If an employee of an organization is detained by law enforcement agencies (or other agencies), problems may arise not only for him, but also for the employer. About how to act correctly in such a situation: whether to continue accruing wages and contributions to funds, whether to count the time of forced absence into the insurance period and whether such absence can be considered absenteeism and grounds for dismissal - in the article by Olga Yatsalo, project manager of the Tax and Law practice Groups "BUSINESS PROFILE".
The detention of an employee is an unpleasant situation in all respects, both for the employee himself and his relatives, and for the employer. The latter immediately has a number of questions, and the procedure for action in the event of an employee being taken into custody is not directly established by the current legislation. We will look at some of these questions in this article:
- Is it necessary to accrue wages and insurance contributions to funds until a court decision is made?
- Is the detention of an employee grounds for dismissal for absenteeism?
- Is the time an employee is in custody counted towards his insurance period?
So, let's look at the situation one by one.
What is the danger of dismissal without the employee’s consent?
It happens that an employee does not want to write a statement of his own free will and leave peacefully. The entrepreneur has to look for an article for dismissal. An entry in the work book becomes a stigma that makes it difficult to find a new job. And the person devotes himself to the showdown: he finds a lawyer, complains to the labor inspectorate, the prosecutor’s office and the court.
If the employee is dismissed due to mistakes, they will be returned. The employer will pay wages during the dispute under Art. 234 of the Labor Code of the Russian Federation and a fine to the state under Art. 5.27 Code of Administrative Offenses of the Russian Federation. And for the dismissal of a pregnant woman and a woman with children under three years of age, a criminal case is opened under Art. 145 of the Criminal Code of the Russian Federation.
It's safest to do this. Dismiss for a real reason and correctly draw up personnel documents.
How to appeal a court verdict
A citizen who considers a sentence or decision to be unfair has the right to appeal it on appeal before it enters into legal force. To do this, a complaint is filed through the court that made the decision, then transferred to a higher judicial authority and considered there.
The result of consideration of the complaint is an appeal ruling, according to which the decision of the lower court can be canceled partially or completely, or left unchanged.
The dismissal of an employee by decision or sentence of the court is carried out only after the specified documents enter into legal force. Until this moment, he is considered innocent, and the employment contract cannot be terminated.
Some employees should not be fired
Not everyone can be fired without a statement of their own free will. There are workers with immunity.
pregnant women - Art. 261 Labor Code of the Russian Federation. Even for absenteeism, rudeness and shortages at the cash register. The exception is when the company closes.
Mothers with children under three years old, and without a husband - up to fourteen years old, cannot be laid off or fired for low qualifications. A complete list of protected family workers is in Art. 261 Labor Code of the Russian Federation.
on sick leave or vacation is not fired. We have to wait to go to work. Vacation is considered not only four weeks a year, but also maternity leave, days without pay and going to session.
A minor is fired only with the consent of the labor inspectorate or commission for minors in his city - Art. 269 Labor Code of the Russian Federation. If officials are against it, the person continues to work.
