In the course of the activities of an enterprise or individual entrepreneur, a situation may arise when the position occupied by an employee who is on maternity leave or maternity leave (hereinafter referred to as UR leave and BR leave, and in general - maternity leave) has lost her relevance and this type work is no longer needed. The legislation establishes a ban on the dismissal of this category of employees, as stated in Article 81 of the Labor Code.

For employees on maternity leave, the state guarantees not only the payment of benefits, but also the preservation of their place of work and the position they held. In this regard, employers are put at a disadvantage when, on their own initiative, they cannot not only terminate contractual relations with such employees, but also change their working conditions and functional responsibilities which they performed before going on maternity leave. The exception is the cases specified in the same law in Article 256, namely during the liquidation of an enterprise or when an individual entrepreneur ceases its activities.

Basic requirements for the job reduction procedure

Based on clause 2, part 1, art. 81 Labor Code It is impossible to dismiss an employee who is on BR leave and UR leave due to a reduction in the number of employees of the enterprise. According to the general rules, the dismissal procedure for staff reduction is as follows: the employer notifies the employee about the upcoming reduction two months before the date of dismissal, simultaneously informing the trade union organization and the state employment service.

It follows from this that the employer, in any case, must wait until the maternity leave ends when the child reaches the age of three and only after that notify the employee of the termination of the employment contract concluded between them in two months due to staff reduction. In other words, the employee loses special status provided for by law after the end of the UR vacation, therefore, generally established actions provided for during layoffs can be applied to it.

It is worth noting that for such an action to be fully legal, it is necessary to offer alternative employment options in other positions or types of work. The proposal must be issued in the form of a notice and provided to the employee for review, in mandatory he should sign it, confirming the fact that vacant positions have been provided to him.

Further events can go in two ways. In the first, an employee who left maternity leave, agrees to move to another position provided. After which in employment contract Corresponding changes are made in the form of an additional agreement. It indicates all the information about the new workplace and makes a corresponding entry in work book.

In the second scenario, the employee who returned to work after maternity leave, having received a notice, refused to move to another position after two months. In this case, it is necessary to record the employee’s refusal in writing in order to document the fact of refusal, which will subsequently be considered grounds for dismissal. Otherwise, having fired an employee, you may be faced with a situation where he can be reinstated to work through the court, citing his desire to work in an alternative position and ignorance of the fact that it was vacant at the time of dismissal. Because, according to established judicial practice, the absence of a written refusal is interpreted in favor of the employee, and is considered as consent to work in other positions.

The Russian state pursues a policy to protect childhood and motherhood. For this purpose, laws were passed prohibiting reductions in maternity leave. Therefore, employers must be well aware and accurately comply with the legal requirements to ensure that expectant mothers and workers caring for children have the right to work.

Procedure for transfer to another position

Some employers make a common mistake by removing a position from the staff list after an employee goes on maternity leave, incorrectly believing that if he is not fired, but simply crossed off the position from the list, nothing will happen. But the law prohibits any manipulation with the staffing table if it concerns employees on BR leave and UR leave. In case of violation, the punishment provided for in Article 5.27 of the Administrative Code may follow.

Also, no one prohibits an employee from returning to work without waiting for the end of maternity leave. According to the law, he must be provided with the same position and the same working conditions as before going on maternity leave, so employers do not have the right to change anything unilaterally in this case.

A transfer to another position can be carried out only after the end of maternity leave and with the written consent of the employee to change working conditions. In any case, it is necessary to comply with the requirements of the law prohibiting transfer if the new position is contraindicated for health reasons.

Reduction during reorganization

Enterprise reorganization may occur in different ways, in which the subordination changes, as well as in the form of division, merger, accession or transformation, but none of them can become the basis for the dismissal of an employee. The legislation does not require the employer to necessarily notify employees about the upcoming reorganization, since a change of owner cannot become a basis for refusal to work. Therefore, dismissal and reduction in this case are carried out on a general basis. If during the reorganization process the name of the enterprise was changed, an entry should be made about this in the work book.

When merging several organizations or separating one enterprise from another, in all manipulations with the staffing table, the reduction of those positions occupied by employees on maternity leave is prohibited. A transfer to another job can only be carried out with the personal consent of the employee. Therefore, despite the fact that the law does not provide for mandatory notification of employees regarding the upcoming reorganization, experts advise doing this for key positions that may be reorganized.

This will enable employees to get acquainted with the future prospects and make a timely decision on agreeing or refusing to transfer to another position. In this case, it becomes possible to carry out a job reduction during maternity leave, after receiving written consent from the employee who is on maternity leave to transfer to another position, but not by staff reduction, but by at will. Then there will be no violation of the law.

This measure is valid until the end of the UR vacation. After an employee begins to perform his duties, he is subject to general rules. He may be fired if he does not agree to move to another position. After notifying two months before the start of a reduction in the number of employees of the enterprise, upon notification of the availability of alternative places of work.

What must an employer offer to a woman on maternity leave when her position at the company is reduced?

The term “maternity leave” itself is absent in the legislation, being, in fact, the popular name for maternity leave. However, the rights of women on maternity leave are clearly stated in the law, and everyone should know them to the expectant mother, because “forewarned is forearmed.” Alas, it is not uncommon for women on maternity leave to be laid off. Some - after the liquidation of the enterprise (which, in light of political situation, is not uncommon today), others - with light hand unscrupulous employer.

Can a maternity position be reduced?

Future and established young mothers who are worried about their jobs can rest easy - the employer has no right to lay off an employee who is on maternity leave. In addition, for this category of employees the legislation provides for additional guarantees and legal protection against dismissal .

1. A woman on maternity leave has pre-emptive right to be dismissed “in the last ranks” during layoffs.
2. The employer is obliged to offer the maternity leave all other vacancies that are available. Which the maternity leaver has the right to refuse (if they do not suit her).
3. The only case in which an employer is able to lay off maternity leave legally is through liquidation of the company. But even in this situation, his sacred duty is to warn about the reduction at least 2 months in advance.
4. An employer can fire a woman on maternity leave due to job reduction only after she returns to work. That is, after the expiration of maternity leave, on the first day of returning to work, he can begin the procedure for registering a reduction in her position. Notice of future layoffs is given 2 months in advance (for staff reductions), 2 months before the liquidation of the company (in case of its liquidation). You can also be fired due to violation labor discipline or at your own request.

Read also: Who signs the employment contract?

What to do if your position was made redundant during maternity leave

If, while on maternity leave, you learn that your position has been reduced, you should remember: the employer is breaking the law .

1. You have the right to submit statement of claim to court about violation of your rights.
2. You must be reinstated at work.
3. You have the right to compensation for being deprived of the opportunity to work in the amount of your average earnings from the date of your dismissal until the day you are reinstated at work. And also for compensation for moral damage.
4. You also have the right to claim the difference in child care benefits. The difference between benefits for a working woman and an unemployed woman can be significant.
5. If a claim is filed, the payment of legal costs falls on the shoulders of the employer.

1. You should go to court within 1 month from the day you learned that your rights were violated (the period established by the Labor Code of the Russian Federation).
2. The missed deadline can be restored again in court (you have a good reason).

Reduction and maternity leave upon liquidation of an enterprise

Such a right as reducing maternity leave during the liquidation of a company is assigned to the employer by law. Therefore, yes, they can fire you. But only if the entire procedure is strictly followed, including due payments. What does a maternity leave need to know in this “fire” case, and what can you count on?

1. About anyone structural change Each employee must be notified 2 months in advance. Moreover, under a personal signature.
2. After the expiration of the 2-month period, layoff orders are issued, and appropriate entries are made in the work books with the reasons for the layoff.
3. The reduction procedure must be strictly followed from the initial to the final stage.

Subject to reduction due to the liquidation of the company, the maternity leaver is entitled...

1. Compensation for each vacation not taken during the entire period of work in the company.
2. Severance pay (it is equal to 1 average monthly salary).
3. In the 1st and 2nd months after dismissal - payment in the amount of average monthly earnings for the period before official employment.
4. In the 3rd month - a payment equal to 1st average monthly earnings is also due, provided that: 1 - the maternity leaver is registered with the employment center within 2 weeks after the layoff, 2 - at the time of the 3rd month After the dismissal, the maternity leaver was never employed.
5. Child care benefit for the entire period, even if it has not yet expired.

What to do if benefits are not paid for one reason or another (the employer is hiding, the company is not liquidated, but does not work, etc.)?

In this case, the maternity leaver can receive maternity payments from the Social Insurance Fund.

1. Certificate of incapacity for work. If it is not available (for example, it is left with the employer), a duplicate of the document is obtained from the doctor.
2. Salary certificate. In the absence of it (for example, the organization no longer exists, and on the day of dismissal they did not have time to receive it), the FSS makes a request for a corresponding application to the Pension Fund for contributions.
3. If the insurance period is at least 6 months (it will need to be confirmed), benefits must be paid in the amount of 100% of earnings (average monthly). With a shorter insurance period, the benefit amount will be equal to the minimum wage.

The same actions apply if child care benefits are not paid. True, “sick leave” will no longer be required.

Much the situation is more complicated, if the company is not actually liquidated (that is, not excluded from the Unified State Register of Legal Entities), but the location of the employer is unknown, the company itself does not have a legal address, and there is no activity. In this situation, you will not be able to contact the FSS.

1. Go to court.
2. Receive the court decision + writ of execution.
3. Contact the bailiffs, who, in turn, begin enforcement proceedings, search for the company’s property, bank accounts, etc.
4. After establishing the fact of the absence of property, the bailiffs issue a resolution to terminate the enforcement proceedings.
5. Now you can contact the FSS, taking with you the court decision and the bailiff’s ruling that it is not possible to find the employer and his property.
6. If the missing employer was nevertheless found, then further development The situation will depend on the availability of money in his accounts or the availability of property.

Unfortunately, this process is not quick, so it is better to decide right away whether you are ready to spend your time and, most importantly, your nerves (especially at such an important time for you) to defend your rights.

1. The period for applying for payment of maternity benefits is the period limited by the sick leave and another 6 months after its end.
2. The deadline for applying for payment of child care benefits is no later than 6 months after the baby turns 1.5 years old. That is, before your child turns 2 years old.

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Reduction on maternity leave

Pregnancy, childbirth, child care - all these stages are popularly called maternity leave, although there is no such concept in the legislation.

There are two types of maternity leave, during which the employee retains her position and workplace:

1. Maternity leave (MPLE) is granted to a woman approximately two months before the expected birth and lasts from four to six months. Its duration depends on the number of babies born at the same time and the mother’s recovery after childbirth.
2. Parental leave (CLE) ends when the child reaches three years of age, but is paid only up to one and a half years.

During these vacations, the employee retains her job, and she can be fired during this time only with her consent, or with the complete liquidation of the enterprise.

When only a branch or subsidiary company ceases operations (even if the maternity worker worked there), this is not grounds for layoffs.

Can they get fired?

There must be compelling reasons for dismissing an employee, and very, very compelling ones for dismissing a woman on maternity leave.

Moreover, not only the mother, but also the child’s father or another person can be in the OPUR close relative. They will be entitled to the same rights as a mother caring for a child, and it is very difficult to dismiss such an employee.

1. At the initiative of the employee. the basis is a statement voluntarily written by him. Often, employers try to convince a woman on maternity leave to draw up one, but this action would be unreasonable on her part.
2. By agreement of the parties. The name speaks for itself; voluntary consent of both the employee and the employer is required. An employee who does not agree with such dismissal has the right to challenge it with the labor inspectorate.
3. By job reduction. Such dismissal can occur for a maternity leave only when her baby turns three years old, and not a day earlier.
4. When liquidating an enterprise, it is completely legal to lay off any employee. A non-existent company cannot maintain a workforce, but even this dismissal is a rather complicated procedure, with its own nuances, which will be discussed below.

So, a woman on maternity leave can be laid off only if the company in which she worked is completely liquidated. They can also fire her at her own request, but the desire is unlikely to arise.

Legislation

Women, pregnant women and caring for children constitute the most vulnerable category of citizens.

Therefore, the legislation has developed a number of privileges and benefits aimed at protecting the professional interests of such employees:

• Labor Code of the Russian Federation;
• Article 255 of the Labor Code of the Russian Federation regulates the rights of an employee staying at the “OPBR”;
• Article 256 of the Labor Code of the Russian Federation protects the rights of workers in the “OPUR”;
• Article 261 of the Labor Code of the Russian Federation on guarantees for pregnant employees and persons caring for children;
• the size and timing of maternity payments is stated in the Order of the Ministry of Health and Social Services. development dated 12/23/2009;
• liability for violations of labor protection and labor legislation provided for in Article 5.27 of the Code of Administrative Offenses of the Russian Federation.

Read also: Can a pregnant woman be fired during a probationary period?

Any unlawful tricks of the employer can be appealed in court. The employee will be reinstated and the employer will bear serious responsibility. But whether their further cooperation will be promising is a big question.

Women's rights

Termination of an employment contract at the initiative of the employer is prohibited by the Labor Code of the Russian Federation with the following categories of citizens:

• mothers with young children under three years of age;
• pregnant employees;
• single mothers whose children are under fourteen years old;
• single mothers with disabled children under eighteen years of age.

There are only two exceptions here:

• liquidation of the organization;
• gross violations on the part of the employee (theft, falsification of documents, immoral behavior, etc.)

Mothers whose children are under one and a half years old have the right to paid breaks from work to feed the child and are involved in overtime work and business trips only with written voluntary consent. In addition, they should not work on holidays and weekends.

The following may refuse business trips, work overtime, on holidays and at night:

• mothers of children under three years of age;
• single mothers until the youngest child is five years old;
• mothers of disabled people until the sick child reaches adulthood.

The latter are also entitled by law to four days off, additional and paid.

Employees with small children have the right to count on payment of sick leave to care for a sick child. Employers are not at all happy about this fact, but the law is clearly written and is not subject to discussion.

Reduction during maternity leave

Can they be laid off while on maternity leave? Only in exceptional cases:

• liquidation of the enterprise;
• bankruptcy of the employer (in this case it would be better to resign of your own free will, since you sometimes have to wait a very long time for severance pay and other payments from a bankrupt employer);
• termination entrepreneurial activity employer.

In all the circumstances described above, the employer is obliged to notify the employee two months before the event, and in in writing(sometimes by registered mail) and against signature.

During this period, a woman can find a new job or register with the employment center, while maintaining child care benefits.

During reorganization

During a woman's maternity leave, various changes may occur in the company where she worked. These changes often make adjustments to job responsibilities and the size of the workforce. But here, too, the rights of women on maternity leave are protected by law.

The Labor Code of the Russian Federation clearly states that the employer does not have the right to dismiss an employee who is in the OPBR and OPUR when reducing staff.

Which organizational changes would not occur in the company, women on maternity leave are inviolable. Throughout their vacation, they retain their position and seniority.

Sometimes employers try to be cunning and persuade an employee to leave her job, proving the inevitability of dismissal. You should not give in to such persuasion; until the baby is three years old, his mother has no right to fire her.

The answer to the question whether a position can be cut during maternity leave is clearly no. The employer will have to wait for the employee to return from maternity leave and notify her in writing of the reduction of her position.

And only after two months can a legal reduction take place, but during this period the employer is obliged to offer the woman alternative positions and vacancies.

If an employee refuses new offers from the employer, this fact must be documented. This will be the basis for dismissal.

In the absence of offers from the employer, the employee will be able to be reinstated in her position through the court, explaining her dismissal by failure to provide information about vacancies suitable for her.

A woman should know how many days later maternity pay is due according to the law.

Will maternity pay be paid for up to 3 years? Find out here.

Upon liquidation of an organization

In the event of liquidation and termination of activities, the enterprise ceases to exist, and all employees without exception are subject to dismissal. But if only part of the company is liquidated, women on maternity leave cannot be laid off.

The founder of the main enterprise continues to be their employer and fulfill the obligations assigned to him.

Two months before the liquidation of the organization, all employees, including women on maternity leave, are sent written notices, familiarization with which takes place against the signature of the employee.

Until the company is deregistered, all employees retain the right to extend their seniority and all required payments, including payment of insurance and pension contributions.

When a company is liquidated, all employees are given the following on the day of dismissal:

• dismissal order;
• certificate of wages over the past two years;
• full cash payment, including unused vacation days and severance pay.

If the employer fails to comply with the conditions dictated by law, employees of the liquidated company can also turn to the courts or the labor inspectorate to protect their professional and civil rights.

Transfer to another position

Many employers are mistaken in considering it possible to abolish the position of a maternity leaver or transfer such an employee to another position. Such actions are considered illegal and contradict the Labor Code of the Russian Federation.

At the end of maternity leave, the employee must return to her workplace while maintaining her position and all working conditions.

The employer does not have the right to change the terms of the contract with a maternity leaver labor agreement at your own discretion.

However, he may offer an employee on maternity leave a transfer within the company to a similar or more prestigious position.

With her written consent and on the basis of her written application, transfer is possible, but only after the end of the maternity leave and in the absence of contraindications due to the woman’s health.

After release

At the end of maternity leave, a woman loses her “professional integrity,” and employers often try to take advantage of this.

They motivate their actions by the fact that during the long absence the employee lost her business acumen and qualifications.

In reality, everything is much simpler: employers do not favor workers with small children due to frequent notices and refusals to work overtime, on holidays and weekends. The best way out is to get rid of the woman, sometimes it comes down to intimidation and moral pressure.
In such situations, you should contact the courts.

The employee’s incompetence will need to be proven, as well as an explanation of what the employer did to restore her qualifications. As practice shows, the vast majority of such disputes are resolved in favor of young mothers.

An employer cannot force a woman to leave maternity leave early and replace this leave with monetary compensation.

What payments are due?

A maternity leaver can be legally dismissed for only two reasons, but in any case, all documents must be correctly completed and all due payments must be made.

Upon dismissal at the initiative of an employee, a woman is given:

• work book with the corresponding entry;
• salary certificate (at the woman’s request);
• full cash payment, including maternity payments (if they have not yet been received) and payment of all unused days of annual leave.

When liquidating an enterprise, the cash settlement consists of:

• severance pay in the amount of one average monthly salary;
• payment sick leave for pregnancy and childbirth (if it has not yet been paid);
• payments for all days worked and unused annual leave.

Dismissal after maternity leave is a violation of the law.

Are unemployed people entitled to maternity leave in 2016? Read here.

How can an individual entrepreneur get maternity leave? Detailed information in this article.

A woman who quits her job should register with the Employment Center. There she will be offered a choice of one of the benefits (unemployment or child care), and will also be provided with information about new available vacancies.

This service will definitely help in finding a job, and perhaps a woman will have better luck with a new employer than with the previous one.

Video about dismissal issues

Is it possible to reduce the position of a maternity maid during maternity leave?

The legislation provides for women on maternity leave the opportunity to go on vacation without worrying about being deprived of their job during this time. Women on maternity leave cannot be dismissed at the request of the employer. This is stated in Article 261 of the Labor Code.
Questions about what is the procedure for dismissing women who are released from work due to child care, and on what grounds they can be fired, are explored in detail in this article.

Reduction upon liquidation of a maternity leave company

The procedure for layoffs for women on maternity leave is set out in labor law norms. By general rule it is impossible to dismiss them at the request of the employer. But still, dismissal can be made in the following cases:

• At personal request;
• Upon liquidation of an enterprise;
• For committing a gross act: absenteeism, showing up at work drunk or under the influence of toxic substances;
• Committing theft in the workplace;
• Committing immoral acts if the work is educational in nature;
• Based on negative assessment findings regarding the employee.

The main part of the reasons is related to the negative behavior of the maternity leaver.
The dismissal procedure is the same, regardless of whether the employee works full-time or half-time.

In a situation where a woman is diligent and disciplined at work and does not allow any violations, it is not easy to terminate an employment relationship with her.
Sometimes it happens that the new staffing schedule in an organization involves a reduction in the position that the maternity leaver fills. The woman is given notice 2 months before dismissal. The position she occupies is being reduced, but she can be fired only after she returns from vacation, no matter how much the employer would like it. In this case, it will be necessary to offer her other vacancies in the company or transfer her to another job in the same company.

Reduction of maternity leave upon liquidation of an enterprise - payments

When an organization is liquidated, positions are not offered to dismissed employees. Women on maternity leave, as well as other workers, are sent a notice of layoff no later than 2 months. Liquidation of a company is the only reason for terminating a contract with a woman on maternity leave, at the request of the employer.

Maternity maids represent separate category working women. These are employees who have children under three years of age. The law has established many guarantees for them.

The bulk of these guarantees concerns the preservation of the jobs of such persons. In particular, they are protected from dismissal due to staff reduction. If it is necessary to carry out such an event, the employer is obliged to observe, first of all, the rights and interests of such employees.

Is it possible to reduce the position of a maternity worker during maternity leave?

The employee has the right to take appropriate leave until the child reaches three years of age. Up to this point, she retains her position, salary and all other guarantees.

It is necessary to understand that staff reduction can be different and expressed in two forms:

• Partial staff reduction, in which some positions are eliminated. In this situation, the employer does not have the right to lay off and dismiss the maternity leaver in this regard. If her position is subject to staff reduction, management is obliged to offer her another post with similar working conditions and pay. And consent to such a position is the woman’s good will. Accordingly, it is impossible to fire her due to a reduction in the company’s staff;
• A total reduction in the staff of an enterprise consists of dismissing all employees, since the enterprise cannot carry out further activities. In this case, there is a complete reduction of the entire workforce. Women on maternity leave should also be laid off and laid off. After all, it is impossible to keep a staff position for her in an enterprise that actually does not exist.

In case of planning to reduce the staff of an enterprise, the employee must be officially notified of this at least two months before the event.

How to fire a maternity leaver when staffing is reduced?

Dismissal of a maternity leaver due to staff reduction is not permitted. The only thing the employer has the right to is to offer her a similar position. At the same time, a woman on maternity leave must be offered a similar work schedule and similar pay. If she agrees, she will simply be transferred to a new workplace. But they won’t be able to lay off or lay her off.

Moreover, even if she does not agree and wishes to remain in her position, it will be impossible to lay her off. You will have to wait until the end of the maternity leave and only then re-carry out the procedure specifically for her position.

Reduction of maternity leave upon liquidation of an enterprise

Liquidation of an enterprise means the dismissal of all employees. Including those who are on maternity leave. This is due to the following reasons:

• The company terminates its economic or other activities. She will no longer perform any actions, so she will not have a budget, wage fund, and so on, accordingly, the staff needs to be reduced;
• IN state registers entries are made regarding the termination of the company's activities. This means that it ceases to exist as a legal entity. Accordingly, there will simply be nowhere to work;
• The company loses its entire staff of subordinates. There is a dismissal of not only employees of one category or another, but also the entire management team.

Therefore, it is possible to lay off employees who are on maternity leave legally only if the company is completely liquidated.

Can maternity leave be laid off during an enterprise reorganization?

This option is also impossible. During a reorganization, as a rule, management and the chief accountant are dismissed, while all other personnel remain in their positions. Of course, organizational options and rearrangements are also possible. However, they will in no way affect women on maternity leave. They will remain in their positions. Their dismissal is contrary to legal provisions.

Reduction of maternity leave due to staff reduction - payments

Calculation of benefits for reduction of maternity leave is carried out on a general basis. These employees will receive their average monthly earnings for two months after the termination of their employment relationship with the employer.

The average is calculated based on earnings for two years of work. In this case, the period of maternity leave is not taken into account. Only years actually worked will be taken into account.

How to notify a maternity leaver about a layoff?

It is not possible to notify a maternity leaver about the upcoming staff reduction in person. In this case, the procedure established by law must be followed. To do this, you can visit the employee at her place of residence and hand over the notice against signature. If this option is not possible, then you must send registered letter with notice.

At the same time, for insurance purposes, an inventory of the included documentation should be made. This postal document will confirm that it was the notification that was sent, and not blank slate paper.

It happens that during maternity leave or parental leave, an employee’s position was reduced. Let’s figure out how the employer should act in this case so as not to violate the law and the rights of the employee.

Labor legislation prohibits the dismissal of women on maternity leave, as well as workers on maternity leave before the child reaches the age of three (hereinafter referred to as maternity leave and child care leave).

Dismissal of an employee at the initiative of the employer is not allowed (except in the case of liquidation of the organization or termination of activities individual entrepreneur) during the period of his temporary incapacity for work and while on vacation *(1).

During the period of parental leave, the employee retains his place of work (position)*(2).
Thus, the employer does not have the right not only to dismiss an employee who is on maternity leave or child care leave due to staff reduction, but also to reduce the position of such an employee.

Notes in the margins. When reducing the number or staff of an organization, the employer does not have the right to reduce the position of an employee who is on maternity leave or parental leave before the child reaches the age of three without the written consent of the employee.

What to do if the positions of employees on maternity leave or parental leave are subject to reduction? How to protect the interests of the employer and not break the law?

Procedure for job reduction

It is impossible to dismiss an employee who is on maternity leave or child care leave on the basis of a reduction in the number or staff of the organization *(3). What to do if the organization is downsizing?

The procedure established by law for reducing the number (staff) of employees provides for mandatory notification of employees about the upcoming reduction of position and dismissal at least two months before dismissal, notification of the upcoming dismissal to the elected body of the primary trade union organization, to the employment service.

However, the law does not establish restrictions on the maximum notice period for employees.
At the same time, courts differently resolve the issue of the admissibility of advance notification to an employee of an upcoming dismissal due to staff reduction.

Thus, some courts recognize the legality of the dismissal of an employee upon termination of parental leave and the child reaching the age of three, taking into account the notification sent to the employee twice in advance: two years and two months before dismissal *(4).

Others insist that the message about the upcoming dismissal refers to the dismissal procedure that has begun due to staff reduction, but such a message cannot be made during a period of temporary disability, during vacation, during maternity leave, as well as to women with children under the age of three years*(5).

Therefore, when deciding when to notify an employee about the reduction of his position after the child reaches the age of three, the employer must take into account the lack of uniformity of judicial practice on this issue.

At the same time, taking into account the requirements of the law on the inadmissibility of terminating an employment contract due to staff reduction with a woman who has a child under three years of age * (6), guarantees of maintaining her position during the vacation period and the woman’s right to return to work after the end of the vacation, the most correct the employee will be dismissed due to a reduction in position two months after his return to work when the child reaches the age of three and receives notice of the upcoming dismissal.

Thus, at the time of the start of staff reduction measures, an employee who is on maternity leave or parental leave can be notified of the reduction of position when his child reaches the age of three years. In this case, it is necessary to offer existing vacant positions. Such a notice must be given to the employee against signature.

Several options for the development of events are possible. After receiving notice of a job reduction, an employee may ignore the offer to fill the vacant position or accept another position.

If an employee agrees to take a vacant position, it is necessary to draw up additional agreement to the employment contract on changing the terms of the employment contract: the name of the employee’s position, terms of remuneration, etc., as well as making an entry in the work book about the transfer to another job (position) with the previous employer. After the end of the vacation, the employee begins work in a new position.

Notes in the margins. When reducing a position, the employer must offer the employee a transfer to another position at the end of maternity leave or child care leave. This translation carried out only with the written consent of the employee. In this case, an additional agreement must be drawn up to the employment contract.

If an employee does not agree to move to one of the proposed positions, he cannot be forced to do so. We recommend that on the day the employee returns from vacation, notify him against signature that his position will be reduced in two months and offer the employer the vacant positions available at that time.

Please note: it is better to receive an employee’s refusal of offered vacancies in writing, especially if the employee is offered only one vacancy. Since in the event of a dispute, the court may regard the absence of evidence of the employee’s refusal of the offered positions as confirmation of the employee’s consent to take the proposed position * (7).

Notes in the margins. The employee’s refusal of the offered vacancies must be formalized in writing. Since in the event of a dispute, the absence of evidence of the employee’s refusal of the proposed positions may be regarded by the court as confirmation of the employee’s consent to take the proposed position.

It must be borne in mind that an employee on maternity leave or parental leave may not live at an address known to the employer or may not receive correspondence. Therefore, if it was not possible to hand over a notice to such an employee against signature, the procedure for notifying about the reduction of position should be postponed until the employee returns to work. On the day he returns to work after the end of parental leave, the employee should be notified of his upcoming dismissal in two months due to a reduction in position. In this case, be sure to offer those available on at the moment vacancies. If the employee does not agree to dismissal before the expiration of the notice period, the employer is obliged to provide the employee returning from leave with work in his job function (position) for the next two months.

It is worth noting that all guarantees established by law in relation to an employee on maternity leave or parental leave apply to both main employees and part-time workers *(8).

Transfer of an employee to another position

Employers often exclude from the staffing table positions occupied by employees on maternity leave or parental leave, believing that if the employee has not been fired, then the requirements of the law have been met. This approach is erroneous and can lead not only to a conflict with the employee when he returns to work at the end of his vacation, but also entail administrative liability of officials for violation of labor laws *(9).

Employees have the right to return to work under the same conditions by interrupting their vacation early, or when the child reaches the age of three. This means that the place of work, position, payment terms and other terms of the employment contract must remain the same and cannot be changed by the employer unilaterally.

Sometimes in practice there is an opinion that if an employee’s position was reduced while he was on maternity or child care leave, then after the employee returns to work he may be offered a transfer to another position on the basis of Article 74 Labor Code (at the initiative of the employer in connection with a change in the terms of the employment contract determined by the parties). Moreover, if an employee refuses to work under the new conditions, he may be fired. And the reason for dismissal in this situation will be the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties * (10).

We cannot agree with this point of view.

According to Part 1 of Article 74 of the Labor Code, it is allowed to change the terms of the employment contract determined by the parties at the initiative of the employer, with the exception of changes in the employee’s labor function.
Labor function - work according to the position in accordance with the staffing table, profession, specialty indicating qualifications; specific type of assigned work*(11).

Thus, if an employee does not agree with the employer’s proposal to continue working in another position (perform another job function) after the end of maternity leave or parental leave, it is impossible to dismiss such an employee on the basis of refusal to continue working *(12). Such dismissal will be declared illegal by the court.

As we indicated above, in the event of a reduction in an employee’s position, the employer may offer the employee a transfer to another position at the end of maternity leave or child care leave. Such a transfer is possible only with the written consent of the employee with the execution of an additional agreement to the employment contract *(13). At the same time, the new job should not be contraindicated for the employee due to health reasons.

Reorganization

As a general rule, a change in the owner of an organization’s property, a change in its jurisdiction (subordination), reorganization (merger, accession, division, spin-off, transformation) cannot be grounds for terminating an employment contract with the organization’s employees * (14). That is, the terms of the employment contract with the employee remain the same, despite the fact that the owner of the property has changed or a reorganization has occurred.

The law does not require notifying employees about the reorganization. However, we recommend informing employees about the upcoming reorganization or change of owner of the organization’s property, since employees have the right to refuse to continue working for the new owner of the property or in the reorganized organization. To be able to exercise their rights, employees must be informed of the changes. In this case, the name of the employer often changes, which must be reflected both in the employee’s work record book and in the employment contract.

Employees on maternity leave or parental leave should also be informed of the upcoming changes.

Reorganization of a company or change of ownership of its property does not entail the termination of payments or changes in the amount of assigned benefits, employment contracts with employees or changes in their conditions (except for the name of the employer).

In cases of a change in the owner of an organization, it is directly established that a reduction in the number or staff of employees is allowed only after state registration transfer of ownership*(15).
When reorganizing or changing its jurisdiction, there is always a successor to its obligations, including in relation to employees.

Reorganization by affiliation means that one organization merges with another. Moreover, from the moment of state registration of the termination of the activities of the affiliated organization, all its employees become employees of the affiliated organization. Records of changes in the name of the employer in connection with reorganization in the form of affiliation are entered into the work books of such employees.

Additional agreements to employment contracts on changing the name of the employer are signed with employees. Only from this moment can procedures for change begin organizational structure organizations, including staff reductions, in compliance with the procedure established by law. At the same time, the positions of employees on maternity leave or child care leave cannot be reduced, and such employees cannot be dismissed on the basis of a reduction in the number or staff of the organization * (16). Without their written consent, they cannot be transferred to other positions.
In the event of a merger of several organizations into one, employees on maternity leave or child care leave become employees of the newly formed organization. Their positions cannot be excluded from the new staffing table of such an organization.

In case of separation of one or more organizations from the organization, employees on maternity leave or child care leave cannot be transferred to the staff new organization without their written consent, their positions cannot be changed by the employer unilaterally.
Thus, when carrying out measures to reduce the number or staff of an organization, the employer cannot reduce the position of an employee who is on maternity leave or parental leave until he reaches the age of three years without the written consent of the employee.

If the employee agrees to take another position, an additional agreement to the employment contract on changing the position (job function) is concluded with him.

If the employee has not given his written consent to engage in the work offered to him vacant position, after termination of parental leave upon reaching the age of three years, the employee should be notified of the upcoming dismissal due to staff reduction in two months. He also needs to offer available vacancies and comply with other procedures established by law for reducing the number or staff of employees.

Not too often, but still sometimes the question arises: is a reduction during maternity leave acceptable? Let's consider this issue in detail.

What is maternity leave and how is it provided?

Reduction in maternity leave is possible only under certain circumstances

First, let's look at what maternity leave actually is, on what basis it can be obtained and what payments are due for it.

In the legislation, it should be noted, the term “maternity leave” is absent. This is a “popular” name for maternity leave, sometimes it also means parental leave until the child is one and a half or three years old, but more often it is the first case. To avoid confusion, in this article maternity leave will be understood as maternity leave.

Procedure for granting leave

Before talking about whether maternity leave can be reduced, would it be good to understand how it is provided? This is not such a complicated procedure. An employee who becomes pregnant must register with a medical institution, and it is more profitable to do this early - when registering before twelve weeks, an additional small government payment is due. After receiving the results of the ultrasound examination, the doctor sets an approximate date of birth and, based on it, issues a certificate of temporary incapacity for work. This sheet must be provided to the employer, on its basis an order will be issued for the enterprise, and based on the order, maternity payments will be calculated.

Duration of maternity leave

It should be noted that temporary disability due to pregnancy and childbirth is quite long. In general, the law provides employees with one hundred and forty days of such leave, and the maximum duration can be as much as one hundred and ninety-six days. Of course, it is quite difficult to manage for such a period without an employee, so usually during this time they either hire someone under a fixed-term employment contract, or redistribute responsibilities between those employees who are already available. The second option is fraught with the fact that the management of the enterprise may think that a maternity position is completely unnecessary if the remaining employees manage to work both for themselves and for the employee who went on vacation, which may lead to thoughts about reducing staff, which brings us to the main topic of this articles: reduction of maternity position.

Is it possible to fire an employee on maternity leave?

For those who are worried that they may be fired while on maternity leave, we assure you that your worries are in vain. Firstly, according to the law, it is impossible to fire a person while he is on vacation, and secondly, additional guarantees and protection against dismissal are provided for pregnant women and mothers of young children.

The only opportunity for an employer to lay off a woman on maternity leave is to liquidate the enterprise, but even in this case, the employee will need to be notified of the upcoming event at least two months before it, no later.

Therefore, theoretically, yes, dismissal during maternity leave is possible, but only in exceptional cases (liquidation of the company), and even if this happens, then the dismissed employee will have time to either find new job, with a more flexible schedule, or register with the employment center.

Retrenchment of an employee on maternity leave

Reduction of an employee on maternity leave is possible only upon liquidation of the enterprise

During the time that the employee is on maternity leave, a situation may arise that the staffing table will need to be changed and the position that is reserved for her will simply be reduced. Is it possible to file a dismissal in this case?

The answer here is clear - until the child reaches 3 years of age, dismissal on this basis is prohibited by labor law.

Retrenchment of an employee after maternity leave

Reduction after maternity leave is legal only if the child is already 3 years old

If the employee has already returned from maternity leave to work and the child is not yet 3 years old, she cannot be fired either.

In addition, dismissal at the initiative of the employer of women who are single mothers of children under 14 years of age and disabled children under 18 years of age is prohibited.

The remaining women who have children over 3 years of age and who are not included in the above categories can be fired:

• at your own request - with two-week work;
• for staff reductions - with mandatory notification two months before the reduction;
• in connection with the liquidation of an enterprise - with mandatory notification two months before liquidation;
• under the article - if there were cases of gross violation of labor discipline on the part of the employee.

The Labor Code of the Russian Federation establishes a ban on the dismissal of women who are on maternity leave, as well as to care for a child under 3 years of age. These are legislative guarantees that apply to women-mothers, protecting their rights.

Can they cut it?

The law does not allow dismissal on the initiative of the manager. Exceptions are situations when the enterprise where the employee works was liquidated, or the individual entrepreneur ceased its work. IN ideal, during the vacation period, the employer is obliged to retain her position for the woman. Thus, the employer does not have the right not only to fire, but also to reduce the position.

IMPORTANT: If there is a reduction in staff at an enterprise, the dismissal of a woman on maternity leave occurs only with her consent, expressed in writing!

Reduction during reorganization

Reorganization of an enterprise (organization) involves the termination of their work with succession. This means that the rights and obligations from the reorganized enterprise are transferred to a new, created legal entity. The exception is the spin-off, when the reorganized enterprise does not cease its work, and therefore does not transfer its powers to another company.

Reorganization means that the company changes its form of ownership. This process is expressed in association, accession, separation, separation, transformation.

Reorganization process legal entity regulated by the provisions of the Civil Code of the Russian Federation. In particular, this is Art. 57, part 1. The law provides that the only reason why a woman on maternity leave can be laid off is the liquidation of an enterprise, that is, the complete cessation of its activities. If, during reorganization measures, the enterprise does not complete its work, it is impossible to talk about dismissing a woman on maternity leave. Her job must be guaranteed to be preserved. It follows from this that the employer cannot fire the employee on his own initiative, but he has the power to offer her a transfer to another position or to work in another location.

IMPORTANT: An employee may refuse a new position if the position is lower than the one she occupied before the reorganization of her enterprise.

An employer cannot force an employee to transfer to another location. The employer can only accept the refusal of his offer. Only at the initiative of the employee does the employer have the right to practice dismissal, reduction, or transfer.

During reorganization, the legal successor of the legal entity has the right to place a woman on maternity leave in a new workplace. It is the new enterprise that receives the property, financial and other funds from the liquidated organization.

Dismissal of a woman who is on maternity leave and has a child under 3 years of age is prohibited. If an employer violates this rule of law, he faces criminal liability. It is provided for in Article 145 of the Criminal Code of the Russian Federation. Or a fine of up to 200,000 rubles may be imposed on the employer. In addition, the code provides compulsory work lasting from 120 to 180 hours.

When appointing a legal successor, an organization to which powers are transferred from the reorganized legal entity, the employer draws up a staffing table and determines the structure of the legal successor. This obligation of the employer is stated in the resolution of the State Statistics Committee of the Russian Federation dated 2004, number 1. In the staffing table, the employer must prescribe the introduction of new structural divisions, exclusion of old ones, as well as positions of employees of the enterprise. If reorganization measures are associated with staff reduction, the new staffing table should not include employees subject to reduction.

IMPORTANT: If an employee works in a new place as a transfer to another organization, then pay compensation for unused vacation no need. This position of the employer is explained simply: the employment relationship with a person does not end. The employee continues to work for this company.

Changes that have occurred to an employee whose enterprise has been reorganized must be reflected in the work book. In particular, an entry about the reorganization must be made in this document with reference to the employer’s decision. After this, the employer must record the appointment of the employee to new position. These provisions are contained in an explanatory letter from Rostrud dated 2006 under number 1553-6.

Dismissal upon liquidation

When an enterprise is liquidated, a woman is left without a job. The liquidation process itself can be associated with two problems: bankruptcy or the lack thereof. If the liquidation process is related to bankruptcy, dismissal takes place according to the rules of Article 81, paragraph 1 of the Labor Code of the Russian Federation. Thus, the employee who is in the position under consideration, until the end of the work of the legal entity, retains her length of service. The same applies to other employees: no one has the right to deprive them of their seniority until the entry into the Unified State Register of Legal Entities about the end of the legal entity’s work is made. During the liquidation process, the dismissal of employees must occur in accordance with the rules of the Labor Code of the Russian Federation. This means respecting their rights and guarantees, in particular, payment of severance pay, as well as wages for 2 months.

If the company is liquidated on the basis of bankruptcy, then the employees write a letter of resignation of their own free will. Here a problem arises: an enterprise on this basis can be liquidated for a long time, with delays in payments to hired personnel. The Labor Code of the Russian Federation establishes that the dismissal of employees in the process of liquidation of an enterprise can be carried out during vacation, illness, while a woman is on maternity leave and while she is caring for a child (Articles 81, 261 of the Labor Code of the Russian Federation). The employer is required to give 2 months notice of the liquidation of the enterprise. If the employee agrees to leave early, the employment contract is terminated. But this must be reported to the employer in the form written document. If an employee resigns upon liquidation of the enterprise, he is paid severance pay. During the period of his employment, he retains average earnings according to Art. 178 Labor Code, but you need to register with the Employment Service.

Transfer to another position

Reorganization of an enterprise cannot serve as a basis for terminating employment contracts with hired personnel. Employment relationships are extended automatically, therefore, there is no need to renew contracts. If after reorganization procedures the employee continues to work in his previous position, the transfer is not formalized. In the work book, the personnel officer makes a note that the company has been reorganized. An additional agreement to the employment contract is concluded, which indicates the name of the new employer.

Employees of a reorganized legal entity may refuse to work for another company. If the employee refuses in writing, the employer terminates the employment relationship with him under Art. 77, part 1, clause 6 of the Labor Code of the Russian Federation. Based on this, it is clear that the continuation of employment relations during the reorganization process depends on the desire of the employee himself. If they refuse to work, they are torn.

If an employer wants to transfer an employee to another, newly created company that is not a successor to the current one, it is necessary to dismiss the employee from his old place of work by way of transfer. A transfer is possible only by agreement between the former and future employer. The transfer can be initiated by the employee and his boss. It is necessary to first dismiss the employee from his current place of work and conclude a new employment contract. To process the transfer, the employer issues an order in a strictly unified form T-8. An entry is made in the work book.

What payments are due?

In this matter, women on maternity leave and pregnant employees are treated as equal to all employees of the enterprise. In particular, all hired personnel of a legal entity are entitled to the following payments:

1. Severance pay in the amount of one month's salary.
2. The amount of average earnings during the interval when an employee is hired for a new job. But no more than two months’ salary at the previous place of work.

IMPORTANT: The employee must register with the Employment Service. If she took care of this within 2 weeks from the date of dismissal, and did not get a job during this time, she can count on receiving compensation for the third month by decision from the Employment Service.
3. If an employee is dismissed earlier deadline In addition to the above, he can count on compensation for the period of his employment. The amount of this payment is calculated as average earnings from the date of dismissal until the liquidation of the legal entity.

Algorithm for dismissing women on maternity leave for an employer:

1. The company dismisses the employee by sending her written notice 2 months before the planned liquidation of the enterprise.
2. The company is obliged to pay her benefits in the amount of the average monthly wage, plus the average monthly wage in double amount.
3. After dismissal, a woman must contact the Employment Service within 2 weeks from the date of dismissal.
4. If a woman gave birth to a child and her company was liquidated, she must contact the OSZN with a package of attached documents. It is this body in this situation that is responsible for accruing benefits to her.
5. You can also contact the FSS office at the woman’s place of registration. Perhaps benefits will be paid there.

List of documents upon dismissal of women (pregnant women) on maternity leave for submission to the OSZN:

1. Work book.
2. Order of dismissal.
3. Certificate of salary for the two years preceding leaving work.
4. 2-NDFL for the three years preceding dismissal.
5. A copy of the application to the employer for parental leave.
6. Employer's order to provide parental leave.
7. A copy of the sick leave certificate according to the BIR.

When an organization employing hired personnel is liquidated, all categories of employees are subject to dismissal. This also includes women on maternity leave.

Reorganization should be distinguished from liquidation. In the latter case, the work of the legal entity ends. It ceases to exist from the moment the corresponding entry is made in the Unified State Register of Legal Entities. During liquidation, employees should be notified that the company plans to close down its operations. The specified period is 2 months until liquidation.

Upon liquidation, the employer is obliged to inform the hired personnel that the enterprise is ending its activities. During reorganization, the employer is not obliged to inform the staff that the enterprise is being reorganized. Although in his own interests he should do so.