What payments are due for layoffs after maternity leave?

Downsizing after maternity leave has several features. A woman cannot be laid off during maternity leave. But after the holidays there is such an option. The procedure has a standard form, which allows you to comply with all the requirements and rules of the legal framework. It is worth considering that during any vacation, including vacation at one’s own expense, the position is retained by the employee.

Dismissal after maternity leave

If during the calculation period the employee has fully worked the standard time, then his average monthly earnings should not be less than 1 minimum wage.

By the way, it is more advisable to contact all of these institutions immediately. This is due to the fact that the former management of the enterprise may refuse to issue copies of orders to the employee, although they are obliged to do this in accordance with the norms of Article 62 of the Labor Code of the Russian Federation. But they will no longer be able to refuse the prosecutor’s office or labor inspector in order to avoid penalties.

At the same time, while on maternity leave, the employee has the right to work part-time. Moreover, this does not deprive her of the right to a monthly allowance for child care until he reaches one and a half years old (Article 256 of the Labor Code). In this case, there is no need to refer to past periods to calculate average earnings.

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Accounting for compensation for unused vacation
Dismissal while on maternity leave

To calculate the average daily earnings for the purpose of paying compensation for unused vacation provided in calendar days, it is necessary to divide the amount of wages actually accrued to the employee for the billing period by 12 months, multiplied by the average monthly number of calendar days (29.4).

There is only a mention of qualifications and the need to apply professional standards, if any, for a certain profession.

Calculation of Severance Pay for Layoffs after Maternity Leave

In this case, the calendar month is considered to be the period from the 1st to the 30th (31st) day of the corresponding month inclusive (in February - to the 28th (29th) day inclusive) The average daily earnings for payment of compensation for unused vacations are calculated for last 12 calendar months (p.

Vacation days for which compensation must be paid are calculated in proportion to the months worked in accordance with paragraph.

Some employees, after maternity leave, decide to quit on their own in order to devote more time to their family, some quit due to the termination of their employment relationship, which was established for a certain period, and dismissal is also possible by agreement of the parties.

Speaking from a legal point of view, a maternity leave is a document that has nothing to do with vacations. But in everyday life, maternity leave is often referred to as the right of a working woman to rest during pregnancy, childbirth and childcare up to a certain age.

If a woman went on maternity leave before the main employee returned from maternity leave, she is not subject to dismissal even due to the expiration of the fixed-term contract. On the contrary, in such a situation, the contract is extended until the child turns 3 years old, and then it is terminated.

The duration of the usual period of care for an employee during pregnancy and childbirth is 140 days, and if the pregnancy and childbirth are complicated, then more, depending on the current situation. This duration is also established by the norms of the Labor Code of the Russian Federation.

This is important to know: Is it possible to take vacation in advance before maternity leave?

The 11.67 calendar days that she earned while on maternity leave do not always save the situation. Example 2.

Yu.M. Chernaya has been working at JSC Empire since November 21, 2011.

An employee has the right to resign at her own request while at home with her child until he reaches one and a half or three years of age.

Sick leave after maternity leave: payment and settlement

To calculate daily income, the total amount earned for the day is divided by 730 (731 or 732 if leap years are selected). Weekends and holidays are not taken into account. So, with an average salary of 30 thousand per month, the amount for two years will be 720 thousand rubles, and the daily income will be slightly less than a thousand.

Everything is clear with the insurance experience, but what about the salary, because for three years the woman did not receive it. If we refer to the current legislation of the Russian Federation, then to calculate sick leave after maternity leave, it is necessary to take wages for the 2 years preceding the maternity leave.

Publish an order. The employer needs to use the generally accepted order form number T-8. A dismissal order is a document drawn up upon termination of an employment contract or upon its termination.

layoff of a single mother during vacation in the absence of her consent;
termination of employment relations due to layoffs of a single mother or raising a disabled child before he or she reaches the legal age;
dismissal of an employee without prior notice;
an offer to transfer to a job with hazardous conditions or to a position with business travel;
forcing an employee to sign a retroactive layoff notice;
erroneously calculated or not paid in full funds during reduction;
refusal to issue a work book or errors in filling it out.

Reduction during maternity leave: nuances of legislation

Expert opinion

Polyakov Pyotr Borisovich

Lawyer with 6 years of experience. Specialization: civil law. More than 3 years of experience in drafting contracts.

Now let's look at the vacation experience for other years. Since maternity leave for up to 1.5 years is not included in the vacation experience, then for the following periods Koryakina S.D.

Let's consider three situations in which an employee who was on "children's" leave quits immediately after the end of one of them.

Upon dismissal due to staff reduction, the employee is paid severance pay in the amount of average monthly earnings. In addition, he retains his average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay).

Go on vacation soon! To receive a free book, enter your information in the form below and click the “Get Book” button.

I’m interested in what payments I’m entitled to? And how will they calculate it? Am I entitled to anything? I’m not interested in their other positions. I’m just curious, I didn’t have time to go to work, I’ll already be fired.

It should be taken into account that if an employee quits after maternity leave, then its duration is generally 140 days, and therefore does not completely cover the billing period. However, the billing period in this case has not been fully worked out, which requires adjustments to the general formula for calculating average earnings, namely its denominator.

If the resignation letter is submitted by an employee after leaving maternity leave, then it may well be that all twelve months of the pay period will fall during this period. In this case, the calculation period should be taken as the period equal to 12 calendar months preceding the time of the employee’s long absence (clause 6 of the Regulations).

That is why, immediately after returning, she, like any other member of the team, may be laid off.

According to the Labor Code, upon dismissal of an employee, he must be paid compensation for all days of unused vacation. It will also have to be calculated if the employment contract with the employee is terminated immediately after the end of maternity or child care leave.

The employer must provide you with personal income tax - let him look for this information himself. Information about 2-NDFL certificates can be obtained using the “Taxpayer Personal Account” service 04/30.

Reduction and maternity leave upon liquidation of an enterprise

Reference. According to the Labor Code of the Russian Federation, termination of an employment contract with a pregnant woman, as well as with a woman on maternity leave for up to 3 years, is impossible at the request of the employer.

However, if the organization or firm of an individual entrepreneur is liquidated, then the employment contract with the maternity leaver is also terminated.

Like other employees of the organization, a woman on maternity leave must be notified of the liquidation of the enterprise at least 2 months before the occurrence of this event. After termination of the contract, the employer must pay the employees severance pay in the amount of double the average monthly salary.

There is only one option for laying off women during pregnancy and until the child is one and a half years old without violating labor laws.

We are talking about the termination of the economic activities of an individual entrepreneur or the liquidation of an enterprise that employs a maternity leaver. In this case, employees on maternity leave are dismissed on a general basis.

Only a written notice signed by the recipient is considered as a notification document, i.e. maternity leavers. Notification of dismissal by telephone or in any other way without written notice is considered unlawful.

The absence of notice of dismissal is sufficient justification for a claim if a woman decides to sue her former employer.

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 subject to strict compliance with the entire procedure, including the required payments. What does a maternity leave need to know in this “fire” case, and what can you count on?

Each employee must be notified 2 months in advance of any structural change. Moreover, under a personal signature.
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.
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...

Compensation for each vacation not taken during the entire period of work in the company.
Severance pay (it is equal to 1 average monthly salary).
In the 1st and 2nd months after dismissal - payment in the amount of average monthly earnings for the period before official employment.
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.
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.

For this you will need:

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.
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.
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.

The situation is much more complicated if the company is not actually liquidated (that is, it 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.

We invite you to read: On deprivation of paternity: how to unilaterally deprive your ex-husband, the grounds

What should I do?

Go to court.
Receive a court decision and a writ of execution.
Contact the bailiffs, who, in turn, begin enforcement proceedings, search for the company’s property, bank accounts, etc.
After establishing the fact of the absence of property, the bailiffs issue a resolution to terminate the enforcement proceedings.
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.
If the missing employer was nevertheless found, then the further development of 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.

And note:

The period for applying for payment of maternity benefits is the period limited by the sick leave and another 6 months after its end.
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.

Still have questions? Just call us:

Employment service after dismissal on maternity leave

Attention If this is your case, we strongly recommend that you read the material about whether an employer can state his own desire so that no one can influence its appearance. Therefore, if the mother herself is convinced of the need to go to work, then no arguments from her superiors can prevent her.

Based on Art. 139 of the Labor Code of the Russian Federation, the average salary of an employee is calculated based on the salary actually accrued to him and the time actually worked by him for the 12 calendar months preceding the period during which the employee retained his average salary. To calculate the average salary, all types of payments provided for by the remuneration system and applied by the relevant employer are taken into account, regardless of their sources. The procedure for calculating average wages is approved by Regulation No. 922 [2].

Clause 5 of Regulation No. 922 defines periods, as well as amounts accrued during this time, that are excluded from the calculation, for example, when an employee:

This is important to know: How many vacation days are accrued per month?

received average earnings in accordance with the legislation of the Russian Federation, with the exception of breaks for feeding the child;
received benefits for temporary disability or maternity benefits;
was released from work with full or partial retention of wages;
was on leave without pay (parental leave until the child reaches the age specified by law).

State social insurance benefits can also be paid to her if she works part-time or does work from home. But in this situation, she will have length of service giving her the right to annual paid leave.

RF). Let's figure out whether to pay the employee compensation for unused vacation if she wants to quit at the end of one of the vacations - maternity or child care.

What payments can you expect?

A reduction in the number of employees may be caused by a reduction in the volume of work, optimization of jobs or automation of the work process.

The employer has the right to terminate the employment relationship with the employee if his position is reduced. At the same time, he must notify the employee in writing 2 months before the date of termination of the contract, in addition, if there are vacant positions, he must offer a transfer to a vacant position. If the employee does not agree to the transfer or there are no vacancies, then upon dismissal the employer pays the employee severance pay.

Such measures are designed to provide the employee with time to find a new job and support him financially during the period of lack of earnings.

The reduction of a maternity leaver, or rather the position she held before going on maternity leave, has no logical justification. While on maternity leave, a woman does not go to work, and the employer does not need to hire a specialist during her absence if the position is subject to abolition.

In order to notify an employee about the reduction of her position, it is necessary that she return from maternity leave. An employee on maternity leave has the right to return to work at will until the child reaches the age of 3 years. Therefore, even if she returned to work, this does not mean that, having sent a notice, she can be fired in two months.

Article 261 of the Labor Code of the Russian Federation provides guarantees for women who raise young children under the age of 3 years. Thus, women raising children under three years of age, single mothers raising children under 14 years of age, or disabled children under 18 years of age are not subject to dismissal due to staff reduction.

If an employee returns from maternity leave when the child reaches 3 years of age, and she is not a single mother, then the employer can fire her after 2 months of notice.

A reduction in maternity leave is permissible only with the written consent of the employee.

In the countries of the Customs Union (Belarus and Kazakhstan), labor legislation in terms of guarantees for pregnant women and those on maternity leave is similar in many aspects, especially with the legislation of Belarus.

A woman while on maternity leave receives the following payments:

Maternity benefit.
One-time benefit for the birth of a child.
Monthly transfers until the child reaches 1.5 years of age.

If an employee provided sick leave for maternity leave before her dismissal, the employer pays for it in full. The amount of the payment is the average earnings for the same period (140 days for a singleton pregnancy and 194 for a multiple pregnancy). In addition, women dismissed due to the liquidation of an enterprise can apply for this benefit within a year after their dismissal.

After an employee is laid off, a lump sum allowance for the birth of a child and a monthly allowance for child care up to 1.5 years will be paid by the territorial social welfare service.

According to current legislation, in case of layoffs due to liquidation, all dismissed employees have the right to severance pay, which is 2 average monthly earnings.

In addition, if a dismissed maternity leave person contacts the employment service and confirms that she was not employed within 2 weeks from the date of dismissal, then she has the opportunity to receive payments for another month.

Thus, a woman on maternity leave after being dismissed due to the liquidation of an enterprise can receive compensation in the amount of 3 monthly earnings.

However, it should be noted that if a woman registers with the employment center after her dismissal, she will be granted unemployment benefits. Since it is impossible to receive two benefits at the same time, she is no longer entitled to a monthly child care allowance.

On a note. The continuation of child care benefits depends on the further actions of the employee dismissed due to the liquidation of the enterprise. If a woman enters into an employment contract with a new employer, then payments will be made at the new place of work.

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If a woman registers with the employment center, she receives unemployment benefits, and child benefit payments are stopped. If a woman remains unemployed, then child care benefits are paid to her by social protection authorities.

Many employers are interested in the topic of maternity benefits, which should be provided to a laid-off employee who has recently returned from maternity leave.

In this regard, we propose to consider a list of such cash payments for layoffs after maternity leave:

Severance pay. In case of cancellation of the employment contract, the employer must pay a cash benefit, the amount of which is one average monthly salary.
Cash for unspent vacation periods. If the employee, even before going on maternity leave, did not take advantage of the opportunity to take the annual leave provided, then she is entitled to payment of a certain monetary compensation. More details about payment for unspent vacation can be found in Article 126 of the Labor Code.
Average monthly salary. During the first two months (in some cases three) after the layoff, if the former employee has not yet found a new job, then by law she can receive an average monthly salary.
Additional payment.
If a woman who has recently returned from maternity leave has given her consent to a premature layoff, which was made without complying with the notice period, the employer must pay her some compensation for this. Cash is credited in the amount of average daily earnings for all those days remaining before the expiration of the notice period.

When making payments to an employee who has only recently returned from maternity leave, but has already been laid off, the question automatically arises of how to correctly accrue funds for her.

There are two different ways to determine the average salary:

For an employee who received notice two months before the child reached the age of three or was laid off at an earlier stage of maternity leave at her own request. In such a case, the average monthly salary is calculated by summing up all salaries for the last 12 months before going on maternity leave, taking into account only the time actually worked, and dividing this amount by 12. Average daily earnings are determined by counting all days during which during the last calendar month, the employee was at her workplace and performed her duties, and then dividing the average monthly salary by this figure.
For an employee who was notified of a layoff immediately after returning from maternity leave and worked at the company for another two months. In this case, the calculation is made in the same way as in the first paragraph, but only a slightly different period of time is taken into account. When determining the average monthly salary, two months of work after leaving maternity leave and ten months before going on vacation are taken into account. And when calculating the average salary per day, months of work are taken into account.

Reference! The calculation of all of the above payments is based on determining the amount of average daily and average monthly earnings.

Let's look at an example. Andreeva Olga Ivanovna went on maternity leave on March 1, 2021 and was made redundant on March 22, 2021, without completing her maternity leave. Until March 1, 2016, she received 13,200 rubles for February and January 2021, and 12,800 rubles from March to December 2021.

Having summed up all salaries for the last year of work before going on maternity leave, we get the figure - 154,400 rubles. Then we divide this number by 12 and get the average monthly income, which is 12,866 rubles. It is this amount that Olga Ivanovna will receive as severance pay, as well as for several months until she is hired for a new position.

For a woman left without work due to the liquidation of an organization, the law guarantees certain payments.

Since the dismissal of maternity workers during the liquidation of a company occurs on a general basis, the types of payments are also the same for everyone. In accordance with the current norms of the Labor Code of the Russian Federation, she can count on:

severance pay equal to the average monthly salary for the position held;
payments in the amount of average monthly earnings, calculated for the entire period of work at the enterprise, for the period of employment (but not more than 2 months from the date of dismissal).

Employee Ivanova was laid off due to the liquidation of the company while she was on maternity leave. Before her dismissal, Ivanova’s average monthly salary was 20 thousand rubles.

Accordingly, the employer must pay her 20 thousand severance compensation for 2 months, for a total of 60 thousand rubles.

Is sick leave paid during vacation? Find out all the necessary information on this topic.

Did you get sick during your probation period? Learn more about your employment rights by carefully reading this article.

All information about paying sick leave on weekends can be found by following the link.

Some employers practice “screening out” employees who have returned from maternity leave, due to the belief that such specialists cannot work with full dedication. In such cases, the woman is notified of dismissal immediately after the end of maternity leave.

Formally, such employers do not violate the law, but no one has canceled the 2-month rule. Since according to Art. 180 of the Labor Code, the employer is obliged to notify the employee of dismissal no later than 2 months in advance. before settlement, if this rule is not observed, in addition to severance pay, the woman is entitled to additional compensation. It is calculated in proportion to the period remaining before the expiration of the 2 months prescribed by law.

A woman returning from maternity leave and immediately dismissed can receive another payment in the amount of average monthly earnings if she contacts the employment service on time (within two weeks after payment) and does not find a job within a month. The basis for assigning this payment is the order of the employment center.

Dismissal after maternity leave

Continuing the currently most pressing topic of vacations, we will consider in detail how to calculate the amount of vacation pay.

Clause 5 of Regulation No. 922 defines periods, as well as amounts accrued during this time, that are excluded from the calculation, for example, when an employee:

received average earnings in accordance with the legislation of the Russian Federation, with the exception of breaks for feeding the child;
received benefits for temporary disability or maternity benefits;
was released from work with full or partial retention of wages;
was on leave without pay (parental leave until the child reaches the age specified by law).

During the billing period of 12 calendar months before the day of dismissal from 04/01/2011 to 03/31/2012, the employee was on maternity leave and had no actual accrued wages; in the previous period from 04/01/2010 to 03/31/2011, she also did not have any time worked and actually accrued wages.

From February 9, 2012, she took 28 calendar days of annual leave, and from March 8 she went on maternity leave. Upon completion, Yu.M. Chernaya decided to resign of her own free will on August 1, 2012.

As you know, leaves can be basic, additional (they are determined both at the federal level for certain categories of workers and at a specific production site by decision of management and the trade union), without pay (unpaid), for pregnancy and childbirth, as well as for child care .

Expert opinion

Polyakov Pyotr Borisovich

Lawyer with 6 years of experience. Specialization: civil law. More than 3 years of experience in drafting contracts.

Vacation days for which compensation must be paid are calculated in proportion to the months worked in accordance with clause 35 of Rule No. 169, starting from the date of hire, with the days worked being:

less than half a month - discarded;
more than half a month is counted as a full month.

Leave in connection with pregnancy and childbirth is a period of time during which every working woman has the right to paid leave, which is issued in the last stages of pregnancy.

The employee was on maternity leave for up to 1.5 years. She decided to quit without going to work. How to calculate monetary compensation if the employee did not actually work during the billing period? What should be taken as average earnings?

After two months from the date of notification to employees, their employment is immediately terminated. To carry out this stage, the head of the organization issues dismissal orders, as a rule, in form No. T-8.

Important: Leaving or not returning from maternity leave will not affect the fact of dismissal; even Art. 261 TK. After the announcement of the closure of the company, the employer has the same obligations as with a partial reduction in staff or team size.

What to do if the rights of a maternity leaver are violated?

In order to terminate an employment contract with an employee who is on maternity leave and justify this action as the reason for the layoff, the employer needs to perform a number of the following actions:

Create a commission and issue orders.
Before carrying out the layoff procedure during maternity leave, the employer needs to form a commission
The commission should consist of employees of the organization that makes decisions regarding changes in staffing.
Two orders are issued, one on the creation of a commission, and the second containing the decisions of its members on the reduction of maternity leave.
Send notification.
No later than two months before the layoff during maternity leave, the employee must be given a document notifying her of the employer’s intention to reduce her position.
The employee must confirm receipt of the notification using a signature.
Business relationships can be terminated almost immediately after receiving such a notice, but only if the maternity leave person gives personal consent to this.
Publish an order.
The employer needs to use the generally accepted order form number T-8. A dismissal order is a document drawn up upon termination of an employment contract or upon its termination.
The document must contain information such as the date of dismissal, the reason for the cancellation of the employment contract (reduction in staff), a link to the second part of article number 81 of the current code, as well as the name and number of the document that served as the basis for these actions (order issued by the commission).
Cash payment and return of work book.
On the day of dismissal, the employer must return the employee’s work book with preliminary entries made in it - order number, reason for dismissal and links to relevant legislative acts.
Upon receipt of the work book, the employee must sign in the journal of internal documentation of the enterprise.
It is also the employer’s responsibility to provide the maternity leaver with all the monetary payments due to her by law.

FOR REFERENCE!!! After delivering a notice to an employee who is currently on maternity leave, the employer is obliged to offer her to take another position.

However, it is worth remembering that not all positions can be offered, but only those that are not hazardous to health, do not have a harmful effect on the body, do not require business trips, and also do not require overtime work.

Future and established young mothers who are worried about their jobs can rest easy - the employer does not have the right to lay off an employee who is on maternity leave. In addition, for this category of employees, the law provides additional guarantees and legal protection against dismissal.

A woman on maternity leave has a preferential right to dismissal “in the last row” during layoffs.
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).
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.
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). They can also be fired due to violation of labor discipline or at their own request.

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

And this means that...

You have the right to file a claim in court for violation of your rights.
You must be reinstated at work.
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.
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.
If a claim is filed, the payment of legal costs falls on the shoulders of the employer.

On a note:

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).
The missed deadline can be restored again in court (you have a good reason).

The Labor Code of the Russian Federation stipulates that while an employee is on maternity leave or child care leave, she retains her job and is paid benefits.

There are times when, while on maternity leave to care for one child, a woman learns about a new pregnancy. Then the employee is entitled to another maternity leave, but the Labor Code prohibits taking two leaves at the same time.

To get out of this situation, they usually interrupt maternity leave for the first child and replace it with labor and labor leave, after which the employee goes on another maternity leave, but this time for two children. To do this, the woman should write a corresponding statement.

The guarantees of job security in this case are the same as during the first pregnancy.

When it comes to downsizing, the employer faces a choice:

On the one hand, he can offer the maternity leaver another position. It must be remembered that a transfer to another vacancy will be legal only if the employee has given her written consent. It is possible to introduce a new staffing position specifically for a woman on maternity leave.
The second possible option when reducing the number is to leave the maternity worker her place, while reducing the entire staff with the exception of a pregnant woman or a woman caring for a child.

It is important to remember that an employee cannot be fired, even if the employer did not know about her pregnancy at the time the decision to lay off was made.

If a woman, not knowing about her pregnancy, was fired, and then provided a certificate confirming her position, the employer issues an order to reinstate the employee. You just need to make sure that the gestational age indicated on the certificate confirms the “interesting position” on the date of reduction.

In cases where staff reduction has just begun, it is enough to simply cancel the reduction of the position of the pregnant employee. If a new staffing table has already been drawn up, the maternity leaver can be transferred to another position with written consent.

A woman who is on maternity leave, as well as to care for a child under three years old, cannot be laid off. Exceptions are dismissal at the request of the employee herself, if she agrees to leave of her own free will during layoffs, or dismissal due to the liquidation of the enterprise. These rights are guaranteed according to Art. 261 Labor Code of the Russian Federation. Let's consider how an employee of an organization who is on leave to care for a minor child can be legally laid off.

Read about whether it is possible to lay off a woman with a child under 3 years old here, and from this article you will learn about whether a worker on maternity leave can be fired.

Liquidation of an enterprise involves the complete cessation of its activities. To do this, the company is excluded from the Unified State Register of Legal Entities, the liquidation is reported to the tax authorities, the pension fund and the Social Insurance Fund, and the public is also notified by publishing a message in the press. In other words, this is a long and complex process.

On a note. No less labor-intensive is the reduction of employees of a liquidated company. The complete cessation of a company's activities means the termination of labor relations with all its employees. This also affects preferential categories of employees, since the company cannot provide them with other jobs.

The procedure for reducing employees during liquidation is as follows:

The management of the enterprise sends a notice of liquidation of the company to the employment service.
No later than two months before dismissal, it is necessary to notify employees in writing and with a personal signature of the upcoming layoff due to liquidation.
The text of the notification must indicate the specific date of termination of employment contracts; it also informs when employees should contact the HR department to obtain work books and other documents.
The notification must be in writing, since oral communication of information is unacceptable for the reason that it does not have legal force, that is, it cannot act as evidence of compliance with the necessary procedure.
The notice is drawn up in two copies: one is given to the employee, and the second with the recipient’s signature remains in the personnel service.
Management issues a dismissal order and makes it available to employees for review.
The final calculation and payment of compensation to employees required by labor legislation is made (you can find out what compensation is due upon dismissal if the employee was on maternity leave, as well as how to calculate the amount of payment, here).
The dismissed employee is given all the necessary documents.
In the case of a maternity leave, this is:
- work book (with the wording “dismissed due to the liquidation of the organization, clause 1 of article 81 of the Labor Code of the Russian Federation”);
copies of sick leave;
applications for leave.

Note! To process the necessary payments, the employment and social protection service will also require copies of orders confirming the fact of work at this enterprise, transfers made and dismissal.

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Dismissal after maternity leave and compensation for vacation

If a private entrepreneur who is the employer of a pregnant or recently given birth employee officially terminates his activities.

This is important to know: Order on granting maternity leave: sample 2021

Cash compensation is paid to the employee upon dismissal for all unused vacations in accordance with Art. 127 Labor Code of the Russian Federation. Based on clause 28 of Rule No. 169 [1], upon dismissal of an employee, compensation for unused vacation is calculated in proportion to the time worked by him in the institution.

less than half a month - discarded;
more than half a month is counted as a full month.

How to calculate severance pay during layoffs - example calculations

Severance pay, which is paid one-time during dismissal, should be at the level of the average official salary. If the employment contract states that redundancy benefits must be paid in an increased amount, then the employer must make such a payment.
Social assistance based on the average salary, which is retained by the citizen for the period of searching for a new job.

Payment of benefits upon dismissal due to staff reduction is made no later than the day of dismissal of the employee (Article 140, Part 1 of the Labor Code of the Russian Federation). If the employee is not present at work on a given day, then the benefit must be paid the next day, no later than the day he submits a request for payment.

Reduction after parental leave: features of calculating severance pay

In accordance with clause 6 of the Regulations, if the employee did not have actually accrued wages or actually worked days for the billing period or for a period exceeding the billing period, the average earnings are determined based on the amount of wages actually accrued for the previous period, equal to calculated

Based on Art. 139 of the Labor Code of the Russian Federation, the average salary of an employee is calculated based on the salary actually accrued to him and the time actually worked by him for the 12 calendar months preceding the period during which the employee retains his average salary. In this case, the calendar month is considered to be the period from the 1st to the 30th (31st) day of the corresponding month inclusive (in February - to the 28th (29th) day inclusive)

Calculation of severance pay in the event of a layoff if you return from maternity leave

When carrying out measures to reduce the number or staff of an organization's employees, the employer is obliged to offer the employee another available job (vacant position) in accordance with part three of Article 81 of this Code.

N 922 To receive payment for the third month, you will need to register with the employment center within 2 weeks. In addition, you must be paid compensation for all unused vacations in accordance with Article 127 of the Labor Code of the Russian Federation (if applicable). You did not write when you were hired and fired when you were on maternity leave. The billing period for reference to the Central Bank should be the period from 12/01/12 – 02/28/13. Days and amounts attributable to maternity leave and child care leave are removed from the billing period. This means that for your case you need to follow clause 5 of the specified Procedure.

Is it possible to fire an employee on maternity leave?

If the manager made changes to the staffing table, which in turn affected the woman on maternity leave, but at the same time took care of her properly and found a new place of work or another position for her, he still has the right to carry out the dismissal procedure, justifying this action abbreviation.

But employers should still not forget that the new position must be no lower than the level of the one previously occupied by the employee. It is also mandatory to obtain written consent from the employee confirming approval of such a transfer.

Sometimes it happens that the manager has maternity maids with children who will soon turn three years old.

Notice of staff reduction must be provided two months before the planned termination of the employment contract.

In this case, the manager has the right to hand it over to the maternity leave a little earlier than her maternity leave ends.

That is, if the child is currently 2 years and eight months old, then the manager can send a notification, and after 2 months he can safely lay off the employee, since according to the law at that moment she will be considered fully able to work.

FOR REFERENCE!!! If a woman on maternity leave was hired by a manager for the purpose of temporarily replacing a certain employee, then the employer has the right to lay her off.

However, this can only be done if the term of the employment contract comes to an end during 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.

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

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.

Therefore, theoretically, yes, dismissal during maternity leave is possible, but if this happens, then the dismissed employee will have time to either find a new job with a more flexible schedule, or register with the employment center.

As with the liquidation of an enterprise, when a position in the staffing table is reduced, the employee must be notified of this two months before the actual withdrawal of the staffing unit. There is no direct prohibition on notifying an employee on vacation about a layoff, so the employer can send a commission to the vacationer’s home with a signature sheet stating that notice of the layoff has been served.

In addition, the employer is obliged to offer the employee other available vacancies during the two months between the delivery of the notice and the dismissal. But they may also have a less convenient schedule or lower salary. Of course, an employee has the right to refuse a position that does not suit her.