Can they be fired or laid off while on maternity leave? Is it permissible to reduce a position or a temporary employee during parental leave?

Is it possible to get laid off while on maternity leave? Women who are on maternity leave are considered the least socially protected category of citizens, so the state is trying to support them by introducing certain restrictions for employers on dismissing women on maternity leave.

Dismissal of employees on maternity leave

A reduction in the number of employees may be caused by a reduction in the volume of work, optimization of jobs or automation of the work process.

The employer has the right to terminate the employment relationship with the employee if his position is reduced. At the same time, he must notify the employee in writing 2 months before the date of termination of the contract, in addition, if there are vacant positions, he must offer a transfer to a vacant position. If the employee does not agree to the transfer or there are no vacancies, then upon dismissal the employer pays the employee severance pay.

Such measures are designed to provide the employee with time to find a new job and support him financially during the period of lack of earnings.

The reduction of a maternity leaver, or rather the position she held before going on maternity leave, has no logical justification. While on maternity leave, a woman does not go to work, and the employer does not need to hire a specialist during her absence if the position is subject to abolition.

In order to notify an employee about the reduction of her position, it is necessary that she return from maternity leave. An employee on maternity leave has the right to return to work at will until the child reaches the age of 3 years. Therefore, even if she returned to work, this does not mean that, having sent a notice, she can be fired in two months.

Article 261 of the Labor Code of the Russian Federation provides guarantees for women who raise young children under the age of 3 years. Thus, women raising children under three years of age, single mothers raising children under 14 years of age, or disabled children under 18 years of age are not subject to dismissal due to staff reduction.

For reference! Dismissal of female workers specified in Article 261 of the Labor Code of the Russian Federation is possible only during the liquidation of the enterprise, when all employees are subject to dismissal.

If an employee returns from maternity leave when the child reaches 3 years of age, and she is not a single mother, then the employer can fire her after 2 months of notice.

A reduction in maternity leave is permissible only with the written consent of the employee.

In the countries of the Customs Union (Belarus and Kazakhstan), labor legislation in terms of guarantees for pregnant women and those on maternity leave is similar in many aspects, especially with the legislation of Belarus.

For reference! In Kazakhstan, the notice period for termination of employment due to layoff is 1 month.

What to do if the rights of a maternity leaver are violated?

If a woman, while on maternity leave, has received a written notification from her employer that she is about to be fired due to a reduction in the number of staff, then she can safely apply for protection of her rights to the relevant authorities.

You can contact any of the following authorities:

labor inspectorate;
prosecutor's office;

You can send an application to the labor inspectorate by registered mail with notification or visit this institution in person. The period for consideration of the complaint is one month from the date of receipt. The Labor Inspectorate carries out an inspection of violations of labor legislation and, based on its results, issues an order that is mandatory for execution regardless of the form of ownership of the organization.

Another government body that oversees compliance with labor laws is the prosecutor's office. Contacting the prosecutor's office is an effective way to protect your rights. The period for consideration of citizens' appeals is no more than 30 days, and in cases where no additional verification and examination of documentation is required - 15 days. The prosecutor issues a motion obliging the employer to eliminate the violation of the law.

You can go straight to court, but you must comply with the deadline for filing a statement of claim, which is 3 months from the day the employee learned that his rights were violated, and in cases of dismissal - 1 month from the date of familiarization with the order to terminate employment relationships.

In the course of the activities of an enterprise or individual entrepreneur, a situation may arise when the position occupied by an employee who is on maternity leave or maternity leave (hereinafter referred to as UR leave and BR leave, and in general - maternity leave) has lost her relevance and this type of work is no longer needed. The legislation establishes a ban on the dismissal of this category of employees, as stated in Article 81 of the Labor Code.

For employees on maternity leave, the state guarantees not only the payment of benefits, but also the preservation of their place of work and the position they held. In this regard, employers are put at a disadvantage when, on their own initiative, they cannot not only terminate contractual relations with such employees, but also change their working conditions and functional responsibilities that they performed before going on maternity leave. The exception is the cases specified in the same law in Article 256, namely during the liquidation of an enterprise or when an individual entrepreneur ceases its activities.

Basic requirements for the job reduction procedure

Based on clause 2, part 1, art. 81 of the Labor Code, it is impossible to dismiss an employee who is on BR leave and UR leave due to a reduction in the number of employees of the enterprise. According to the general rules, the dismissal procedure for staff reduction is as follows: the employer notifies the employee about the upcoming reduction two months before the date of dismissal, simultaneously informing the trade union organization and the state employment service.

It follows from this that the employer, in any case, must wait until maternity leave ends when the child reaches the age of three and only after that notify the employee of the termination of the employment contract concluded between them in two months due to staff reduction. In other words, the employee loses the special status provided for by law after the end of his vacation, so generally established actions provided for layoffs can be applied to him.

It is worth noting that for such an action to be fully legal, it is necessary to offer alternative employment options in other positions or types of work. The proposal must be issued in the form of a notice and provided to the employee for review; it is imperative that he signs it, confirming the fact that vacant positions have been provided to him.

Further events can go in two ways. In the first, the employee returning from maternity leave agrees to move to another position provided. After which, appropriate changes are made to the employment contract in the form of an additional agreement. It indicates all the information about the new workplace and makes a corresponding entry in the work book.

In the second scenario, the employee who returned to work after maternity leave, having received a notice, refused to move to another position after two months. In this case, it is necessary to record the employee’s refusal in writing in order to document the fact of refusal, which will subsequently be considered grounds for dismissal. Otherwise, having fired an employee, you may be faced with a situation where he can be reinstated to work through the court, citing his desire to work in an alternative position and ignorance of the fact that it was vacant at the time of dismissal. Because, according to established judicial practice, the absence of a written refusal is interpreted in favor of the employee, and is considered as consent to work in other positions.

The Russian state pursues a policy to protect childhood and motherhood. For this purpose, laws were passed prohibiting reductions in maternity leave. Therefore, employers must be well aware of and accurately comply with the legal requirements to ensure that expectant mothers and workers caring for children have the right to work.

Procedure for transfer to another position

Some employers make a common mistake by removing a position from the staff list after an employee goes on maternity leave, incorrectly believing that if he is not fired, but simply crossed off the position from the list, nothing will happen. But the law prohibits any manipulation with the staffing table if it concerns employees on BR leave and UR leave. In case of violation, the punishment provided for in Article 5.27 of the Administrative Code may follow.

Also, no one prohibits an employee from returning to work without waiting for the end of maternity leave. According to the law, he must be provided with the same position and the same working conditions as before going on maternity leave, so employers do not have the right to change anything unilaterally in this case.

A transfer to another position can be carried out only after the end of maternity leave and with the written consent of the employee to change working conditions. In any case, it is necessary to comply with the requirements of the law prohibiting transfer if the new position is contraindicated for health reasons.

Reduction during reorganization

Reorganization of an enterprise can occur in different ways, in which the subordination changes, as well as in the form of division, merger, accession or transformation, but none of them can become the basis for the dismissal of an employee. The legislation does not require the employer to necessarily notify employees about the upcoming reorganization, since a change of owner cannot become a basis for refusal to work. Therefore, dismissal and reduction in this case are carried out on a general basis. If during the reorganization process the name of the enterprise was changed, an entry about this should be made in the work book.

When merging several organizations or separating one enterprise from another, in all manipulations with the staffing table, the reduction of those positions occupied by employees on maternity leave is prohibited. A transfer to another job can only be carried out with the personal consent of the employee. Therefore, despite the fact that the law does not provide for mandatory notification of employees regarding the upcoming reorganization, experts advise doing this for key positions that may be reorganized.

This will enable employees to get acquainted with the future prospects and make a timely decision on agreeing or refusing to transfer to another position. In this case, it becomes possible to reduce a position during maternity leave, after receiving written consent from an employee on maternity leave to transfer to another position, but not due to staff reduction, but at his own request. Then there will be no violation of the law.

This measure is valid until the end of the UR vacation. After an employee begins to perform his duties, he is subject to general rules. He may be fired if he does not agree to move to another position. After notifying two months before the start of a reduction in the number of employees of the enterprise, upon notification of the availability of alternative places of work.

What must an employer offer to a woman on maternity leave when her position at the company is reduced?

The term “maternity leave” itself is absent in the legislation, being, in fact, the popular name for maternity leave. However, the rights of women on maternity leave are clearly stated in the law, and every expectant mother should know them, because “forewarned is forearmed.” Alas, it is not uncommon for women on maternity leave to be laid off. Some - after the liquidation of the enterprise (which, in light of the political situation, is not uncommon today), others - with the light hand of an unscrupulous employer.

Can a maternity position be reduced?

Future and established young mothers who are worried about their jobs can rest easy - the employer does not have the right to lay off an employee who is on maternity leave. In addition, for this category of employees the legislation provides for additional guarantees and legal protection against dismissal .

A woman on maternity leave has a preferential right to dismissal “in the last row” during layoffs.
The employer is obliged to offer the maternity leave all other vacancies that are available. Which the maternity leaver has the right to refuse (if they do not suit her).
The only case in which an employer is able to lay off maternity leave legally is through liquidation of the company. But even in this situation, his sacred duty is to warn about the reduction at least 2 months in advance.
An employer can fire a woman on maternity leave due to job reduction only after she returns to work. That is, after the expiration of maternity leave, on the first day of returning to work, he can begin the procedure for registering a reduction in her position. Notice of future layoffs is given 2 months in advance (for staff reductions), 2 months before the liquidation of the company (in case of its liquidation). They can also be fired due to violation of labor discipline or at their own request.

Read also: How to calculate piecework wages

What to do if your position was made redundant during maternity leave

If, while on maternity leave, you learn that your position has been reduced, you should remember: the employer is breaking the law .

You have the right to file a claim in court for violation of your rights.
You must be reinstated at work.
You have the right to compensation for being deprived of the opportunity to work in the amount of your average earnings from the date of your dismissal until the day you are reinstated at work. And also for compensation for moral damage.
You also have the right to claim the difference in child care benefits. The difference between benefits for a working woman and an unemployed woman can be significant.
If a claim is filed, the payment of legal costs falls on the shoulders of the employer.

You should go to court within 1 month from the day you learned that your rights were violated (the period established by the Labor Code of the Russian Federation).
The missed deadline can be restored again in court (you have a good reason).

Reduction and maternity leave upon liquidation of an enterprise

Such a right as reducing maternity leave during the liquidation of a company is assigned to the employer by law. Therefore, yes, they can fire you. But only subject to strict compliance with the entire procedure, including the required payments. What does a maternity leave need to know in this “fire” case, and what can you count on?

Each employee must be notified 2 months in advance of any structural change. Moreover, under a personal signature.
After the expiration of the 2-month period, layoff orders are issued, and appropriate entries are made in the work books with the reasons for the layoff.
The reduction procedure must be strictly followed from the initial to the final stage.

Subject to reduction due to the liquidation of the company, the maternity leaver is entitled...

Compensation for each vacation not taken during the entire period of work in the company.
Severance pay (it is equal to 1 average monthly salary).
In the 1st and 2nd months after dismissal - payment in the amount of average monthly earnings for the period before official employment.
In the 3rd month - a payment equal to 1st average monthly earnings is also due, provided that: 1 - the maternity leaver is registered with the employment center within 2 weeks after the layoff, 2 - at the time of the 3rd month After the dismissal, the maternity leaver was never employed.
Child care benefit for the entire period, even if it has not yet expired.

What to do if benefits are not paid for one reason or another (the employer is hiding, the company is not liquidated, but does not work, etc.)?

In this case, the maternity leaver can receive maternity payments from the Social Insurance Fund.

Certificate of incapacity for work. If it is not available (for example, it is left with the employer), a duplicate of the document is obtained from the doctor.
Salary certificate. In the absence of it (for example, the organization no longer exists, and on the day of dismissal they did not have time to receive it), the FSS makes a request for a corresponding application to the Pension Fund for contributions.
If the insurance period is at least 6 months (it will need to be confirmed), benefits must be paid in the amount of 100% of earnings (average monthly). With a shorter insurance period, the benefit amount will be equal to the minimum wage.

The same actions apply if child care benefits are not paid. True, “sick leave” will no longer be required.

The situation is much more complicated if the company is not actually liquidated (that is, it is not excluded from the Unified State Register of Legal Entities), but the location of the employer is unknown, the company itself does not have a legal address, and there is no activity. In this situation, you will not be able to contact the FSS.

Go to court.
Receive the court decision + writ of execution.
Contact the bailiffs, who, in turn, begin enforcement proceedings, search for the company’s property, bank accounts, etc.
After establishing the fact of the absence of property, the bailiffs issue a resolution to terminate the enforcement proceedings.
Now you can contact the FSS, taking with you the court decision and the bailiff’s ruling that it is not possible to find the employer and his property.
If the missing employer was nevertheless found, then the further development of the situation will depend on the availability of money in his accounts or the availability of property.

Unfortunately, this process is not quick, so it is better to decide right away whether you are ready to spend your time and, most importantly, your nerves (especially at such an important time for you) to defend your rights.

The period for applying for payment of maternity benefits is the period limited by the sick leave and another 6 months after its end.
The deadline for applying for payment of child care benefits is no later than 6 months after the baby turns 1.5 years old. That is, before your child turns 2 years old.

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Reduction on maternity leave

Pregnancy, childbirth, child care - all these stages are popularly called maternity leave, although there is no such concept in the legislation.

There are two types of leave related to maternity, during which the employee retains her position and workplace:

Maternity leave (MPLE) is granted to a woman approximately two months before the expected birth and lasts from four to six months. Its duration depends on the number of babies born at the same time and the mother’s recovery after childbirth.
Parental leave (CLE) ends when the child reaches three years of age, but is paid only up to one and a half years.

During these vacations, the employee retains her job, and she can be fired during this time only with her consent, or with the complete liquidation of the enterprise.

When only a branch or subsidiary company ceases activity (even if the maternity worker worked there), this is not grounds for layoffs.

Can they get fired?

There must be compelling reasons for dismissing an employee, and very, very compelling ones for dismissing a woman on maternity leave.

Moreover, not only the mother, but also the child’s father or another close relative can be in the OPUR. They will be entitled to the same rights as a mother caring for a child, and it is very difficult to dismiss such an employee.

At the initiative of the employee. the basis is a statement voluntarily written by him. Often, employers try to convince a woman on maternity leave to draw up one, but this action would be unreasonable on her part.
By agreement of the parties. The name speaks for itself; voluntary consent of both the employee and the employer is required. An employee who does not agree with such dismissal has the right to challenge it with the labor inspectorate.
By job reduction. Such dismissal can occur for a maternity leave only when her baby turns three years old, and not a day earlier.
When liquidating an enterprise, it is completely legal to lay off any employee. A non-existent company cannot maintain a workforce, but even this dismissal is a rather complicated procedure, with its own nuances, which will be discussed below.

So, a woman on maternity leave can be laid off only if the company in which she worked is completely liquidated. They can also fire her at her own request, but the desire is unlikely to arise.

Legislation

Women, pregnant women and caring for children constitute the most vulnerable category of citizens.

Therefore, the legislation has developed a number of privileges and benefits aimed at protecting the professional interests of such employees:

Labor Code of the Russian Federation;
Article 255 of the Labor Code of the Russian Federation regulates the rights of an employee staying at the “OPBR”;
Article 256 of the Labor Code of the Russian Federation protects the rights of employees located in the “OPUR”;
Article 261 of the Labor Code of the Russian Federation on guarantees for pregnant employees and persons caring for children;
the size and timing of maternity payments is stated in the Order of the Ministry of Health and Social Services. development dated 12/23/2009;
liability for violations of labor protection and labor legislation is provided for in Article 5.27 of the Code of Administrative Offenses of the Russian Federation.

Read also: Annex to the employment contract - sample

Any unlawful tricks of the employer can be appealed in court. The employee will be reinstated and the employer will bear serious responsibility. But whether their further cooperation will be promising is a big question.

Women's rights

Termination of an employment contract at the initiative of the employer is prohibited by the Labor Code of the Russian Federation with the following categories of citizens:

mothers with young children under three years of age;
pregnant employees;
single mothers whose children are under fourteen years old;
single mothers with disabled children under eighteen years of age.

There are only two exceptions here:

liquidation of the organization;
gross violations on the part of the employee (theft, falsification of documents, immoral behavior, etc.)

Mothers whose children are under one and a half years old have the right to paid breaks from work to feed the child and are involved in overtime work and business trips only with written voluntary consent. In addition, they should not work on holidays and weekends.

The following may refuse business trips, work overtime, on holidays and at night:

mothers of children under three years of age;
single mothers until the youngest child is five years old;
mothers of disabled people until the sick child reaches adulthood.

The latter are also entitled by law to four days off, additional and paid.

Employees with small children have the right to count on payment of sick leave to care for a sick child. Employers are not at all happy about this fact, but the law is clearly written and is not subject to discussion.

Reduction during maternity leave

Can they be laid off while on maternity leave? Only in exceptional cases:

liquidation of the enterprise;
bankruptcy of the employer (in this case it would be better to resign of your own free will, since you sometimes have to wait a very long time for severance pay and other payments from a bankrupt employer);
termination of business activities by the employer.

In all the circumstances described above, the employer is obliged to notify the employee two months before the event, in writing (sometimes by registered mail) and against signature.

During this period, a woman can find a new job or register with the employment center, while maintaining child care benefits.

During reorganization

During a woman's maternity leave, various changes may occur in the company where she worked. These changes often introduce adjustments to job responsibilities and the size of the workforce. But here, too, the rights of women on maternity leave are protected by law.

The Labor Code of the Russian Federation clearly states that the employer does not have the right to dismiss an employee who is in the OPBR and OPUR when reducing staff.

Whatever organizational changes occur in the company, women on maternity leave are inviolable. Throughout their vacation, they retain their position and seniority.

Sometimes employers try to be cunning and persuade an employee to leave her job, proving the inevitability of dismissal. You should not give in to such persuasion; until the baby is three years old, his mother has no right to fire her.

The answer to the question whether a position can be cut during maternity leave is clearly no. The employer will have to wait for the employee to return from maternity leave and notify her in writing of the reduction of her position.

And only after two months can a legal reduction take place, but during this period the employer is obliged to offer the woman alternative positions and vacancies.

If an employee refuses new offers from the employer, this fact must be documented. This will be the basis for dismissal.

In the absence of offers from the employer, the employee will be able to be reinstated in her position through the court, explaining her dismissal by failure to provide information about vacancies suitable for her.

A woman should know how many days later maternity pay is due according to the law.

Will maternity pay be paid for up to 3 years? Find out here.

Upon liquidation of an organization

In the event of liquidation and termination of activities, the enterprise ceases to exist, and all employees without exception are subject to dismissal. But if only part of the company is liquidated, women on maternity leave cannot be laid off.

The founder of the main enterprise continues to be their employer and fulfill the obligations assigned to him.

Two months before the liquidation of the organization, all employees, including women on maternity leave, are sent written notices, which must be read and signed by the employee.

Until the company is deregistered, all employees retain the right to extend their seniority and all required payments, including payment of insurance and pension contributions.

When a company is liquidated, all employees are given the following on the day of dismissal:

dismissal order;
salary certificate for the last two years;
full cash payment, including unused vacation days and severance pay.

If the employer fails to comply with the conditions dictated by law, employees of the liquidated company can also turn to the courts or the labor inspectorate to protect their professional and civil rights.

Transfer to another position

Many employers are mistaken in considering it possible to abolish the position of a maternity leaver or transfer such an employee to another position. Such actions are considered illegal and contradict the Labor Code of the Russian Federation.

At the end of maternity leave, the employee must return to her workplace while maintaining her position and all working conditions.

The employer does not have the right to change the terms of the employment agreement concluded with a maternity leaver at his own discretion.

However, he may offer an employee on maternity leave a transfer within the company to a similar or more prestigious position.

With her written consent and on the basis of her written application, transfer is possible, but only after the end of the maternity leave and in the absence of contraindications due to the woman’s health.

After release

At the end of maternity leave, a woman loses her “professional integrity,” and employers often try to take advantage of this.

They motivate their actions by the fact that during the long absence the employee lost her business acumen and qualifications.

In reality, everything is much simpler: employers do not favor workers with small children due to frequent notices and refusals to work overtime, on holidays and weekends. The best way out is to get rid of the woman, sometimes it comes down to intimidation and moral pressure.
In such situations, you should contact the courts.

The employee’s incompetence will need to be proven, as well as an explanation of what the employer did to restore her qualifications. As practice shows, the vast majority of such disputes are resolved in favor of young mothers.

An employer cannot force a woman to leave maternity leave early and replace this leave with monetary compensation.

What payments are due?

A maternity leaver can be legally dismissed for only two reasons, but in any case, all documents must be correctly completed and all due payments must be made.

Upon dismissal at the initiative of an employee, a woman is given:

work book with the corresponding entry;
salary certificate (at the woman’s request);
full cash payment, including maternity payments (if they have not yet been received) and payment of all unused days of annual leave.

When liquidating an enterprise, the cash settlement consists of:

severance pay in the amount of one average monthly salary;
payment of sick leave for pregnancy and childbirth (if it has not yet been paid);
payments for all days worked and unused annual leave.

Dismissal after maternity leave is a violation of the law.

Are unemployed people entitled to maternity leave in 2016? Read here.

How can an individual entrepreneur get maternity leave? Detailed information in this article.

A woman who quits her job should register with the Employment Center. There she will be offered a choice of one of the benefits (unemployment or child care), and will also be provided with information about new available vacancies.

This service will definitely help in finding a job, and perhaps a woman will have better luck with a new employer than with the previous one.

Video about dismissal issues

Is it possible to reduce the position of a maternity maid during maternity leave?

The legislation provides for women on maternity leave the opportunity to go on vacation without worrying about being deprived of their job at this time. Women on maternity leave cannot be dismissed at the request of the employer. This is stated in Article 261 of the Labor Code.
Questions about what is the procedure for dismissing women who are released from work due to child care, and on what grounds they can be fired, are explored in detail in this article.

Reduction upon liquidation of a maternity leave company

The procedure for layoffs for women on maternity leave is set out in labor law norms. As a general rule, it is impossible to dismiss them at the request of the employer. But still, dismissal can be made in the following cases:

At personal request;
Upon liquidation of an enterprise;
For committing a gross act: absenteeism, showing up at work drunk or under the influence of toxic substances;
Committing theft in the workplace;
Committing immoral acts if the work is educational in nature;
Based on negative assessment findings regarding the employee.

The main part of the reasons is related to the negative behavior of the maternity leaver.
The dismissal procedure is the same, regardless of whether the employee works full-time or half-time.

In a situation where a woman is diligent and disciplined at work and does not allow any violations, it is not easy to terminate an employment relationship with her.
Sometimes it happens that the new staffing schedule in an organization involves a reduction in the position that the maternity leaver fills. The woman is given notice 2 months before dismissal. The position she occupies is being reduced, but she can be fired only after she returns from vacation, no matter how much the employer would like it. In this case, it will be necessary to offer her other vacancies in the company or transfer her to another job in the same company.

Reduction of maternity leave upon liquidation of an enterprise - payments

When an organization is liquidated, positions are not offered to dismissed employees. Women on maternity leave, as well as other workers, are sent notice of layoffs no later than 2 months. Liquidation of a company is the only reason for terminating a contract with a woman on maternity leave, at the request of the employer.

Not too often, but still sometimes the question arises: is it permissible to reduce maternity leave? Let's consider this issue in detail.

What is maternity leave and how is it provided?

Reduction in maternity leave is possible only under certain circumstances

First, let's look at what maternity leave actually is, on what basis it can be obtained and what payments are due for it.

In the legislation, it should be noted, the term “maternity leave” is absent. This is a “popular” name for maternity leave, sometimes it also means parental leave until the child reaches one and a half or three years of age, but more often it is the first case. To avoid confusion, in this article maternity leave will be understood as maternity leave.

Procedure for granting leave

Before talking about whether maternity leave can be reduced, would it be good to understand how it is provided? This is not such a difficult procedure. An employee who becomes pregnant must register with a medical institution, and it is more profitable to do this early - when registering before twelve weeks, an additional small government payment is due. After receiving the results of the ultrasound examination, the doctor sets an approximate date of birth and, based on it, issues a certificate of temporary incapacity for work. This sheet must be provided to the employer, on its basis an order will be issued for the enterprise, and based on the order, maternity payments will be calculated.

Duration of maternity leave

It should be noted that temporary disability due to pregnancy and childbirth is quite long. In general, the law provides employees with one hundred and forty days of such leave, and the maximum duration can be as much as one hundred and ninety-six days. Of course, it is quite difficult to manage for such a period without an employee, so usually during this time they either hire someone under a fixed-term employment contract, or redistribute responsibilities between those employees who are already available. The second option is fraught with the fact that the management of the enterprise may think that a maternity position is completely unnecessary if the remaining employees manage to work both for themselves and for the employee who went on vacation, which may lead to thoughts about reducing staff, which brings us to the main topic of this articles: reduction of maternity position.

Is it possible to fire an employee on maternity leave?

For those who are worried that they may be fired while on maternity leave, we assure you that your worries are in vain. Firstly, according to the law, it is impossible to fire a person while he is on vacation, and secondly, additional guarantees and protection against dismissal are provided for pregnant women and mothers of young children.

The only opportunity for an employer to lay off a woman on maternity leave is to liquidate the enterprise, but even in this case, the employee will need to be notified of the upcoming event at least two months before it, no later.

Therefore, theoretically, yes, dismissal during maternity leave is possible, but only in exceptional cases (liquidation of the company), and even if this happens, the dismissed employee will have time to either find a new job with a more flexible schedule, or register with the employment center .

Retrenchment of an employee on maternity leave

Reduction of an employee on maternity leave is possible only upon liquidation of the enterprise

During the time that the employee is on maternity leave, a situation may arise that the staffing table will need to be changed and the position that is reserved for her will simply be reduced. Is it possible to file a dismissal in this case?

The answer here is clear - until the child reaches 3 years of age, dismissal on this basis is prohibited by labor law.

Retrenchment of an employee after maternity leave

Reduction after maternity leave is legal only if the child is already 3 years old

If the employee has already returned from maternity leave to work and the child is not yet 3 years old, she cannot be fired either.

In addition, dismissal at the initiative of the employer of women who are single mothers of children under 14 years of age and disabled children under 18 years of age is prohibited.

The remaining women who have children over 3 years of age and who are not included in the above categories can be fired:

at your own request - with two-week work;
for staff reductions - with mandatory notification two months before the reduction;
in connection with the liquidation of an enterprise - with mandatory notification two months before liquidation;
under the article - if there were cases of gross violation of labor discipline on the part of the employee.

The legislation provides for women on maternity leave the opportunity to go on vacation without worrying about being deprived of their job at this time. Women on maternity leave cannot be dismissed at the request of the employer. He talks about this.
Questions about what is the procedure for dismissing women who are released from work due to child care, and on what grounds they can be fired, are explored in detail in this article.

Reduction upon liquidation of a maternity leave company

At personal request;
Upon liquidation of an enterprise;
For committing a gross act: absenteeism, showing up at work drunk or under the influence of toxic substances;
Committing theft in the workplace;
Committing immoral acts if the work is educational in nature;
Based on negative assessment findings regarding the employee.

The main part of the reasons is related to the negative behavior of the maternity leaver.
The dismissal procedure is the same, regardless of whether the employee works full-time or half-time.

Reduction of maternity leave upon liquidation of an enterprise - payments

Upon liquidation of an enterprise, an employee has the right to a number of payments. The severance pay of a maternity worker consists of the following accruals:

Payment for unused vacations;
Payment of average monthly earnings as benefits;
Payment of average monthly earnings for 2 months for employment.

If a woman registers with the employment center in a timely manner after being laid off, she can qualify for payment of her third month’s salary.

Upon dismissal, the employee should be notified of all payments due to her so that she is aware of her rights.

How to notify a maternity leaver about a layoff

Notification is always in writing. You can send it to the employee’s home address, or you can invite her to the HR department to review the document.

The sample notification of a maternity leaver about the reduction of her position does not have a unified form; it can be drawn up in any form. The notice must contain the following information:

Company name;
Information about the employee: Full name, position;
Reasons for reduction - details of the order;
Clarification of rights to due payments;
Number and signature of the manager.
Space for the employee's signature.

How to fire a maternity leaver when reducing staff

If an employee is laid off during maternity leave, she must be notified in writing of the fact of dismissal by sending a notice. Termination of the contract and entry into the work book can only be done after she returns to work. The provision of new vacancies is mandatory, even with lower salaries and worse conditions.

Is it possible to fire a part-time maternity leaver?

The procedure for terminating an employment relationship does not depend on whether the employee has a primary or part-time job. The principles are still the same, the provisions are regulated by the same articles. It is also necessary to notify about the reduction and offer an alternative position.
Thus, it is quite difficult to fire a woman during maternity leave. The law ensures that she retains her job until she starts work.

a more complex dismissal process (Article 261);

special conditions for maintaining average wages (Article 254) and place of work (Article 256).

In Art. 261 it is fixed that It is prohibited to fire a pregnant woman, except during the liquidation of a legal entity or individual entrepreneur. It is impossible to fire her, even if the fixed-term employment contract expires.

In this case, however, the employer may refuse to renew it if the woman does not provide a certificate confirming her pregnancy.

However, such a dismissal will be declared illegal and she will be reinstated in her job by the court.

The deadline for submitting a certificate is not established by law. And, in principle, even if the lady does not provide a certificate, the fact of pregnancy will still be confirmed after the birth. So you shouldn’t fire a pregnant woman until the information is clarified.

When a company is liquidated, everyone is fired, incl. it is possible to lay off an employee who is on parental leave. Article 180 of the Labor Code of the Russian Federation establishes a guarantee period for notifying laid-off workers of layoffs – 2 months.

At the same time, waiting until the employee goes to work is not always convenient due to the short deadlines for liquidation by law. The Labor Code does not establish a strict notification procedure, so the following options are possible::

personal delivery at the place of work;
personal delivery against signature at the woman’s place of residence;
sending notification by registered mail with a mandatory list of attachments.

Cases from judicial practice

Russia has no precedent system of law. This, however, does not mean that the judge will not pay attention to the decision of another court when considering a similar case.

Therefore, even if the Labor Code does not explain some aspects of the dismissal of mothers during liquidation, their importance has already been established by the judicial system:

You must notify in person and against signature: only a personal signature and affixed one will certify the fact of timely notification.
A notification sent by mail without a list of attachments is not evidence of notification, because no one can accurately confirm the contents of the envelope (St. Petersburg court).
The fact that a letter was sent is not proof of notification. If the letter is not served, then the woman cannot be fired (Omsk Regional Court).
If a woman refuses to receive a notice and sign for it, this fact must be certified in writing. In this case, it is necessary to find 2 witnesses. For example, neighbors.

If a pregnant woman or mother is laid off before her child’s 3rd birthday, she retains her average earnings for up to three months while looking for a new job (for the same women who worked in the Far North - up to 6 months).

Will the substitute's maternity pay be reduced?

Another person is almost always accepted for maternity leave. Can this employee be laid off? Let's figure it out according to the Labor Code of the Russian Federation:

In accordance with Art. 256, a woman who is on maternity leave and until the child reaches 3 years of age retains her place of work and position.
According to Art. 59, a fixed-term employment contract is concluded with a person applying for maternity leave until the woman returns from maternity leave.
According to Article 79, the contract is terminated when the woman returns from vacation.
Art. 261 stipulates that such a woman cannot be dismissed for any reason other than liquidation.

Respectively, eliminating the maternity rate is impossible, as is laying off an employee on maternity leave.

Dismissal of a temporary employee

A woman on maternity leave cannot be fired either due to layoffs or reductions in headcount..

In the first case, because she retains her salary (position), in the second, because she belongs to a group of people specially protected by the Labor Code, who have special human differences - the state of pregnancy or the presence of a child under 3 years old with whom she must sit.

It is for the first reason indicated that it is impossible to lay off a temporary worker holding a maternity position.

But even without the Labor Code it is clear: if this temporary employee is not a pregnant woman (and does not belong to the other “preferential” categories that cannot be fired), then he can be fired not as a “position” but as a “number”.

There is a legislative explanation for the possibility of dismissing a temporary worker on maternity leave to reduce the number of employees under clause 2, part 1, article 80 of the Labor Code. But first, let's look at the procedure for reducing the number of employees in a company.

Procedure for reducing the number of employees

A decision is made to cut the number of employees. For example, from 10 to 20%.
Then, according to Article 179 of the Labor Code, all employees are ranked in two stages according to the degree of preferential retention at work.
At first, the qualified, hard-working and productive are retained. The rest (if they can be fired) are fired.
If the required number of “bad” workers is not found, then they begin to recruit from those left behind.. And with equal labor indicators they will leave:
- family with dependents;
- workers with work-related injuries or occupational diseases that were received at a given place of work;
- “combat” disabled people;
- and employees who improve their skills without compromising their work.
According to Article 178, the employer must offer the redundant all vacant (free) positions in the company. And the employee officially must either accept the offer or refuse.
Next, those selected for layoff are notified. Deadline – no later than 2 months before the last day of work.
On the day of dismissal, employees are calculated based on their salary and guaranteed severance pay, and are also issued a work book.

Answer: why will the temporary be fired?

Given the ideal attitude of the employer and the organization of personnel records, a temporary employee will not remain temporary in the presence of vacant rates and labor indicators.

Therefore, suppose that when reducing:

there are no free rates, and therefore the employer simply has nothing to offer (see point 3 above);
There are free rates, but the employee does not want to transfer.

That is why, if there is nowhere to transfer an employee or he does not want to, he can be dismissed due to a reduction in numbers.

The question arises, what about the maternity rate? After all, this is exactly what the temporary employee is occupying, and he will definitely agree to it!

But, as mentioned above, the “maternity” employee retains her position. Accordingly, the maternity rate is not vacant, but occupied. And a reduction in parental leave is unacceptable.

And therefore, according to the letter of the law, it cannot be offered for translation, because Only free (vacant) rates are offered, and not those at which employees do not come to work.

What does an employer face for reducing a position during parental leave?

It is worth understanding that the phrase “ignorance of the law does not exempt you from responsibility” is not just a catchphrase. If the norm is written down and officially published, then it does not matter that the employer does not know it.

In the case of the Labor Code - the handbook of every manager and personnel officer - reducing maternity pay, which is directly prohibited in Article 261, is an offense.

What liability the employer will be subject to depends on whether he had intent.

Thus, the investigator may see in the reduction of maternity pay a direct intent to dismiss a woman due to her pregnancy and being on maternity leave.

Then the employer will be charged under Article 145 of the Criminal Code of the Russian Federation and he faces a fine of up to 200 thousand rubles or 18 times his income; or compulsory work for 360 hours.

Criminal Code of the Russian Federation, Article 145. Unreasonable refusal to hire or unjustified dismissal of a pregnant woman or a woman with children under three years of age

Unreasonable refusal to hire or unjustified dismissal of a woman on the grounds of her pregnancy, as well as unjustified refusal to hire or unjustified dismissal from work of a woman who has children under three years of age, for these reasons - is punishable by a fine of up to two hundred thousand rubles. or in the amount of wages or other income of the convicted person for a period of up to eighteen months, or by compulsory work for a period of up to three hundred and sixty hours.

If the crime is not confirmed, the employer will be prosecuted under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation for violation of Labor Code norms.

In this case, he faces a warning or a fine of up to 50 thousand rubles.

In any case, a woman laid off due to redundancy and on maternity leave can file a lawsuit..

As a result, she will be reinstated at work with pay for the period of dismissal.

Illegal dismissal of a temporary worker

If a temporary employee on maternity leave does not belong to the category of those who cannot be laid off due to a reduction in the number, then dismissal with non-compliance with the procedure will be an unlawful reduction. For example, the notice period.

In this case, the employee must be reinstated by the court. Also, by filing an appeal to the labor inspectorate, you can bring him to justice under Article 5.27 of the Code of Administrative Offences.

There are not many ways to fire a pregnant woman and carry out layoffs during maternity leave.. So, if the organization is not liquidated, it is better not to risk it and let the woman return from maternity leave.