Is it possible to lay off a group 3 disabled person and how can he protect his rights?

Author of the article: Vladimir Danilevsky Last modified: February 2020 1161

Dismissal to care for a disabled child is a procedure associated with impeccable compliance with the law. Parents raising a minor with disabilities experience a much greater burden than other workers. Children require constant care, which, sooner or later, may lead to the need to resign from their position. The article will describe in detail the nuances of this procedure.

Can a mother with a disabled child be fired under Article 81 of the Labor Code of the Russian Federation?

Article number 81 considers all cases of termination of an employment contract at the initiative of the employer. In other words, it considers precisely those cases when an employee is fired against his will. As a rule, it is this article that interests mothers with disabled children.

The article itself has 14 points that describe the reasons for dismissal. But at the same time , it does not indicate in any way to whom they apply and to whom they do not. All these restrictions and norms are distributed under other chapters of the Labor Code of the Russian Federation. Since listing them all and describing them does not make much sense, we will answer right away - a woman with a child with any degree of disability can be fired only on several points of Article 81 of the Labor Code of the Russian Federation - minor violations of the contract cannot become grounds for removal from office. So, the reasons could be:

• Numerous serious violations;
• Liquidation of an enterprise;
• Refusal of the mother to further cooperate with the reduction;
• Voluntary dismissal.

Dismissal of a mother with a disabled child due to violations

Every employee knows that his job imposes certain responsibilities on him. Arriving on time, getting along with colleagues, performing your duties efficiently and on time - every employee is required to do all this and much more. However, for an employee whose family has a disabled child, even such banal things can cause inconvenience, and quite significant ones at that. In this regard, the labor code prohibits the dismissal of mothers with disabled children on the basis of minor violations.

However, this does not mean that they cannot be deprived of their positions for minor violations. Systematic absence without reason, violation of industrial safety regulations, causing damage to the enterprise (including theft), violation of the civil and labor rights of other employees - all this can serve as grounds for dismissal. However, even here the Labor Code is very loyal, and therefore mothers with disabled children can count on some concessions.

Is it possible to fire a disabled person without his consent?

The procedure for terminating an employment relationship at the initiative of the employer is clearly prescribed by the Labor Code of the Russian Federation. It is important to note here that the legislator has provided for the possibility of unilateral termination of labor obligations. But for this you need to go through the entire registration procedure. And disabled people of group 3 in this case also fall under it.

It is worth highlighting some key nuances that allow disabled people to have a preferential right to continue working:

• when the disability was received as a result of an injury at work at that particular employer;
• a disabled person has greater qualifications, rank, and work experience than his other colleagues who are being laid off;
• The disabled person has minor children at home, for whom he is the only breadwinner;
• there are no other able-bodied members in the family of a disabled person, so he has to provide for them all on his own;
• disability was received as a result of combat operations, liquidation of the Chernobyl accident, and other places provided for by law.

Dismissal of an employee during liquidation of an enterprise

Another reason for removing an employee from her position may be the closure of the enterprise. Please note that this means the complete liquidation of the company, and not the reduction, closure of a branch, or its sale to another person. Moreover, the dismissal operation itself will not greatly depend on whether the employee is caring for a disabled child or not.

First of all, you will need to provide written notice that the business is ceasing to operate. Next, you will need to sign the appropriate document stating that the notice was received and read. After this, the mother will only have to complete the deadline, receive payments (salaries, bonuses, compensation, etc.) and the entire package of documents that was kept by the employer.

Legal grounds for removing a parent from work

As stated above, dismissal of an employee who is raising a disabled child is possible if there are serious reasons. The legislation provides this category of employees with the right to work. So, let's look at the reasons why dismissal is possible:

1. Personal initiative of the worker himself.
   In this situation, the employer is obliged to carry out the dismissal procedure in a timely manner, since it is initiated by the worker himself. The employee, in turn, must write a written statement. The text of the document must reflect the woman’s personal desire to quit in order to care for a sick child who is on disability. This wording must be present in the body of the application. This will be the basis for the employer to make an entry in the work book that the employee was dismissed on her own initiative. According to current legislation, people who take care of a child with a disability have the right to receive funds from the budget for his maintenance and additionally have various benefits (for the purchase of medicines, etc.). Moreover, time devoted to caring for a sick child can be included in the work experience until adulthood.
2. By agreement of both parties. This method is the most common and allows the employee to quit while receiving all the necessary payments.
3. When concluding an employment contract for seasonal work.
4. When replacing a key employee who was absent, but is ready to start work.
5. Expiration of a fixed-term employment agreement.
6. At the request of the employer in the event of serious violations of the employment contract.
7. Liquidation of a company. In this situation, the employer is obliged to employ an employee who is dependent on a disabled child.

Dismissal of a mother with a disabled child during layoffs

Reduction (that is, the elimination of jobs), according to the law, cannot become a reason for an employee with a disabled child to be fired. However, what to do if the old position is no longer needed?

Sick leave for child care

Child care allowance

Dismissal of a father with many children

The answer is simple - the employer must in the near future either provide the employee with a new position in the old place, or a similar position in another workplace. He simply does not have the right to fire her.

The translation process itself is very simple:

• The employee is given a letter informing her of the layoff;
• The employee contacts the HR department and receives a list of positions and places to which she can be transferred;
• The employee chooses a place of work and a transfer order is issued to her.

It is at the stage of determining a new place and working conditions that a mother may encounter difficulties. After all, some positions require relocation, advanced training, or something else that the employee is not ready for. In this case, she may be offered voluntary dismissal. Only in this way will she be able to be fired during a layoff - with her own written statement.

Working off

Retrenchment is the severance of the parties’ labor obligations at the unilateral request of the employer. Often employees are not eager to leave on their own. In some cases, dismissal before the stated reduction date is permitted. Therefore, the following nuances should be taken into account:

Remember, layoffs are the employer’s initiative. Therefore, a citizen does not need to work out anything until he takes the initiative on his own.

What to do if the employer fired you illegally?

In this case, the mother can act in three different ways:

1. Resolve the issue peacefully with the employer;
2. Contact the labor inspectorate;
3. File a lawsuit.

In the first case, you will need to contact the organization’s management, and not the HR department. The mother will need to find out the reason for the dismissal and confirm the fact that she has a disabled child with appropriate documents. If an error occurs, the manager will be obliged to cancel the order. If there was no mistake, then the employer deliberately committed an offense, and this is worth fighting.

The next option to protect your interests is to complain to the labor inspectorate. This can be done in person at the nearest branch, by writing a letter or filling out a complaint form on the website of the Labor Inspectorate itself. After the appeal, the Inspectorate will be obliged to conduct an investigation. If she discovers a violation, she will oblige the employer to reinstate the employee and pay compensation.

The last, and most effective way to achieve justice is to go to court. To do this, you will need to file a standard claim and enlist the support of an experienced lawyer. The claim differs from a complaint to the Labor Inspectorate in that the mother will be able to demand not only reinstatement at work, but also payment of additional compensation.

Legal basis

It is worth noting that there is no special basis for dismissal of a parent of a disabled child in labor legislation. Termination of the contract can be carried out by agreement of the parties or on the initiative of one of them. The legal regulation of the issue in this case is carried out by Ch. 13 Labor Code of the Russian Federation. The reasons will be discussed below.

Dismissal at the initiative of an employee

Since Art. 77 of the Labor Code does not single out care for children with disabilities as a reason; for this, the wording “at the initiative of the employee” is used (Article 80 of the Labor Code of the Russian Federation). This method of breaking off relations with the employer is the most common and justified in the situation under consideration.

Article 80 of the Labor Code of the Russian Federation - Termination of an employment contract at the initiative of the employee (at his own request)

An employee has the right to terminate an employment contract by notifying the employer in writing no later than two weeks in advance, unless a different period is established by this Code or other federal law.
The specified period begins the next day after the employer receives the employee’s resignation letter. By agreement between the employee and the employer, the employment contract can be terminated even before the expiration of the notice period for dismissal. In cases where the employee’s application for dismissal on his initiative (at his own request) is due to the impossibility of continuing his work (enrollment in an educational organization, retirement and other cases), as well as in cases of established violation by the employer of labor legislation and other regulatory legal acts, containing labor law norms, local regulations, terms of a collective agreement, agreement or employment contract, the employer is obliged to terminate the employment contract within the period specified in the employee’s application.

Before the expiration of the notice period for dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out unless another employee is invited in his place in writing, who, in accordance with this Code and other federal laws, cannot be denied an employment contract.

Upon expiration of the notice period for dismissal, the employee has the right to stop working. On the last day of work, the employer is obliged to issue the employee a work book or provide information about work activity (Article 66.1 of this Code) with this employer, issue other documents related to the work, upon the written application of the employee, and make a final settlement with him.

If, upon expiration of the notice period for dismissal, the employment contract has not been terminated and the employee does not insist on dismissal, then the employment contract continues.

Expert commentary

Kamensky Yuri

Lawyer

If the contract is terminated under the specified conditions, the mother of a minor with an established disability has the right to count on benefits. The list of guarantees is presented in Art. 261 TK.

Dismissal by decision of the employer

The organization also has the right to dismiss an employee. However, the position of the latter is taken into account by current legislation, so the position must be based on compelling reasons. In the absence of such reasons, the employer does not have the right to terminate the employment contract before the end of its validity period. Next, the employee is dismissed in accordance with the general procedure.

Currently, parents of disabled children under 14 years of age cannot be dismissed even on the basis of measures related to staff reduction. Part 4 ch. 261 of the Labor Code also stipulates that single mothers of children with disabilities should not be left unemployed by the employer’s decision until the child reaches 18 years of age. In fact, mothers have greater rights than fathers. However, when considering labor claims by courts of higher jurisdiction, the latter often side with men, equating them with the fair half of Russians.

It is important to remember that an employee who has children with disabilities cannot leave the company due to frequent sick leave.

According to Art. 81, 261 of the Labor Code, termination of the contract is carried out in connection with:

• liquidation of the organization. Such a decision is made in case of bankruptcy and by decision of the meeting of founders;
• disciplinary offenses recognized as gross. These include appearing at the workplace or on the territory of an enterprise in a state of alcoholic intoxication, systematic tardiness, absenteeism;
• violation of labor safety rules, resulting in injuries to workers, an accident, or posing a risk for these negative events;
• theft of property belonging to the company or its loss due to the fault of an employee;
• committing an act of an immoral nature. For example, this includes violence in the education of minors (clause 2 of Article 336).

Expert commentary

Gorbunova Olga

Lawyer

The act itself cannot become grounds for termination of the contract. All facts must be proven documented, for example, with the help of several witnesses, video, audio recordings, etc. Reports and explanatory notes are also required. Otherwise, the employee will be able to challenge the dismissal in court.

Agreement of the parties

This method of terminating the agreement involves the application of Article 78 of the Labor Code of the Russian Federation. Dismissal is carried out on a general basis.

Article 78 of the Labor Code of the Russian Federation - Termination of an employment contract by agreement of the parties

An employment contract can be terminated at any time by agreement of the parties to the employment contract.

What other privileges does a mother with a disabled child receive at work?

In fact, a mother with a child, apart from the ban on dismissal in some cases, is not entitled to any special concessions. They are not paid any bonuses or benefits, and the employer is not obliged to increase their salaries. However, there are three things that a mother can demand:

• Increasing the number of days off (4 per month);
• The ability to choose your own vacation date ;
• The opportunity to receive vouchers to resorts and sanatoriums from the employer out of turn.

In addition, the mother of a disabled child cannot be required to work overtime or on weekends, or to work at night. Apart from this, the employee has nothing to count on.

General concepts and benefits

Dismissal is the termination of an employment contract, that is, its termination. If the dismissal is not by consent, then such a procedure can cause problems for both the employee and the manager. Each method that allows you to break an employment relationship has its own characteristics and nuances. Violation of these may result in legal proceedings. Particularly stipulated points for terminating a contract with single mothers, especially if they are in the care of disabled people who have not reached the age of majority.

A disabled child is a person who has not reached the age of majority and has a persistent impairment in the functioning of the body. The concept of a single mother applies to a woman who is not legally married and whose father is not indicated on the birth certificate of her child, as well as to a widow or a person appointed as the child’s guardian.

According to the Labor Code, women who have a disabled minor under their guardianship are not allowed to work overtime or be sent on business without their prior consent.

The employer is obliged to provide this category of the population with another ten days annually in addition to the main leave. In this case, holidays and weekends are not taken into account. A woman who has a child with limited legal capacity may request part-time work. In addition, when applying for a job, they are prohibited from giving unreasoned refusals and reducing wages during the work process. An interesting point is that when applying for a job, an employee is not obliged to inform the employer about the health status of his child, but only must present a package of approved documents.

In addition, the employer is obliged:

• compensate for sick leave issued in connection with caring for a sick child, but not more than 120 calendar days per year;
• observe that the provision of part-time work to an employee does not in any way affect the number of days of basic leave, accrual of length of service or restrictions on other rights;
• provide, upon written request of the employee, four days of additional leave with full payment, while unused days are not carried over to the next month;
• provide a break if the woman's working hours exceed four hours.

If an employee raising a child with limited legal capacity considers that his rights have been violated, he always has the right to write a statement to the State Labor Inspectorate and to a branch of the Ministry of Labor. You can also file an application with the prosecutor’s office if your salary is delayed or not paid, you are forced to work outside of working days, you are forced to resign, or you are laid off.

What rules apply to the father of a child with a disability?

According to the laws of the Russian Federation, the same privileges will apply to the father of the child as to the mother of the child. But they will only act if he is the sole breadwinner or if the child for some reason does not have a mother.

However, a father with a disabled child in practice has fewer privileges than a woman. This is one of those cases where the law is at odds with reality - the father can be fired for minor violations, and his vacation benefits may be limited. Therefore, although the law essentially puts the father and mother of a disabled child on the same level, in reality everything will depend entirely on the loyalty of the employer.

Payments and benefits

Since dismissal to provide care for a disabled child should be formalized in the same way as at one’s own request on other grounds, no special monetary payments are provided.

The following are paid on a general basis:

• wages for actual time worked;
• bonuses and other monetary rewards provided by the institution;
• amount of compensation for unused compulsory leave.

Additional benefits for dismissal for the described reason are not provided.

Important

In the event of a divorce, a woman raising a disabled person has the right to alimony (for the child and herself) until the child reaches adulthood (if the child is in need of constant care).

The state provides a disabled child with:

• social pension;
• a monthly subsidy in the amount of 5.5 thousand rubles if an able-bodied parent needs to care for him. In this case, persons replacing parents receive 1-2 thousand rubles until they reach adulthood.

A woman who quits has the right to apply to receive payments at the social employment center. A mother with unemployed status who quits her job to take care of a disabled minor has the right:

• for free (at reduced prices) medications;
• for state financial support, benefits, benefits.