Current trends in judicial practice in the field of protection of the rights of pregnant women at work

Recently, judicial practice in the field of protection of the rights of pregnant women in labor relations has changed dramatically. For example, for practicing lawyers, the new position of the Supreme Court of the Russian Federation, expressed in the Ruling of June 20, 2016 No. 18-KG16-45, according to which a pregnant woman has the right to demand from the employer the cancellation of the agreement on termination of the employment contract and her reinstatement at work after dismissal by agreement of the parties, came as a surprise. In the case considered by the Supreme Court of the Russian Federation, a pregnant woman found out about the state of pregnancy after the termination of the employment contract. However, as the Supreme Court of the Russian Federation considered, it was the state of pregnancy of the woman at the time of signing the agreement on termination of the employment contract that was legally significant in this case, and the cancellation of her consent to dismissal by agreement of the parties actually transforms such dismissal into dismissal on the initiative of the employer, which is prohibited by law for pregnant women.

However, the practice has moved on and now the courts believe that a pregnant woman has the right to demand reinstatement at work and after dismissal at her own request. Apparently, the courts believe that a pregnant woman a priori cannot be interested in dismissal on her own, especially if such dismissal occurs the day after filing the application (see, for example, the appeal ruling of the Moscow City Court of 08.08.2016 in case No. 33-24724/2016).

The situation develops in such a way that even after a more or less long period after dismissal, without making any statements to the employer, a woman who was pregnant at the time of dismissal at her own request has the right to demand in court that the dismissal be declared illegal due to the absence of her voluntary will and reinstatement at work. Moreover, as practice shows, the term missed for applying to the court can be restored by the court in case of deterioration of the well-being of a pregnant woman both during pregnancy and after the birth of a child.

In such circumstances, the conclusion arises that a handwritten statement of dismissal may not be enough to confirm the voluntary will of a pregnant woman to be dismissed, and the law does not provide for any other ways to confirm the seriousness of a pregnant woman's intentions to be dismissed.

At the same time, the courts do not make any exceptions regarding the payment of forced absenteeism after the restoration of a pregnant woman at work: it is in all cases subject to payment in full.