Dismissal of a pregnant woman is regulated by the Labor Law of the Russian Federation. However, there are different interpretations of the norms of law by the courts, and there are several positions per one legal norm, which will be discussed in this article.
Is it legal to dismiss a pregnant woman due to the expiration of the employment contract (clause 2, part 1 of article 77 of the Labor Code of the Russian Federation), if she did not apply for its extension, did not submit a medical certificate confirming pregnancy?
We will find the answer in the legislation of the Russian Federation.
It should be noted that in accordance with Part 2 of Art. 261 of the Labor Code of the Russian Federation, the clarifications contained in paragraph 27 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 01.28.2014 N 1 "On the application of legislation regulating the work of women, persons with family responsibilities and minors", a fixed-term employment contract cannot be terminated until the end of pregnancy … The state of pregnancy is confirmed by a medical certificate provided by the woman at the request of the employer, but not more often than once every three months. A fixed-term employment contract is extended until the end of a woman's pregnancy, regardless of the reason for the end of pregnancy (childbirth, spontaneous miscarriage, abortion for medical reasons, etc.).
In the event of the birth of a child, the dismissal of a woman in connection with the termination of a fixed-term employment contract is made on the day the maternity leave ends. In other cases, a woman may be dismissed within a week from the day when the employer found out or should have found out about the fact of the end of pregnancy.
An exception to this rule is provided for by part 3 of Article 261 of the Labor Code of the Russian Federation, which allows a woman to be fired 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 woman's written consent, to transfer her to other work available to the employer (both a vacant position or work corresponding to the qualifications of a woman, 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 meet the specified requirements that he has in the area. The employer is obliged to offer vacancies in other localities if it is provided for by the collective agreement, agreements, labor contract.
There are two points of view on this issue in judicial practice.
Position 1. There is judicial practice according to which dismissal in such a situation is lawful.
The courts proceed from the following. The obligation to extend the term of the employment contract until the end of pregnancy arises from the employer only after the employee has received a written application for the extension of the term of the contract and a medical certificate confirming the pregnancy.
Dismissal is legal if the employee did not apply to the employer to extend the term of the contract and did not submit a medical certificate confirming pregnancy.
Let us give as an example the Appellate Ruling of the Nizhny Novgorod Regional Court dated 2017-20-06 in case N 33-5859 / 2017.
The employee's requirements: recognize the dismissal as illegal, reinstate at work.
Circumstances of the case: a fixed-term employment contract was concluded with the employee for a period from 2016-11-10 to 2016-14-11. The basis for the conclusion of a fixed-term employment contract was the temporary expansion of production - PJSC "Trud". By order of the acting gene. Director of PJSC "Trud" dated 2016-14-11 N l / s Sh. N. V. dismissed from work after the expiration of the employment contract on the basis of paragraph 2 of Art. 77 of the Labor Code of the Russian Federation.
The term of its validity of this employment contract expired during the pregnancy of the employee. The employee did not apply to the employer with a written application for the extension of the fixed-term employment contract; she did not submit a medical certificate confirming pregnancy. Dismissed according to clause 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation.
Conclusion and substantiation of the court: The dismissal is lawful. The employee's demands were denied. The decision of the court of first instance was upheld.
The employee did not provide the employer with a medical certificate confirming pregnancy, and did not apply to him with a written application for the extension of a fixed-term employment contract. In this case, part 2 of Art. 261 of the Labor Code of the Russian Federation, the employer does not have an obligation to extend the term of the contract until the end of pregnancy and childbirth. Dismissal under clause 2, h. 1, Art. 77 of the Labor Code of the Russian Federation does not contradict the requirements of the legislation.
Similar conclusions are contained in the Appellate ruling of the Saratov Regional Court dated 09.07.2015 in case N 33-4048
Employee requirements: restore at work.
Circumstances of the case: The employment contract expired during the employee's pregnancy. She did not apply to the employer with a written application for the extension of the contract, she did not submit a medical certificate confirming pregnancy. Dismissed according to clause 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation.
Conclusion and substantiation of the court: The dismissal is lawful. The employee's demands were denied. The decision of the court of first instance was upheld.
According to Part 2 of Art. 261 of the Labor Code of the Russian Federation, in the event of the expiration of a fixed-term employment contract during a woman's pregnancy, the employer is obliged, upon her written application and upon providing a medical certificate, to extend the term of the employment contract until the end of pregnancy. Since the employee did not submit these documents, the employer had grounds for dismissing her under paragraph 2 of Part 1 of Art. 77 of the Labor Code of the Russian Federation.
Position 2. At the same time, there is a court order, which recognized the dismissal in such a situation as unlawful.
This position is based on the following. Within the meaning of h. 1, 2, Art. 261 of the Labor Code of the Russian Federation, if the termination of the employment relationship does not depend on the will of the employer, but is associated with the expiration of the contract, the employer must, in any case, extend the employment relationship until the end of the employee's pregnancy or the period of maternity leave.
At the same time, the judicial board takes into account that the implementation of the provisions of Article 261 of the Labor Code of the Russian Federation is not made dependent on the employer's awareness of the fact of the employee's pregnancy at the time of the decision to dismiss.
So, let's give an example for this position.
Appeal ruling of the Murmansk Regional Court dated 2017-07-06 in case N 33-1652 / 2017.
Employee requirements: restore at work.
Circumstances of the case: A fixed-term employment contract was concluded with the employee. Its validity period expired during the employee's pregnancy. She did not notify the employer about her pregnancy and did not provide him with supporting medical documents. Dismissed according to clause 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation.
Conclusion and substantiation of the court: The dismissal is unlawful.
At the same time, the employer was not deprived of the opportunity to invite the plaintiff to submit a medical certificate confirming pregnancy, which is consistent with the provisions of part 2 of Article 261 of the Labor Code of the Russian Federation and the clarifications of the said Plenum of the Supreme Court of the Russian Federation (paragraph 27), providing that the state of pregnancy is confirmed by a medical certificate, provided by a woman at the request of an employer.
As follows from the case materials, the plaintiff did not hide the fact of pregnancy; both other employees and her immediate superior had information about her being pregnant.
In this regard, the plaintiff could reasonably believe that the employer was informed about her pregnancy.
The employee's requirements are met.
The decision of the court of first instance was upheld.
If the termination of labor relations is due to the expiration of the contract, the employer is obliged to extend them until the end of the employee's pregnancy. Dismissal during pregnancy after the expiry of the employment contract is illegal. Implementation of Art. 261 of the Labor Code of the Russian Federation in this case does not depend on the employer's awareness of the fact of the employee's pregnancy at the time of the decision to dismiss.
