The concept of maternity pay: advantages and disadvantages, dismissal procedure

An employer can enter into employment contracts with its employees without specifying a term or formalize long-term cooperation. But many enterprises often employ temporary workers who work under fixed-term employment contracts. The need for cooperation for a certain period of time can arise for various reasons; the most common is the employee going on vacation due to the upcoming addition to the family. Employment on this basis is commonly referred to as “maternity pay.”

Working in such a position has its advantages and disadvantages, as well as certain nuances associated with legislative registration.

Maternity pay: what is it and what are the features of the work?

There is no official definition in the Labor Code (hereinafter referred to as the Labor Code) for maternity leave. But in modern colloquial speech this is a very common term, firmly entrenched since Soviet times. Labor legislation undergoes periodic changes, but the name “maternity rate” remains unchanged. This is the name given to a vacancy opened for the position of an employee who has decided to interrupt his or her work activity by taking maternity or child care leave. In common parlance, these two leaves are called maternity leave, and the employee who took advantage of them is called a maternity leave.

Only maternity leave has a strictly defined duration in Article 255 of the Labor Code of the Russian Federation. It is documented by a sick leave certificate of 140 calendar days (70 before birth and 70 after birth) for a singleton pregnancy and 194 calendar days for a multiple pregnancy (84 before birth and 110 after birth).

At the end of postpartum leave, a woman or another relative who is actually looking after the baby can go on maternity leave to care for a child up to 3 years old. Here, the duration of the employee’s absence depends on life circumstances. The employee has the legislative right to leave parental leave on any day at will, after which he can continue to work full-time or part-time. Therefore, his potential deputy is employed for a period depending on the actual duration of the maternity leave.

Legislative meaning of maternity rate

The maternity rate is active only during the period of maternity absence of an employee who is the main employee for the employer. Therefore, for the duration of the maternity leave, a fixed-term employment contract is concluded with the potential deputy. A clear end date is not indicated, but is strictly tied to maternity absence. Termination of the agreement occurs upon the completion of one or two events at once at the request of the main employee.

Maternity leave cannot be shortened, but the number of days in it is extended in case of complications during childbirth. Parental leave, on the contrary, is curtailed in accordance with the wishes of the maternity leave. In fact, the main employee can leave it at any time, without even notifying the employer ahead of time. On the same day, personnel are obliged to dismiss the replacement employee due to the expiration of the contract. At the request of the management, the specialist can be left in the company, transferred to another vacant position with his consent.

Country of Soviets

• the short-term nature of such work. The main reason for this factor is that the maternity leaver has the opportunity to use maternity leave not in full or not to use it at all, which is expressed in going to work after the end of the leave period justified by childbirth. Maternity leave is 3 years. This means that the maximum duration of a temporary employee's employment will be just over 3 years;
• inability to determine the exact completion date of the contract. This circumstance forces the employer not to set a specific date for termination of the employment contract, but to determine it by indicating an event related to the termination of maternity leave for the main employee. The employer cannot have any idea at what point the employee will want to leave maternity leave;
• the presence of a minimum level of protection of the rights inherent in employees. The uncertainty of the term of the employment contract is a reason for the employee to be in a state of constant readiness for dismissal. At the legislative level, there are no requirements for the need for an employee to notify her employer in advance. As a result, the employer has no obligation to notify the temporary employee of the upcoming termination of his activities;
• a complete lack of guarantees associated with dismissal, which is expressed in the reason for dismissal, which is not justified by the employer’s initiative, but is associated with circumstances that cannot always be foreseen. Under these circumstances, those employees who have special social protection are also subject to dismissal, and such dismissal is carried out without the provision of compensation, with the exception of compensation associated with unused vacation.

• reduction of requirements for a candidate, which is justified by the need for temporary replacement of an employee and the urgency of finding a replacement person;
• the opportunity to gain additional professional experience, as well as an official record of employment, which can be a help for further work in other companies;
• keeping the employee in the personnel reserve. This method is used in many modern companies for the purpose of personnel selection;
• the possibility of going on maternity leave, as well as taking annual leave and earning the same amount as a permanent employee.

About the advantages and disadvantages of betting

For a potential candidate, a maternity rate with a fixed-term employment contract has both pros and cons. It is necessary to take into account all the nuances when considering a temporary vacancy.

Significant disadvantages for an employee replacing a maternity leaver

The disadvantages include:

1. The duration of the agreement is not determined by a clear time frame . This creates an unstable position in the company for the replacement employee; in fact, he does not know when he will be fired.
2. High risk of losing social guarantees enshrined in legislation . For example, an employee on maternity pay is not protected from dismissal during pregnancy until she is issued sick leave for prenatal and postnatal leave.
3. The position is always retained by the main employee. Management does not have the right to dismiss a woman on maternity leave, even if the employee replacing her is more competent in her position in terms of competencies.

An employee on maternity pay does not receive any additional payments upon dismissal, except compensation for unused vacation. It does not take into account that it may be a socially unprotected person, for example, a pregnant woman, a parent of a disabled child or a single mother of young children.

Advantages for a candidate applying for a maternity position

Employment on maternity leave has not only negative aspects, but also significant advantages compared to working under an indefinite employment contract. The advantages include:

1. There is no strict selection of candidates for the position. An ordinary citizen may not be able to find a job in stable, competitive companies. It’s not uncommon for a vacancy on maternity leave to provide a good chance to become a specialist at an organization you like without strict personnel selection. The temporary nature of the job reduces the requirements for the length of service, experience and qualifications of the applicant. The probationary period may either be absent or greatly reduced.
2. Opportunity to gain valuable experience. This is especially true for young people starting their working career. Working on maternity leave will allow you to gain experience, which will be a good help in future employment and will allow you to build a future career.
3. Employers rarely part with good specialists . Therefore, if a company has a suitable permanent vacancy, it is more likely to be filled by an employee who has already been tested on maternity leave than by an unknown specialist “from the street.” In practice, this is what usually happens: after the main employee returns from maternity leave, his qualified deputy is transferred to another vacant position in the company.
4. Temporary work provides labor guarantees. It allows you to enjoy all the advantages of official employment. An employee replacing a maternity leaver has the right to a full social package, as determined by Russian labor legislation and the Collective Agreement in the company. He, if necessary, can use all absences available for permanent employment, and all work experience is accrued in the general manner.

The salary of an employee in a maternity position should not be lower than the salary or tariff determined in the staffing table. A temporary employee is entitled not only to a monthly salary, but also to all bonus payments from the company.

Can they fire me?

A pregnant woman goes on maternity leave according to the general rules established at the legislative level. The expectant mother cannot be fired on the initiative of management. So, if a maternity leaver returns from vacation, then the woman working in her place vacates her position.

If a certificate confirming pregnancy is presented, the employer is obliged to offer another place. If the expectant mother is not satisfied with it, then she should formalize the refusal in writing.

If a woman working in a maternity position goes on maternity leave before the main employee leaves, then the day of her dismissal will be considered the first day she returns to work. The employment agreement is terminated automatically.

Transition from maternity rate to basic rate

An employee replacing a maternity leaver has the opportunity to receive a permanent salary on the organization’s staff. This can happen either at the request of the employer or for independent reasons, when a maternity position may become vacant if the main employee decides to quit. But even if he continues to work after maternity leave, the employer, noticing the high competence of the temporary employee, may not want to part with him. In fact, this is what happens. If the company has a vacant position with a salary acceptable to the employee and qualifications that suit him, then it is possible to move to it through a transfer.

It is also optimal to carry out the dismissal procedure due to the expiration of the employment contract, and then hire an employee for the vacant position. If you initiate the transfer procedure, then you also need to change the type of contract (from fixed-term to indefinite). Both options are correct and acceptable. The final decision is made by the employer in accordance with the capabilities of the company; it is not always possible to terminate the dismissal without loss for the employee. For example, in many organizations bonuses depend on length of service in the company. In order not to interrupt this length of service, a transfer procedure is initiated with a change in the type of employment contract.

In accordance with Art. 58 of the Labor Code, if the term of the employment contract has expired, but the employee continues to work, then such a contract acquires the status of an unlimited term.

How is it different from the usual one?

The maternity rate is different from the regular rate. It is important to compare these two concepts. The difference is quite significant and highlights all the advantages and disadvantages of each employment option. The differences and common features are shown in the table below.

What are the options for transferring an employee from permanent to maternity leave?

It is legal to transfer an employee to maternity leave only with his consent. There are two possible options under the law:

1. Constant translation. As a result of a permanent transfer, the position actually changes, and with it the type of employment contract (from open-ended to fixed-term), which practically does not occur in life. Although an employee can, if he wishes, in this way replace a colleague who has become a parent, he must be aware that in the future this may cost him a guaranteed return to his previous position.
2. Temporary transfer. Usually this is what is meant by the phrase “transferring an employee to maternity leave.” It makes it possible, after a while, to return to previous working conditions. To do this, an additional agreement to the contract is drawn up, and an order for a temporary transfer is issued, strictly tied to the end date of the main employee’s maternity absence. There is no time limit for this transfer. This means that an employee can replace a maternity leaver for any period of time. It is not uncommon for the latter to go on prenatal leave again without starting the work process. The only drawback in the current conditions is that temporary transfers are not recorded in the work book, so the experience gained cannot be officially confirmed.

In accordance with Art. 72.2 of the Labor Code, a temporary transfer acquires permanent status if, after its completion, the employee continues to work in the same position. This is possible if the woman on maternity leave voluntarily, then the deputy takes her position.

Is it permissible to be dismissed from maternity leave?

A maternity deputy is subject to dismissal on a general basis, like any other employee of the enterprise, if there are appropriate legal grounds for this. The employment contract is terminated before its expiration. An employee has the right to initiate dismissal from maternity leave at his own request, notifying the employer in advance, no later than 2 weeks.

Dismissal from a maternity position due to staff reduction is unacceptable. In accordance with Article 256 of the Labor Code, an employee on parental leave retains his position. And Article 261 prohibits layoffs of women with children under 3 years of age. Therefore, the maternity rate will remain in the staffing table despite any reduction in numbers. This means that the employee who is in it does not need to worry - he cannot be forced to leave the position before the employment contract expires.

Maternity leave from maternity place

When accepting a woman of reproductive age to take the place of a maternity leaver, we cannot exclude the possibility that she will also want to soon become a mother. The employer's options differ in the duration of the employment contract:

1. If at the time of expiration of the contract the employee does not have a sick leave certificate (for the prenatal and postpartum parts), the employer has the right to dismiss her if there are no vacancies suitable for a pregnant woman on the company’s staff.
2. During the prenatal and postnatal parts of the leave, dismissal of an employee is not permissible, even if the employment contract expired during the period of sick leave. All payments from the Social Insurance Fund in this case “fall” on the shoulders of the employer. The employee is also entitled to all maternity benefits determined by the company’s Collective Agreement.
3. If at the time the certificate of incapacity for work expires, the contract has not expired, then the replacement employee who gave birth has an excellent opportunity to go on paid maternity leave. It will last until the day the main employee’s maternity leave ends.

An employer has the right not to grant an employee on maternity leave to care for a child up to 3 years old. Many lawyers notice that Article 261 of the Labor Code allows the agreement to be terminated from the date of birth. Therefore, in paragraph 27 of the resolution, the Supreme Court dated January 28, 2014 No. 1 clarified the situation - in the event of the birth of a child, the agreement is extended until the date of closure of the certificate of incapacity for work. In other situations, when the birth of the baby did not take place, the employer has the right to dismiss the employee within a week from the moment he learned about it.

When choosing whether to work on maternity leave, a potential candidate should consider all the advantages and disadvantages associated with the upcoming employment. Of course, there are advantages to such work, but it is optimal to accept a maternity position for those people who do not expect long-term cooperation with the employer, but are confident in their qualifications and competencies. Under favorable circumstances, good people have a chance to get a permanent position in the company, and a temporary position will provide valuable experience and, probably, good benefits.

LABOR CONSULTANT

• the short-term nature of such work. The main reason for this factor is that the maternity leaver has the opportunity to use maternity leave not in full or not to use it at all, which is expressed in going to work after the end of the leave period justified by childbirth. Maternity leave is 3 years. This means that the maximum duration of a temporary employee's employment will be just over 3 years;
• inability to determine the exact completion date of the contract. This circumstance forces the employer not to set a specific date for termination of the employment contract, but to determine it by indicating an event related to the termination of maternity leave for the main employee. The employer cannot have any idea at what point the employee will want to leave maternity leave;
• the presence of a minimum level of protection of the rights inherent in employees. The uncertainty of the term of the employment contract is a reason for the employee to be in a state of constant readiness for dismissal. At the legislative level, there are no requirements for the need for an employee to notify her employer in advance. As a result, the employer has no obligation to notify the temporary employee of the upcoming termination of his activities;
• a complete lack of guarantees associated with dismissal, which is expressed in the reason for dismissal, which is not justified by the employer’s initiative, but is associated with circumstances that cannot always be foreseen. Under these circumstances, those employees who have special social protection are also subject to dismissal, and such dismissal is carried out without the provision of compensation, with the exception of compensation associated with unused vacation.

• reduction of requirements for a candidate, which is justified by the need for temporary replacement of an employee and the urgency of finding a replacement person;
• the opportunity to gain additional professional experience, as well as an official record of employment, which can be a help for further work in other companies;
• keeping the employee in the personnel reserve. This method is used in many modern companies for the purpose of personnel selection;
• the possibility of going on maternity leave, as well as taking annual leave and earning the same amount as a permanent employee.

07 Jun 2021 etolaw 369
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