While on maternity leave for up to 3 years, the employee is protected by the state from possible wrongful dismissal. The law establishes clear restrictions on the list of grounds on which you can separate from an employee who is caring for a child under three years of age. Any violations committed by the employer regarding the dismissal of such categories of employees are punishable by penalties. In addition, an illegally dismissed person may be reinstated by a court decision. We tell you how you can fire or resign yourself while on maternity leave to care for a child.
On what grounds can you be fired while on parental leave?
The general rules of dismissal can be applied to an employee on parental leave only after he returns to work from such leave. During the period of stay there, it is strictly prohibited to terminate the employment relationship at the initiative of the employer, with the exception of the case of liquidation of the company.
But the possibility of dismissal by decision of the employer when combining part-time work and child care is not legally established. Judicial practice is also heterogeneous.
There are decisions in which such dismissal is considered lawful (appeal rulings of the Moscow City Court dated 08/04/2017 in case No. 33-29798/2017, Supreme Court of the Republic of Tatarstan dated 06/18/2015 in case No. 33-8979/2015).
But there are also opposing opinions of judges, according to which such an approach is erroneous (appeal ruling of the Khabarovsk Regional Court dated March 23, 2016 in case No. 33-1923/2016).
Is it possible to fire a woman on maternity leave at her own request?
“Maternity leave” usually means maternity leave, followed by parental leave for up to 1.5 or three years. The employee can resign of her own free will during any of these holidays. As for termination of the contract at the initiative of the employer, it is impossible to dismiss a pregnant woman or a mother raising a child under three years of age, with the exception of the liquidation of the organization (Article 261 of the Labor Code of the Russian Federation).
If an employer forces a woman to resign on her own, you should not follow the lead and write a statement. It is better to record all threats on a tape recorder and complain to the labor inspectorate. You can submit a complaint through the “Online Inspection” without leaving your home. If the application has already been submitted, it can be withdrawn before the date specified in it or before the end of work. The only way to challenge the termination of an employment contract is through court, but this is difficult: you will have to prove that the application was written under pressure from the manager.
Dismissal on maternity leave without work
Working off is a warning period during which the quitting employee can withdraw her application, and the employer can find a replacement employee. Its duration is 14 calendar days, and the countdown begins from the day following the date of filing the application (Article 80 of the Labor Code of the Russian Federation).
For an employee on maternity leave, work is required by law. But most often you don’t have to wait two weeks: when you go on vacation, another employee is appointed in her place, and he performs her duties until she returns from vacation. Typically, employers accommodate and dismiss on the date specified in the application.
If the application does not contain a date of dismissal, the contract is terminated at the end of the notice period.
If the manager insists on working off, you can resign by agreement. For those who cannot continue working for good reasons, compliance with the notice period is not necessary: for example, if the dismissal is related to the need to care for a child under 14 years of age.
Dismissal remotely
To make your life easier and not have to go to work to submit an application, you can agree with your employer on electronic document management. It is relevant if he has the opportunity to arrange everything remotely. The application is sent by email and signed with an enhanced qualified electronic signature. Then she also signs the dismissal order.
Another option is to send your resignation letter by registered mail with acknowledgment of receipt. It can immediately indicate that it is not possible to come to the organization in person, and also agree to the delivery of the work book and other documents in the same way.
Voluntary dismissal during parental leave
There are no significant differences in the case of termination of employment relations at the initiative of an employee on care leave. Moreover, the requirement to give the employer 2 weeks' prior notice of voluntary leave also applies to persons on such leave.
The general procedure for dismissal at the request of an employee on parental leave includes:
- Submitting a letter of resignation - 2 weeks before leaving or within a shorter period agreed with the employer.
- Drawing up an order to terminate an employment contract in any form or using standard form No. T-8.
- Issuance of all required documents and full payment on the day of dismissal.
You can use leave followed by dismissal only after interruption of parental leave, since the simultaneous provision of 2 types of leave is not provided for by law.
How to resign of your own free will after maternity leave
A maternity leave is a sick leave issued in connection with pregnancy and impending childbirth. Depending on the characteristics, it can last from 140 to 192 days. At the end of it, the woman does not need to formalize her exit from leave if she then takes leave to care for a child up to one and a half years old, which is already paid according to a different principle. It is the termination of the working relationship at the end of maternity leave, but before the start of parental leave, that requires some special features.
The legal grounds on which an employment contract can be terminated between a woman returning from maternity leave and her employer have some peculiarities.
ATTENTION! A woman can apply for resignation on her own initiative at any time, even before the end of maternity leave. Management cannot refuse this.
The procedure is no different from standard dismissal: the employee submits a letter of resignation, an order is issued, final payment is made, compensation is paid and personal documents are issued.
When it comes to the employer's initiative, the Labor Code provides women with certain rights: the employer will not be able to fire them in the event of pregnancy. The rule applies to both the duration of sick leave for temporary disability due to pregnancy and parental leave.
Termination of the employment relationship by agreement of the parties during the period of sick leave for pregnancy and childbirth is possible at the end of the fixed-term employment contract. If desired, the employee has the right to extend the employment contract while maintaining all required payments and guarantees. This occurs by submitting an appropriate application, to which is attached a certificate confirming the fact of pregnancy.
IMPORTANT! The employer is obliged to extend the term of a woman’s employment contract only until the end of her pregnancy. Then he has every right to fire her unilaterally at the end of the contract.
Features of dismissal
From the point of view of the Labor Code, a woman who has returned from maternity leave and wants to quit must work for a standard two-week period.
However, in practice this can be avoided. To do this, the employee submits an application for resignation fourteen calendar days before the end of sick leave according to the BiR. The starting date for the duration of work is the day the application is submitted. Accordingly, by the day the employee is required to begin performing her duties, the period of 14 days will have passed and she will be able to resign immediately.
There are other situations as well. The organization will agree to hire a replacement worker from a temporary to a permanent basis, which will free a woman returning from maternity leave from her two-week work obligation. This does not contradict the law, since the Labor Code does not prohibit companies from changing the period of compulsory service.
Care by agreement of the parties on maternity leave
Termination of employment relations by agreement also does not have any significant differences. It can be initiated by both the employee and the employer. In the first case, the employee can inform the employer of his intention by writing a statement. In the second case, the employer makes a written offer to the worker to leave by agreement.
The agreement reached is formalized by a dismissal agreement signed by both parties to the employment contract. After which, on the date specified in the agreement, a dismissal order is issued. On the last working day, the employee is given all the required documents and a full payment.
Contract termination procedure
The desire to leave, as mentioned above, must come from the employee.
And such a decision is made depending on life circumstances, and not on requests, much less coercion, from the management of an organization or enterprise.
The procedure in this case is not much different from the norms established by labor legislation. It is regulated by the provisions of Article 80 of the Labor Code.
The algorithm of actions is as follows:
- The employee personally comes to the workplace, draws up an application and submits it to the manager. This document can also be sent by registered mail, but you must strictly adhere to the requirements of Article 80 of the Labor Code - the date of departure indicated on the postmark must be included in the two-week period allotted for submitting such documents. That is, notification to the management of an organization or enterprise is carried out strictly fourteen days before the planned termination of the employment contract.
- If an enterprise has two addresses (one is where the production facility is located, and the other is where it is registered as a legal entity), it is necessary to send two copies of the application to both existing addresses. This is done to avoid disagreements with management, who may refer to non-receipt of the letter. And sending a registered letter is necessary to prevent the request from being ignored by the immediate supervisor (this will help in the event of a complaint being considered in the judicial authorities).
- The statement includes several important points. In the upper right corner enter the full name of the position held by the manager and his full name, below it is written who submitted the document. The title of the document is indicated in the middle, and below, in free form, the employee’s request is stated. For example: “I ask you to terminate my employment contract at my request in accordance with Article 80 of the Labor Code on June 28, 2021.” The date of compilation is indicated at the bottom left, and the signature is placed on the right (in parentheses the full name of the employee is indicated in words).
- The document must be registered in the office. The employee should pay special attention to this point, since documents without registration may be lost without any administrative consequences for those responsible for maintaining the accounting journal.
- Based on the submitted application, the personnel department prepares a dismissal order form, which is then signed by the manager. The order refers to the personal request of the employee (the registration number of the application and the date on which it was written are indicated). The articles of labor legislation on the basis of which such a decision was made are also indicated.
- The order allows personnel department employees to create a calculation note, according to which calculations and payments will be made. The waiting period for final payment takes exactly two weeks. They are often called working off. The two weeks are counted from the day the manager receives the application (from the moment it is registered in a special journal). Or from the moment of sending a registered letter (according to the date indicated on the stamp).
On the last day of work, the employee must return all valuables, if any were assigned to her during the employment relationship.
On the same day, she receives all the money accrued in advance, the work book and other necessary documents. For example, if an employee plans to get a new job in the near future, she will need information about the insurance period and taxes paid.
Also, termination of an employment contract can be carried out by agreement signed by both parties in accordance with Article 77 of the Labor Code. But the employer’s initiative is permissible only when the enterprise is closed. In this case, the waiting period for final payment will be exactly two months.
Termination of a fixed-term employment contract at the end of its term
There are no obstacles to dismissal due to the expiration of a fixed-term employment contract for an employee on parental leave. The procedure should include:
- Written notification to the employee about the end of the employment contract.
- The dismissal order is issued on the last day of the employment contract.
- Registration and issuance to the employee of all necessary documents and full payment.
If the employee does not appear for the documents, you must request in writing his permission to send them by mail. After receiving it, all documents are sent by registered mail with acknowledgment of receipt.
Dismissal from position after maternity leave and liquidation of the company
Release from work and dismissal after maternity leave take place in accordance with the procedure regulated by the legislation of the Russian Federation. It is no different from all other cases of dismissal of an employee on his own initiative. The employee submits a letter of resignation two weeks before the end of the maternity leave.
The employer makes calculations, compensation to the former employee, and returns official documents. The legal period of work is reduced by agreement with the employer. In this option, the resignation letter and actual resignation are issued on the same day.
Job loss and dismissal during maternity leave occur due to the cessation of the company's functioning. It provided a place for a woman to take the necessary leave to care for her newborn child. The law enshrines the right for an employer to lay off a maternity worker, like all other workers and employees, for the reason described above. Pregnant women should have their employment contract extended, and not simply dismissed from work.
Agreement of the parties and reorganization
If the pregnant woman and the employer have found compromises and come to a common opinion, then the employment contract can be terminated. You cannot agree orally without completing the appropriate documentation . The agreement is printed in two copies.
When terminating an employment contract, the employer receives a benefit for himself. The employee loses his place, position, all payments and benefits. If a reorganization is carried out at an enterprise and the owner changes, then a pregnant woman cannot be fired. Labor relations are preserved.
There are cases when, when hiring, specific deadlines are prescribed in the contract. Working under a fixed-term contract has its own requirements and rules. If a woman becomes pregnant before the end of her term, the employer is obliged to provide maternity leave. This contract is extended until the woman takes up her position. Labor relations are terminated according to the standard procedure.
Removal from office
Every woman has every right to terminate the legal relationship with her employer . Before making such a decision, it is necessary to analyze the benefits and all the features of the situation. When considering controversial issues, legislation in most cases takes the employee’s side. The director will pay money and financial assistance for a long period. The woman retains her workplace, official rights and responsibilities.
The Labor Code outlines the grounds that imply the dismissal of a pregnant girl. The law clearly states the requirements under which employers do not have the right to fire a pregnant woman on their own initiative. There are cases when entrepreneurs use illegal methods of pressure. This could be blackmail and threats to force an employee to be fired.
In this case, the woman has every right to contact law enforcement officers who will help resolve the situation. The employer is held criminally liable. Employers cannot offer women who wish to take maternity leave financial compensation for their own benefit.
It may consist in the fact that the employee receives one-time financial assistance and resigns at his own request. Such actions are a direct violation of the labor code of the Russian Federation.
The only situation when an employer can fire a pregnant woman is the liquidation of an enterprise or company. An employment contract cannot be terminated if the number of employees is reduced.
