Can a woman with a child under 3 years of age be fired or laid off due to staff reduction?

Can an employee with a small child be fired from her job?

A woman with a child under 3 years of age is protected by labor legislation. According to Art.
261 of the Labor Code of the Russian Federation, the dismissal of the mother of a child under three years of age at the initiative of the employer is prohibited. If the position is not suitable, the employee is sent for training or transferred to another job. When there is a change in management, the new director is obliged to keep the places of women on maternity leave.

But managers are trying to get rid of non-working employees or reduce their salaries, as they are forced to provide women with maternity leave or sick leave. It is not profitable for organizations to keep female employees with children; in this regard, the question sometimes arises as to whether a woman with a child under 3 years old can be fired.

A young mother can be deprived of work only in cases established by law:

failure to fulfill official duties without good reason in the presence of a disciplinary sanction;
absenteeism without good reason;
going to work drunk;
disclosure of commercial, state, official secrets;
administrative violation;
violation of safety regulations resulting in serious consequences;
falsification of documents when hiring;
immoral offense (for teaching staff);
liquidation of an enterprise, bankruptcy, closure of individual entrepreneurs;
termination of a fixed-term employment contract;
the main employee returning from maternity leave if the young mother worked on a temporary basis.

Norms Art. 261 of the Labor Code of the Russian Federation protects only women. Among men, single fathers can take advantage.

How does this happen?

Dismissal of an employee who has a child under 3 years of age is possible only in certain cases.

Let's look at the most common situations of termination of labor relations between an employer and an employee and identify the specifics relating to female employees who have a child under the age of three.

Is it possible at the initiative of the employer?

As mentioned above, the eighty-first article of the Labor Code of the Russian Federation contains a direct prohibition on terminating employment relations with an employee who is on maternity leave with a child under three years old, at the initiative of the employer. The dismissal of such a woman at the initiative of the employer can occur only in a single case - when the organization or individual enterprise ceases its activities.

As for working women who have a child under three years of age, in accordance with the two hundred and sixty-first article of the Labor Code of the Russian Federation, it is also impossible to dismiss her on the initiative of the employer. But this article provides several exceptions to this rule, namely:

termination of activity by an enterprise or individual entrepreneur;
one-time gross (for example, absence from the workplace without good reason for the entire working day, appearing at the workplace while drunk, and others) or repeated non-severe violations of labor discipline (for example, systematic tardiness, failure to fulfill job duties as provided for in the job description, and others) ;
committing an offense that caused damage to property or property of the employing organization;
immoral behavior of a worker performing educational functions, which discredits the title of this profession;
provision by an employee of false information when registering an employment relationship.

If a woman violates labor discipline, the employer must document this fact. That is, an act of disciplinary offense must be drawn up, on the basis of which dismissal can be formalized.

In the cases described above, dismissal of an employee who has a small child under three years of age is possible at the initiative of the employer.

According to the third part of the two hundred and fifty-sixth article of the Labor Code of the Russian Federation, during the period of maternity leave, an employee can work part-time or at home while maintaining the right to receive state child benefits.

Thus, a woman can work part-time and still be officially on maternity leave. It is important to take into account that in such a situation, she is subject to the labor regulations in force in the organization, including the working hours.

The situation is controversial when a woman working in this way commits a gross disciplinary violation, for example, absenteeism. Can her employer fire her in this case? According to Letter of the Ministry of Labor of Russia dated October 10, 2013 No. 14-2/3045623-4334, it can.

In accordance with it, the employer has the right to dismiss a woman who has a child under three years old, is on maternity leave and works part-time or at home only in exceptional cases specified in the two hundred and sixty-first article of the Labor Code of the Russian Federation. Absenteeism is a gross violation of labor discipline , which is an exception to the mentioned article, on the basis of which a woman can be fired.

At the employee's own request

According to the general rule contained in the eightieth article of the Labor Code of the Russian Federation, a woman who has a child under three years of age has the right to terminate an employment contract with the employer on her own initiative. To do this, she needs to notify the employer two weeks before the date of the expected termination of the employment relationship. She can do this even while absent from the workplace, for example during vacation or sick leave.

An employee who has a child under three years of age can always return to maternity leave until the child reaches three years of age.

When staffing is reduced

If an organization is reducing staff, then it is impossible for the employer to dismiss an employee who has a child under the age of three for this reason. Such women have a preferential right by law to retain their jobs, regardless of whether they are working or on maternity leave.

If the position of such an employee is laid off, then she must be offered another job subject to certain requirements, namely:

her qualifications must correspond to the new proposed position;
she will not need to change her place of residence to carry out a new job;
the salary at the new job must be higher or equal to the salary at the previous job;
the new job must correspond to the woman’s health status and not have harmful working conditions.

Termination of employment relations due to staff reduction with an employee who has a child under three years of age is possible only if she agrees to this.

Upon liquidation of an enterprise

Liquidation of an enterprise is one of the exceptions, when the employer has the right to terminate the employment contract with an employee who has a small child under the age of three years, on his own initiative.

That is, in the event of termination of the employer's activities, the dismissal of such an employee is possible . This applies to both working women with children under three years of age and women on maternity leave. Their dismissal is carried out according to the general rules provided for all employees upon dismissal due to the liquidation of the organization, namely:

the employer must notify the employee in advance, namely two months in advance, of the upcoming termination of the employment relationship;
then an order is issued to terminate the employment contract with the employee and familiarize her with this order;
then the corresponding entries are made in the work book and it is given to the employee on the last working day;
At the end, the employer makes all required payments.

Do they have the right to reduce?

Optimization of enterprises involves reducing the number of employees.
Can a woman with a child under 3 years of age be laid off during a staff reduction? The employer is not authorized to fire an employee under such a pretext. Cancellation of an employment contract in case of layoff is possible only with the consent of the woman after the end of maternity leave.

It is impossible to liquidate a staff position occupied by an employee on maternity leave, or to transfer her to another position.

If a workplace falls under layoff, the employee is given another vacancy after returning from maternity leave. The organization may offer termination of employment if a woman is not satisfied with the available vacancies within 60 days. Temporary transfer to part-time work is permitted.

After 6 months, the normal work schedule returns. The employer must submit all offers of new vacancies in writing. The employee must have a reserve of time to think until the liquidation of her position.

In addition to women raising a child under 3 years of age, other categories of workers are not eligible for layoffs:

mothers of many children with children under 14 years of age;
if one of the three children is disabled, the employee cannot be fired until he reaches adulthood;
sole breadwinners in families with children under 3 years of age or a disabled child;
guardians or parents raising the child alone.

Sometimes an employer persuades and forces an employee to resign of her own free will. By writing a letter of resignation, a woman loses her chance of restoration of her labor rights. It is almost impossible to prove the illegality of management's actions in such situations.

An exception to the rule, when can you reduce?

Despite the significant privilege, women with a child under 3 years of age will also be fired in a number of situations:

If the entire staff is laid off (liquidation of the institution). When closing an enterprise or business, any category of employees can be fired. In this case, information about the termination of the company’s activities will be recorded in the work book.
In situations where the manager was not provided with the appropriate documents, for example, a birth certificate for children or a certificate from the registry office stating that the children do not have a father, the dismissal of a woman due to layoffs will be completely legal.

Termination of a contract with a woman whose children are under three years of age can be challenged in court. At the same time, the mother should not be afraid to appeal to higher authorities; the law will help her defend her own rights.

An application must be filed with the court within a month after the illegal layoff, and the labor inspectorate can be contacted at any time.

If the employer is proven guilty, he will be subject to administrative punishment - a fine of up to 500,000 rubles or a ban on holding management positions, and the employee will be reinstated. In this case, the boss will be required to pay compensation.

Features of the dismissal procedure

Denunciation of an employment contract at one's own request does not exempt an employee with a small child from working for two weeks. Often management gets into a position and does not force you to perform duties for another 14 days. You can resign without service by agreement of the parties.

While on maternity leave, a woman can also terminate her employment relationship at her own request. To do this, she must write a statement to the employer.

The document can be brought in person or sent by mail. When the dismissal is related to the liquidation of the enterprise, the manager must warn employees at least 60 days before the termination of the organization's activities. Employees leave signatures and acquaintance notes in the appropriate journal.

When selecting applicants for layoffs, the manager must take into account the categories of persons who, by law, are not subject to dismissal. Of several employees with equal benefits, the employee with the greatest experience and qualifications is retained.

Expert opinion

Irina Vasilyeva

Civil law expert

If a woman wants to resign when returning from maternity leave, the application must be written two weeks before the end of the vacation. This will allow you to avoid the required work.

Dismissal of a young mother

The Labor Code provides for various situations and guarantees protection for mothers with babies, because thanks to them the demography of the country is improving. The legislation considered in advance the cases that may arise at work for a woman when she gives birth to a child.

The Labor Code (Labor Code) reports on labor standards for mothers. This category of citizens is granted benefits that give them the right to work and care for a child:

The mother must be transferred to an easier job or her work rate reduced so that she can continue to care for the little baby. In this case, the salary must remain average for the previously held position (Article 254).
Mothers should provide feeding breaks. He is allotted half an hour during working hours, including at the end of the shift (Article 258).
The mother may demand a reduction in shift time or working week (Article 93).
A woman must be protected from heavy physical exertion (Article 253).
A parent does not have the right to be sent on long-distance business trips or called to work at night and on weekends without her written consent (Article 259).

These benefits also apply to women who have adopted children or are their legal representatives (Article 257).

Legality of actions

Article 261 of the Labor Code spells out all the benefits for mothers with children regarding their dismissal from their positions. It’s worth figuring out whether it’s possible to fire a woman with a child under 3 years old. A woman can be fired only for the following legal reasons:

liquidation of the institution;
reprimands for dishonest work;
recorded absence from work (absence from work for 4 hours is absenteeism);
state of intoxication of any nature;
damage or theft of property;
actions contrary to safety regulations that could lead or have caused damage or harm to the health of company employees;
immoral acts.

The question of whether they can be fired from work if a child is under 3 years old worries many representatives of the fair sex. Article 256 of the Labor Code regulates the issue of dismissing a woman after the end of maternity leave.

If the vacation has come to an end, this is not grounds for dismissal. In this case, you can stop working with the lady only with her consent and terminate your employment relationship with the company.

https://youtu.be/8CiZYxHUMEk

What payments are due to a dismissed employee?

The employer is obliged to notify the employee about the liquidation of the position 2 months before the end of maternity leave. If a woman returns from maternity leave and voluntarily quits due to staff reduction, she is entitled to financial compensation.

The payment amount is determined according to several parameters:

average earnings are proportional to the time remaining until the end of the notice period for dismissal;
compensation for the interval between the moment of the woman’s consent and the end of the notice period;
compensation for unused labor leave.

In addition, the company pays the employee the average salary for another 2 months after dismissal.

Can she be fired if she returns to work on maternity leave?

In Russia, a woman has the right not to go to her place of work until her child is three years old. However, not everyone uses it and goes to work much earlier.

The reasons for this may be different: lack of money or lack of desire to stay at home.

Of course, at this age, children get sick quite often, and the mother has to go on sick leave, which is not always convenient and the employer likes it. This quite naturally raises the question of whether the employer has the right to fire the child’s mother on his own initiative.

Labor legislation protects the rights of women with children. Therefore, it is problematic to fire her from the company. There must be good reasons and documentary evidence for this.

Simply firing her will not work; forcing her to write a letter of resignation of her own free will is also not recommended - this is fraught with consequences.

Any judge will defend the rights of a mother and child if she files a statement of claim and reinstate her at her place of work with the right to receive compensation for illegal dismissal

Where to complain if rights are violated

Violation of labor legislation, expressed in the dismissal of an employee raising a child under three years of age, requires immediate reinstatement by decision of the competent authorities.

A citizen whose labor rights have been violated may apply to the following authorities for reinstatement at work:

Labour Inspectorate;
prosecutor's office;
court.

Since the issue of illegality of reduction is directly reflected in the norms of the Labor Code (Article 261), it is advisable to initially contact the labor inspectorate.

The period for consideration of a complaint is legally defined as 30 days.

When contacting in person, the employee can also receive appropriate specialist advice specific to her situation.

It is better to send a registered letter by mail with a complaint with notification of receipt and a list of attached documents (for example, a layoff order).

Normative base

The procedure for applying the regulatory framework regarding the work of single mothers is reflected in Resolution of the Plenum of the Supreme Court of the Russian Federation No. 1.

Federal Law No. 256 provides for additional state subsidies for families with children. A single woman who gave birth to 2 babies without male support is also entitled to maternity benefits.

Information about all other support options is contained in labor legislation. The list of guarantees is fixed in Art. 261 Labor Code of the Russian Federation. The employer can terminate the contract with a single mother, but only in the presence of exceptional circumstances set out in Art. 81 of the Labor Code of the Russian Federation (except for paragraphs 2-4 and 9) and in Art. 336 of the Labor Code of the Russian Federation, if we are talking about a female teacher who ignored part 2.