You can't get fired. Women workers who cannot be laid off | Career and business

Description in the law

All the rules provided for in the law are aimed not only at improving overall employment in the country, but also at protecting female workers both when signing an employment contract and when terminating it.
The law states that the dismissal of a woman with a child under 14 years of age at the initiative of the employee is possible. Employees who have a child under 14 years of age, but older than three, do not have any privileges over other employees. But there are special cases that are important to know about:

mothers who are raising children under 14 years of age alone;
women who have a child with a disability group. In this case, the employer cannot dismiss the woman by his own decision until the child turns eighteen years old;
women who have more than three children and are the only breadwinners in the family.

Unlawful dismissal may include termination of an employment contract with the mother of a child under the age of three, with single persons with children under fourteen and the parents of a disabled person under eighteen. Such decisions are subject to appeal in court. In this case, only the court will help restore the lost position.

If the dismissal was made illegally, then the following measures are taken in relation to the worker and manager:

returning the employee to his previously held position and invalidating the order;
the employer will be required to pay for the time during which the employee did not work;
payments for causing moral damage to an employee;
imposing a fine on the enterprise itself for violating current labor legislation.

Can you be fired from your job if there is a minor child in the family?

But at the same time, the employee must be on the territory of the enterprise. For reference! If a person did not warn the boss in advance that he would be absent, then absence from work cannot initially be regarded as failure to appear due to unexcusable circumstances.

In any case, the employee must first write an explanatory note and attach relevant documents to it, if the reason for missing work is justified.

Is it possible to fire employees with minors under this age?

There is no clear answer regarding the possibility of dismissing employees with children under 14 years of age, since too much depends on the surrounding circumstances.

It can only be noted that the employer’s initiative has too little room for maneuver when it comes to single parents or mothers of children under 3 years old. This category of employees is protected, first of all, by Art. 261 of the Labor Code, which agrees to the dismissal of women only in the event of liquidation of the organization or gross violations of labor discipline.

Read about when an employee can be fired after maternity leave, and in what cases not, in our material.

Single parents

Employees raising children under 14 years of age or disabled children under 18 years of age without the support of a second parent received a kind of immunity from the authors of the Labor Code of the Russian Federation.

This was expressed in the fact that in Art. 261 of the Labor Code they were allocated to a special group protected from the employer’s initiative, so dismissal will affect them only if:

reduction of number and staff during the complete liquidation of the enterprise, clause 1 of Art. 81 TK;
systematic failure to fulfill duties, clause 5 of Art. 81 TK;
gross violation of internal regulations (truancy, drunkenness, theft, neglect of labor protection requirements or disclosure of trade secrets), including by the head of the company and his deputies, clause 6 and clause 10 of Art. 81 TK;
committing actions that resulted in loss of trust on the part of the employer, clause 7 of Art. 81 TK;
committing an immoral act, clause 8 of Art. 81 TK;
provision of false documents when applying for a job, clause 11 of Art. 81 TK.

Large families

Issues of protection from dismissal of parents with many children (if there are three or more children under 14 years of age in the family) are discussed in two articles of the Labor Code of the Russian Federation:

Art. 261 of the Labor Code prohibits layoffs for those mothers and fathers with many children whose family includes at least one child under 3 years of age, provided that only one of the adults (parent or guardian) has a job.
Art. 179 of the Labor Code covertly grants a priority right to remain at work for those employees who support two or more disabled relatives (indirectly this can also include parents with many children).

If there are three children in a family, but some of them are over 14 years old, or all of them are already three years old, then under the protection of Art. 261 TK their mom or dad don’t get in. And the advantage provided by Art. 179 of the Labor Code, will only work if the qualifications and productivity are equal in comparison with the rest of the team’s specialists.

Situations where only one parent works in a family are always associated either with the presence of small children or with the need to care for relatives or disabled children.

Attention! The legislation does not contain an unequivocal prohibition on dismissal of the sole breadwinner in a family due to layoffs, but if their labor productivity indicators are quite high, then the employer is better off looking for another candidate for the calculation.

If after termination of the contract on the basis of clause 2 of Art. 81 of the Labor Code (redundancy), the employee files a lawsuit, and the employer cannot confirm the lack of qualifications in comparison with other members of the team, then such dismissal will be considered illegal. This may result in immediate reinstatement at work, payment of compensation for forced absence and moral suffering.

Divorced woman

Divorce of spouses does not automatically assign a woman the status of a single mother, which means that she may have the only argument in favor of remaining at work: she is the only breadwinner in the family. If the employer knows for certain that a divorced employee receives child support, and even more so for her own maintenance, then there is no reason to talk about deprivation of her only source of livelihood.

It’s another matter if three years have not yet passed after the birth of the child. In this case, to the question whether a woman with a young child can be fired, the answer is clearly negative: she cannot be laid off based on the provisions of Art. 261 TK. And here her qualifications or work zeal do not matter. The danger of dismissal at the initiative of the administration will remain only for those employees who, as a result of the divorce, began to commit gross or systematic disciplinary offenses.

You can find out whether it is possible to fire a single mother and on what grounds here.

Termination of employment relations by decision of management with a woman caring for a child under three years of age is prohibited by Article 261 of the Labor Code (subject to exceptions from the last paragraph). The father of such a baby, if he does not raise him alone, will have a more difficult time. A man cannot be laid off on the basis of this article if in his family, in addition to a baby, there are at least two more children under 14 years of age, and if his wife does not work.

Read about whether it is possible to fire a woman or a man who is on maternity leave for a child under 3 years of age, and from this article you will learn about in what cases it is permissible to fire a pregnant woman, and when such actions are illegal.

We invite you to read: Who ensures the secrecy of adoption and what responsibility is there for disclosure?

Frequent sick leave for employees causes the employer a little sympathy and a whole bunch of irritation, but it is impossible to legally make a claim on this basis. If an employee has already exhausted the limit of paid days off from work related to the need to care for a sick child (Article 6 of Law 255-FZ), then management can only console themselves with thoughts of saving on wages.

An attempt to break up with an employee, citing the poor health of his child, is a direct path to illegal dismissal and reinstatement in his previous position through the court. If there is a reduction in staff, this circumstance will also not be sufficient to consider the employee’s productivity lower than that of other employees.

Reference! Having small children always gives an employee a moral advantage in court.

Read about how to file a dismissal for caring for a child under 14 years of age or older, and from this article you will learn whether it is possible to dismiss parents who have a disabled child.

Can women be fired from work if they have minor children?

Parents raising minor children especially need it. Domestic legislation can provide assistance to such employees in the form of providing special benefits and easier working conditions:

mothers who are raising infants have the right to count on an additional 2 periods of 30 minutes each daily rest to use for feeding the child;
Management must provide its employees with additional days off or a day of unpaid leave.
employees who support minor children may be transferred to shorter working hours or easier working conditions in order to reduce the workload;

This is only a small part of the benefits that working parents have every right to take advantage of. They also have other advantages in terms of retaining their job.

Similar benefits apply to employees raising not only their own children, but also adopted children. It often happens that some managers are in a hurry to fire a particular employee, most often women, when they learn about their upcoming pregnancy. But women who know their rights are trying in every possible way to counteract such attempts. And they find support in the form of legislation that provides them with appropriate protection. For example, it prohibits the dismissal of pregnant workers under any circumstances, except in cases where the enterprise is completely liquidated.

In a specific case, we are talking about the complete removal of a legal entity from all government records that involve the formation of the organization’s budget.

This completely eliminates the possibility of hiring new employees and paying for the work they perform. When considering the issue of reducing the number of employed employees, the employer must select as candidates for dismissal those of them who do not fall into the category of non-preferential ones.

That's why

Prohibition of dismissal

It is established at the legislative level that the status of a mother raising a child alone can be obtained by a woman who:

gave birth and independently raises a baby from the first days of his life without help from his father;
adopted a child without being legally married;
initially received the status of a single mother and then married someone other than the child’s father;
indicated in the documents a man who later challenged paternity in court.

After receiving the status of a single mother, a woman enters the category of citizens under special protection by the state. They cannot be fired under standard circumstances. However, at the legislative level, namely in Article 261 of the Labor Code of Russia, there is a whole list of reasons why an employment relationship with a woman raising a minor child can be terminated. Among the main reasons are the following:

complete closure of the enterprise. In such a situation, the law obliges the employer to terminate the employment relationship with all employees, including those with preferential benefits;
if an employee got a job or achieved a promotion by providing false information;

receiving a reprimand or disciplinary action for completely ignoring official obligations or performing them in an improper manner;
procedure for transferring an organization to another owner;
discrepancy between the employee’s skills and qualification level for the position she occupies. To confirm this circumstance, the employer must convene an attestation commission, which makes a final decision based on the results of a full inspection;
committing actions that may negatively affect the company itself, for example, disclosing classified information or stealing the organization’s property;
ignoring safety standards that led to negative consequences, such as an accident or accident;
the appearance of an employee raising a minor child at the workplace in a state of alcohol or other forms of intoxication, as well as repeated violations of discipline;

loss of trust on the part of the director of the organization;
committing an immoral act;
systematic absenteeism, that is, absence from work for more than 4 hours. The exception is situations when the contract does not specify an exact location and the work involves constant movement.

At the same time, the dismissal of a mother with children under 3 years old or under 14 years old cannot be carried out if the woman is on sick leave or on vacation. The exception is situations when there is a complete liquidation or dissolution of the enterprise or the initiative comes from the employee herself.

Do they have the right to fire a woman with a child under 14 years of age? In this regard, the legislation has established special cases when it is prohibited to fire single mothers and some women. If staff reductions begin soon, then an employee who meets all the labor requirements of the chosen profession and has a high level of qualifications should not be laid off.

If there is a change in the head of the company or its reorganization, the employee who alone is raising a child under fourteen years old must retain her position. In the event that, after an inspection by the certification commission, she is recognized as insufficiently qualified for the position provided, she is transferred to a new place of work, which will fully correspond to her level and experience.

Is it possible to fire a woman with a child under 14 years of age? There are situations when such an action is permitted. Such cases most often occur through the fault of the woman herself or do not depend on either the employer or the employee.

The employment agreement is immediately canceled if:

termination of the company's work or transfer of individual entrepreneurship to new hands;
repeated violation of labor relations and rules drawn up in the employment contract and other documents established by the enterprise. In this case, more than a few offenses must occur during the year;
a gross violation has been committed once - absenteeism or theft of personal property of the company;
actions that resulted in distrust of the employee - for example, reporting false information about oneself;
immoral acts - in the case when an employee holds a position in the field of education. For example, a bad attitude towards children in kindergarten or humiliation of a schoolchild.

Do they have the right to dismiss from work if there is a minor child?

In fact, such situations arise quite often.

The main thing is that all of them are correctly documented (in the form of acts, protocols or memos). Loss of trust from the employer.

Commitment of immoral acts by an employee performing educational functions. Regular absences. If a subordinate was not at work the whole day or did not show up for work within 4 hours from the start of the shift, the management of the enterprise has every right to initiate the dismissal procedure.

Important! If the employment contract does not clearly define the employee’s workplace, then his absence from work for a certain period of time cannot be considered as absenteeism. However, in this case, the person must be on the territory of the enterprise! It should also be noted that an employer cannot fire an employee during a period of vacation or temporary disability.

The only exception is the liquidation or dissolution of the organization.

Can a single mother with a minor child be laid off?

All other actions are illegal and can be appealed in court no later than 1 month from the date of dismissal (Article 392 of the Labor Code of the Russian Federation). When initiating the dismissal of an employee, the head of the enterprise is obliged to submit documents that confirm the validity of the termination of cooperation.

Russian legislation (Art.

261 of the Labor Code of the Russian Federation) prohibits the “reduction” of subordinates if:

They independently raise a child under 14 years of age; The family has several children under 18 years of age.

If a woman with a minor child has been laid off, but another employee who does not have such benefits has retained her job, she can seek help from judicial or supervisory authorities.

Rule Propagation

On what basis will a woman with two children under 14 years of age be dismissed? There are several typical situations here. For example, during the liquidation of an enterprise, all employees must be warned several months before this moment, and on the last working day a special dismissal order will be established.

If the woman herself committed the offense or she is the reason for the dismissal (violated the established rules at the enterprise, did not fulfill the requirements), then the dismissal will begin differently. Based on the fact that such actions were repeated, disciplinary action will be taken, or, in other words, dismissal.

We invite you to familiarize yourself with: Nuances of filling out a Consignment Note

If the employee decides to leave the company on her own, the dismissal will begin with the preparation of a special resignation letter or an invitation to the employer to sign a special agreement. The application must necessarily note that she is resigning due to the need to care for a child who is not yet fourteen years old.

Further, the dismissal procedure will be the same for all persons:

the employee is brought up to date: they are shown the order form, the place to sign in the document log;
information that the employment agreement has been canceled is entered into the personal file, and the official reason is also indicated;
the HR department enters information in the accounting record about all days off and vacations granted, including during incapacity for work, absence from work for other valid and unexcused reasons;
in the same place, the accountant enters the estimated settlement amount;
Next, copies of documents are made and certificates are issued that will later help the employee find a new decent job, for example, a certificate of income for the last three months or internal orders for an increase or bonus. The amount of unemployment benefits paid and vacation pay will also directly depend on them;
At the end, all recalculations are carried out and the final amount is issued.

At the end of the dismissal, the woman is issued her work book and given it to her. Marks are made in the work book depending on the reason for dismissal. In the event that an employee decides to leave of her own free will, you can write that she ended her working career due to the need to raise a child who is not yet fourteen years old.

At the initiative of the employee

If the initiator of dismissal is the woman herself, then she must submit a corresponding application to the director of the organization 14 days before the desired date of termination of cooperation. This statement does not have a unified template, so a woman can draw it up in any form. The exception is situations when an organization has developed its own form that is mandatory for use.

Sample letter of resignation at own request

In such a situation, dismissal is carried out according to the standard procedure with payment of the money due to the woman.

A woman raising minor children is under special protection of the state, which does not allow her to be dismissed at the initiative of the employer. Exceptions are situations provided for by current legislation.

Can a mother or father be laid off?

If there is only one child in a two-parent family and he is over three years old, then if there is a reduction in staff or numbers, the mother can only rely on her professional skills and an education diploma, because only parents with many children and women with a child under 3 years old have protection from layoffs or single moms.

Even such “non-dismissal” categories are subject to reduction if the company’s management has decided to completely liquidate the business entity.

In accordance with Article 261 of the Labor Code of Russia, women who are raising a child under 14 years of age or several children under 18 years of age cannot be fired. If a woman raising minor children was laid off, and a person who did not have preferential benefits was left at the workplace, the employee can challenge this dismissal in court.

If the layoff has not yet occurred, but the single mother has already received a notification about the upcoming severance of the employment relationship, then she can contact the Labor Inspectorate to protect her own rights.

In case of staff reduction, the head of the organization must offer the employee a position that will fully correspond to her level of qualifications and skills. In this case, the vacancy may be equal to the previous one, or it may have a lower or higher level of remuneration. If an employee refuses a transfer recorded in writing, or if there is no suitable vacancy, the woman is subject to dismissal with mandatory payment of compensation.

Sample notice of job reduction

Right to a workplace: which categories of workers cannot be dismissed when staffing is reduced?

But situations are different, and knowing your rights is, in any case, useful. So, which employees are considered “irreducible” under Russian law? All of them are listed in the Labor Code.

By the way, not only individual positions, but also entire divisions, divisions, and departments may be subject to staff reductions. The employer has every right to do this. But, in any case, when laying off workers, the rights of workers must be respected, and those who cannot be laid off must remain in the company.

If it is planned to reduce an entire division, then “non-redundant” employees must be transferred to other departments of the organization. The employer does not have the right to dismiss the following categories of employees due to staff reduction:

pregnant women (the exception is the case when the entire enterprise is completely liquidated) - on the basis of Article 261 of the Labor Code of the Russian Federation;
members of trade unions (their rights are described in paragraphs 2, 3 and 5 of Article 81 of the Labor Code of the Russian Federation);
women raising children under three years of age; single mothers raising a child under 14 years of age or a disabled child under 18 years of age, and other persons (this includes guardians, foster parents, etc.) who are raising such children without a mother (an exception to this rule is, again same, liquidation of an enterprise or the commission of guilty actions by these persons) - on the basis of Article 261 of the Labor Code of the Russian Federation;
employee representatives who conduct collective bargaining;
participants in the resolution of collective disputes.
workers who are temporarily disabled - part 6 of Article 81 of the Labor Code of the Russian Federation (medical certificates will be required to confirm disability);
workers who are guaranteed job security during their absence. For example, this includes women on maternity leave (Part 4 of Article 256 of the Labor Code of the Russian Federation), as well as other employees on leave (this includes a variety of types of leave: educational leave, main leave, additional leave, leave without pay) ;

If an employee belongs to any of these categories and was nevertheless dismissed due to redundancy, restoration through the court occurs easily, one might say, almost “automatically”.

Significant violations

There are gross violations of internal regulations at the enterprise, which are described in Resolution 6 of Part 1 of Article 81 of the Labor Code of Russia. It consists of six points:

absenteeism. Absence from the workplace without a valid reason or for the entire working day. In this case, absenteeism is established in documentary form, and an explanatory note is taken from the employee. Dismissing an employee is permitted only if the absence has no valid reason;
appearance at the workplace where an employee performs her direct duties in a state of alcoholic, toxic or drug intoxication. Such a factor must be confirmed through a medical examination;
disclosure of important confidential data that has commercial value. This also includes the disclosure of personal data of an employee;
if an employee damaged the company’s property, stole, or spent the company’s money. It is important to confirm the fact of violation in court or obtain a special administrative resolution;
failure to comply with basic safety rules, if such a violation resulted in an accident or could lead to one. The violation must be established by authorized officials at the enterprise.

How is the procedure done?

The most reliable way to part on good terms with an employee raising a minor child is to wait for his resignation letter. But when the desires of an employee and his employer do not coincide, then it is necessary to strictly adhere to a strict sequence of actions:

Prepare documents on the upcoming liquidation of the enterprise and reduction in headcount and staff.
Coordinate candidates with the primary trade union organization, Art. 82 TK.
Warn the employee in writing about the upcoming dismissal at least two months before the planned date, Art. 180 TK.
Make efforts to employ displaced specialists (if the reduction is not related to the complete liquidation of the company) - offer in writing all suitable vacancies.
Issue an order to terminate the employment contract and, on the day of dismissal, familiarize the employee with its contents against his signature.
Give the person a completed work report, pay the settlement - no later than the day following the date of signing the order, Art. 140 TK.
Prepare the employee’s personal file for archiving and “eternal” storage (75 years from the date of termination of the employment relationship).

If an employee raising a child under 14 years of age decides to resign himself, then this can be done in accordance with Art. 80 TK. A handwritten application is submitted to the employer’s office two weeks before the desired date of termination of cooperation. In order for the document to be accepted and processed by the employer, a number of mandatory requirements must be met:

In the “header” - in the upper right corner of the A4 sheet, you need to indicate which company the paper is addressed to, the full name and position of its manager, as well as the employee’s data (position, full name and contact phone number, postal address, if it differs from the employer’s data).
The document should be titled "Application".
If the employee does not plan to quit without working, then in the application it is enough to simply write “I ask you to dismiss with .... in accordance with Art. 80 Labor Code of the Russian Federation."
In order to shorten the notice period or convince the employer to abandon it completely, the employee will have to indicate the reason for leaving in the application and attach copies of supporting documents to it.
Date and personal signature of the employee.

There are two fundamentally different options for dismissing employees with children on the initiative of the enterprise administration: by layoff and in the form of disciplinary action.

In the event of a layoff, if the employer is confident that in terms of qualifications the employee is inferior in comparison with other specialists, it is necessary to draw up and hand over to him a personal notice of termination of cooperation two months before the dismissal:

The notification is issued on company letterhead or indicating all the details of the enterprise.
The document must be registered in the outgoing correspondence journal (date and originating number).
Title: “Notice of dismissal by way of staff (number) reduction.”
In the “body” of the document, you must indicate the position and full name of the employee being laid off, the basis for the reduction, list the employee’s rights and legislative guarantees in the form of early dismissal and the amount of severance pay, as well as compensation payments.
The same document can be combined with an offer of vacancies available to the company.
Insert the date of compilation and signature of the manager.
After reviewing the document, the employee’s signature and the date of delivery must appear on the notification.

We invite you to read: Removal of property from arrest

Important! If a person avoids receiving a notification or flatly refuses to sign for its receipt, a unilateral act can be used.

For this purpose, at least two disinterested witnesses are invited, and the notice is read again in their presence. Signatures of eyewitnesses are sufficient for the obligation to the employee to be considered fulfilled.

You can draw up a dismissal order in advance, or you can wait until the last day. To do this, it is better to use the T-8 or T-8a form.

In the “Grounds” column, all documents related to the dismissal must be indicated:

notification;
refusal of vacancies;
act of refusal to sign, if any.

Termination of the employment contract is carried out on the basis of clause 1 or 2 of Art. 81 TK.

But it’s better not to rush into filling out the work book, personal card and registration logs. If an employee decides to exercise the right of early dismissal, the date of the order and entry into the employment record will differ from the original one. The verbatim wording from the dismissal order is transferred to the “work information” column.

The main thing is that all records are ready by the employee’s last day of work, Art. 84.1 TK. It must also be remembered that on the day of settlement the person must sign:

In the journal of the movement of work books that it was handed out to the employee.
The personal card states that he is familiar with the data entered into it.

All payments, issuance of originals and copies of personnel documents must be made on the day of dismissal or no later than the next day if the person was absent from the workplace on the last day, Art. 84.1 TK.

Regardless of the reason for termination of the contract, the former employee must receive:

salary;
vacation compensation;
all debts;
severance pay according to Art. 178 Labor Code or collective agreement.

Do you need training, how can you do without it?

Only those enrolled in studies and retirees have the indisputable right to refuse to work off their jobs upon dismissal. Parents of young children are not directly mentioned in this list, so waiving the notice period must be agreed upon with the employer. A certificate from the hospital confirming that the child has been assigned a disability or a serious illness, an urgent referral for rehabilitation, etc. can convince him of the impossibility of further fulfilling his job duties.

Employee problems related to the upbringing or health of children cannot leave the employer indifferent, and even more so, should not become the reason for the dismissal of a parent. But at the same time, the legislator leaves employers the right to part with employees who justify their incompetence and lack of discipline by the presence of a small child.

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