observed and the employee goes to court, a decision may be made that the collection is illegal. If the employee refuses to sign the act, it is necessary to draw up a refusal act. In the event that an employee is absent and there is no way to contact him, it is necessary to send a notification to his place of residence with a request for an explanation about the fact of absenteeism.
Issuance of an order to impose a penalty, with which the pregnant woman must be familiarized with her signature. If you refuse to sign the order, you must mandatory draw up a report on this fact. If the culprit is absent at the time the order is issued, she is sent a letter indicating the need to appear for information.

When imposing a disciplinary sanction on an employee in an interesting position, it is necessary to take into account that she may be hospitalized, which is the reason for her absence. Upon discharge and provision necessary documents the reason for absence will be considered valid, and the punishment will have to be canceled.

Dismissal of an employee after pregnancy ends

Can an employee be fired for absenteeism after pregnancy? Once again the answer is no. Since Art. 261 of the Labor Code of the Russian Federation prohibits the dismissal of the mother of a child under three years of age; dismissal becomes impossible due to the expiration of the statute of limitations, since the period for bringing to responsibility is 6 months from the date of registration.

If the employer nevertheless tries to dismiss her for absenteeism immediately after the employee leaves the maternity leave, his actions are considered illegal, which gives the woman the right to go to court and restore her rights.

There are cases when the pregnancy ends unfavorably, that is, it is terminated or the child dies during labor or immediately after it. With this development of events, the woman loses her right to subsequent maternity leave; after the end of the period of incapacity for work, she returns to work again, which gives the employer the right to fire her for absenteeism, observing the necessary conditions:

the truancy is documented in accordance with all the rules;
the statute of limitations for the violation has not expired;
no other penalty had previously been imposed for absenteeism.

Fortunately, such a tragic development of events is an exception; in most cases, the employer is sympathetic to the difficult life situation employee and refuses the planned dismissal.

So, so that questions about dismissal do not arise for both the employer and the pregnant woman, you must, even when in a position, try to take a responsible approach to fulfilling your duties.

Jun 20, 2017 zakonadmnin

It happens that employers are faced with such a very difficult problem as dismissing a pregnant employee for violations of labor discipline. For example, if an ordinary employee has absenteeism, that is, absence from the workplace without a good reason, paragraphs may be applied to him. "a" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation (dismissal for absenteeism). But this article does not apply to women expecting a child.

But what to do if a pregnant employee skips work, how can you fire a pregnant employee, what law is applicable in this case? Let's figure it out:

In what cases is dismissal possible?

It must be said that at one time this issue was raised before the Constitutional Court of the Russian Federation. And the court issued a Ruling dated November 4, 2004 No. 343, in which it pointed out the fact that Art. 261 of the Labor Code of the Russian Federation gives a pregnant employee special rights, protecting her from dismissal from work. The protection of her rights in this case boils down to the fact that a woman in a state of pregnancy cannot be fired in any case, except for one - in the event of liquidation of the enterprise where she works. Therefore, dismissal on the grounds described in Art. 81 Labor Code is not applicable to a pregnant employee.

True, it must be said that the employer can fire such an employee if he hired her during the absence of the main employee.

What can be done?

However, adequate disciplinary action may be taken against the employee. Such measures include reprimand and reprimand. If this is provided for in the employment contract, you can deprive her of part or all of the bonus. In this regard, if a pregnant employee has committed a violation of labor discipline, in particular, single or repeated absenteeism, some kind of penalty can be imposed on her, but not fired.

Since employers are often concerned about the question of how to properly fire a pregnant woman, but they sometimes forget that these employees have certain benefits, I want to remind them. It will also be useful for women themselves to know about their rights:

Benefits for pregnant women

In the event that your fixed-term employment contract ends, write an application for its extension until the due date. Your employer is obliged to renew the contract. Do not forget to attach a certificate from a medical institution to your application confirming your pregnancy. After extending your employment contract until the end of your pregnancy, you will be required to present such a certificate once every three months.

It is necessary to remind the employer that if there is a medical report and a personal statement, the pregnant employee must reduce production standards or transfer to a higher one. light work. This work should not be related to negative impacts any production factors(noise, dust, chemicals and much more). Moreover, a transfer to an easier job implies maintaining her earnings at her previous place.

Before a woman is given another workplace, she should be released from her current job, while maintaining her average salary. Earnings are retained even if she missed working days due to a delayed transfer. They must be paid in full by the employer.

Pregnant women should undergo a medical examination in a timely manner. For the entire period of absence from work for this reason, their average earnings are retained.

It should be recalled that employees expecting a child are prohibited from being sent on work trips. It is also prohibited to force them to work overtime, as well as on holidays and weekends.

And yet, before the maternity leave period approaches and immediately after it, or when the maternity leave ends, the employee must be provided with annual paid leave. Moreover, its provision does not depend on her length of service at this enterprise. Such leave is granted upon her request.

Remember your rights, but don't forget your responsibilities!

Is it possible to fire a pregnant woman for absenteeism or are other disciplinary measures applied to the violator? Find out why you can be fired and download the necessary documents.

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Is it possible to fire a pregnant woman for absenteeism?

According to the law, you can fire a pregnant employee for 2 reasons:

Terminate labor relations upon liquidation of the company (Part 1 of Article 261 of the Labor Code of the Russian Federation).
If a pregnant employee was hired under a fixed-term employment contract for the period of absence of the main employee. The term of the employment contract has expired, and it is impossible to transfer the pregnant employee to a new position or she herself refuses the transfer.
The law does not prohibit dismissing a pregnant woman for other reasons, if they are not related to the employer’s initiative. For example, a woman has the right to leave on her own, by agreement of the parties, if she refuses to continue working due to changes in working conditions.

Despite the fact that absence from the workplace for more than four hours in a row or during the entire work shift is considered absenteeism, dismissal of a pregnant woman for absenteeism is unacceptable (clause 5, part 1 or subclause “a” of clause 6, part 1 of Article 81 Labor Code of the Russian Federation). The prohibition only applies to the application of disciplinary sanctions in the form of a last resort - dismissal. The answer to the question whether it is possible to fire a pregnant woman for absenteeism is clear - no.

The employer has the right to apply other types of disciplinary sanction to the violator if they do not contradict current legislation, do not violate the rights of a pregnant employee.

Cheat sheet: guarantees for pregnant employees

It is still possible to part with a persistent offender if the dismissal procedure is properly completed. This will help avoid problems in the future. The courts are friendly to pregnant women. And if it turns out that the employee left on her own, but pressure was put on her, the woman can be reinstated to work in accordance with the court decision.

An expert from Sistema Personnel will tell you how to fire for absenteeism. From the article you will learn details about the procedure, the sequence of preparing the necessary documents for terminating a TD on this basis.

Is it possible to fire a pregnant woman for absenteeism if she did not warn the employer?

The concept of “absenteeism” is the same for all categories of employees on the basis of subparagraph “a” of paragraph six of part one of Article 81 of the Labor Code of the Russian Federation. If an employee without good reasons absent from work:

throughout the working day;
more than four hours at a time.

The employer must understand that pregnant women may be absent due to various reasons. Standard pregnancy management involves (order of the Russian Ministry of Health No. 572n dated November 1, 2012):

Walkthrough large quantity analyses.
Visiting numerous specialists, including multiple visits to the obstetrician-gynecologist.
Several screening ultrasound examinations.

If a woman, for example, went to the obstetrician-gynecologist, but did not warn the employer in advance, this is not considered absenteeism without good reason.

The law provides for many prohibitions regarding pregnant employees:

involvement in overtime work;
business trips;
work on a rotational basis, etc.

★ Read in the magazine “Personnel Business”:

Expectant mothers should not work in a draft, in rooms without windows, lamps, etc. (clauses 4.1.7 and 4.1.9 SanPiN 2.2.0.555-96, approved by Resolution of the State Committee for Sanitary and Epidemiological Supervision of October 28, 1996 No. 32). A woman can feel unwell at any time and receive sick leave, but she has the right not to show up for work by notifying the employer about the sick leave by telephone. In this case, the employee’s absence from work for more than four hours in a row does not count as absenteeism. You can't fire her anyway.

Often, employers take the employee’s position and, upon her return to work, issue unpaid leave for all days missed. If the employer believes that violation of labor discipline should be punished, he can apply less severe disciplinary measures other than dismissal.

★ Look special selection prepared by Sistema Personnel experts on dismissal for absenteeism. In it you will find answers to complex questions about dismissal for absenteeism. Ideal samples of personnel documents for processing the termination of a TD on this basis. Labor disputes, thematic video lectures.

What disciplinary action can be taken if dismissal is excluded?

Dismissing a pregnant woman for absenteeism is unacceptable. For employees in this category, there is a direct ban on terminating their employment relationship at the initiative of the employer. But it is quite possible to apply other disciplinary measures established by labor legislation and local regulations of the organization.

The employer has the right to reduce the amount of the bonus if this condition for violations of labor discipline is provided for in the Regulations on Bonuses. With a time-based wage system, a woman will receive less for absence from work wages. Hours of absence from work are not subject to payment.

Absenteeism is considered a disciplinary offense. A pregnant woman can be reprimanded or reprimanded. The penalty is valid for a year and can be lifted by the employer ahead of schedule.

★ An expert from the magazine “Personnel Business” will tell you. From the article you will find out whether it is possible to fire an employee for absenteeism if he has not taken sick leave. What transport reasons can justify the absence. How to fire a part-time employee for absenteeism.

Dismissing a pregnant woman for absenteeism is unacceptable. Absenteeism is considered a disciplinary offense taking into account the first part of Article 192 of the Labor Code of the Russian Federation, since the obligation to observe labor discipline established by the second part of Article 21 of the Labor Code of the Russian Federation was violated. The employer has the right to apply other types of disciplinary sanctions established federal laws, local regulatory documents

18.09.2017, 22:52

It happens that pregnant women, feeling legal protection provided for by law, they begin to skimp on their labor responsibilities. Including being late or absent from work. In this regard, HR specialists are wondering whether it is realistic to fire a pregnant woman for absenteeism? Let us tell HR officers the correct answer to this question.

Truants are punished

Failure to perform or improper performance of labor duties assigned to an employee is a disciplinary offense (Article 192 of the Labor Code of the Russian Federation). In general, an employee who has committed a disciplinary offense can be held accountable by applying disciplinary measures to him. Labor Code establishes a list of types of disciplinary sanctions that can be applied to the offending employee (“”):

comment;
rebuke;
dismissal.

These types of penalties are in order of increasing responsibility depending on the severity of the offense. That is, a reprimand is the mildest measure of disciplinary liability, and dismissal is the most severe (“”).

In accordance with labor legislation, absenteeism is considered a gross violation for which an employee can be dismissed (subparagraph “a”, paragraph 6, article 81 of the Labor Code of the Russian Federation). Let us remind you that absenteeism is absence from work without good reason:

or throughout the entire working day (shift), regardless of its duration;
or absence from the workplace without good reason for more than four hours in a row during a working day (shift).

If these circumstances exist, the employer has the right to apply a disciplinary sanction in the form of dismissal (“”).

Absence from work without good reason for less than four hours in a row is not considered absenteeism. And, accordingly, you cannot be fired for this. However, in any case, the employer may also regard such absence of an employee as a disciplinary offense and punish the employee with a reprimand or reprimand.

Pregnant women in the "house"

Current labor legislation provides pregnant women with additional rights and guarantees related to their special situation.

As for penalties for violation of labor discipline, a disciplinary sanction can be imposed on a pregnant woman: a reprimand or reprimand (for more details, see “”). However, absenteeism by a pregnant woman is not grounds for dismissal. Despite the fact that any other truant can be fired under the article, firing a pregnant woman for absenteeism is illegal. Even if absenteeism is done without a good reason.

Please note that dismissal of a pregnant woman is possible only in two cases (Parts 1, 3, Article 261 of the Labor Code of the Russian Federation):

liquidation of the organization;
expiration of the employment contract concluded for the period of absence of the main employee (“”).

Is it possible to fire a pregnant woman for absenteeism? The exact answer is contained in the norms of the Labor Code of the Russian Federation.

It should be noted that future mothers are, perhaps, the most protected category of workers.

The thing is that they enjoy the largest amount of compensation and benefits. Such workers can independently determine the period of temporary termination professional activities for, at a time convenient for them. These female employees can resign from the company at any time; they cannot be recalled from vacation or sent on a business trip, nor can they be called upon to perform duties in their position beyond the established length of working time.

In turn, the manager cannot terminate cooperation with such an employee at his own discretion. The only exceptions are cases.

Even for dishonest fulfillment of assumed work obligations, all disciplinary measures provided for by the norms of the Labor Code of the Russian Federation cannot be applied to a worker. This also applies to cases of absence from one’s place without good reason. Dismissal in this case is not allowed.

Sometimes unforeseen circumstances arise due to which a person will be absent from his place of work. Such situations can be either respectful or unreasonable.

The following reasons may confirm the validity of absence:

requiring treatment at home or in hospital;
passing away of loved ones and relatives;
participation in court proceedings;
liquidation of consequences of accidents and disasters at the place of actual residence;
accidents on transport routes.

Such circumstances must be documented. These reasons can be justified:

medical report;
judicial summons;
data from housing services, law enforcement agencies or emergency authorities.

A justified absence may be recognized as situations where an employee cannot perform his or her duties. job responsibilities due to the manager’s dishonesty, for example, when. A prerequisite in such situations is preliminary written notification of your intention not to go to work.

If documentary information and exculpatory data were not provided, then the absence may be considered absenteeism.

This offense has a number of features:

the worker must be absent from his place during the entire working day or more than four hours continuously;
the reason is not valid, for example, fatigue;
The worker did not substantiate his position with documents.

Legislative regulation of the issue

To understand whether a pregnant employee can be fired for temporary unjustified absence from her place, you should carefully study the requirements of the current regulations.

Gives a clear definition of an offense of this nature. Article 192 of the Labor Code of the Russian Federation specifies a list of measures of influence that can be applied to the perpetrator. These include reprimand, reprimand, dismissal.

In Article 193 of the Labor Code of the Russian Federation, in general outline, the actions that need to be performed in this case are indicated.

Article 194 of the Labor Code of the Russian Federation establishes the procedure for canceling punishment, and Article 195 - the specifics of punishment for workers who belong to the command staff.

However, any individual situation has its own characteristics. Therefore, most companies additionally develop internal regulations that contain an algorithm of actions in the event of an offense.

In such a document you must indicate:

conditions under which absence will be considered;
the procedure for performing the necessary actions;
the competence of officials who are responsible for their implementation;
measures that can be applied to the perpetrator;
a category of workers with whom cooperation cannot be interrupted.

All specialists who will take part in the proceedings must be familiar with this document.

It is possible to create a special inspection commission, which includes the most competent specialists of the company. In most cases, these are personnel officers and lawyers.

If a pregnant employee is absent from work

If a crime has been committed, a number of specific actions must be performed.

First of all, it is necessary to document the fact of absenteeism.

It is necessary to draw up a document of an appropriate nature that will reflect the essence of the violation. You should also collect additional information that is relevant to the current situation.

Then all materials must be submitted to the manager for review. The latter, after a detailed study, is obliged to make a decision and determine the measure of impact. As stated, not allowed.

How to record absenteeism?

If a pregnant employee is absent from work, several mandatory steps must be taken.

The first place to start is to make sure that the person is actually not at work. To do this, you need to inspect not only the immediate place of work, but also other rooms where the worker may be, for example, a room for changing clothes or eating.

After this you need to compose. Such a document must be executed in the presence of at least two people. The manager must receive a report on the employee’s immediate supervisor, to which the specified act will be attached.

You can contact the absent employee by phone and first find out the reasons for absence. When the worker appears, a written explanation of the fact of absence is taken from the latter. If a woman refuses to give an explanation, a report is drawn up.

Sometimes a person may claim that the reason for failure to appear was valid, but he did not have time to receive a supporting document. In this case, the employee must be given time to collect such information or make a request to the authorized authority. For example, if you become ill, you can check with a medical organization whether the employee sought help.

After collecting all the specified materials, the manager must make a decision. He must do this within a month from the moment the offense was committed. The manager’s decision is formalized by an order, which the employee must be familiarized with within a month from the date of signing the order.

How can you punish for absenteeism?

If a expectant mother is absent, she cannot be fired. However, in such a situation, the manager can apply other disciplinary measures - issue a reprimand or reprimand. In most companies, internal regulations provide for other measures that can be applied to the violator, regardless of the main penalties.

The most common option is to reduce or. In case of violation work discipline- this is quite acceptable, even in relation to a future woman in labor.

The thing is that in order to receive a bonus, everyone must comply with a number of conditions. Compliance with labor standards is not an exhaustive reason for encouragement. It is also necessary to comply with internal working rules, which include compliance with working time regulations.

Is it possible to fire a pregnant woman for absenteeism?

Is it possible to fire a pregnant woman for absenteeism? The norms of the Labor Code of the Russian Federation answer this question unequivocally - no. If dismissal is applied to an employee as a disciplinary measure, the initiative to terminate cooperation comes from the manager.

According to the requirements of Article 261 of the Labor Code of the Russian Federation, a pregnant employee cannot be dismissed at the intention of the manager, except in cases of complete cessation of the organization’s activities.

This rule is one of the guarantees provided by the general rules for this category. Violation of them will entail not only the reinstatement of the worker in her position, compensation for financial and moral damage, but also the application of administrative measures to the company itself in the form of a fine, the amount of which can be up to fifty thousand rubles.

Judicial practice

In one of the courts of the Russian Federation, a former employee’s appeal to the company was considered with a request to cancel the dismissal order, change the wording of the reason in her personal work book, as well as compensation for moral damage caused.

When studying the content of the appeal, the following was established.

The initiator was labor relations with the organization on the basis of a signed agreement. The person was periodically not allowed to perform his duties, citing a lack of funds. In this regard, the employee went to court to protect her rights. During the investigation, the organization did not present any documents confirming the fact of recording absenteeism. When management changed, all employees were informed that the composition of the staff would change. When returning to work, the initiator is presented with all reports of absenteeism and a dismissal order for this reason. The proponent does not agree with this result for the following reasons. The court refused to satisfy the previous request, but its decision did not come into force at the time of dismissal. The shift schedule was not communicated to her. At the time the relationship ended, the employee was pregnant. In connection with the above, the employee asked to cancel the decision, change the contents of the entry in the work book, and compensate her for financial and moral damage due to an unforeseen interruption in activity.

The representative of the initiator explained that the woman wrote under duress from her manager. However, I was not familiar with the relevant order. When she returned from vacation, she was not allowed to work. The employee could not explain who exactly carried out this action.

A company representative said that absenteeism occurred. However, the worker refused to give explanations and familiarize herself with the act, explaining this with her intention to go to court. She was offered, as an option to solve the problem, to resign of her own free will, both during the conversation and by sending mail notifications. However, the woman refused the proposed exit.

After studying the presented materials, it was established that the employee was familiar with the leave order, which was personally signed on the document. The company presented acts that confirm the fact of absenteeism, as well as notifications that were sent to the worker. The facts of dismissal from work were not confirmed.

According to an extract from the special register, the organization was not in the process of liquidation. According to the rules of the Labor Code of the Russian Federation, when deciding on dismissal, notification of the manager about pregnancy does not affect established guarantee. That is, there was no reason for it.

Based on the data studied, the court made its conclusion. The order to dismiss the employee was annulled. Sign up for work book has been changed. A new wording was indicated that the person resigned at his own request. Were paid cash for financial and moral damage. The company was charged funds for considering the appeal.