Current legislation allows the employer to independently decide on the layoff procedure. The main requirement is the availability of evidence of the validity of these actions. Retrenchment of a parent of a disabled child is possible only in exceptional cases provided for by law. Otherwise, the employee will be able to challenge the dismissal in court.
Can parents be fired?
The legislation of the Russian Federation ensures that an employee has the opportunity not to tell the employer that he has a disabled child in the family . But if you hide this during employment, then you can not count on the benefits provided by the Labor Code of the Russian Federation.
One of these benefits is special conditions between the enterprise and the employee regarding dismissal issues. Can a woman who is a mother be fired or a father raising a child with a disability be laid off?
At the initiative of the employer
Article 81 of the Labor Code of the Russian Federation explains in which cases an employer, on its own initiative, can dismiss an employee. In simple words, it is used when a mercenary is fired against his will. The article has 14 points, but it does not in any way highlight the separate status of workers with disabled children.
Article 261 of the Labor Code of the Russian Federation states that the dismissal of an employee who is the sole breadwinner of a disabled child under the age of 18 is not allowed . But this does not mean that the employee should not adhere to the internal rules of the enterprise and labor discipline. The same article indicates exceptions to the rule - except for paragraphs 1, 5 - 8, 10, 11 of the first part of Article 81, or paragraph 2 of Article 336 of the Labor Code of the Russian Federation.
Thus, an employee with a disabled child can be dismissed at the initiative of the employer for the following reasons:
- termination of the activities of a private entrepreneur or liquidation of an organization;
- violation of labor discipline by an employee with a disabled child, as well as failure to fulfill duties;
- one-time gross violation of labor discipline;
- a single gross violation by the head of the organization of labor duties (in the case where a worker with a disabled child holds this position);
- provision by the employee of inauthentic documents when drawing up an employment contract.
In other cases, dismissal at the initiative of the employer is impossible.
Clause 6 of Part 1 of Article 81 indicates the possibility of an enterprise to dismiss a worker for violation of discipline, namely:
- absenteeism, that is, absence from the workplace for one work shift without valid reasons (regardless of its duration) or 4 hours during a work shift;
- appearing at the workplace (at an enterprise or other workplace on behalf of the employer) in a state of toxic, alcoholic or drug intoxication;
- disclosure of secrets (state or commercial), as well as transfer of data of another employee to third parties;
- committing theft (even minor) at the place of work, as well as destruction, damage and embezzlement;
- violation of labor protection in the case where such actions entailed serious consequences;
- committing actions that resulted in the employer’s distrust of the employee, if the latter is related to monetary or commodity values.
We recommend that you read our other articles about whether you can be fired from your job:
- pregnant;
- on maternity leave;
- after maternity leave;
- single mother;
- parents with many children;
- if there is a minor child.
At your own request or by agreement of the parties
At any time , an employee who has a disabled child can resign of his own free will . Article 80 of the Labor Code of the Russian Federation states that after expressing a desire to leave work, the worker undertakes to fulfill his work duties for another 2 weeks. They are needed so that the company finds a new employee and does not incur losses due to labor shortages.
Part 3 of Article 80 states that a worker may not work for two weeks if he cannot continue to perform his job duties. There is no clarification regarding the presence of a disabled child in this norm. But if you attach to the resignation letter a certificate from the attending physician stating that the child needs constant care. No employer would want to have lawsuits over this and would not keep the person.
Important! In practice, enterprise managers often fire a person immediately without a doctor’s certificate if the worker’s personal file contains information about the presence of a disabled child.
In the legislation of the Russian Federation, there is no possibility to resign in connection with caring for a disabled child, therefore the work book will indicate the reason “at one’s own request” in accordance with paragraph 3 of part 1 of Article 77 of the Labor Code of the Russian Federation.
Notice of dismissal is submitted by the employee in writing to the director or other official replacing the person performing his duties. It must indicate the reason specifically “to care for the child.”
It can be registered 2 weeks before the required date of dismissal or directly on the day of dismissal. In cases where it is not possible to submit an application in person (for example, while on parental leave), you can send it by registered mail.
Read more about the nuances of dismissal of women and men with a child under 14 years old, as well as how to write an application in our material.
By reduction in number or staff
Reducing the number of staff is a legal way to fire a person on the initiative of the director of an enterprise or a private entrepreneur. If mothers with disabled children are laid off, then there is no point in opposing anything to the authorities. If you file a lawsuit, it will always be on the employer’s side. But the legislation of the Russian Federation provides protection from layoffs for certain groups of people.
Part 2 of Article 81 provides for the possibility of dismissing employees at the initiative of the employer in connection with a reduction in the number of employees . But Article 261 of the Labor Code of the Russian Federation lists certain groups of people whose dismissal is unacceptable. Among this list there is also a worker with a disabled child. It is worth noting that the same article lists exceptions to this rule, but part 2 of article 81 is not there.
IMPORTANT! If an employer fires a worker with a disabled child, this is grounds for filing a lawsuit.
Liquidation of the enterprise
According to Part 1 of Article 81 of the Labor Code of the Russian Federation, an enterprise or private entrepreneur may, on its own initiative, dismiss a worker due to liquidation or reorganization.
As already mentioned, Article 261 of the Labor Code of the Russian Federation states that a worker with a disabled child cannot be fired, but there are several exceptions to this rule.
Part 1 of Article 81, which defines the possibility of dismissal at the initiative of an enterprise or private entrepreneur, is precisely one of such exceptions.
The dismissal of a person with a disabled child due to liquidation or reorganization will be completely legal and not subject to appeal.
Dismissal due to reduction
The reduction entails a reduction in the number of jobs, and therefore the number of employees. In these circumstances, the mother of a disabled child has a certain privilege. To begin with, the employee must be offered a similar position with an appropriate salary in this organization or in another structural unit, branch, or city. For this category of employees with benefits, the following algorithm for the dismissal procedure due to job reduction is provided:
- familiarization of the employee with the order;
- providing options for transfer to another position;
- registration of translation in case of consent.
Sometimes circumstances develop in such a way that an employee may be offered a job in another city or simply far from his place of residence. Sometimes an employee may not be qualified or not satisfied with the salary level. Therefore, the employee has the right to refuse the offered vacancy and terminate the contract on his own initiative. But it is worth remembering that without consent, dismissal due to redundancy is impossible.
How to remove a mother or father from activities?
If an employee with a disabled child violates any exception to the general rule about the inadmissibility of firing a certain group of people, he can be legally fired. Namely:
- violation of labor discipline;
- providing the employer with inauthentic documents when preparing documents during hiring;
- showing up at work while drunk.
For other subjective reasons, this group of people cannot be fired. But if at least one point is violated, the procedure for legal dismissal can begin.
Step-by-step instructions for dismissal:
- Recording the fact of violation. For this purpose, the enterprise maintains a time sheet. Work colleagues also submit reports indicating when the person was not at work, that he was intoxicated, etc.
- Checking the deadlines for applying disciplinary action. Article 193 of the Labor Code of the Russian Federation states that disciplinary sanctions are applied no later than one month from the date of the incident.
- Drawing up an explanatory note from the violator. Prepared by the employer in two copies, one for each party.
- The employer checks the severity of the offense and the presence of a valid reason for the violation committed by the offender.
- Drawing up an order or notice of dismissal.
- Registration of an order.
- Familiarization of the employee with the order.
- Drawing up a settlement note.
- Payment to the employee. Payment of all amounts due to the employee must be made on the day of dismissal. If he did not work on that day, then the money must be paid no later than the next day after submitting demands for payment.
If disputes arise about the amount of payments, the employer must pay the undisputed amounts according to the above rules.According to Article 127 of the Labor Code of the Russian Federation, the employee must be paid all amounts of unused vacation. Wages must also be paid for all hours worked.
- Recording information about dismissal in a personal card and work book. A former employee of the company certifies this data with a personal signature. In paragraph 12 of the “Rules for maintaining and storing work books...” the employer undertakes to familiarize the employee, under his signature, with a new entry in the work book and personal card, where all entries are duplicated.
- Creating a copy of the work book for the enterprise archive.
- A work book is issued to an employee on his last working day. If the employee is not present on the day of dismissal or refuses to accept the work book, then the employer must give permission to send it by mail. If the employee himself wrote an appeal regarding the issuance of a work book, then it must be issued within three working days from the date of such appeal.
- Issuance of a certificate with the amount of earnings.
To draw up a dismissal order, as a rule, they use the T-8 sample, approved back in 2004. But the law does not prohibit the use of other options.
Such a document consists of:
- name of the company according to its charter;
- number and date of creation of the order;
- details of the employment contract;
- date of dismissal;
- Full name of the employee and all data on the work (position, personnel number, etc.);
- information about dismissal.
Notice of termination of an employment contract is issued by the employer in the following form:
- in the header we indicate the full name of the employee and his address, as well as the details of the company;
- in the middle the title of the document: “Notice of termination of the employment contract ...” and indicate the reason;
- notification text;
- date and signature.
An application for resignation of one's own free will is drawn up by the employee in the following format:
- in the header we write from whom and to whom such a statement is written;
- in the middle is the title “Statement”;
- Below we indicate in the paragraph information about the desire to resign and the date of dismissal;
- signature and date of the application.
Liquidation of an organization
If an organization ceases its activities, dismissal threatens all employees without exception, including parents of disabled children. Termination of an employment contract upon liquidation of a company must be carried out in the following order:
- written information to employees about the termination of the company's activities, indicating the reason that served as the basis for this;
- obtaining the employee's consent against signature;
- termination of the contract and payment of the settlement.
Thus, the procedure is described in the event that an organization is completely liquidated and ceases its work. This situation does not include resale of the company to others for any reason.
Attention! Such grounds for dismissal cannot be regarded as the employee’s fault. Each dismissed person must receive the required compensation from the employer, since the loss of a job in these circumstances is strictly the responsibility of the employer.
Documents proving disability
The Labor legislation of the Russian Federation provides several benefits for an employee with a disabled child. In order to receive such benefits, an employee must provide upon hiring a child’s birth certificate and documents confirming his illness.
The decision of the medical and social examination (MSE) serves as a supporting document . A disability certificate can be issued for different periods (from one to three). If the ITU has expired and the employee has not presented the employer with a new document, then he does not receive benefits.
Termination of a contract with the mother of a disabled child during the probationary period
The employer has the right to establish a probationary period for the mother of a disabled child. This category of employees has the same conditions for passing the employment test in comparison with other employees. The exception would be when the mother is raising the child alone.
Another thing is that if the fact of being a dependent child with disabilities was the reason for refusing to hire, then this decision of the employer is not justified and can be challenged in court. This restriction of the applicant’s labor rights has no legal basis. In this case, in order to appeal the employer’s decision in court, you should request a reasoned refusal in writing.
If you were fired illegally
There are several instances to protect your rights in case of illegal dismissal. You can contact the State Labor Inspectorate, the Prosecutor's Office, and the judicial authorities.
Before you go to write a statement of violation, you need to collect all the necessary documents, namely:
- a copy of the dismissal order;
- confirmation of the grounds for dismissal.
Important! Upon a written request from a dismissed employee, the employer undertakes to issue all documents within 3 days.
What are the consequences of illegal actions?
After the dismissal is declared illegal, the employee is reinstated to his job . The basis for this is a court decision or a proposal from a prosecutor or labor inspector. The enterprise issues an order declaring the dismissal illegal.
The employer may then be subject to penalties. This decision is made by the court or labor inspectorate in accordance with Article 5.27 of the Code of Administrative Offenses of the Russian Federation. For enterprises, the fine varies from 30 to 50 thousand rubles, and for private entrepreneurs - from one to five thousand. In especially serious cases, the official is suspended for a period of 1 to 3 years.
Thus, we can conclude that the legislation of the Russian Federation in the field of protection of workers who have disabled children is quite strict in relation to employers. It is very difficult to fire an employee who has good information to protect himself from illegal dismissal without his desire.
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Unpaid leave
The right to additional leave at any time convenient for the parent is established by Article 263 of the Labor Code of the Russian Federation. There are the following options for using the provided days:
- Joining the main leave (performed on the basis of a written application).
- Division into parts.
- Use all 14 days at once.
IMPORTANT! If an employee does not use his right in the current year, the vacation will not be carried over to the next year.
The following rules apply for granting additional leave:
- Its total duration cannot be more than 2 weeks.
- All vacation days are unpaid.
- The employee determines the vacation period in accordance with his own ideas. For example, he can go on vacation for a week in the first half of the year, and add the remaining week to his main vacation. The main thing is that the total duration of such weekends does not exceed 2 weeks.
IMPORTANT! All of the above points also apply to those parents who work part-time. At the second place of service, their employer is also obliged to comply with the requirements of Article 263 of the Labor Code of the Russian Federation.
Employer's liability
For non-compliance with the rights of the above categories of parents when staffing or numbers are reduced, the manager bears responsibility in the form of: by a court decision (if a wrongfully dismissed employee goes to court), the laid-off employee will be reinstated in his position - in this case, the verdict is rendered almost automatically, it cannot be refuted (Article 234 Labor Code of the Russian Federation).
In this case, compensation for moral damage may also be required (Article 237 of the Labor Code of the Russian Federation) and payment of wages for the period of forced absence.
Having read this information, as an employer you now know the risks of hiring parents, and as an employee with one of the statuses listed above, you know your rights. We hope you find this useful in your work life.
When will work be required?
According to Art. 80 of the Labor Code, the employer is required to notify the employer of his intentions to terminate the employment relationship 2 weeks in advance. However, this rule does not mean that the organization will require to carry out functions all this time. In the case of good relations between the manager and the subordinate, the boss has the right to release the citizen before the expiration of the term. Most often, the situation related to the need to care for a disabled child makes it possible to leave work without working.
If the period of work coincides with the period of absence of the employee due to disability, the number of days is not added. Until the period expires, the citizen has the right to withdraw his resignation letter.
