Can a woman with a child under 14 years of age be laid off when reducing staff? Privileges are not provided to all employees, but only under certain circumstances. When can a working mother be sure that she will not be fired?
When can a woman with children under 14 not be laid off?
Retrenchment is a type of layoff in which certain categories of workers cannot be laid off under any circumstances. The largest group of those who cannot be reduced are women in certain conditions. Therefore, questions often arise, for example, can a mother with many children be laid off when reducing staff, or can an employee who is raising children alone be removed from the staff?
Article 179 of the Labor Code of the Russian Federation.
The Labor Code, namely Article 179, which is provided to clarify the advantage of certain employees over others in case of layoffs, specifies the following categories of women workers: mandatory must be left at the workplace:
- Employees who care for three or more children.
- Workers are the only breadwinners in the family.
- Workers whose children are under three years of age.
- Persons who have dependent minor disabled children.
This also includes fathers if they raise children under the specified conditions.
There are some nuances:
- The age of one of the children is less than fourteen years old, but more than three, does not give the employee the right to remain in the organization if optimization is carried out through reduction.
- If a mother raises children alone, or has more than two dependents, she must retain her job.
- Children do not have to be dependent; if the employee’s husband or mother is a disabled person of the 1st or 2nd group, she will not be laid off.
Important! Advantage by law is given to some women only if their qualifications and experience are at least equal to those of other workers. If knowledge is lacking, the employer can use it to improve their skills.
Single mothers should not be laid off
Single mothers are not included in the list described in Article 179, but Article 261 of the same code prohibits terminating an employment contract with this category of workers on the initiative of managers, excluding only those grounds when a woman violates the terms of the employment contract grossly or not for the first time.
If a layoff occurs, the employee will be offered in writing all available positions that she could handle. She has the right to refuse an unlimited number of times throughout the entire period before the day of reduction occurs. Even if there are no other open positions for her that would match her skills in production or another field of activity, such a worker will not be fired. Most likely, she will be sent to advanced training courses, and only if she refuses will the contract with her be terminated.
In order for a woman to remain at the enterprise, it is enough to provide documents confirming the benefit. For example, copies of birth certificates of all children or a certificate from medical institution that the spouse is disabled and cannot carry out labor activity, as well as raising young children.
In order to prove that the employee is a single mother, relevant evidence must also be provided. There's a lot that comes up with them controversial situations, since such a term “single mother” is not defined in the law.
Enterprise managers, and subsequently the courts, interpret articles of the law differently; a woman can be different situations to recognize or not to recognize a mother raising children alone.
However, in any case, you need to provide supporting documents to the company. First of all, this is a birth certificate of a child, in the paternity column of which there is a dash. If a woman is simply divorced and her father is identified, she is not assigned the status of a single mother, as the results of judicial practice show. And in the opposite case, if she got married, and her husband is in no hurry to adopt the child and there is no information about the father on the birth certificate, the mother will be considered single.
Workers raising children have advantages during layoffs. However, there may be situations that may lead to dismissal at the initiative of management before the reduction occurs. For example, failure to comply job responsibilities employee or gross violations disciplines.
Is it possible for a single mother to be fired and laid off? A single mother cannot be dismissed from work on the initiative of the administration when the child reaches 14 years of age, except in cases of liquidation of the organization, when dismissal with mandatory employment is allowed. Mandatory employment of these workers is carried out by the employer also in cases of their dismissal at the end of a fixed-term employment agreement (contract). For the period of employment, they retain the average salary, but not more than three months from the date of expiration of the fixed-term employment agreement (contract).
When dismissal due to reduction, in order for it to be legal, the employer must comply with a number of conditions, including the payment of additional compensation.
Employees of the organization are warned about the upcoming dismissal due to staff reduction by the employer personally and against signature at least two months before the dismissal (Article 180 of the Labor Code).
The employer, with the written (consent) application of the employee, has the right to terminate the employment contract with him without notice of dismissal two months in advance, with simultaneous payment of additional compensation (in addition to the established labor legislation severance pay) in the amount of two months' average earnings.
It is mandatory to have a letter of resignation with the date and personal signature of the dismissed employee.
The time of warning about the upcoming dismissal, as well as the employee’s consent to terminate the employment contract without notice of dismissal, must be documented.
The signature of each dismissed employee must be on a general order about the planned reduction or on a separate order issued for this employee.
An employee is allowed due to a reduction in number or staff, if it is impossible to transfer the employee with his consent to another job (Article 73 and Article 180 of the Labor Code.)
When carrying out measures to reduce the number or staff, the employer is obliged to offer the employee, in writing, another available job (vacant position) in the same organization that corresponds to the employee’s qualifications (and not just performed taking into account the qualifications).
In the absence of such work - a vacant lower-level position or lower-paid work that the employee can perform taking into account his qualifications and health status.
In the absence of such work (based on the staffing table), as well as in the event of an employee’s refusal of the offered work, the employment contract with a specific employee is terminated.
It is mandatory to have a written refusal (an act of refusal) of the dismissed employee from transfer to another job with the personal signature of the dismissed employee.
Issuance of an Order of Dismissal (after a preliminary appeal to the elected trade union bodies), which is signed by each dismissed employee.
Making a corresponding entry in the work book - “Dismissed due to staff reduction, clause 2. Article 81 of the Labor Code of the Russian Federation.”
Payment of severance pay in connection with a reduction in the number or staff of an organization's employees (Part 2 of Article 81 of the Labor Code of the Russian Federation) is regulated by Article 178 of the Labor Code of the Russian Federation.
Upon termination of an employment contract due to a reduction in the number or staff, the dismissed employee is paid severance pay in the amount of average monthly earnings, and also retains the average monthly earnings for the period of employment, but not more than 2 months from the date of dismissal (including severance pay).
IN exceptional cases the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal (by decision of the employment service agency - a certificate confirming the fact that the employee is not yet employed). If the employee does not contact the employment service within two weeks after dismissal, then provision part 3. Article 178 of the Labor Code does not apply, since this requires a decision from the employment service authority.
Additional compensation in the amount of two months' average earnings (i.e., in addition to the severance pay established by labor legislation) is paid if the employer, with the written consent of the employee, terminates the employment contract with him without two months' notice of dismissal;
Employment contract and collective agreement other cases of payment of severance pay may be provided for, as well as increased amounts of severance pay may be established.
The accrual and payment of severance pay is carried out after the dismissal of an employee on the basis of payment documents with the obligatory personal signature of the dismissed person.
If a dismissed employee does not show up to receive the payments due to him, it is necessary to send to him written notice(a copy of the document must remain with the employer) about the payments due to him. If possible, obtain written testimony from witnesses confirming the fact that, despite notification from the administration, the dismissed person did not appear to receive the appropriate payments (such documents are necessary in case of litigation).
Documentary confirmation of the reduction procedure
The staff reduction procedure must contain documentary evidence of the procedures (measures) carried out:
1. New staffing table.
2. Order approving the new staffing table.
3. Order to reduce staff.
4. Action plan for informing enterprise personnel about ongoing activities.
5. Extract (personal file) for each candidate for dismissal.
6. Protocol (decision) of the commission based on the analysis carried out preemptive right leaving work.
7. Signatures under the order to reduce staff, indicating the date of review (2 months in advance).
8. Application from the employee with a personal signature (in case of dismissal of the employee in accordance with clause 3.1 of these instructions).
9. Act on offering the employee another job (position).
10. An act on the dismissal employee’s refusal to offer another job (indicating the date and signature of the dismissed employee) - in case of disagreement.
11. Certificate of agreement with the proposed job (indicating the date and signature of the dismissed employee) - in case of consent.
12. Notification letter to the trade union body about the implementation of measures to reduce personnel, + copies of documents that are the basis for the decision (staffing table, order to reduce personnel, etc.).
13. An act of agreement or disagreement of the trade union body with the grounds presented by the administration.
14. Protocol of disagreements (in case of additional consultations with the trade union).
15. Act on the absence of a reasoned opinion on the part of the trade union (in the case of clause 5.3. of this Instruction).
16. Notification letter government agencies employment (for 3 months).
17. Information for each employee provided to the employment service in accordance with clause 6.3 of these Instructions.
18. Order of dismissal (with the date and signature of each dismissed employee).
19. Payment documents with the signature of the dismissed employee receiving payments in accordance with the law.
20. A copy of the notice to the employee about the need to receive payments due to him.
21. Written testimony of witnesses (confirming the fact that, despite notification from the administration, the dismissed person did not appear to receive the appropriate payments)
If the procedure is not followed, the legality of such dismissal can be easily challenged in court.
When the number or staff of employees is reduced, priority right to remain at work is given to employees with higher labor productivity and qualifications
With equal labor productivity and qualifications, preference in remaining at work is given to: family - in the presence of two or more dependents (disabled family members who are on full content employee or receiving assistance from him, which is their permanent and main source of livelihood); persons in whose family there are no other independent workers; employees who received a work injury while working for this employer or Occupational Illness; disabled people of the Great Patriotic War and disabled combatants in defense of the Fatherland; employees who improve their qualifications in the direction of the employer without interruption from work.
During the period of layoffs, the employer must assemble a commission that will decide who has more rights to remain at work.
Based on Article 261 of the Labor Code of the Russian Federation, termination of an employment contract with a pregnant woman at the initiative of an employer is not allowed, except in cases of liquidation of an organization or termination of activities by an individual entrepreneur.
If a fixed-term employment contract expires during a woman’s pregnancy, the employer is obliged, upon her written application and upon provision of a medical certificate confirming the state of pregnancy, to extend the term of the employment contract until the end of the pregnancy. A woman whose employment contract was extended until the end of her pregnancy is obliged, at the request of the employer, but no more than once every three months, to provide medical certificate, confirming the state of pregnancy. If the woman actually continues after the end of the pregnancy, then the employer has the right to terminate the employment contract with her due to its expiration within a week from the day the employer learned or should have learned about the end of the pregnancy.
It is permissible to dismiss a woman due to the expiration of an employment contract during her pregnancy, if the employment contract was concluded for the duration of the duties of an absent employee and it is impossible, with the written consent of the woman, to transfer her to another job available to the employer before the end of her pregnancy (as a vacant position or a job corresponding to the woman’s qualifications, and a vacant lower-level position or lower-paid job), which a woman can perform taking into account her state of health. In this case, the employer is obliged to offer her all the vacancies that he has in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.
Termination of an employment contract with a woman who has a child under the age of three, with a single mother raising a disabled child under the age of eighteen or a young child - a child under the age of fourteen, with another person raising these children without a mother, with a parent (another legal representative of the child) who is the sole breadwinner of a disabled child under eighteen years of age or the sole breadwinner of a child under three years of age in a family raising three or more young children, if the other parent (other legal representative child) is not a member labor relations, at the initiative of the employer is not allowed (except for dismissal on the grounds provided for in paragraphs 1, 5 - 8, 10 or 11 of the first part of Article 81 or paragraph 2 of Article 336 of the Labor Code).
Working in new conditions with changing workload during enterprise reorganization
If the reorganization procedure is carried out correctly, i.e. you are notified in advance, as required by Article 74 of the Labor Code of the Russian Federation. Well, as you remember, they do not have the right to dismiss at the initiative of the employer, as a single mother with a child under 3 years old, Article 261 of the Labor Code of the Russian Federation.
But, here, fire if you do not agree to work under new conditions, i.e. the workload changes, and this is not the employer’s initiative, but Article 77 of the Labor Code of the Russian Federation. Those. either you agree and work under the new conditions, or after two months you write a refusal and you are fired
With absence said work or the employee refuses the proposed job, the employment contract is terminated in accordance with paragraph 7 of part one of Article 77 of the Labor Code of the Russian Federation.
And in this case, you will receive severance pay established by Article 178 of the Labor Code of the Russian Federation in the amount of two weeks’ average earnings.
In general, my advice to you is, look at what will happen at school, maybe your other colleagues will not be happy with this option, and they will quit, and then, perhaps, your workload will be restored.
Or you look at the next question, what if the workload was reduced only for you, or only for ladies who have children, and this is already discrimination.
Or, the decision to reduce the load occurred without creating a commission, without its meeting, and without a protocol. Or maybe in general, in such cases, teachers should have an certification commission. So, let your management provide you in writing with the reasons for reducing the load, how the decision to reduce it was made, whether there are any documents, why specifically for you. And if there are signs of discrimination, then go to court. And don’t forget that courts are free for workers even if they lose.
For information:
A single mother with a child under 14 years of age has the right to demand from the employer, in accordance with Article 93 of the Labor Code of the Russian Federation, to establish incomplete work time, wages are proportional to the time worked, but it is impossible to demand from the employer any special work schedule; the employer can do this of his own free will (by agreement of the parties).
The need for reduction may arise in several ways:
- the employer intends to assign several positions to the staff at once, and at the same time he sets salary bonuses for them by saving the corresponding fund;
- production becomes more automated, there is no need for large quantities working hands;
- the company changes its profile;
- the company is reducing production volumes.
Which parents cannot be made redundant?
Before making a list for redundancy, it is worth checking whether the selected employee does not fall into one of the taboo categories. According to the current Labor Code of the Russian Federation, The following parents cannot be dismissed due to layoffs:
- pregnant women;
- mothers who have children under 3 years of age;
- women who independently raise a child under 14 years of age;
- employees who are on maternity leave or on maternity leave to care for a child under 3 years old;
- workers who are considered the sole breadwinner in a family with a child under 3 years of age.
Reduction of a single mother with a child under 14 years of age
Can a single mother be fired due to redundancy? According to the law of the Russian Federation, a single mother is a woman who supports a child and raises him without the participation of a second parent.
By virtue of life circumstances, a father may withdraw from parenting for several reasons:
- death;
- recognition of unknown absence;
- recognition of incapacity;
- deprivation of rights to a child;
- restriction of parental rights;
- inability to raise a child due to health reasons;
- is serving a sentence in prison;
- refuses to participate in education.
However, not every one of these cases characterizes the mother as single according to the letter of the law.
According to family law, this definition includes several categories of women:
- One who gave birth to a child out of wedlock.
- A woman who gave birth 300 days after the official divorce.
- A woman took a child for adoption without being married (although this is extremely rare).
- If the spouse renounces paternity within 300 days after the divorce.
In the Labor Code, the term “single mother” is used in two articles - 263,. They describe the restrictions on dismissal due to layoffs for single mothers and their privileges.
Article 263. Additional leaves without saving wages carers
An employee who has two or more children under the age of fourteen, an employee who has a disabled child under the age of eighteen, a single mother raising a child under the age of fourteen, a father raising a child under the age of fourteen without a mother, a collective agreement may be established annually additional holidays without pay at a time convenient for them for up to 14 calendar days. The specified leave, upon the written application of the employee, can be added to the annual paid leave or used separately in full or in parts. Transferring this leave to the next working year is not allowed.
Guarantees apply to single mothers whose children are under 14 years of age. That is, the reduction of a single mother with a child under 14 years old is impossible, unless she falls under the category of exceptions. Fathers also receive similar benefits if they find themselves in the situations listed above.
At the initiative of the employer, the layoff of a woman with a child under 14 years of age is unacceptable.
The exception when it is permissible to reduce the position of a single mother is the liquidation of the company itself and the recognition of the guilty behavior of such an employee.
And yet, is it possible to fire a single mother due to staff reduction? If a position occupied by a single mother/father is subject to redundancy, the employer is obliged to offer her/him another vacancy, which will correspond to the qualifications of the employee, with a similar salary.
If there is none, then when single mothers are laid off, the employer must offer a lower-ranking vacancy in the same company.
If a mother with a child under 14 years of age refuses the proposed vacancy, she must confirm this in writing. In this case, the employment contract becomes invalid.
That's all the nuances about laying off an employee who has a child under 14 years old.
If the child is disabled
According to the laws of the Russian Federation, a disabled child is a person who has not yet reached the age of 18 and has persistent disorders in the functioning of the body that arose due to illness, injury or congenital defects.
Such a child is physically limited and cannot lead normal functioning and needs additional protection and social assistance. Disability is recognized through a sanitary and medical examination. The disability group depends on the degree of physical impairment.
The mother or father of a disabled child is an adult capable person who is a relative or foster parent a minor child, and takes upon himself all the troubles of his maintenance.
According to Article 261 of the Labor Code, the employer of a breadwinner of a disabled child does not have the right to dismiss such an employee until the child turns 18 years old.
According to the law, dismissal of an employee with a child over 3 years old still implies liability for the employer. Thus, he is obliged to offer the employee another position that will correspond to her qualifications and previous salary level.
The new position must be suitable for the employee based on her health condition.. The hirer must offer all possible vacancies that exist in his company in a particular area.
If the company does not have such jobs or the woman refused the offer, she must confirm this in an official letter. With these options, she can be fired.
Employer's liability for violation of Labor Code
Violation of the norms and rules prescribed in the Labor Code of the Russian Federation entails serious consequences for the employer. So, a person whose rights have been violated may submit a written application to the regulatory authorities.
Whether labor laws have really been violated is checked by the prosecutor's office or labor inspectorate. They can conduct both scheduled and unscheduled inspections.
By a court decision, the employee may be reinstated to his previous position or may receive monetary compensation from the hirer.
In its turn, the employer faces administrative or financial liability.
Thus, it provides for punishment for officials in the form of various fines:
- for officials- from 1,000 to 5,000 rubles;
- for individual entrepreneurs- from 1,000 to 5,000 rubles. or suspension of the company’s work for a period of no more than 90 days;
- For legal entities - from 30,000 to 50,000 rubles. or suspension of work for up to 90 days.
The court may also order payment of compensation to the employee in the amount of his lost wages after illegal dismissal.
The case is reviewed by a state inspector or a district court.
Conclusion
So, labor law Russian Federation has many nuances that every employer must take into account. You need to be especially careful if the company has parent employees..
Their family circumstances should be carefully examined before downsizing. Indeed, in case of violation of the Code and other regulations, the manager risks not only undermining the honor of his company, but also suffering financially.
Dismissal at the initiative of the employer is always an unpleasant surprise for the employee. But notice of layoffs for a single mother can be particularly unpleasant news. However, when reducing staff or the number of employees, the employer should remember the preferences provided by labor legislation to certain categories of employees.
Single mothers - who are they?
Legislation in various sources gives the following wording: this concept- this is a woman, family relationships which is not registered in the prescribed manner, in the birth certificate of whose child there is no entry about the father or such an entry was made according to the words of the mother.
According to position Supreme Court This category can also include women raising children (their own or adopted) without a father, if he:
- died;
- deprived of parental rights or limited in them;
- duly declared missing;
- is incompetent or has limited legal capacity;
- cannot personally raise and support a child due to medical indications;
- in accordance with the court verdict, he was placed in an institution executing a sentence of imprisonment;
- avoids raising children.
It must be remembered that a woman who had the status discussed in this article loses it after marriage, even if her husband did not adopt her child.
Can a single mother be laid off?
Art. 261 of the Labor Code of the Russian Federation provides some privileges for individual categories employees upon termination employment contracts. In particular, in this article, the legislator points out the inadmissibility of dismissal of women with the above status who are raising a child under the age of fourteen or a disabled child under the age of eighteen.
The guarantees provided for by this article for single mothers also apply to cases of layoff of an employee who has a disabled child, if such employee is the sole breadwinner of the child and the latter has not reached the age of eighteen.
After the Constitutional Court considered the appeal of a father with many children, who was laid off due to layoffs, changes were made to this article, according to which the guarantees provided by this article also apply to fathers if they:
- raising a child under the age of fourteen without a mother;
- raising a disabled child under the age of eighteen without a mother;
- are the sole breadwinner of a child under three years of age in a family raising three or more young children, provided that the children’s mother is not employed.
In addition, part 5 of Art. 23 of the Law of May 27, 1998 N 76-FZ “On the status of military personnel” provides for single mothers whose sons are undergoing military service upon conscription, an additional guarantee in case of layoffs in the organization in the form of a preferential right to remain at work.
What should an employer do when laying off a single mother's position?
So what will happen to a single mother if, during organizational and staffing measures, her position is reduced by the employer?
In this situation, the employer is obliged to offer the woman a vacant position, the duties of which she can perform taking into account her state of health. This can be either a position corresponding to her qualifications or a lower or lower paid position. In addition, the employer may offer work during the absence of the main employee or a part-time position.
After making the decision to carry out the reduction procedure staffing level, the employer must compile a list by name of those who will be fired. But at the same time, he needs to take into account that certain categories of employees can only be laid off during liquidation.
The concept of "single mother"
The concept of such a term as single mother or single father in Labor Code or other regulations not illuminated. The answer to the question of who can be considered a single parent is given by the Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the first quarter of 2010.
According to this document, a woman, in order to be considered a single mother, must meet the following criteria:
- Not be in a registered marriage;
- The child’s birth certificate must contain no information about the father (this also includes entering information from the mother’s words).
The situation is a little different with men and other persons (adoptive parents) who raise children alone. They can be considered single parents if they are essentially raising the child alone, regardless of the mother's reason for not being involved.
Single mother reduction
Article 261 of the Labor Code of the Russian Federation states that if a woman has the status of a single mother, she will not face layoffs until the child turns 14 years old. And in the case when a child has a disability - until he reaches adulthood.
This also applies to single fathers and other persons who are raising a young child without the participation of the mother.
The only exception is the complete liquidation of a company employing a woman. In this case, all employees, regardless of their categories, are subject to layoffs.
Reduction of certain categories of employees
In addition to those classified as single parents, there are several other categories of workers whom the employer cannot lay off.
Retrenchment of an employee with a disabled child
In the above-mentioned Article 261, which gives certain guarantees to employees with family responsibilities, employees with disabled children are mentioned twice:
- it is prohibited to lay off a single mother or other single parent until the child with a disability turns 18;
- It is prohibited to dismiss due to reduction any of the parents who have a disabled minor child, provided that the second parent does not work and the family still has two or more young children, that is, children who are under 14 years old.
These provisions apply both to the child’s parents and to other representatives of the minor, determined by law.
Dismissal of a father of many children due to redundancy
The Labor Code of the Russian Federation does not contain information about how many children a family must have in order for it to have the status of a large family. This is determined by regional authorities. In most regions, a family is recognized as having many children when it has three or more minor children.
In case of reduction, benefits are received by employees who meet the following conditions:
- have a minor child with a disability, or a child under three years of age;
- the family has three or more young children;
- the second parent is not officially employed, and the legislation does not stipulate the reasons for lack of work.
If all three conditions are met, the employee cannot be laid off. This applies to both women and men.
The only exception is a woman who has a child under three years of age. It cannot be reduced even if the other two criteria are missing.
Conclusion
Retrenchment of a single mother during staff reduction is prohibited in all cases, except for the complete liquidation of the employer company. In addition, the ban on dismissal during staff reduction also applies to other persons raising a child alone. A father with three or more children cannot be dismissed on this basis, provided that his wife is not employed, but the age of the children must be taken into account.
Loading...