Dismissal for caring for a disabled child: can a parent with such a child be dismissed from work, how to leave at his own request, and an application, entry in the employment record

Author of the article: Vladimir Danilevsky Last modified: January 2021 6151

Dismissal to care for a disabled child is a procedure associated with impeccable compliance with the law. Parents raising a minor with disabilities experience a much greater burden than other workers. Children require constant care, which, sooner or later, may lead to the need to resign from their position. The article will describe in detail the nuances of this procedure.

Can a parent with a disabled child be fired from work?

The parent of a disabled child can be dismissed from work either at his own request or at the initiative of the employer. However, in the latter case, this is possible only if there are certain legal grounds. Also, the head of the organization has the right to dismiss such an employee by agreement of the parties (Article 78 of the Labor Code of the Russian Federation).

The period of caring for a disabled child after dismissal is included in the insurance period of the dismissed employee of the organization.
However, only the time spent caring for such a patient until he reaches the age of 18 is taken into account (Part 6, Clause 1, Article 11 of Federal Law No. 173 of December 17, 2001).

Social measures

Every citizen who has a disabled person under 18 years of age in their care has the right to count on benefits and additional guarantees at their place of work. After providing the necessary certificates and documents, he is entitled to:

additional leave without pay for a period of 14 days;
4 paid days off monthly;
120 days of paid sick leave per child per year;
Possibility to set a shortened work schedule if desired.

A mother with a sick child cannot be sent on a business trip without her consent, forced to work the night shift, or work on weekends or holidays. Having decided to leave the company, this category of employees also has privileges.

How can a father or mother resign due to this?

There are 3 ways to resign due to the need to regularly care for a disabled child:

At your own request.
At the initiative of the employer.
By agreement of the parties.

As practice shows, such dismissal is often carried out on the initiative of the parent of a disabled child.

At your own request

If the parent of a disabled child leaves work on his own initiative, then his dismissal should be carried out in the following order:

Advance notification by the employee to his manager of the decision made. Moreover, the management of the company (enterprise) must be notified 2 weeks before the day of dismissal (Article 80 of the Labor Code of the Russian Federation).
Drawing up a resignation letter by an employee. This document is drawn up in any form.
Issuance by the employer of an order (instruction) to dismiss an employee. This document specifies the required details and other information from the certificates provided by the resigning employee. In addition, the order must be given to the employee for review (under signature).
Carrying out final settlement with the employee (Article 84.1, 140 of the Labor Code of the Russian Federation).
Registration by the personnel officer of the corresponding entry in the employment record of the resigning person.
Issuing a work book to the employee.

For failure to meet the deadlines for transferring payments due upon dismissal, the employee is entitled to monetary compensation in the form of interest on the delay. In such a situation, the employer is held liable under Art. 236 Labor Code of the Russian Federation.

At the initiative of management

The parent of a disabled child may be dismissed from work at the initiative of the employer. The procedure for dismissing such an employee in such a situation is as follows :

Written notification to the dismissed employee of the upcoming dismissal against signature. Moreover, this must be done no less than 3 days before the day of cancellation of the employment contract or agreement as usual (Article 79 of the Labor Code of the Russian Federation) or 2 months before the day of dismissal in case of liquidation of the company or reduction of staff (Article 180 of the Labor Code of the Russian Federation). The notice period depends on the conditions of the employee’s dismissal.
Issuing the relevant order and familiarizing the dismissed employee with it against signature.
Filling out the work book of the dismissed employee.
Carrying out the final calculation and issuing the work permit to the dismissed person.

However, the parent of a disabled minor can be dismissed at the initiative of the employer only on the following legal grounds :

Upon liquidation of a company (enterprise) or individual entrepreneur (Part 1 of Article 81 of the Labor Code of the Russian Federation).
For regular evasion of labor duties, if a disciplinary sanction was previously imposed on an employee of the company (enterprise) (Part 5 of Article 81 of the Labor Code of the Russian Federation).
For violation of labor regulations by an employee servicing inventory items. Such dismissal is permissible only if the employer loses confidence in the employee (Part 7, Article 81 of the Labor Code of the Russian Federation).
For immoral behavior during working hours. This rule applies only to a parent working as a teacher, or another official performing labor duties in raising children (Part 8 of Article 81 of the Labor Code of the Russian Federation).
Due to the presentation of false documentation to the personnel officer (Part 11 of Article 81 of the Labor Code of the Russian Federation). One of these certificates, in particular, may be a certificate of disability (Certificate of Disability) with forged signatures.
For certain gross violations of labor discipline established by Part 6 of Art. 81 of the Labor Code of the Russian Federation (for example, for absenteeism, appearing at work in a state of drug or alcohol intoxication, theft of organization property, etc.).
After the expiration of the contract for seasonal work or a fixed-term employment contract (Article 79 of the Labor Code of the Russian Federation).
When canceling an employment contract drawn up with a dismissed person for the duration of the performance of official duties of the main employee (Article 79 of the Labor Code of the Russian Federation).
For the use of violence against students - for teachers (Part 2 of Article 336 of the Labor Code of the Russian Federation).

Also, if a reduction in the number of employees (staff) is planned, the employer does not have the right to lay off an employee who is the sole breadwinner of a disabled minor child (Article 261 of the Labor Code of the Russian Federation).

Is it possible to be fired legally?

All issues related to the termination of an employment contract are spelled out in Article 81 of the Labor Code of the Russian Federation. According to it, the mother or father of a child with a disability can be fired only in four cases:

if the employee periodically seriously violated the work process - did not go to work without a good reason or did not meet the company’s professional suitability;
upon liquidation of an enterprise;
if he decided to terminate the contract on a voluntary basis;
when staffing is reduced.

If an employee goes to work on time and copes with his responsibilities, then no one has the right to deprive him of his job. For a disabled mother, there is one exception, unlike other workers; due to serious family circumstances, minor violations in the labor process are permissible for her. For this, the employer does not have the right to fire, but may demote or deprive of bonuses.

How can an employee, if he has a disabled child, write a statement?

The application for dismissal to care for a disabled child must include the following information::

position and initials of the head of the company (enterprise);
position and initials of the applicant employee;
link to article 80 Labor Code of the Russian Federation;
reason for cancellation of an employment contract (“Due to the need to care for a child under ... years of age”);
date of dismissal;
who is the disabled minor (daughter, son);
Full name of the child and his year of birth;
list of attached documents;
surname, initials and signature of the applicant;
date of application.

This application must be accompanied by a photocopy of the child’s birth certificate and an ITU certificate issued for a disabled minor.

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.

Entry in the employee’s work book

When a parent of a disabled child is dismissed, a corresponding entry is made in the employee's employment record. It depends on how he resigns - independently, on the initiative of the head of the company (enterprise) or by agreement of the parties.

In the first case, in column 3 of the labor section “Information about work” the following entry is indicated: “The employment contract was terminated at the initiative of the employee due to the need to care for a child” (or “Dismissed at his own request due to the need to care for a child”), paragraph 3 parts of the first article 77 of the Labor Code of the Russian Federation.”

Sample entry in the employment record about dismissal due to the need to care for a disabled child:

In the second case, when leaving work on the initiative of the employer, the employment record indicates, for example, the following entry : “Dismissed for absenteeism, subparagraph “a” of paragraph 6 of part 1 of Article 81 of the Labor Code of the Russian Federation.” Another article of the Labor Code of the Russian Federation may also be recorded here. This depends on the specific legal basis for dismissal.

Sample entry in the employment record about dismissal at the initiative of the employer:

In case of dismissal by agreement of the parties, in column 3 of the labor section “Information about work” the following information is indicated: “The employment contract was terminated (or dismissed) by agreement of the parties, clause 1 of part 1 of article 77 of the Labor Code of the Russian Federation.”

In the column “Job information” the full name and position of the personnel officer are also indicated. Column 4 of the labor report indicates the date and number of the dismissal order (for example, “Order dated 10/11/2019 No. 15”). These are mandatory details for the dismissal record.

Sample entry in the employment record about dismissal by agreement of the parties:

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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Is it possible to pay on the day of application?

In the current legislation of the Russian Federation, caring for a disabled child is not directly named as a legal basis for exempting a resigning employee from 14 days of work . However, depending on the circumstances of a particular employee, he may be recognized as such. For example, if the grandmother who used to look after the child died and he cannot be at home alone.

The employer has the right to satisfy the employee’s application and dismiss him on the same day. The application must be accompanied by a certificate confirming the impossibility of continuing work (Part 3 of Article 80 of the Labor Code of the Russian Federation).

In addition, an employer can dismiss an employee without working time if the parties enter into an agreement with their employee. In such a situation, the employee is not covered by the 14 days before the date of termination. The specific day of termination of labor relations is established in the agreement of the parties (Part 2 of Article 80 of the Labor Code of the Russian Federation).

In both of the above cases, the employee must provide his or her employer with a photocopy of the ITU certificate confirming the need for daily care for a disabled child. In other situations, such an employee will definitely need to undergo two weeks of work.

Violations by the employee

To do this, the employer must take into account the reasons for the circumstances that led to the violation, the extent of the offense and the presence or absence of valid reasons for the subordinate. Dismissal of an employee who has a disabled child due to violation of labor discipline should occur as follows:

recording a violation by drawing up a special act by an authorized commission. The document must contain information about the identity of the violating employee, a full description of the violation itself, the place and date of the act committed. If this is possible, then the testimony of the offender’s colleagues is attached to the report;
requirement to provide an explanatory note on the fact of the incident. In it, the employee must indicate the reasons for such an action. Sometimes objective circumstances do not allow the employee to provide an explanation. However, the right to terminate the employment contract remains at the discretion of the employer;
in the event that one’s actions cause material damage to the employer, disciplinary measures and penalties may be applied to the employee;
a severe reprimand with an entry in the personal file of the offending employee;
termination of an agreement.

What payments are due?

Upon dismissal, the parent of a disabled child is entitled to certain payments, which are also provided on a general basis. No additional monies will be paid to such dismissed person.

As a result, upon final settlement with such an employee, the employer pays him the following amounts of money :

Salary for actual time worked. This could be a month or fewer days. It all depends on what day the employee of the organization quits his job and how many days he worked in the last month.
Monthly bonuses and other similar payments established by the employment contract (agreement).
Compensation for unused vacation.

As a result, the parent of a disabled child may leave his or her job early due to the need for daily care for such a patient. In addition, such dismissal can be carried out on the initiative of the head of the company (enterprise) or by written agreement of the parties. Moreover, in some situations, the dismissed person does not need to undergo two weeks of work.

Own desire or agreement of the parties

When resigning on their own initiative, the parent of a child with a disability group also has certain privileges in terms of documenting the procedure. An employee can declare his desire to terminate the contract not only in person upon application, but also by mail or electronically.

There is one more distinctive point: the dismissal of the mother of a disabled child is possible without interrupting the current sick leave and without working off. Having a power of attorney certified by a notary allows you to receive personal documents of the person being dismissed by the authorized representative.

General concepts and benefits

Dismissal is the termination of an employment contract, that is, its termination. If the dismissal is not by consent, then such a procedure can cause problems for both the employee and the manager. Each method that allows you to break an employment relationship has its own characteristics and nuances. Violation of these may result in legal proceedings. Particularly stipulated points for terminating a contract with single mothers, especially if they are in the care of disabled people who have not reached the age of majority.

A disabled child is a person who has not reached the age of majority and has a persistent impairment in the functioning of the body. The concept of a single mother applies to a woman who is not legally married and whose father is not indicated on the birth certificate of her child, as well as to a widow or a person appointed as the child’s guardian.

According to the Labor Code, women who have a disabled minor under their guardianship are not allowed to work overtime or be sent on business without their prior consent.

The employer is obliged to provide this category of the population with another ten days annually in addition to the main leave. In this case, holidays and weekends are not taken into account. A woman who has a child with limited legal capacity may request part-time work. In addition, when applying for a job, they are prohibited from giving unreasoned refusals and reducing wages during the work process. An interesting point is that when applying for a job, an employee is not obliged to inform the employer about the health status of his child, but only must present a package of approved documents.

In addition, the employer is obliged:

compensate for sick leave issued in connection with caring for a sick child, but not more than 120 calendar days per year;
observe that the provision of part-time work to an employee does not in any way affect the number of days of basic leave, accrual of length of service or restrictions on other rights;
provide, upon written request of the employee, four days of additional leave with full payment, while unused days are not carried over to the next month;
provide a break if the woman's working hours exceed four hours.

If an employee raising a child with limited legal capacity considers that his rights have been violated, he always has the right to write a statement to the State Labor Inspectorate and to a branch of the Ministry of Labor. You can also file an application with the prosecutor’s office if your salary is delayed or not paid, you are forced to work outside of working days, you are forced to resign, or you are laid off.

Termination of contract at the initiative of the employer

The possibility of dismissal itself will depend on such nuances as the composition of the employee’s family and the employment of the second parent.

If a mother raises a child with a disability alone, she is considered the sole breadwinner. For single parents who are raising a disabled child, the law provides grounds for terminating an employment contract with them, in particular:

termination of the organization's activities;
repeated violations of labor discipline or one-time gross violation;
due to loss of trust caused by the employee’s guilty actions;
an act of an immoral nature (relevant for workers in the educational and educational sphere);
provision of unreliable, deliberately false information during employment.

These conditions also apply to cases where there is a second parent, but is not employed. An employer may be guided by these grounds if an employee has a dependent disabled child under 18 years of age. Otherwise, the contract is terminated on a general basis.

Stages of the procedure

The process of terminating an employment relationship has several sequential stages that must be followed:

The employee writes a statement and sends it to the manager. The document must indicate that the woman wants to terminate the contract on her own initiative. The basis is caring for a child with a disability group. A statement at the legislative level does not have a specific form, so it is formed in an arbitrary presentation. As an exception, there may be situations when a company has developed a company letterhead that must be used without fail.
The document must be sent to the management of the organization two weeks before the date of expected departure. The worker has the right to submit an application in person or send it by mail using the format of a registered letter with notification of receipt. It is recommended to prepare the application in two copies.
When handing over a document in person, management must ask the responsible employee to mark receipt on the second form, indicating the date and registration number.
After accepting the document from the employee, the authorized person is required to formulate an order to terminate the business relationship. The order can be made on the company’s letterhead, or in the T-8 form. The order must be familiarized to the worker under her personal signature. If a woman refuses to sign or read the order, then management is obliged to invite witnesses and, in their presence, read the text contained in the document, and then draw up an appropriate act of refusal.
After the order is formed and signed by both parties, the preparation of the necessary papers begins.
On the last day of work, the employee receives all the documentation along with a full calculation of the monetary remuneration.

Protecting your rights

In any case, if a person who has custody of a disabled minor believes that he was dismissed unfairly and in violation of the legal framework, he has the opportunity to go to court. By going to court, it will be possible not only to be reinstated and receive compensation, but also to force the company to pay fines due to violation of its rights granted by the state.

But if the dismissal has not actually happened yet, then there is a reason to contact the Labor Inspectorate. Based on the application, this body will be obliged to conduct an investigation; if violations and forced dismissal are discovered, it will oblige the employer to keep the employee’s job.

Thus, dismissal of an employee with a minor child in many cases entails consequences for the employer. That is why the employer should be more attentive to his employees during the labor relationship.