When to notify a maternity leaver about a layoff. Reduction during maternity leave

Can I be fired while on maternity leave? ? This question worries most young parents and pregnant employees. Meanwhile, for such dismissal there must be serious reasons, for example, the liquidation of the employer. Is it possible to terminate an employment relationship with an employee on maternity leave under other circumstances? This is set out in this article.

Reduction during maternity leave

According to clause 2, part 1, art. 81 of the Labor Code of the Russian Federation, the dismissal of an employee is possible at an enterprise or individual entrepreneur if a decision is made to reduce the staff as a whole or when a specific position is reduced. Since there are employees who are forced to temporarily leave work due to the need to care for a child or who intend to do so, in almost every organization, the question of can they be laid off during maternity leave, extremely relevant.

The fact is that, according to Part 6 of the above article, any dismissal at the request of the employer (including during layoffs), except in cases of liquidation of the company or termination of the business activities of an individual entrepreneur, is illegal if the employee is on vacation or on sick leave .

Maternity leave is usually called 2 periods at once - maternity leave and child care leave. Thus, it is impossible to dismiss an employee who is on any of the specified types of leave for organizational reasons. The same applies to an employee, regardless of his gender, who is on parental leave.

In addition, the ban on dismissal at the initiative of the employer of pregnant women, employees with children under 3 years of age (regardless of whether they are single mothers or not) and employees raising children under 3 years of age without a mother is enshrined in Art. 261 Labor Code of the Russian Federation. An exception to this rule is the liquidation of an enterprise or termination of the activities of an individual entrepreneur.

IMPORTANT!Reduction during maternity leave Maybe. But the employee who occupied the position being abolished is subject to transfer to another job, and not dismissal. Such an employee can be dismissed only on the condition that he did not agree to any of the options proposed by the employer for transferring to another position/job (Part 3 of Article 81 of the Labor Code of the Russian Federation).

Can the position of an employee on maternity leave be laid off?

Download the redundancy order form state

Job reduction during maternity leave is not grounds for automatic dismissal. Since an employee cannot be fired while he is on vacation or sick leave, the employer must wait until he returns to work and then formalize the dismissal.

However, there are still a number of procedures that must be followed. Thus, after making a decision to reduce staff, the employer is obliged to notify each employee who has been laid off at least 2 months before the planned date of dismissal (Part 2 of Article 180 of the Labor Code of the Russian Federation) about upcoming organizational arrangements. Before terminating the employment contract, the head of the enterprise is obliged to offer the employee who has been laid off all available vacancies for transfer (Part 1 of this article).

Moreover, in order to begin implementing these procedures in relation to an employee on maternity leave, you must first wait until he returns to work.

Thus, the employer does not have the right to dismiss an employee on maternity leave. If he does this, then the employee will be able to without much difficulty be restored to the position he occupied before his dismissal by court decision.

The only legal basis for dismissal while an employee is on maternity leave, without waiting for him to return to work to give him 2 months notice of the upcoming layoff, is the liquidation of the company or the termination of the business activities of the individual entrepreneur. The employee must also be informed about the upcoming liquidation of the company 2 months in advance.

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.

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 .

1. A woman on maternity leave has a preferential right to dismissal “in the last row” during layoffs.
2. 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).
3. 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.
4. 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.

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 .

And this means that...

On a note:

1. 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).
2. 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?

1. Each employee must be notified 2 months in advance of any structural change. Moreover, under a personal signature.
2. 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.
3. 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...

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.

For this you will need:

1. 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.
2. 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.
3. 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.

What should I do?

1. Go to court.
2. Receive the court decision + writ of execution.
3. Contact the bailiffs, who, in turn, begin enforcement proceedings, search for the company’s property, bank accounts, etc.
4. After establishing the fact of the absence of property, the bailiffs issue a resolution to terminate the enforcement proceedings.
5. 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.
6. 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.

And note:

1. The period for applying for payment of maternity benefits is the period limited by the sick leave and another 6 months after its end.
2. 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.

Still have questions? Just call us:

Describes guarantees for a pregnant woman and persons with family responsibilities (including women caring for a child under 3 years old) upon termination of an employment relationship.

According to it, an employer can unilaterally terminate a contract with a woman on maternity leave only in the event of liquidation of the organization or termination of activities by an individual entrepreneur.

Termination of trade agreement with an employee upon liquidation of the organization

Reference. According to the Labor Code of the Russian Federation, termination of an employment contract with a pregnant woman, as well as with a woman on maternity leave for up to 3 years, is impossible at the request of the employer.

However, if the organization or firm of an individual entrepreneur is liquidated, then the employment contract with the maternity leaver is also terminated.

Like other employees of the organization, a woman on maternity leave must be notified of the liquidation of the enterprise at least 2 months before the occurrence of this event. After termination of the contract, the employer must pay the employees severance pay in the amount of double the average monthly salary.

Can they be removed from office when moving from one maternity leave to another?

The Labor Code of the Russian Federation stipulates that while an employee is on maternity leave or child care leave, she retains her job and is paid benefits.

There are times when, while on maternity leave to care for one child, a woman learns about a new pregnancy. Then the employee is entitled to another maternity leave, but The Labor Code prohibits taking two vacations at the same time.

To get out of this situation, they usually interrupt maternity leave for the first child and replace it with labor and labor leave, after which the employee goes on another maternity leave, but this time for two children. To do this, the woman should write a corresponding statement.

The guarantees of job security in this case are the same as during the first pregnancy.

If staff numbers are reduced

When it comes to downsizing, the employer faces a choice:

Important to remember that an employee cannot be fired, even if the employer did not know about her pregnancy at the time the decision to lay off was made.

If a woman, not knowing about her pregnancy, was fired, and then provided a certificate confirming her position, the employer issues an order to reinstate the employee. You just need to make sure that the gestational age indicated on the certificate confirms the “interesting position” on the date of reduction.

In cases where staff reduction has just begun, it is enough to simply cancel the reduction of the position of the pregnant employee. If a new staffing table has already been drawn up, With written consent, a maternity leaver can be transferred to another position.

When and how can a maternity leave be laid off?

A woman who is on maternity leave, as well as to care for a child under three years old, cannot be laid off. Exceptions are if she agrees to leave of her own free will during layoffs, or dismissal due to the liquidation of the enterprise. These rights are guaranteed according to Art. 261 Labor Code of the Russian Federation. Let's consider how an employee of an organization who is on leave to care for a minor child can be legally laid off.

Read about whether it is possible to lay off a woman with a child under 3 years old, and from there you will learn whether a worker on maternity leave can be fired.

Due to the liquidation of the company

Liquidation of an enterprise involves the complete cessation of its activities. To do this, the company is excluded from the Unified State Register of Legal Entities, the liquidation is reported to the tax authorities, the pension fund and the Social Insurance Fund, and the public is also notified by publishing a message in the press. In other words, this is a long and complex process.

On a note. No less labor-intensive is the reduction of employees of a liquidated company. The complete cessation of a company's activities means the termination of labor relations with all its employees. This also affects preferential categories of employees, since the company cannot provide them with other jobs.

Besides, The Criminal Code of the Russian Federation establishes liability for unjustified refusal to hire and unjustified dismissal of a pregnant employee or an employee with children under three years of age (Article 145 of the Criminal Code of the Russian Federation).

Fortunately, Russian legislation protects the interests of a working woman who decides to have a child. A woman on maternity leave can be fired only at her own request or in connection with the liquidation of the enterprise.

In any case, you should carefully consider the dismissal procedure, correctly draw up the necessary orders and pay the dismissed employee the compensation she is entitled to.

1 answer. Moscow Viewed 180 times. Asked 2012-01-30 13:32:22 +0400 in the topic “Labor Law” If you were in the position of a senior lieutenant (being a lieutenant), and a month before receiving the senior lieutenant, the position was reduced, - If you were in the position of a senior lieutenant (being a lieutenant) , and a month before receiving senior lieutenant, the position was reduced. Further

1 answer. Moscow Viewed 95 times. Asked 2011-07-10 11:17:14 +0400 in the topic “Defense, military service, weapons” Can I be laid off if I’m on maternity leave? - Can I be laid off if I am on maternity leave?

Payments upon reduction of maternity leave

Wait until the woman on maternity leave and fire her. This is usually what they do, but more often they ask of their own free will. YES. -if a person is hired for the period of absence. CAN. AND IN THE EASY. I SAY AGAIN - IF I WOULD HAVE A COMPETENT HRMAN. "For a period of.

No, they don't have the right. Art. 261 of the Labor Code of the Russian Federation prohibits the dismissal of women on maternity leave due to layoffs. A temporary worker has been hired to take your place and when you return to work, the temporary worker is fired due to the end.

When to notify a maternity leaver about a layoff?

Retrenchment is a common phenomenon that sooner or later overtakes an enterprise or institution in moments of crisis or due to the incompetence of an employee. This move allows you to narrow down your staff and save some money.

But what should an employee do during vacation when such a reduction takes place? How to protect yourself by law? And how to react to the current situation? This is exactly what we want to reveal in this article.

ConsultantPlus: Forums

Tell me, can I write an application to the manager so that she can provide me with a written answer, based on what documents she is denying me a full-time salary?

If while an employee is on maternity leave or parental leave, the staffing table has changed and her position has been reduced, will it be legal to dismiss the employee due to redundancy? If the dismissal is unlawful, then how can the situation be brought into compliance with the law?

Dismissal of an employee due to reduction during pregnancy and before the child reaches the age of 3 years is unlawful.

An employee cannot be laid off if he fills the position of a maternity worker

The employee worked under a fixed-term contract for the period of maternity leave of the main employee. Subsequently, the employer fired the employee due to a reduction in the position in which he worked. In court, the employee stated that, in fact, the position was not reduced, since it was occupied by a woman on maternity leave. And according to the law, such employees retain their position until the end of their vacation (Article 256 of the Labor Code of the Russian Federation). But the district court did not accept this argument, considering that the temporary employee could have been fired while retaining the position of the main one.

Don't they give two months' notice before layoffs? (I'm on maternity leave)

As for guarantees, in accordance with Art. 256 of the Labor Code of the Russian Federation, at the request of a woman, she is granted leave to care for a child until he reaches the age of three years. At the same time, during the period of maternity leave, the employee retains her place of work (position).

Termination of an employment contract with women who have children under three years of age, single mothers raising a child under 14 years of age (a disabled child under 18 years of age), other persons raising these children without a mother, at the initiative of the employer is not allowed (Part.

Retrenchment after maternity leave

You could not be fired due to staff reduction. According to Article 261 of the Labor Code of the Russian Federation, termination of an employment contract with women who have children under three years of age, single mothers raising a child under fourteen years of age (a disabled child under eighteen years of age), other persons raising these children without a mother, on the initiative of the employer is not allowed (except for dismissal on the grounds provided for in paragraphs 1, 5 - 8, 10 or 11 of part one of Article 81 or paragraph 2 of Article 336 of the Labor Code).

Retrenchment of an employee on maternity leave

We are increasing the programmer’s rate (the employee is on maternity leave). Is it possible? Do I need to issue a layoff notice with an offer of another vacant vacancy?

No impossible. For an employee who is on parental leave for up to three years, the employer retains his job and position. At the same time, the law prohibits the reduction of positions of women who have children under the age of three.