Dismissal of one's own free will during maternity leave: is it possible and how can a maternity leave without work, and payment, compensation during this time?

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Published: 06/10/2016

Reading time: 7 min

The maternity leaver has the right!

There are circumstances such as moving to another region or country, being offered a higher paid job, and others that become the reason for dismissal. There are times when fathers sit with their children and have to quit their jobs. It's good to know that you have a legal right to do this. Any of the parents under whose supervision the child is can resign.

The expectant mother may have serious plans: moving, a new job and even online studies

Dismissal on the eve of childbirth

On the eve of childbirth, rarely does anyone quit. However, there are managers who suggest or force women to resign before maternity leave. They argue that after the vacation they will have to return on a small salary.

The aggressive behavior of the manager and the constant persuasion of the husband to quit work can encourage a woman to quit before giving birth.

But even if a maternity leaver does not intend to return to her place of work after giving birth, there is no point in quitting; you may lose your employment and labor benefits. If a fixed-term contract ends, a pregnant employee does not have the right to fire and is offered an extension of the contract.

Dismissal during maternity leave

According to Article 81 of the Labor Code of the Russian Federation, the head of an enterprise does not have the right to fire a woman who is on maternity leave without her initiative. Having written an application, she can go on leave for up to three years (Article 256 of the Labor Code of the Russian Federation).

The only legal reason for dismissal is the liquidation of the enterprise or the termination of the activities of an individual entrepreneur.

Dismissal after the end of maternity leave

The woman notifies management of her initiative to terminate her employment relationship after maternity leave two weeks before her dismissal. She must write a written statement, on the basis of which an order is issued. Even if there is no order, you can stop working (clause 5 of Article 80 of the Labor Code of the Russian Federation).

If the boss does not accept the application, then the post office comes to the rescue. The application is sent by a valuable letter with a description of the attachment. Two weeks will be counted from the date the application is received by the employer.

How to do it?

To resign during maternity leave without any problems, you must follow the steps below:

Draw up an application addressed to the head of the company (enterprise) in a standard form. A sample of this document must be found on the Internet or you can obtain the appropriate form from the HR department of the enterprise.
Submit your application to your supervisor.
On the day of dismissal, recorded in the application, receive a work book and due payments.

In order for the resignation letter to enter into legal force, it must be officially registered in the secretariat, accounting department or office of the enterprise.

A dismissed (or already dismissed) employee also has the right to ask to be given all the necessary documentation, in addition to the work book. These documents can be different:

forms;
extracts;
certificates;
orders, etc.

An application for dismissal can be submitted by mail or in person (when reporting to work).

If an employee is on maternity leave, his dismissal is carried out in a similar manner (Article 80 of the Labor Code of the Russian Federation). Moreover, dismissal can be carried out in connection with the transfer of such an employee to another organization (clause 5 of Article 77 of the Labor Code of the Russian Federation) or by appropriate agreement of the parties (Article 78 of the Labor Code of the Russian Federation).

What documents are needed?

Based on Art. 80 of the Labor Code of the Russian Federation, in case of leaving his current place of work, an employee on maternity leave sends a separate written statement to his management (director of the enterprise, company). Such a document is drawn up in free form. any separate requirements for filing an application for dismissal.

However, according to general practice, the following mandatory details must be reflected in the resignation letter:

addressee - head of the company (enterprise);
Full name and position of the applicant;
the title of the document is “Application”;
a request to resign from your current job at your own request;
date of cancellation of the employment contract (agreement);
date of document preparation;
document registration number - placed in the HR department;
personal signature of the applicant;
personal signature of the executor of the document (placed on the visa copy of the application).

The resignation letter is drawn up in 2 copies. Moreover, one of them remains with the employer, and the second - with the resigning employee.

On the day of dismissal, the personnel officer issues the employee a work book. At the same time, the accounting department of the enterprise pays the dismissed employee all required benefits and payments (Article 140 of the Labor Code of the Russian Federation).

Article 140 of the Labor Code of the Russian Federation. Payment terms upon dismissal

Upon termination of the employment contract, payment of all amounts due to the employee from the employer is made on the day the employee is dismissed. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment.

In the event of a dispute about the amount of amounts due to the employee upon dismissal, the employer is obliged to pay the amount not disputed by him within the period specified in this article.

How to file correctly, can a maternity leave without working?

In accordance with Art. 80 of the Labor Code of the Russian Federation, in case of leaving his current place of work on his own initiative, an employee on maternity leave submits a corresponding application to his head of the company (enterprise) 2 weeks before the day of dismissal. However, this can be done earlier, and in some cases, immediately on the day of dismissal.

Dismissal of an employee on maternity leave without a two-week period of service is possible in the following situations:

If there is a separate clause in the employment contract (agreement), that when drawing up the corresponding application, the official date of dismissal will be considered the day of drawing up such a document.
If in the agreement of the parties, concluded in accordance with Art. 78 of the Labor Code of the Russian Federation, a separate clause is recorded that in case of dismissal on personal initiative, the employee will not need to remain at his previous job for another 2 weeks.
If it is not possible to go to work (in case of admission to a college (university), when moving to another city, etc.). Then the employee’s dismissal is carried out on the day recorded in the corresponding application (Article 80 of the Labor Code of the Russian Federation).

The head of a company (enterprise) does not need 14 days to find a new employee. After all, the duties of a dismissed person are performed by another employee working under an employment contract (Article 59 of the Labor Code of the Russian Federation), or are evenly distributed among other employees of a specific department (unit).

Time spent on annual leave or time on sick leave is also counted towards the two-week working period.

The rules and procedure for dismissal during parental leave up to 3 years and after it are described here.

Dismissal procedure

The dismissal procedure includes the following steps:

A resignation letter is submitted or the employment contract is terminated;
An order is printed, with which the employee must be familiarized with signature;
Cash payments are made and all amounts are issued;
A work book and all necessary certificates are issued.

What should a maternity leave do?

If a woman on maternity leave decides to quit, first of all, she must notify her employer and agree with him on the date of dismissal. After that, write a statement. The application is written two weeks before the agreed date.

Important! It needs to be registered or sent by mail to avoid unnecessary problems in the future. Dismissal on one's own initiative is carried out on the basis of Article 80 of the Labor Code of the Russian Federation.

What should the employer do?

The employer must agree to the dismissal of the maternity leaver and sign the application. After all, he doesn’t even need time to find a replacement, since the resigning employee is already on maternity leave.

If the employer is against it?

There are cases when an employer is waiting for a particularly valuable employee, and without warning, he writes a letter of resignation. What can a leader do?

If a mother quits while on maternity leave or immediately after it ends, the boss cannot prevent this.

But! If a maternity leaver goes to work and works for at least one day, she will no longer belong to the preferential category. The manager has the right to force her to work for two weeks and can put a strain on her during this period, sending her to difficult areas.

Can an employer fire you during maternity leave and is it possible to quit on your own initiative?

The employer-manager of a company (enterprise) does not have the right to dismiss an employee who is on maternity leave (maternity leave) on his own initiative.
This is possible only upon liquidation of the relevant organization (Article 261 of the Labor Code of the Russian Federation). Also, an employee on maternity leave can, on his own initiative, leave his current place of work on any day (Clause 3, Article 77 of the Labor Code of the Russian Federation, Article 80 of the Labor Code of the Russian Federation).

You can find out about the maternity rate, as well as about the dismissal of the person who occupies it, here.

What documents does a maternity worker need upon dismissal?

The organization receives a letter of resignation from a woman on maternity leave. On the last day of work at this enterprise, a woman must receive:

work book with the corresponding entry;
2-NDFL certificates requested for certain years of work;
copies of orders;
cash payments, including compensation for unused vacations.

If you require documents that are outside the mandatory list, you should write an application for their issuance.

Important! You need to take all documents and be sure to check for the presence of seals and signatures of the manager on them.

How to quit after maternity leave without waiting 2 weeks

In order not to wait until the provisions provided for in Part 1 of Art. 80 Labor Code of Russia 2 weeks, the parties can provide for this situation in advance in the employment contract. In particular, the contract may stipulate that when submitting a resignation letter, you do not need to wait 2 weeks to complete the work, and the day of dismissal is considered the day the application was submitted or another date specified in the application. If this condition was not initially stated in the contract, then before submitting a letter of resignation, you can conclude an additional agreement to the employment contract in which this clause is stated.

It is also possible not to wait 2 weeks for dismissal if the employee is unable to continue working - for example, if he needs to start training, needs to leave due to a change of residence, etc. Also, immediate dismissal may be due to the fact that it was officially established that the employer violated the terms of the contract or labor legislation. Then, in accordance with Part 3 of Art. 80 of the Labor Code of Russia, dismissal at one’s own request must be made on the day specified in the employee’s application.

Another option is dismissal by agreement of the parties, the possibility of which is provided for in Art. 78 TK. By virtue of the norm, employment relations on this basis can be terminated at any time - the main thing is that neither the employer nor the employee objects to this.

ConsultantPlus has many ready-made solutions, including whether it is possible to fire a pregnant woman. If you don't have access to the system yet, you can sign up for a free trial online! You can also get the current K+ price list.

What payments are due to a maternity leaver?

The procedure for payments to women on maternity leave is regulated by Federal Law No. 255 of December 29, 2006.

A woman on maternity leave is entitled to receive payments calculated on the basis of the average salary based on the results of a two-year period of work before going on maternity leave, taking into account the established minimum wage (minimum monthly wage), which from January 1, 2019. equal to 11,280 rubles.

Maternity benefits are paid in one lump sum and in total. The company's accounting department is provided with a sick leave certificate received at the antenatal clinic at 30 weeks of pregnancy.

If a woman quits before the deadline for receiving sick leave, then at this enterprise she loses the opportunity to receive payments.

If the dismissal occurs immediately after childbirth, then the mother receives only the first part of the benefit at this enterprise (on average for 70 calendar days). She will receive the second part of the benefit at the new enterprise or at the social security authorities.

If a woman nevertheless decides to leave on maternity leave of her own free will and a more profitable job does not await her, it is better to receive all parts of the benefit at her enterprise and write a letter of resignation on the last day of maternity leave.

Attention! Don’t forget about compensation payments for unused vacations and time off.

Payments of compensation

In accordance with the norms of the Labor Code of the Russian Federation, an employee receives leave upon the birth of a child. For the sake of their family, women often quit at their own request after maternity leave. Dismissals also occur at the end of a fixed-term employment contract.

By agreement, the employee and the employer can also be relieved of their positions. In some cases, an employee receives compensation in the event of dismissal after maternity leave.

Labor legislation normalizes the payment of compensation during the prenatal period and care until the child is three years old.

Child benefit

After birth and up to one and a half years, child benefit is paid. It is 40% of average monthly earnings. This earnings are taken based on the two years that precede the payments. Non-working parents apply to the SZN service for such benefits.

The benefit is accrued upon presentation of the following documents:

statements of the woman in labor;
child’s birth certificate (a copy is possible);
certificates from the second parent’s place of work confirming non-receipt of such benefits.

Dismissal upon liquidation of an organization

Liquidation of a company can occur at any time. Indeed, in accordance with the law, during the liquidation of an enterprise there are no special features for the dismissal of pregnant women and women on maternity leave.

This is the only reason why a pregnant woman can be fired before maternity leave in accordance with the law . In all other cases, the employer cannot legally fire an employee who is expecting a child.

Dismissal of employees on maternity leave during liquidation of an organization is carried out in the same manner. If an enterprise is reorganized, its staff is reduced, and it remains in fact existing, then women retain their jobs.

At the same time, the employer does not have the right to fire a pregnant employee or ask her to write a statement of her own free will.

If the liquidation is related to bankruptcy, then employees who are on maternity or child care leave will retain their seniority until the company is liquidated.

Upon liquidation, all employees must be officially notified and must be paid severance pay and two months' wages.

Payments to a pregnant employee upon liquidation of an enterprise:

Severance pay, which is equal to the amount of monthly earnings.
The amount of the average salary for the period of employment, but not more than two months’ salary.
If an employee is dismissed earlier than the established deadline, he is entitled to additional compensation for the period of employment.

What awaits women on maternity leave:

The organization has the right to dismiss an employee by sending her a notice of liquidation, but no later than two months in advance.
Managers will pay severance pay in the amount of the average monthly salary and two times the average monthly salary for the period of employment.
After dismissal, a woman must register with the employment service within two weeks.
After the birth of the baby, upon dismissal, benefits will be accrued in social security.

In addition, women in this situation should consult the Social Insurance Fund; it is possible that they can actually receive compensation from them after submitting the appropriate package of documents.

When applying to social security, women must prepare the following documents:

work book;
dismissal order;
salary certificate for the last two years;
certificate 2-NDFL for the last three years;
a copy of the application for parental leave;
application for recalculation of benefits;
application for recalculation of benefits, if any;
document confirming parental leave;
a copy of the sick leave certificate.

Can a woman on maternity leave work at another job?

Before going on maternity leave, a woman can work not one, but two jobs or change jobs over the past two years.

If a woman has been insured for the last two years in both organizations, then, according to Article 13 of Federal Law No. 255, maternity benefits will be calculated from two places of official employment.

If a maternity leaver changes employer, this cannot affect the benefit, since data for the last two years is taken into account.

Expiration of the contract during maternity leave

Things are different if the contract expires. In this situation, two scenarios are possible. If a woman was hired to fill the position of a temporarily absent employee, then with his entry the contract with such an employee may be terminated.

At the same time, management is obliged to offer such a woman another job available to him if she can perform it taking into account her position. However, if it is not possible to provide such work, the dismissal of the maternity leave will be justified.

Confirmation of this rule is also reflected in the judicial practice that has developed in the Russian Federation.

Example.

Natalia

Labor expert

Ruling of the Krasnoyarsk Court in Case No. 33-1067/2018, in which the court found justified the dismissal of a pregnant employee due to the return to work of a temporarily absent employee and the inability of the employer to provide her with another job.

A fixed-term contract concluded for all other reasons must be extended by the employer until the end of the employee’s pregnancy, or until the end of maternity leave, if one is granted to her.

Can a woman on maternity leave be forced to resign of her own free will?

Article 81 of the Labor Code of the Russian Federation does not allow an employer to dismiss a woman on maternity leave without her initiative. But it happens that a mother returns to work after a three-year vacation, but her place is taken, and the employer does not want to fire the new employee.

You need to know that according to the law, there are three options for dismissal:

at your own request;
on agreement of the parties;
on staff reduction.

According to Article 256 of the Labor Code of the Russian Federation, management cannot dismiss an employee who interrupted her work activity due to the birth of a child. Therefore, when she returns to work, her position should be vacant.

Dismissal due to liquidation of the enterprise must be reported in writing against signature two months before the termination of the employment relationship.

Is it possible to quit while on maternity leave?

You can resign at your own request, but there are restrictions on the dismissal of an employee who is on maternity leave by the employer.
Since the Labor Code contains a direct prohibition on dismissal at the initiative of the employer of a pregnant employee or the mother of a young child under 3 years old, the answer to the question of how to quit while on maternity leave may be ambiguous. Thus, by decision of the employer, an employee can be dismissed during each maternity leave (for pregnancy and childbirth or child care) only in the event of liquidation of the enterprise.

Even if a position or number of personnel is reduced, or upon expiration of a fixed-term employment contract, the employer will first have to offer the employee another job, for which he must first wait until he returns from maternity leave.

Another thing is dismissal of an employee at his own request. The possibility of severing labor relations for this reason is contained in clause 3, part 1, art. 77 Labor Code of Russia. Moreover, the Labor Code does not provide for any prohibitions or restrictions on dismissal at the request of an employee/employee while he/she is on maternity leave (both a pregnant woman and an employee/employee with a young child).

Can a woman apply to the labor exchange after dismissal?

After dismissal, a woman can apply to the labor exchange. In this case, she will no longer be paid child benefits, but will be paid unemployment benefits. The minimum amount of such a benefit in 2021 is 1,500 rubles. Moreover, obtaining it can be very uncertain. If there are two refusals of the offered vacancies, the benefit will not be paid.

If a woman is going on maternity leave or is on maternity leave, and circumstances are such that she needs to resign, she can do this by submitting an application of her own free will. But before taking such a step, you should carefully weigh the pros and cons. When you quit, you can significantly lose out on receiving B&R benefits.

Sample letter of resignation after maternity leave

As you can see, the procedure for voluntarily dismissal of an employee who is on maternity leave or has just returned from it is practically no different from the similar procedure provided for other categories of employees. An application for resignation of one's own free will is drawn up by the employee in any form; there are no special requirements for its content.

The main thing is that the text of the application contains all the information necessary for dismissal. For example, it should be clearly stated that this is specifically about voluntary dismissal, and indicate the expected date of termination of the employment contract. A sample resignation letter can be downloaded in the “Documents and Forms” section at the beginning of the article.

Even more materials on the topic in the section: “Vacation”.

You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

What compensation is due?

Important

If a woman is fired before the end of her maternity leave, her former employer stops paying her benefits.

On the last day of work, the organization compensates the employee only for unused vacation. Moreover, when calculating unused days subject to compensation, in addition to the next vacation, the remaining period of maternity leave is also taken into account.

Article 255 of the Labor Code of the Russian Federation states that women should be provided with paid 70 days of rest from work before childbirth (if there is more than one fetus - 84) and 70 days of leave after the birth of a child (for complications - 86, for twins, triplets, etc. - 110) . She can exercise this right by writing a statement. But, if the pregnancy is easy, then the woman in labor may not take this leave. In this case, when she leaves the organization during maternity leave, the employer is obliged to compensate these unused days.

If the dismissal occurred due to the liquidation of the enterprise, then, in addition to other payments, severance pay is provided. Its size is determined by the average monthly earnings level.

For your information

If an employee, while on maternity leave, leaves one and immediately registers with another organization, then the new employer will pay her financial compensation for child care.

If the young mother does not intend to continue working, then the state will provide financial assistance to her. Namely, social protection authorities.

Break up with your boss without missing out on benefits

An employee who wants to resign after maternity leave of her own free will has the right to do so, and she can notify the employer before the end of this period.

A woman has the right to receive financial compensation for the number of days she spent on sick leave, but maternity leave for up to three years is not taken into account when calculating the amount of compensation. It turns out that you can receive a cash payment only for unused days of the required annual rest. If the organization is liquidated under certain circumstances, then you receive compensation, which is due under labor law, as well as payments for unused vacation days.

How to write a statement from a maternity leaver?

The application can be handwritten or printed, but must be signed by the person resigning. It is written using a standard form, which can be downloaded on the Internet or taken from the personnel department.

In the upper right corner it is indicated in whose name the application is being submitted: either this is the director of the organization or the executing person. You can also clarify this in the HR department, even by phone. If you resign of your own free will, then write this in the reason for dismissal; there is no need to describe in detail why you decided to terminate your employment relationship. Write the date on which you quit.

As a rule, employees on maternity leave are not asked to give notice of dismissal two weeks in advance, but are released earlier, so write the date you agreed on with your manager.

At the end of the application, be sure to indicate the date of submission and put a signature with a transcript. The application is ready.

You can submit your application in person or by mail. In any case, it is recommended to submit the application in two copies, in one of which the employer will mark the acceptance, and it is better to send it by registered mail with notification, in order to be sure that the letter has been received.

Submitting an application in person will speed up the process of receiving your documents, since you do not need to wait for the courier to deliver the letter to the address.

Women's rights

Women preparing to become mothers or already raising young children are provided with benefits and privileges at the state level. The government annually adopts a number of social programs to improve their standard of living.

In addition, the list of reasons according to which the dismissal of employees “in position” is allowed is strictly defined.

Some managers are cunning, trying to accept those who are already married and have children, in order to relieve themselves of additional responsibilities for providing and paying for parental leave.

These relationships are carried out in accordance with the articles of the Labor Code of Russia and the Constitution of the country, according to which this category of persons has the right to go on vacation - for 70 days before, and for the same amount after childbirth.

If there are complications, this period can be extended for medical reasons.

During this period, the woman is protected from unauthorized dismissal, transfer to another position and other labor processes. Except in cases provided by law.

Dismissal of a pregnant woman before maternity leave

A pregnant employee can resign at her own request even before going on maternity leave. By submitting an application to the HR department and working for two weeks, you can easily part with your employer. But in this case, the expectant mother cannot count on maternity benefits, and the monthly allowance for caring for a child up to 1.5 years old will be paid by social security. To receive high benefits and maternity benefits, a pregnant woman needs to be officially employed. Think about the issue of dismissal - after all, you can wait for maternity leave, receive the benefits you are owed, and you can part with your previous job even during maternity leave.