Dismissal of an employee caring for a disabled child in 2021

Author of the article: Vladimir Danilevsky Last modified: January 2021 4854

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

Can a parent with a disabled child be fired from work?

The parent of a disabled child can be dismissed from work either at his own request or at the initiative of the employer. However, in the latter case, this is possible only if there are certain legal grounds. Also, the head of the organization has the right to dismiss such an employee by agreement of the parties (Article 78 of the Labor Code of the Russian Federation).

The period of caring for a disabled child after dismissal is included in the insurance period of the dismissed employee of the organization.
However, only the time spent caring for such a patient until he reaches the age of 18 is taken into account (Part 6, Clause 1, Article 11 of Federal Law No. 173 of December 17, 2001).

Social measures

Every citizen who has a disabled person under 18 years of age in their care has the right to count on benefits and additional guarantees at their place of work. After providing the necessary certificates and documents, he is entitled to:

additional leave without pay for a period of 14 days;
4 paid days off monthly;
120 days of paid sick leave per child per year;
Possibility to set a shortened work schedule if desired.

A mother with a sick child cannot be sent on a business trip without her consent, forced to work the night shift, or work on weekends or holidays. Having decided to leave the company, this category of employees also has privileges.

How can a father or mother resign due to this?

There are 3 ways to resign due to the need to regularly care for a disabled child:

At your own request.
At the initiative of the employer.
By agreement of the parties.

As practice shows, such dismissal is often carried out on the initiative of the parent of a disabled child.

At your own request

If the parent of a disabled child leaves work on his own initiative, then his dismissal should be carried out in the following order:

Advance notification by the employee to his manager of the decision made. Moreover, the management of the company (enterprise) must be notified 2 weeks before the day of dismissal (Article 80 of the Labor Code of the Russian Federation).
Drawing up a resignation letter by an employee. This document is drawn up in any form.
Issuance by the employer of an order (instruction) to dismiss an employee. This document specifies the required details and other information from the certificates provided by the resigning employee. In addition, the order must be given to the employee for review (under signature).
Carrying out final settlement with the employee (Article 84.1, 140 of the Labor Code of the Russian Federation).
Registration by the personnel officer of the corresponding entry in the employment record of the resigning person.
Issuing a work book to the employee.

For failure to meet the deadlines for transferring payments due upon dismissal, the employee is entitled to monetary compensation in the form of interest on the delay. In such a situation, the employer is held liable under Art. 236 Labor Code of the Russian Federation.

At the initiative of management

The parent of a disabled child may be dismissed from work at the initiative of the employer. The procedure for dismissing such an employee in such a situation is as follows :

Written notification to the dismissed employee of the upcoming dismissal against signature. Moreover, this must be done no less than 3 days before the day of cancellation of the employment contract or agreement as usual (Article 79 of the Labor Code of the Russian Federation) or 2 months before the day of dismissal in case of liquidation of the company or reduction of staff (Article 180 of the Labor Code of the Russian Federation). The notice period depends on the conditions of the employee’s dismissal.
Issuing the relevant order and familiarizing the dismissed employee with it against signature.
Filling out the work book of the dismissed employee.
Carrying out the final calculation and issuing the work permit to the dismissed person.

However, the parent of a disabled minor can be dismissed at the initiative of the employer only on the following legal grounds :

Upon liquidation of a company (enterprise) or individual entrepreneur (Part 1 of Article 81 of the Labor Code of the Russian Federation).
For regular evasion of labor duties, if a disciplinary sanction was previously imposed on an employee of the company (enterprise) (Part 5 of Article 81 of the Labor Code of the Russian Federation).
For violation of labor regulations by an employee servicing inventory items. Such dismissal is permissible only if the employer loses confidence in the employee (Part 7, Article 81 of the Labor Code of the Russian Federation).
For immoral behavior during working hours. This rule applies only to a parent working as a teacher, or another official performing labor duties in raising children (Part 8 of Article 81 of the Labor Code of the Russian Federation).
Due to the presentation of false documentation to the personnel officer (Part 11 of Article 81 of the Labor Code of the Russian Federation). One of these certificates, in particular, may be a certificate of disability (Certificate of Disability) with forged signatures.
For certain gross violations of labor discipline established by Part 6 of Art. 81 of the Labor Code of the Russian Federation (for example, for absenteeism, appearing at work in a state of drug or alcohol intoxication, theft of organization property, etc.).
After the expiration of the contract for seasonal work or a fixed-term employment contract (Article 79 of the Labor Code of the Russian Federation).
When canceling an employment contract drawn up with a dismissed person for the duration of the performance of official duties of the main employee (Article 79 of the Labor Code of the Russian Federation).
For the use of violence against students - for teachers (Part 2 of Article 336 of the Labor Code of the Russian Federation).

Also, if a reduction in the number of employees (staff) is planned, the employer does not have the right to lay off an employee who is the sole breadwinner of a disabled minor child (Article 261 of the Labor Code of the Russian Federation).

How can an employee, if he has a disabled child, write a statement?

The application for dismissal to care for a disabled child must include the following information::

position and initials of the head of the company (enterprise);
position and initials of the applicant employee;
link to article 80 Labor Code of the Russian Federation;
reason for cancellation of an employment contract (“Due to the need to care for a child under ... years of age”);
date of dismissal;
who is the disabled minor (daughter, son);
Full name of the child and his year of birth;
list of attached documents;
surname, initials and signature of the applicant;
date of application.

This application must be accompanied by a photocopy of the child’s birth certificate and an ITU certificate issued for a disabled minor.

What to do if the employer fired you illegally?

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

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

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

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

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

This is important to know: Report on voluntary dismissal from the Ministry of Internal Affairs: sample 2021

Entry in the employee’s work book

When a parent of a disabled child is dismissed, a corresponding entry is made in the employee's employment record. It depends on how he resigns - independently, on the initiative of the head of the company (enterprise) or by agreement of the parties.

In the first case, in column 3 of the labor section “Information about work” the following entry is indicated: “The employment contract was terminated at the initiative of the employee due to the need to care for a child” (or “Dismissed at his own request due to the need to care for a child”), paragraph 3 parts of the first article 77 of the Labor Code of the Russian Federation.”

Sample entry in the employment record about dismissal due to the need to care for a disabled child:

In the second case, when leaving work on the initiative of the employer, the employment record indicates, for example, the following entry : “Dismissed for absenteeism, subparagraph “a” of paragraph 6 of part 1 of Article 81 of the Labor Code of the Russian Federation.” Another article of the Labor Code of the Russian Federation may also be recorded here. This depends on the specific legal basis for dismissal.

Sample entry in the employment record about dismissal at the initiative of the employer:

In case of dismissal by agreement of the parties, in column 3 of the labor section “Information about work” the following information is indicated: “The employment contract was terminated (or dismissed) by agreement of the parties, clause 1 of part 1 of article 77 of the Labor Code of the Russian Federation.”

In the column “Job information” the full name and position of the personnel officer are also indicated. Column 4 of the labor report indicates the date and number of the dismissal order (for example, “Order dated 10/11/2019 No. 15”). These are mandatory details for the dismissal record.

Sample entry in the employment record about dismissal by agreement of the parties:

Is it possible to be fired legally?

All issues related to the termination of an employment contract are spelled out in Article 81 of the Labor Code of the Russian Federation. According to it, the mother or father of a child with a disability can be fired only in four cases:

if the employee periodically seriously violated the work process - did not go to work without a good reason or did not meet the company’s professional suitability;
upon liquidation of an enterprise;
if he decided to terminate the contract on a voluntary basis;
when staffing is reduced.

If an employee goes to work on time and copes with his responsibilities, then no one has the right to deprive him of his job. For a disabled mother, there is one exception, unlike other workers; due to serious family circumstances, minor violations in the labor process are permissible for her. For this, the employer does not have the right to fire, but may demote or deprive of bonuses.

Is it possible to pay on the day of application?

In the current legislation of the Russian Federation, caring for a disabled child is not directly named as a legal basis for exempting a resigning employee from 14 days of work . However, depending on the circumstances of a particular employee, he may be recognized as such. For example, if the grandmother who used to look after the child died and he cannot be at home alone.

The employer has the right to satisfy the employee’s application and dismiss him on the same day. The application must be accompanied by a certificate confirming the impossibility of continuing work (Part 3 of Article 80 of the Labor Code of the Russian Federation).

In addition, an employer can dismiss an employee without working time if the parties enter into an agreement with their employee. In such a situation, the employee is not covered by the 14 days before the date of termination. The specific day of termination of labor relations is established in the agreement of the parties (Part 2 of Article 80 of the Labor Code of the Russian Federation).

In both of the above cases, the employee must provide his or her employer with a photocopy of the ITU certificate confirming the need for daily care for a disabled child. In other situations, such an employee will definitely need to undergo two weeks of work.

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

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

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

What payments are due?

Upon dismissal, the parent of a disabled child is entitled to certain payments, which are also provided on a general basis. No additional monies will be paid to such dismissed person.

As a result, upon final settlement with such an employee, the employer pays him the following amounts of money :

Salary for actual time worked. This could be a month or fewer days. It all depends on what day the employee of the organization quits his job and how many days he worked in the last month.
Monthly bonuses and other similar payments established by the employment contract (agreement).
Compensation for unused vacation.

As a result, the parent of a disabled child may leave his or her job early due to the need for daily care for such a patient. In addition, such dismissal can be carried out on the initiative of the head of the company (enterprise) or by written agreement of the parties. Moreover, in some situations, the dismissed person does not need to undergo two weeks of work.

General concepts and benefits

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

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

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

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

In addition, the employer is obliged:

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

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