Dismissal to care for a child under 14 years of age in 2021: labor code

The legislation of the Russian Federation protects women who have to combine work with raising children. This policy pursues a completely fair goal, which is represented by improving the demographic situation in the country and increasing the number of qualified, responsible personnel.

Taking these nuances into account, the Labor Code and other legislative acts provide guarantees for women and improve the living conditions of mothers with small children. Let's consider whether a woman with a child who is not yet three years old, 14 years old, a mother of many children or a pregnant woman can be fired.

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

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

Privileges

There are also certain benefits upon dismissal. They are represented by the following points:

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

Reasons to dismiss

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

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

Terms

Enterprise optimization is considered a frequent occurrence due to the economic crisis. Many women are concerned whether an employee with a child under 3 years old can be laid off in the event of a staff reduction. In this case, there is nothing to worry about. The law protects working women with children under 3 years of age as long as the company is in operation and the child has not reached adulthood.

If it is planned to transfer an employee with a three-year-old child to another place, she must give her consent (it must be recorded in writing). This is necessary so that the manager of the enterprise does not have problems in the future (if the employee suddenly changes her mind).
Dismissal of a mother who is raising children is possible, but only with her personal consent. In this case, the specialist must notify management 2 weeks in advance of the upcoming dismissal. Management has the right to dismiss a specialist without working (this action will not be a violation of the law in this case).
An entry is made in the work book of the dismissed mother that the specialist is resigning due to the need to care for a young child (before the age of 14). The same entry will be on the resignation letter. Thanks to it, the specialist becomes entitled to benefits from the Employment Service.
The dismissed employee is entitled to pay severance pay, as well as 2 monthly salaries (they constitute the average salary).
If the rights of female employees who have a preferential right to remain at work during staff reduction are violated, they have the right to file a complaint against the illegal actions of the manager. The complaint can be sent to the prosecutor's office, labor inspectorate, or court. You can also file a complaint with all three authorities at the same time.

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Until what age can a child’s mother be fired?

How to protect their own rights for women raising children under 14 years of age? Such subordinates are a burden for employers, since children often get sick, which is why mothers are forced to take sick leave. Constant absences from work for this reason may lead the boss to think that it is time to get rid of the inconvenient employee.

If a mother is raising a child under the age of three or raising a child alone without a father until the age of fourteen, then not all conditions provided for by current legislation can be used to dismiss her. It is also strictly forbidden to fire an employee who is caring for a disabled child under eighteen years of age.

Possibility to reduce pregnancy

A pregnant woman working under an employment contract with an indefinite term is one of the most protected group of specialists from any dismissal. According to Art. 261 of the Labor Code, the initiation of dismissal by an employer of a pregnant woman is unacceptable.

The exception is the liquidation of a company or termination of activities by an individual entrepreneur. In such cases, the pregnant employee must receive notice of dismissal no later than 2 months in advance. After termination of the employment contract, the dismissed pregnant employee is required to pay the average monthly salary.
Social protection authorities provide such mothers with monthly compensation payments. The amount of these compensations is similar to that established for the category “unemployed women on maternity leave or child care leave.”
Article 261, part 1 of the Labor Code prohibits the dismissal of a pregnant woman during staff reduction. This labor benefit is necessary to support motherhood and childhood.

If the rights of pregnant specialists are violated, the dismissed employee must seek protection of her rights from the Federal Labor Inspectorate of the Russian Federation. This organization must send specialists within a month after the dismissed pregnant employee contacts the employer with a targeted check.

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Rules of care

The rules for dismissing an employee due to child care are standard, as for dismissal on one’s own initiative. The citizen submits an application in the established form, which states her desire to leave of her own free will, with or without service. The final date for fulfillment of obligations and the current date of writing are indicated.

The document is submitted 2 weeks before the planned date of departure. You can submit an application three days in advance if the employee works in a seasonal or temporary position. A similar rule applies to the probationary period.

During this time, the company finds a new employee and fills the vacancy. Document flow for the operation will take time. If a citizen is an athlete or coach, then she is required to notify her of her decision 30 days in advance.

Employees with children under 14 years old at secondary schools

When staffing is reduced, women with children (3, 6, 14 years old) can be fired only if the above-mentioned offenses are present. Specialists who have children under 14 years of age have the right to demand the establishment of a part-time shift or week (this is specified in Article 93 of the Labor Code of the Russian Federation). This approach helps reduce their responsibilities at work and increase free time for children.

Based on Art. 261 of the Labor Code, as an exception, it is permissible to dismiss a mother with a child under 14 years of age for guilty actions or immoral behavior.

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Prohibition of dismissal

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. Only if the company does not have available vacancies suitable for the employee, or if she refuses to change her position, can dismissal be used.

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.

In such cases, the employee can resign by her own decision or terminate the employment contract through mutual agreement of the two parties.

Single mother reduction

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

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

A mother raising a child without the help of a father cannot be cut short, as the video below will tell you:

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Disabled child

If she wants to resign because she is caring for a disabled minor child, the woman must write a statement citing this fact. Companies require a certificate from a medical institution to confirm the fact. In the application, she has the right to indicate the period of care for the minor or simply miss this point.

The final payment and issuance of the necessary documents is made on the last working day. Fact of registration

If she decides to resign, she must notify the company in writing of her decision. Actions must be coordinated in order to get rid of various problems in the future.

It is worth remembering that current legislation obliges each employee to work two weeks. You need to be aware of this deadline and submit your application in advance. During this period of time, the company finds a new employee and makes final payments to the current employee.

The calculation involves payment of wages for time worked, compensation, payments for unused vacation.

An authorized employee of the HR department makes the necessary notes in employment documents and internal document flow. The reason - caring for a minor child - allows the citizen to resign on her own initiative.

The process of leaving an official place of work - algorithm:

the employee must notify the employer of her decision in advance;
submit an application for dismissal indicating a specific reason;
agreeing on the final date for leaving;
confirmation of the reason with documentation.

If a woman has a good relationship with her superiors, then dismissal always occurs by agreement of the parties. The main thing is to provide the necessary facts about the impossibility of working out. This includes certificates of medical contraindications and illnesses of the child.

Possibility to downsize a mother with many children

Mothers of many children who have two or more minor children have a list of benefits and guarantees.

One of these benefits is the required vacation in the summer (Resolution of the CPSU Central Committee No. 235).
According to Art. 179 of the Labor Code of the Russian Federation, this category of company employees has advantages during layoffs.
Staff reduction benefits are also available to specialists with children over 18 years of age, provided that the children are incapacitated or disabled.
A mother of many children has benefits (Article 261 of the Labor Code of the Russian Federation). If a mother with many children is the sole breadwinner of the family (the father is not employed), she has a ban on dismissal.

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How is the concept of “single mother” interpreted?

There is no such concept as such in the legislation. Therefore, when defining the term, they use materials from judicial practice. Thus, the Presidium of the Supreme Court decided (in a review dated June 16, 2010) that a single mother can be recognized as a single mother in 2 cases if in the birth certificate:

no information about father (no entry made);
There is a record, but it was made from the words of the mother.

It is also important to pay attention to the established practice, according to which the courts consider a mother to be single if:

the marriage is dissolved;
the marriage is declared invalid (court decision);
spouse died;
paternity was not established, and the spouse died before the child’s birthday (at least 300 days).

Maternity rate for secondary school

Staff reduction has always been the only option that will help the company survive a crisis situation for the company. When reducing staff, an employer can reduce maternity pay absolutely legally. But this process is quite expensive and labor-intensive.

To reduce the maternity rate, the employer must adhere to the following algorithm:

Deciding the total number of employees subject to redundancy.
Deciding whether the maternity rate can be reduced. Pregnant women have a preferential right to remain at work (Article 179 of the Labor Code of the Russian Federation). It is important to know that it is possible to lay off an employee on maternity leave only if the enterprise is liquidated or a position in the staffing table is reduced.
Issuing an order to reduce staff. This document must contain the exact number of specialists and their data. The order is drawn up in any form. There must be a date in the document, because it will be the starting point of this process.
Creation of a new staffing table (it must be approved by order). The new staff drinking is gaining strength after layoffs.
Sending a notification to all specialists who have been laid off. It must be sent to employees at least 2 months in advance. until the day of dismissal. When dismissing several persons, use form T-8a. It must list all dismissed officials. After reading this document, specialists must put a date and signature at the bottom.
Carrying out the dismissal procedure in accordance with Art. 84.1 Labor Code of the Russian Federation. Payment of severance pay.

There are also certain rules about the dismissal of a temporary employee who has taken a maternity position. When a woman went on maternity leave before the main specialist returned from maternity leave, she is not subject to dismissal (even due to the end of a fixed-term contract). In this case, the employment contract is extended until the child reaches 3 years of age. Only then is the employment contract terminated. Thus, a specialist who has gone on vacation is dismissed not due to layoff, but due to the expiration of the employment contract.

Main features of dismissal for child care

There are particularities when carrying out the procedure for dismissing an employee with a minor child.

With a three year old child

Citizens take care of minor children on their own. But it is not uncommon for guardians, fathers, and grandparents to fulfill their obligations. The situation allows you to apply for dismissal with vacation. In the application of the established form, information about the last day of vacation is entered as the date of end of work.

Algorithm of actions:

the application for dismissal is submitted within the time limits established by law. It's either two weeks or three days. It all depends on the specific type of employment;
Based on the application, the order is executed. The applicant is introduced to him against signature;
on the last day of vacation and dismissal, the necessary final payments are made, information is entered into the personal file, work book. Upon completion, the necessary documents for further employment are issued;
on the last working day payments are made, a work book, 2-NDFL and a certificate of all wages are issued against receipt.

About how an employee was illegally paid, but she was able to defend herself

The employee filed a lawsuit to declare the dismissal illegal on the basis of paragraph 2 of part 1 of Article 81 of the Labor Code of the Russian Federation, in connection with a reduction in the number or staff of employees. In support of her claims, she indicated that she worked as deputy head of the education department on the basis of an open-ended employment contract.

In the period from January 29, 2013 to July 2, 2013, she was on maternity leave. On November 11, 2013, she was notified of the upcoming layoff and on January 22, 2014, she was dismissed under clause 2 of part 1 of Article 81 of the Labor Code of the Russian Federation.

She considered her dismissal to be illegal, since the requirements of Article 261 of the Labor Code of the Russian Federation, which prohibit the dismissal of women with children under 3 years of age at the initiative of the employer, were not taken into account.

The courts of the first and appellate instances took the side of the employer and refused to satisfy the demands, indicating that the employee did not inform the employer about the presence of a young child, did not submit his birth certificate to the personnel department, and accordingly abused her right.

The plaintiff appealed the decisions taken in the case in cassation to the Supreme Court of the Russian Federation. The Judicial Collegium of the RF Armed Forces, having familiarized itself with the materials of the case, came to the conclusion that there were violations committed by the courts of the first and second instances.

Article 261 of the Labor Code of the Russian Federation establishes a ban on termination of an employment contract at the initiative of the employer with women who have children under 3 years of age.

At the same time, the panel considered the defendant’s argument that he was not informed about the plaintiff’s child to be untenable, since they paid the employee maternity benefits, a lump sum benefit for the birth of a child, and paid sick leave in connection with caring for the patient child.

Accordingly, at the time of issuing a notice of dismissal and termination of the employment contract, the employer knew that the plaintiff had a young child, and accordingly did not have the right to dismiss her due to a reduction in the number or staff of employees.

The Collegium of the RF Supreme Court overturned the decisions made by lower courts and issued a new judicial act in the case, satisfying the claims (decision of the RF Supreme Court dated March 30, 2015 No. 21-KG14-14).

When deciding to dismiss a woman with minor children, the employer needs to make sure that the grounds on which he made such a decision allow him to terminate the employment relationship with the employee. Otherwise, an illegally dismissed woman has the right to reinstatement, and the employer may be subject to civil or administrative liability.

Can you be fired from your job if you have a minor child?

This question worries many working mothers, because now it’s not so easy to find a new place.

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

When a staff reduction occurs due to the cessation of work of an enterprise, the employer is obliged to provide the dismissed employee raising a minor child with an alternative vacancy that will correspond to his qualifications and salary.

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.

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Labor Code: who can be laid off and who

In addition, according to paragraph 2 of Art. 32 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 “On Employment of the Population in the Russian Federation”, at the proposal of the employment service authorities, unemployed citizens under the age of 60 years for men and 55 years for women may be assigned a pension for the period until age giving the right to an old-age retirement pension, but not earlier than two years before the corresponding age, subject to the following conditions:

Since your daughter is over 14 years old, the employer has the right to terminate the employment contract with you due to a reduction in the number of employees, despite the fact that you are a single mother. But if your daughter does not have independent income or if your disability is related to a work injury received in this organization or an occupational disease, then in accordance with Art. 179 of the Labor Code of the Russian Federation, with equal labor productivity and qualifications compared to other employees, you will have a preferential right to remain at work.

Calculation for enterprise optimization

If the fact of dismissal took place due to staff reduction in the company, and the employee personally signed the application, she is entitled to monetary compensation. It includes:

funds for unpaid vacation;
payment of average wages;
payment for 2 months while the notice of staff reduction is valid.

Based on legal norms, a woman with a child under 3 years old can be fired only with her consent. Also, her position cannot be reduced or fired if the organization underwent certification during her absence. It doesn’t matter whether she stays at home with the child or works under special conditions. The age of the baby in itself is her legal protection. Retrenchment of an employee with a child under 3 years of age is practically impossible under the Labor Code of the Russian Federation.