Can they reduce maternity leave? Many women and their loved ones ask themselves a question with approximately the same content when they are planning a pregnancy or the woman is already in an interesting position. Their concerns are understandable and justified. Good job It’s not so easy to find one in a reputable company these days. It depends on how well the company’s management complies with the norms of the Labor Code of the Russian Federation. There are many cases where a pregnant woman or one on maternity leave was laid off or even fired. But according to the law, management has no right to do this. It is especially inconvenient to search when there is a small child waiting at home.
Is there a risk of dismissal?
The Labor Code of the Russian Federation clearly speaks about this. His Art. 256 emphasizes that when a woman goes on maternity leave and is on maternity leave, she retains her workplace. And the position, of course, should also remain with her, even if she returns from vacation after 3 years (and this is how long this vacation often lasts). The only exception is the complete liquidation of the company and the layoff of absolutely everyone who belonged to its staff. In other words, if the legal entity was liquidated. In other cases, the head of the company faces administrative liability, since he did not have the right to lay off a woman who is on maternity leave. It often happens that employers do not even inform their employees that they are being laid off. And three years later, after maternity leave, she is faced with the fact that her place has long been taken by another person. You can't do that. According to Art. 261 any termination of a contract at the initiative of an employer with an employee on maternity leave is simply unacceptable.
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What to do if the dismissal does take place?
What should a woman do if her employer still finds a way to lay her off after maternity leave? As soon as she finds out about the fact of layoff, contact the labor inspectorate. In addition, after being laid off, she can go to court to protect her rights. She is unlikely to return her position in this way, but it is quite possible to achieve financial compensation. What punishment is due to an employer for depriving a maternity leaver of her position? He will be charged a fine of 1 to 5 thousand rubles. If we are talking about an entrepreneur who is not a legal entity, the activities of his organization may be suspended for up to 90 days or he will be charged the same fine as for an official.
If the employer is a legal entity, then for deciding to lay off a woman who is on maternity leave, he faces a fine of 30 to 50 thousand or suspension of activities. Who holds an employer accountable for such an act against a woman on maternity leave? Officials labor inspection, not itself affected by the reduction.
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What if the company remains, but the position itself no longer exists?
Many people ask what to do if the company remains, but the services that the woman was involved with in her work are no longer available? In other words, there has been a reorganization: the company exists, but is now doing other things? By law, the position remains with the young mother. Even if this position itself no longer exists in the company.
This position is retained for at least the period of maternity leave. And, we repeat, the company’s management can terminate an employment contract without consequences for themselves only in the event of complete liquidation of the company.
If a woman has left good relationship with the employer, it makes sense for her to talk to him personally on this topic before going to the inspectorate and/or court and indicate, without conflict, this point in the law. If a woman’s position is truly no longer in the company, the employer must, by agreement with her, offer her another place to work, i.e. another position. This must be a position in the same organization that matches the qualifications and skills of the employee. It is important that he is obliged to warn her about this no later than 2 months before this fact. Moreover, if a young mother leaves maternity leave before the child is 3 years old, she should still retain this position. A woman on maternity leave is required to maintain her place of work until the vacation is over.
IN this issue the law is on the woman's side.
Not too often, but still sometimes the question arises: is a reduction during maternity leave acceptable? Let's consider this issue in detail.
What is maternity leave and how is it provided?
Reduction in maternity leave is possible only under certain circumstances
First, let's look at what maternity leave actually is, on what basis it can be obtained and what payments are due for it.
In the legislation, it should be noted, the term “maternity leave” is absent. This is a “popular” name for maternity leave, sometimes it also means parental leave until the child reaches one and a half or three years of age, but more often it is the first case. To avoid confusion, in this article maternity leave will be understood as maternity leave.
Procedure for granting leave
Before talking about whether maternity leave can be reduced, would it be good to understand how it is provided? This is not such a complicated procedure. An employee who becomes pregnant must register with a medical institution, and it is more profitable to do this early - when registering before twelve weeks, an additional small government payment is due. After receiving the results ultrasound examination the doctor sets an approximate date of birth and, based on it, issues a certificate of temporary incapacity for work. This sheet must be provided to the employer, on its basis an order will be issued for the enterprise, and based on the order, maternity payments will be calculated.
Duration of maternity leave
It should be noted that temporary disability due to pregnancy and childbirth is quite long. IN general case legislation provides employees with one hundred and forty days of such leave, and the maximum duration can be as much as one hundred and ninety-six days. Of course, it is quite difficult to manage for such a period without an employee, so usually during this time they either hire someone under a fixed-term employment contract, or redistribute responsibilities between those employees who are already available. The second option is fraught with the fact that the management of the enterprise may think that a maternity position is completely unnecessary if the remaining employees manage to work both for themselves and for the employee who went on vacation, which may lead to thoughts about reducing staff, which brings us to the main topic of this articles: reduction of maternity position.
Is it possible to fire an employee on maternity leave?
For those who are worried that they may be fired while on maternity leave, we assure you that your worries are in vain. Firstly, according to the law, it is impossible to fire a person while he is on vacation, and secondly, additional guarantees and protection against dismissal are provided for pregnant women and mothers of young children.
The only opportunity for an employer to lay off a woman on maternity leave is to liquidate the enterprise, but even in this case, the employee will need to be notified of the upcoming event at least two months before it, no later.
Therefore, theoretically, yes, dismissal during maternity leave is possible, but only in exceptional cases (liquidation of the company), and even if this happens, then the dismissed employee will have time to either find new job, with a more flexible schedule, or register with the employment center.
Retrenchment of an employee on maternity leave
Reduction of an employee on maternity leave is possible only upon liquidation of the enterprise
During the time that the employee is on maternity leave, a situation may arise that the staffing table will need to be changed and the position that is reserved for her will simply be reduced. Is it possible to file a dismissal in this case?
The answer here is clear - until the child reaches 3 years of age, dismissal this basis prohibited by labor law.
Retrenchment of an employee after maternity leave
Reduction after maternity leave is legal only if the child is already 3 years old
If the employee has already returned from maternity leave to work and the child is not yet 3 years old, she cannot be fired either.
In addition, dismissal at the initiative of the employer of women who are single mothers of children under 14 years of age and disabled children under 18 years of age is prohibited.
The remaining women who have children over 3 years of age and who are not included in the above categories can be fired:
- By at will– with two-week work;
- for staff reductions - with mandatory notification two months before the reduction;
- in connection with the liquidation of an enterprise - with mandatory notification two months before liquidation;
- under the article - if there were cases of gross violation of labor discipline on the part of the employee.
Employers often threaten mothers on maternity leave with layoffs in order to force them to go back to work. ahead of schedule, so every woman should know whether her position can be cut during maternity leave. The law does allow you to dismiss an employee on the basis of a reduction, but this is accompanied by exceptional grounds and additional legal guarantees for the protection of young families.
According to labor legislation, every person who is on parental leave for up to 3 years is guaranteed the preservation of his job. But in this way, a position is vacated at the enterprise that can be temporarily filled. The search for an employee for the specified position takes place in general procedure, but has its own characteristics. In particular:
- the employment agreement provides for a limited period of validity (it is indicated that the contract terminates from the moment the employee returns to work from maternity leave);
- extension of the agreement is impossible (the manager can draw up an additional agreement if he wants to keep the employee at his enterprise);
- temporary worker enjoys all conditions labor legislation(salary, vacation, sick leave compensation).
On the one hand, it is a positive experience for a new employee to undergo an internship in his specialty. In addition, filling a vacant maternity position is a chance to quickly find a job, rather than wasting time looking for income. On the other side of the scale is instability and the likelihood of being forced to terminate the contract at any time.
Occupying a seat
It is impossible to fire a woman who is on maternity leave due to the need to hire another person for a vacant position. But so that the place does not become empty and the work continues to be performed, temporary replacement of the vacant place is practiced. This is possible in three ways:
- receiving a person from the outside;
- transfer of employees of one enterprise between positions (permissible solely at the request of the employee);
- combining several jobs at an enterprise with one employee (allowed only by agreement of the parties and with an increase in wages).
Regardless of how the position will be filled until the employee on parental leave leaves, it will be vacated when the main worker leaves. Each of the temporarily hired employees has its own disadvantages. Thus, an outsider is constantly under threat of dismissal. Combining positions does not allow you to properly perform the main activity, and moving to different jobs does not provide the opportunity to acquire rich experience in one field of activity.
Read also Features of calculating an advance after a vacation
Reasons for reduction
Employers often wonder whether it is possible to reduce the position of a maternity worker during maternity leave? The law allows such a possibility, but only in one case – during the liquidation of the employer’s legal entity. All other attempts will be suppressed by the legislator, as a guarantee of the financial security of the young family. This applies equally to maternity leave and parental leave. What to do if the company has not escaped the crisis and the time has come for layoffs? Let's consider each of the possible options:
- reduction of a position that was occupied by a woman on maternity leave (an alternative name is elimination of the rate);
- selective reduction of workforce;
- cessation of existence legal entity;
- change in the organizational structure of the institution.
Staff reduction
When asked whether it is possible to dismiss an employee who is on parental leave due to a reduction in the number of employees, the legislator gives a negative answer. First of all, it should be noted that staff reduction is a selective reduction in the number of working forces of the enterprise. That is, there is no specific indication of the dismissal of certain employees. In such a situation, the decision about who to fire is made by the manager himself. Therefore, when compiling a list of persons with whom employment agreements will be terminated, the boss must know that it is impossible to lay off an employee who is on maternity leave. You can notify the woman and offer to write a statement of her own free will. But such a notice has only advisory content.
Cancellation of posts
It is possible that by order of senior management a decision will be made to completely remove a particular position, regardless of the person who occupies it. While in a position during its reduction, a maternity leaver can make one of the following decisions:
- write a statement of settlement at your own request or petition for termination of the rental agreement by agreement of the parties;
- write consent to transfer to another workplace.
Regarding issues of reducing the number of workers, the boss must notify the personnel on the list about this at least 2 months in advance. And employees on maternity leave are no exception. The notification is drawn up on official letterhead and requires a mandatory confirmation of receipt.
Liquidation
It is possible to dismiss an employee who is on parental leave only upon liquidation of the enterprise. Liquidation itself implies the removal of a legal entity from the list of PPs of the tax service. Thus, all work activities are stopped, financial accounts are closed and payments to the work team are stopped. This is the only case in which the dismissed employee can even be on maternity leave.
I don’t know what the leaders of organizations that are trying to think lay off an employee on maternity leave. Legally this is impossible. Reduce on maternity leave- this means getting a lot of hassle, a fine, paying the average salary to a woman for deprivation of the opportunity to work and compensation for moral damage. If a woman who laid off on maternity leave If you contact us, lawyers, you will 100% win your case. The employer will have to reinstate her and pay all amounts due!
Dear women! If your employer calls you and says that your position has been reduced while you are on maternity or child care leave, come and receive documents, then at least this unpleasant situation, but not hopeless. The employer is clearly wrong and breaking the law. What does this mean?
This means that you can file a lawsuit to restore your rights. You will be reinstated at work, you can demand compensation for deprivation of the opportunity to work in the amount of average earnings for the period from the day of dismissal to the day of reinstatement, compensation for moral damage. You can also claim the difference in child care benefits between what you should have received as a worker and what you received as an unemployed person. And this difference can be significant.
Can they be laid off while on maternity leave?? They can! But this is illegal! And this can only be done by an employer who does not know the laws and is not aware of the consequences, or one who expects that you do not know your rights or will not do anything.
But now you know your rights! That's what this article is for you! Read another one, from it you will learn that you belong to the category of workers who cannot be laid off.
It often happens like this: you want to get out of maternity leave, but the employer says that you have nowhere to go because your position has been reduced. Know that while you are on maternity leave, your position cannot be reduced and the employer is obliged to provide you with your previous position, whether he wants it or not.
Where to go if you were laid off while on maternity leave?
It is clear that a woman on maternity leave has no time for courts, lawsuits, etc. things. That is why there are specially trained experienced people - lawyers who will draw up a claim, and come to your home to conclude an agreement and obtain the documents necessary for the court, and will go to court for you, and will receive a court decision, a writ of execution, and will carry out everything other necessary procedures.
In particular, we work this way, knowing full well that it is difficult for you and a small child to deal with the process yourself. The services are naturally not free, but believe me, it's worth it. With our help, you can not only get back to work if you laid off on maternity leave, but also get money. In addition, the costs of our services will also be presented in court. If you do not have the funds to pay for our services right away, we can offer you an installment plan.
There is no need to pay state duty for such cases.
What is the deadline to go to court if you are laid off while on maternity leave?
The Labor Code sets a period of 1 month for the protection of violated rights in cases of dismissal. from the day the employee learned of the violated right. You can ignore phone notifications because labor code provided only written notices. If it suddenly turns out that the deadline has been missed, then you can restore it in court. After all, you have a good reason for missing: you are on maternity leave for a small child. So in your case, the court will most likely restore the term.
So, if you have been laid off while on maternity leave, contact us urgently.
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A maternity position is a temporarily vacated position due to an employee going on maternity leave. Although there is no official definition in the Labor Code of the Russian Federation for maternity pay, the HR department often encounters this aspect when arranging procedures for filling a maternity position and transferring to a maternity position. Let's study this issue comprehensively.
When an employee registers at the enterprise, a vacant temporary workplace is created. The manager can appoint a new employee to the agreed place by concluding a contract with him labor agreement with established terms of cooperation. In this case, a change in salary may be provided.
When applying for a job in place of a maternity leaver, it is worth taking into account the fact that the previous employee has returned to the position he retained. That is, a temporarily hired employee cannot count on permanent employment. Even if the employee decides to extend her leave due to pregnancy, the manager can enter into an agreement with the next applicant.
One of the options for extending leave is going on maternity leave from a maternity position, which is the basis for the employee to extend her fixed-term contract until the end of the new pregnancy.
During the period of vacation of the main employee, the management of the organization can conclude not only an employment contract, but also a fixed-term agreement with a temporary employee.
A fixed-term contract does not have a dated time limit. Moment of termination labor relations indicated by the main specialist returning from maternity leave. The absence of fixed dates is explained by the fact that the previous performer can return to his duties before the expiration of the designated period (No. 256 of the Labor Code of the Russian Federation).
For an employee who has entered into a fixed-term contract, there are positive nuances:
- Gaining work experience;
- Possibility of concluding a permanent agreement (if the employee has proven himself/herself properly);
- Providing labor rights:
- vacation period;
- salary in in full, according to the staffing table;
- compensation;
- benefits;
- benefits, etc.
The disadvantages include:
- Lack of stability;
- During pregnancy:
- loss of position (the working agreement is extended until the end of pregnancy and childbirth and the subsequent termination of the contract);
- non-enrollment of experience;
- loss of established payments for child care.
Transfer to maternity position
Often, companies with a well-established team avoid the influx of new labor. Then the manager can offer temporary work duties to a specialist with whom an employment agreement has already been concluded. With such a staffing change, the terms of the contract do not change, that is, the temporarily occupied position does not cancel the previous and corresponding salary. The employee is assigned other job responsibilities for a certain period.
Transfer to a maternity position can only be carried out by agreement of the parties. Consequently, an employee who has agreed to temporarily take a maternity position is more protected by the Labor Code of the Russian Federation than a newcomer.
Filling a maternity position
It is worth noting the practice of substitution within the enterprise. The essence of the process is for the employee to perform the duties of a maternity position without ceasing his main activity. This is possible when concluding additional agreement indicating the amount of the surcharge. If the replacement took place without maintaining the main responsibilities, the salary amount will correspond to the temporary position. All nuances are discussed and recorded in the additional agreement.
Filling a maternity position is accompanied by a corresponding order from the head of the organization and is displayed in the employee’s personal file (marks in work book are not included). The substitute employee is listed only in the main position in all documentation of the enterprise.
The disadvantages of substitution for an employee include:
- The experience in the new place is not credited.
- Risk of loss of qualifications corresponding to the main place of employment.
Reduction at the end of maternity leave
At the end of the maternity period, when returning to work, the returning employee may be laid off. If an employee, having closed the maternity leave period, went to work and began registering a leave period to care for a child, then the manager can take advantage of the day the woman was present at work and begin the process of dismissing her.
It is to begin the process of dismissal, and not to fire. The justification could be:
- Personal initiative of the employee (mandatory 14-day work).
- Staff reduction (mandatory notice of at least two months).
- Liquidation of the enterprise (notify the employee at least two months in advance of the liquidation of the organization).
- In accordance with the article of the Labor Code (the fact of a gross violation of work discipline has been established).
It should be taken into account that the Labor Code of the Russian Federation, art. 261 especially protects:
- Employees who are raising a child no older than three years old.
- Single mothers raising:
- a disabled child under 18 years of age;
- children under 14 years of age.
These workers cannot be fired on the initiative of the head of the institution. In this case, the legislation of the Russian Federation provides for two options for terminating an employment agreement:
- personal desire of the employee;
- liquidation of the enterprise.
Reduction of maternity position
Is it possible to reduce a maternity position? This question causes concern among employees. A reduction in maternity position is possible, but worries about dismissal are in vain. The Labor Code of the Russian Federation guarantees the preservation of their jobs for employees on leave during pregnancy.
The only option that is possible is the liquidation of the employer's company. In this case, the manager is obliged to notify the employee of upcoming events at least two months in advance.
During an employee's maternity leave staffing table the enterprise may require changes, during which the assigned staff position may be reduced. In this case, it is also necessary to notify the employee in advance. The dismissal itself can be formalized only after the end of the employee’s vacation.
Before terminating an employment agreement, a woman must be offered another position in the company. The work schedule and salary of the position offered is subject to change. The extension of the employment relationship depends on the desire of the employee.
