Dismissal of a mother of many children at the initiative of the employer, staff reduction and at her own request

Author of the article: Lina Smirnova Last modified: January 2020 16345

The legislation of the Russian Federation is aimed at protecting maternal rights. This especially applies to the field of labor law. The Labor Code of the Russian Federation directly provides for a number of articles limiting the actions of employers in relation to women with children. This applies not only to their employment, but also to their dismissal. In particular, the dismissal of a mother of many children is allowed only in exceptional cases. Therefore, if the interests of a mother of many children are infringed upon dismissal, she should know what rights the state has granted her. In this article, we will consider when a woman with several children can be fired, what gives her the title of mother of many children, what is the procedure for her dismissal for different reasons for dismissal.

Preferential right to leave a mother of many children at work

There is a certain algorithm for determining preferential rights. It involves the following several stages:

First, all possible candidates are reviewed. Next, they exclude those for whom layoffs are generally prohibited. Article 261 of the Labor Code of the Russian Federation provides a detailed list of such persons. Usually we are talking about single mothers raising children under 14 years of age, pregnant women, minors, and some other categories of citizens. The ban on dismissal also applies to employees on maternity leave.

Candidates for reduction are considered from the point of view of productivity and skill level. For example, it would be correct to consider two leading accountants of one department. Incorrect - when they analyze a leading accountant, comparing him with an employee of the 2nd category. Labor productivity assessment is carried out with the same rules.

If the parameters are the same for all positions, they move on to studying family and other circumstances that give preferential rights.

The determination of advantages can be abandoned when it comes to the complete elimination of a position, or the reduction of all staffing positions for one position.

Can a woman with a child under 3 years of age be laid off in case of staff reduction?

Despite the fact that the Labor Code prohibits the dismissal of parents with many children, it introduces exceptions for a number of cases when the dismissal of an employee who is included in a preferential category of citizens is considered legal.
An employee has the right to resign at his own request in the standard manner:

Write and submit a resignation letter to management. The application indicates the date of termination of performance of duties.
The employee has the right to receive wages for the time worked before dismissal, vacation pay for unused vacation, and severance pay (if it is specified in the employment contract).

You will find useful information about the voluntary dismissal of a mother of many children here.

Article 261 of the Labor Code of the Russian Federation

introduces exceptions that may be a legal basis for the dismissal of an employee who is in the status of a father or mother of many children.

Exceptions at the initiative of the employer:

Liquidation of an organization, termination of the activities of an individual entrepreneur.
Inconsistency with the position held, identified during the employee’s certification. The management of the organization cannot independently resolve the issue of employee non-compliance.
Gross violations of duties, disciplinary violations, absenteeism, absence from work for more than 4 hours.
Taking alcohol and drugs during working hours. Dismissal can only be based on a medical examination of the employee.
Violation of confidentiality rules, disclosure of personal data of other employees.
Theft, embezzlement, fraud with funds.
Immoral actions of an employee, especially for public organizations and educational institutions.
The loss of the employer's trust concerns financially responsible employees, for example, a storekeeper, a cashier.
Systematic evasion of one's professional duties.

Is it possible to fire people with many children? As can be seen from the extensive list of possible reasons for the dismissal of a parent with many children, the state does not relieve them of responsibility for failure to comply with the internal regulations of the organization and their job duties.

By abbreviation

The Labor Code provides for the possibility of a right of preference to retain an employee on staff in the event of a layoff in accordance with

Art. 179 Labor Code of the Russian Federation

The advantage also applies to family employees with more than two dependents, however, labor productivity and skill level matter here.

A special commission is formed to determine those who can claim advantage. At the same time, it is important to have all the necessary documents that could prove that the employee who is being laid off has 3 children.

After making a positive decision on leaving the mother or father on the staff of the organization, the employer must follow the personnel procedure:

Notifying the employee at least 2 months before layoff.
Offer all available vacancies corresponding to the employee’s skill level.
If the proposed vacancies are rejected, the employer may offer all available low-paying vacancies.
The proposal is sent to the employee in writing, and based on the results of consideration, “Refusal” or “Consent” is written.
Refusal of all offers means termination of the employment contract.

Upon dismissal, a parent with many children can count on the following payments:

wages for the time actually worked before the layoff;
vacation pay if there is unused vacation;
benefits for 2 months, benefits are calculated based on average monthly earnings;
If a laid-off employee has not found a job within 2 months, he is paid a one-time average monthly salary.

An employer cannot lay off an employee who is on maternity leave.

The reduction of a mother of many children is described in more detail in this article.

Most often, the problem of illegal dismissal concerns fathers with many children, since many employers are poorly aware of changes in labor legislation in recent years.

If a citizen believes that he was fired illegally, he has the right to contact the Labor Inspectorate, the prosecutor's office or the judicial authorities. The labor inspectorate and the prosecutor's office will inspect the activities of the enterprise, and if it is confirmed that the rights of the beneficiary have been violated, they will send the case to court.

If you are confident that management’s actions are illegal, you should go to court, as this will shorten the time frame for resolving the controversial situation.

The legislation gives a mother of many children the right to terminate her employment relationship at any time at her personal request or by reaching an agreement with the employer. But if an organization is deciding whether it is possible to forcibly dismiss a mother of many children, the employer will have to take into account the restrictions established by law.

It is prohibited to fire a mother with many children who:

pregnant;
is raising a child who is under 3 years old;
has a dependent minor child with a disability if the father is absent or unemployed;
is single and supports a young child.

There are exceptional cases when a woman with the status of having many children may lose her job without taking into account the guarantees listed above. The right to dismiss a mother of many children at the initiative of the employer arises in the event of termination of the activities of the organization where she is employed. And also when establishing the fact of violation of discipline or the commission of a crime at the place of work.

These facts must be confirmed and documented, and all rules for collecting evidence must be followed. Only then can violations of worker rights be avoided.

The law does not prohibit dismissing a mother of many children when the staffing table changes or the number of employees in the organization decreases. The exception is general guarantees that prevent women from being fired.

When laying off an employee, the enterprise commission must take into account the statutory priority right of a mother of many children to retain her job if she alone brings income to the family. This advantage only applies if you have equal professional qualifications with other employees.

Before laying off a mother with many children, the employer is required by law to offer her vacant positions. Upon receipt of a written refusal, the employee can be fired.

Dismissal of a mother of many children for absenteeism is possible if it has been established that she was unjustifiably absent from work for more than 4 hours in a row. To legally terminate the contract, the employer must record the violation in the work time sheet, memos, and acts signed by other employees.

Before dismissing a woman, you need to find out the reason for her absence, receive written explanations, record a telephone conversation with her, and visit her place of residence. If valid reasons for absenteeism are not established, the employer has the right to make a decision on dismissal.

The status of having many children does not give the mother any opportunity to avoid dismissal for violating her duties. The employer has the right to take disciplinary measures in the form of dismissal for a repeated violation, if less than a year has passed since the first violation.

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The fact of misconduct must be recorded in documents. The woman is asked to give written explanations. However, their absence will not be an obstacle to terminating the contract.

Violation of the law by an employer when dismissing a mother with many children entails her reinstatement, monetary payments and penalties. To challenge illegal actions, a woman has the right to contact the competent authorities: the labor inspectorate or the prosecutor's office. Based on the results of the inspection, a decision will be made to restore the rights of the dismissed person or to refuse the stated demands.

In the second case, a mother with many children will be forced to independently file a claim in the district court. If the court decision is positive, the employer will be held administratively liable. He will be required to pay a fine to the state, all labor payments to the mother of many children, as well as compensate her for legal expenses and material damage.

The state is the guarantor of the protection of the rights and interests of socially unprotected categories, which include mothers with many children. Legal provision of decent working conditions and job retention for such women requires strict compliance by the employer with the established procedure for concluding and terminating employment contracts with them.

Labor standards for women with family obligations are regulated by the Labor Legislation. Mothers with children under 3 years of age are provided with benefits that make it possible to combine work with child care (upon entering a new position).

Privileges

Articles on the topic (click to view)

Transfer to another position, reduction in production standards to combine work and childcare. At the same time, the salary remains the same (as in the previous position). This is stated in Art. 254.
Giving the specialist a break to feed the baby. The employee receives 30 minutes, which are paid like the rest of the working time. They are provided at any time convenient for the employee (even at the end of the working day). This nuance is noted in Art. 258.
Providing a part-time work shift, a week. This is stated in Art. 93.
Restriction in terms of carrying out work with dangerous, harmful working conditions, exclusion of heavy lifting (Article 253).
Prohibition on coercion to perform overtime work, go on business trips, go to work on weekends (if the employee has not given his consent), and at night (Article 259).

Reasons to dismiss

A mother with children under 3 years of age may be dismissed from her position legally in the following cases:

liquidation of an organization, its bankruptcy;
employee absenteeism recorded in acts;
a large number of reprimands and comments for failure to fulfill official duties;
theft of company property and embezzlement of funds;
visiting the workplace while intoxicated;
committing immoral acts;
violation of safety regulations, which caused damage to the company and created a threat to the health and lives of company employees.

Terms

By job reduction

Reduction of positions may be grounds for termination of the contract. The rule also applies to mothers of many children. Enterprise management faces difficulties organizing the process. Indeed, to resolve the issue, several conditions must be met at once:

Availability of evidence that the reduction is necessary for the enterprise.
For some workers, circumstances are not important; preferential rights are always retained. The positions that the company leaves require practical experience and qualifications. Pregnant women also fall under the rule.
They automatically offer to move to other positions with the same characteristics, if there are options.
The state must be notified in a timely manner of any reductions that will take place in the near future. Employees put personal signatures to prove that they have read the information and have no complaints.
If there is a trade union in the organization, its opinion is also taken into account.
There are practically no restrictions on the dismissal of parents with many children in the legislation. Therefore, their dismissal due to staff reduction is an acceptable option.
It is always prohibited to fire a woman if she has one child under three years of age or is pregnant. The general norms of the Labor Code of the Russian Federation regulate such issues separately.

If a woman does not fall into one of the categories mentioned above, dismissal is also permissible due to staff reduction.

The procedure is standard. The priority right to remain in the workplace is not only for employees with families, but also for persons with a sufficiently high level of skills.

Procedure for terminating an employment contract

Labor laws protect workers with family responsibilities. Mothers with many children are under special protection. In accordance with Part 4 of Art. 261 of the Labor Code of the Russian Federation, an employer cannot dismiss a mother of many children without her desire, with the exception of certain cases:

liquidation of the organization;
guilty actions of a mother of many children (the so-called dismissal “under the article”);
immoral behavior both at work and outside of it, if the employee is a teacher.

The head of the organization bears administrative responsibility for the illegal dismissal of a mother with many children (Article 5.27 of the Code of Administrative Offenses of the Russian Federation), and subsequently will be obliged not only to pay a fine, but also to personally compensate the dismissed person for the days of forced absence and reinstate her at work.

Important! An employer is prohibited from dismissing a mother of many children, except in cases of liquidation of the organization, guilty actions on the part of the employee and immoral behavior for teaching staff. Otherwise, the procedure for dismissing a woman with three or more children will not differ in any way from the procedure established by Art. 84.1 Labor Code of the Russian Federation.

First of all, there must be a basis for dismissal, which is always documentary in nature:

resignation of one's own free will - statement of the employee;
liquidation of an organization - the corresponding Order and written notification to a mother of many children 2 weeks in advance;
guilty actions committed - the fact of commission recorded in the act (with evidence) and a written explanation of the employee;
expiration of a fixed-term employment contract - written notification 3 days before the end of the term with reference to the clause of the contract;
agreement between the employee and the head of the organization - a written agreement with the terms of dismissal and exit payments.

This is important to know: Application for dismissal by agreement of the parties

An employment contract can not only be terminated, but also terminated on grounds beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation), such as:

illness causing disability (ground – medical report);
court verdict if a mother of many children was sentenced to imprisonment or other punishment that may prevent her from appearing at work, etc.

the process of dismissing a mother of many children begins .

The employer issues a dismissal order.

The main document in the procedure for termination or termination of employment relations is the Order (form T-8, established by Resolution of the State Statistics Committee No. 1, or the company’s letterhead). It should include the following information:

date and number of the employment contract;
date of termination;
information about an employee with many children (full name, position);
reason for dismissal with reference to the norm of the Labor Code of the Russian Federation and reference to the basis document;
signature of the head of the organization.

The employee must familiarize herself with this document with her signature.

The HR department prepares personnel documents.

Expert opinion

Lebedev Sergey Fedorovich

Practitioner lawyer with 7 years of experience. Specialization: civil law. Extensive experience in defense in court.

On the last working day, the employee must be given her completed work book. The filling rules are specified in Resolution of the Ministry of Labor of Russia No. 69:

serial number and date – gr. 1-2;
reason for dismissal with reference to the norm of the Labor Code of the Russian Federation (for example, “dismissed due to the liquidation of the organization, clause 1 of part 1 of Article 81 of the Labor Code of the Russian Federation”) – gr. 3;
link to the Order of dismissal - gr. 4.

The fact that the employee has received this document and that she is ceasing to work in the organization is recorded in her personal card (form T-2 or individual form of the organization), in which she must sign. The card indicates:

reference to the employment contract;
date of its termination;
reasons for dismissal with reference to the Labor Code of the Russian Federation and reference to the Order.

In addition to the work book, a dismissed mother of many children has the right to receive, at her request:

income certificate;
a copy of the Dismissal Order.

Settlement with a dismissed employee.

In accordance with Art. 127 and 140 of the Labor Code of the Russian Federation, upon dismissal, the remaining salary and compensation for unused vacation days are paid. Compensation, if the employee is not fired for guilty actions, can be replaced by going on vacation with subsequent dismissal.

When an organization is liquidated, severance pay is paid within 2 months in the amount of average earnings (Article 178 of the Labor Code of the Russian Federation). An employee can receive an average salary for 3 months if, within 2 weeks after dismissal, she contacts the employment authorities for assistance in further employment.

During the liquidation of an organization, an employee has the right to resign before the expiration of a two-month period by submitting a written application. In this case, the employer must pay her an additional allowance in the amount of the average salary, which is proportional to the days remaining until liquidation (Part 3 of Article 180 of the Labor Code of the Russian Federation).

Local acts of the organization may establish other compensation for mothers with many children leaving work.

Is it possible to quit your job?

Important! In accordance with Art. 179 and part 4 of Art. 261 of the Labor Code of the Russian Federation, mothers of many children fall under the category of employees who have immunity to reduction of staff positions if such employees are the only breadwinners in the family.

In this case, her inclusion in the list of staff being reduced is prohibited, and a reduction in position can only be carried out with her consent to transfer to another job.

A similar rule applies to a mother of many children with a child under 3 years of age.

If both a mother of many children and her husband are officially employed, such an employee can be laid off according to the general rules (Article 180 of the Labor Code of the Russian Federation):

give 2 months notice;
offer another position (and continue to offer new positions until the end of the two-month period);
begin the layoff procedure if the employee writes a written refusal of the offered positions;
pay severance pay according to the same rules as those established for termination of an employment contract in connection with liquidation.

Reduction procedure

The procedure is standard under any circumstances. There are several stages in total:

Deciding on downsizing.
Notification of employees.
Drawing up the necessary documents and placing personal signatures on them.
An employee leaving his place.

The first step is to compile a report on workers who are no longer in demand. The manager is responsible for this. This report may be complemented by reporting describing relevant indicators. Next, meetings are organized to make the final decision.

Employees who, due to certain circumstances, have preferential rights are separately identified.

Sending notices is mandatory for all employees who have been laid off. The main thing is to draw up a notice and send it in writing to the addressee. The maximum notification period is two calendar months, no more. For example, if a layoff occurs on November 1, employees must learn about the future event no later than August 1.

Each citizen who receives the document puts a mark.

At the legislative level, no special forms related to such notifications have been developed. Therefore, companies can develop their own forms in free form.

Notices are filled out on behalf of the General Director. But usually paperwork is a responsibility delegated to secretaries and personnel employees.

Single mother concept

The Labor Code of the Russian Federation does not define the concept of “single mother”. In paragraph 28 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated January 28, 2014 No. 1, it is explained that a single mother is when she is the only person responsible for maintaining and raising the child. The court provides an approximate list of circumstances that testify in favor of this status.

These include situations where the child's father:

died;
deprived or limited in parental rights;
unknown missing;
incapacitated or partially capable;
is serving a sentence of imprisonment;
evades parental responsibilities, etc.

Each of the circumstances must be documented (death certificate, court decision, certificate of disability, etc.).

Evasion of parental responsibilities is not always easy to confirm. Thus, divorce and separation of parents do not mean that the mother is single (appeal ruling of the Stavropol Regional Court dated July 27, 2016 in case No. 33-5377/2016). If there is arrears in paying alimony and all measures have been taken to collect it, then the court can recognize the mother as single (appeal ruling of the Supreme Court of the Republic of Crimea dated April 27, 2016 No. 33-2829/2016).

This list is indicative, and the court has the right to recognize the status of a single mother in other cases, for example, if there is a dash in the “Father” column on the birth certificate or information about him is entered from the words of the mother (Review of the Supreme Court of the Russian Federation for the first quarter of 2010, approved on June 16 .2010).

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The concept of a mother of many children is not defined by the norms of the current federal legislation. The establishment of criteria for large families falls within the competence of the executive bodies of the constituent entities of the Russian Federation (clause 1 of Decree of the President of the Russian Federation dated May 5, 1992 No. 431). In most regions, families with three or more children are considered large (for example, Moscow law dated November 23.

2005 No. 60, Decree of the Government of the Republic of Ingushetia “On social support for large families” dated April 17, 2002 No. 140). In this case, as a rule, children under guardianship, deceased children, or those in respect of whom parents have been deprived of parental rights are not taken into account. The status of a large family is confirmed by a special certificate.

Paragraph 4 tbsp. 261 of the Labor Code of the Russian Federation does not name mothers of many children among those who have immunity during reduction, but indicates mothers and fathers in families with three or more young children, who, taking into account regional norms, in most cases are parents of many children. Such employees cannot be dismissed due to reduction, but only if the following conditions are simultaneously met:

the employee is the sole breadwinner of a child under 3 years of age (disabled child under 18 years of age) in this family;
the other parent does not work.

In addition, a mother of many children cannot be dismissed due to reduction in cases where she belongs to others specified in Art. 261 of the Labor Code of the Russian Federation categories, that is, when she is pregnant or is a single mother.

Specialists raising children on their own have certain benefits (the same as we described above. On the initiative of management, they cannot be fired when staffing is reduced until the child reaches 14 years of age (Article 261 of the Labor Code of the Russian Federation).

Considering the fact that single mothers are considered less protected, the legislation of the Russian Federation provides them with child support benefits. This category of specialists has the opportunity to resign at their own request, but not on the initiative of the head of the enterprise.

Documenting

Form T-8 is used for the actual order describing the dismissal. The procedure for publishing the document also remains standard. Typically the following information is entered:

Personal signature of the employee.
The exact day on which the document was drawn up.
List of persons vested with authority. They describe the position itself in detail; you cannot do without mentioning your full name.
The number of the administrative document, which itself became the basis for the reduction.
Link to the article of law allowing such actions.
The reason for the dismissal.
Date of expected departure from work due to layoff.
Name of the organization, in full form.
Personal data of the citizen who was laid off.

Interaction with the labor exchange

Notifying labor exchange employees about the incident is also mandatory. This is confirmed by Legislative Act No. 1031-1, issued in 1991.

The exchange is also informed about the dismissal two months before the event takes place in reality.

The time is increased to three months if there are mass layoffs. The law does not regulate the exact form in which forms are filled out during such events. All you have to do is make sure you have the following information:

Full name, signatures of all people vested with authority.
Reduction deadlines.
Date the notification was generated.
Position, qualification level.
Full name, profession of the employee.

Work for two weeks

Each employee, regardless of whether or not he has a preferential status, must notify the company’s management of his intention to quit 2 weeks in advance in accordance with

Art. 80 Labor Code of the Russian Federation

Parents with many children can resign without working time only by agreement with the employer. At the same time, the resignation letter indicates a request to dismiss without working and the reasons for such a request, for example, illness of a child. The decision to grant the request or oblige the employee to work the required two weeks is made by the employer.

More details about the grounds on which it is possible to dismiss a mother of many children are described here, and whether it is possible to dismiss a father of many children and for what reasons is discussed here.

The provisions of Article 80 of the Labor Code of the Russian Federation state that each employee is obliged to notify the head of the company of his desire to resign. He must do this two weeks before the desired date of termination of the employment contract. This requirement is necessary for the employer so that he can find a replacement for the employee who quits.

This provision also applies to mothers of many children. They do not have any privileges in the matter presented. However, the employee can always come to an agreement with the head of the enterprise. If a mother with many children has a compelling reason that allows her to resign without working, then the employer may allow her to do this.

In case of illegal layoffs: what is the responsibility?

If a citizen’s rights have been violated, there is no prohibition on contacting control authorities. It is important to ensure that the application is correct and to attach as many documents as possible regarding the violation. The labor inspectorate, the court and the prosecutor's office are the institutions that deal with issues.

The court can make decisions according to which the employee is not only reinstated in her position, but also compensated for the harm caused. To do this, payments of a specific size are assigned.

Employers are usually held administratively liable and fines are imposed on them:

From 30 to 50 thousand rubles, if we are talking about legal entities. An acceptable punishment option is suspension of the entity’s activities for a period of up to three months or more.
1000-5000 rubles is a punishment for persons vested with authority.
1000-5000 rubles – the amount of fines when interacting with individual entrepreneurs. The activities of an entity may be suspended for three months if there are compelling reasons for this.

The main thing is to confirm the time at which the orders were issued. Sometimes employers violate these requirements and then start citing missed deadlines. Then the plaintiff must prove that if this happened, it was for a serious reason. The court is usually ready to accommodate if evidence is presented.

Are payments and compensations available?

There are no additional benefits provided for mothers with many children who were dismissed on legal grounds. Regardless of the reasons for the termination of the employment relationship, a woman can only claim payment of wages, compensation for the remaining vacation days and redundancy benefits.

When a mother of many children resigns at her own request, she is entitled to the following payments:

Wages for actual days worked. The calculation starts from the beginning of the calendar day until the date of dismissal of the employee;
Compensation payments for leave that a woman raising more than three minor children did not use;
Severance pay. The indicated payment is provided to a mother with many children if such a provision is specified in the collective or labor agreement.

It should be noted that the head of the enterprise has the right to pay benefits at his own discretion, even if such a clause is not specified in the work agreement.

What happens after such a dismissal?

Notifications to the employment service and the trade union are sent a maximum of two months before the reduction actually takes place. The notifications themselves in such circumstances contain the following information:

Salary level
Description of the position, qualification level.
Profession.
Former employee's title.

When a vacant position is discovered during the event, it is offered to a subordinate who will be left without a job in the near future.

Immediately after receiving a layoff notice, it is better to start looking for a new place. If this issue cannot be resolved within two months, then at most two weeks after dismissal, it is recommended to register officially with the employment service.

To do this, you need to collect the following package of documents:

Certificate with medical restrictions for which there are grounds.
Certificate of earnings for the last three months.
Document as proof of education. Or – confirmation of qualifications of the appropriate level.
Employment history.
Civil ID.

Completion of registration leads to the issuance of individual registration cards for employees. The next one is a consultation on the rights and responsibilities of a citizen. The selection of a new position begins, which is most suitable under the current circumstances.

If there is no suitable job, the employment service is required to offer retraining courses. You can choose public or other types of work in the city that meet the requirements or wishes of the citizen himself.

The procedure for dismissal on the initiative of the mother

A woman with many children can resign at her own request in the same manner as other employees. This procedure is established by Art. 80 of the Labor Code of the Russian Federation and provides for the sequence of the following actions:

notifying the employer of the intention to resign by submitting an application to him 2 weeks before the date of dismissal;
the two-week period is counted from the moment management is notified of dismissal;
by agreement with the employer, dismissal may occur earlier than scheduled;
the basis for dismissal will be an order issued by management, in which the employee must sign. The date of the order must coincide with the date of dismissal.

This is important to know: What is the employer obliged to give the employee on the day of dismissal?

At the request of the employee, the employer may allow her to resign without working off. To do this, it is better for her to justify the reason for the urgency of dismissal in the application. Although, by agreement with the employer, a mother of many children can be fired on any day that she specifies.

On the day of dismissal, a woman is required to be given her work book and make all payments:

last salary;
compensation for unused vacation;
bonuses and payments provided for by the internal documents of the enterprise.