Dismissal to care for a disabled child: can a parent be fired or laid off in 2021

Can parents be fired?

The legislation of the Russian Federation ensures that an employee has the opportunity not to tell the employer that he has a disabled child in the family . But if you hide this during employment, then you can not count on the benefits provided by the Labor Code of the Russian Federation.

One of these benefits is special conditions between the enterprise and the employee regarding dismissal issues. Can a woman who is a mother be fired or a father raising a child with a disability be laid off?

At the initiative of the employer

Article 81 of the Labor Code of the Russian Federation explains in which cases an employer, on its own initiative, can dismiss an employee. In simple words, it is used when a mercenary is fired against his will. The article has 14 points, but it does not in any way highlight the separate status of workers with disabled children.

Article 261 of the Labor Code of the Russian Federation states that the dismissal of an employee who is the sole breadwinner of a disabled child under the age of 18 is not allowed . But this does not mean that the employee should not adhere to the internal rules of the enterprise and labor discipline. The same article indicates exceptions to the rule - except for paragraphs 1, 5 - 8, 10, 11 of the first part of Article 81, or paragraph 2 of Article 336 of the Labor Code of the Russian Federation.

Thus, an employee with a disabled child can be dismissed at the initiative of the employer for the following reasons:

termination of the activities of a private entrepreneur or liquidation of an organization;
violation of labor discipline by an employee with a disabled child, as well as failure to fulfill duties;
one-time gross violation of labor discipline;
a single gross violation by the head of the organization of labor duties (in the case where a worker with a disabled child holds this position);
provision by the employee of inauthentic documents when drawing up an employment contract.

In other cases, dismissal at the initiative of the employer is impossible.

Clause 6 of Part 1 of Article 81 indicates the possibility of an enterprise to dismiss a worker for violation of discipline, namely:

absenteeism, that is, absence from the workplace for one work shift without valid reasons (regardless of its duration) or 4 hours during a work shift;
appearing at the workplace (at an enterprise or other workplace on behalf of the employer) in a state of toxic, alcoholic or drug intoxication;
disclosure of secrets (state or commercial), as well as transfer of data of another employee to third parties;
committing theft (even minor) at the place of work, as well as destruction, damage and embezzlement;
violation of labor protection in the case where such actions entailed serious consequences;
committing actions that resulted in the employer’s distrust of the employee, if the latter is related to monetary or commodity values.

We recommend that you read our other articles about whether you can be fired from your job:

pregnant;
on maternity leave;
after maternity leave;
single mother;
parents with many children;
if there is a minor child.

At your own request or by agreement of the parties

At any time , an employee who has a disabled child can resign of his own free will . Article 80 of the Labor Code of the Russian Federation states that after expressing a desire to leave work, the worker undertakes to fulfill his work duties for another 2 weeks. They are needed so that the company finds a new employee and does not incur losses due to labor shortages.

Part 3 of Article 80 states that a worker may not work for two weeks if he cannot continue to perform his job duties. There is no clarification regarding the presence of a disabled child in this norm. But if you attach to the resignation letter a certificate from the attending physician stating that the child needs constant care. No employer would want to have lawsuits over this and would not keep the person.

Important! In practice, enterprise managers often fire a person immediately without a doctor’s certificate if the worker’s personal file contains information about the presence of a disabled child.

In the legislation of the Russian Federation, there is no possibility to resign in connection with caring for a disabled child, therefore the work book will indicate the reason “at one’s own request” in accordance with paragraph 3 of part 1 of Article 77 of the Labor Code of the Russian Federation.

Notice of dismissal is submitted by the employee in writing to the director or other official replacing the person performing his duties. It must indicate the reason specifically “to care for the child.”

It can be registered 2 weeks before the required date of dismissal or directly on the day of dismissal. In cases where it is not possible to submit an application in person (for example, while on parental leave), you can send it by registered mail.

Read more about the nuances of dismissal of women and men with a child under 14 years old, as well as how to write an application in our material.

By reduction in number or staff

Reducing the number of staff is a legal way to fire a person on the initiative of the director of an enterprise or a private entrepreneur. If mothers with disabled children are laid off, then there is no point in opposing anything to the authorities. If you file a lawsuit, it will always be on the employer’s side. But the legislation of the Russian Federation provides protection from layoffs for certain groups of people.

Part 2 of Article 81 provides for the possibility of dismissing employees at the initiative of the employer in connection with a reduction in the number of employees . But Article 261 of the Labor Code of the Russian Federation lists certain groups of people whose dismissal is unacceptable. Among this list there is also a worker with a disabled child. It is worth noting that the same article lists exceptions to this rule, but part 2 of article 81 is not there.

IMPORTANT! If an employer fires a worker with a disabled child, this is grounds for filing a lawsuit.

Liquidation of the enterprise

According to Part 1 of Article 81 of the Labor Code of the Russian Federation, an enterprise or private entrepreneur may, on its own initiative, dismiss a worker due to liquidation or reorganization.

As already mentioned, Article 261 of the Labor Code of the Russian Federation states that a worker with a disabled child cannot be fired, but there are several exceptions to this rule.

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

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

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

How to remove a mother or father from activities?

If an employee with a disabled child violates any exception to the general rule about the inadmissibility of firing a certain group of people, he can be legally fired. Namely:

violation of labor discipline;
providing the employer with inauthentic documents when preparing documents during hiring;
showing up at work while drunk.

For other subjective reasons, this group of people cannot be fired. But if at least one point is violated, the procedure for legal dismissal can begin.

Step-by-step instructions for dismissal:

Recording the fact of violation. For this purpose, the enterprise maintains a time sheet. Work colleagues also submit reports indicating when the person was not at work, that he was intoxicated, etc.
Checking the deadlines for applying disciplinary action. Article 193 of the Labor Code of the Russian Federation states that disciplinary sanctions are applied no later than one month from the date of the incident.
Drawing up an explanatory note from the violator. Prepared by the employer in two copies, one for each party.
The employer checks the severity of the offense and the presence of a valid reason for the violation committed by the offender.
Drawing up an order or notice of dismissal.
Registration of an order.
Familiarization of the employee with the order.
Drawing up a settlement note.
Payment to the employee. Payment of all amounts due to the employee must be made on the day of dismissal. If he did not work on that day, then the money must be paid no later than the next day after submitting demands for payment.
If disputes arise about the amount of payments, the employer must pay the undisputed amounts according to the above rules.
According to Article 127 of the Labor Code of the Russian Federation, the employee must be paid all amounts of unused vacation. Wages must also be paid for all hours worked.
Recording information about dismissal in a personal card and work book. A former employee of the company certifies this data with a personal signature. In paragraph 12 of the “Rules for maintaining and storing work books...” the employer undertakes to familiarize the employee, under his signature, with a new entry in the work book and personal card, where all entries are duplicated.
Creating a copy of the work book for the enterprise archive.
A work book is issued to an employee on his last working day. If the employee is not present on the day of dismissal or refuses to accept the work book, then the employer must give permission to send it by mail. If the employee himself wrote an appeal regarding the issuance of a work book, then it must be issued within three working days from the date of such appeal.
Issuance of a certificate with the amount of earnings.

To draw up a dismissal order, as a rule, they use the T-8 sample, approved back in 2004. But the law does not prohibit the use of other options.

Such a document consists of:

name of the company according to its charter;
number and date of creation of the order;
details of the employment contract;
date of dismissal;
Full name of the employee and all data on the work (position, personnel number, etc.);
information about dismissal.

Notice of termination of an employment contract is issued by the employer in the following form:

in the header we indicate the full name of the employee and his address, as well as the details of the company;
in the middle the title of the document: “Notice of termination of the employment contract ...” and indicate the reason;
notification text;
date and signature.

An application for resignation of one's own free will is drawn up by the employee in the following format:

in the header we write from whom and to whom such a statement is written;
in the middle is the title “Statement”;
Below we indicate in the paragraph information about the desire to resign and the date of dismissal;
signature and date of the application.

How can a father or mother resign due to this?

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

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

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

At your own request

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

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

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

At the initiative of management

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

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

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

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

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

Documents proving disability

The Labor legislation of the Russian Federation provides several benefits for an employee with a disabled child. In order to receive such benefits, an employee must provide upon hiring a child’s birth certificate and documents confirming his illness.

The decision of the medical and social examination (MSE) serves as a supporting document . A disability certificate can be issued for different periods (from one to three). If the ITU has expired and the employee has not presented the employer with a new document, then he does not receive benefits.

How to apply

The procedure for terminating an employment contract with an employee raising children is practically no different from the usual procedure. However, there are some nuances in the process.

When an employee decides to quit herself, she needs to submit an application within the deadline established in Art. 81 Labor Code of the Russian Federation. The manager issues an appropriate order.

If a woman leaves work to subsequently care for a minor, then this reason must be indicated in the application. Based on the paper from the employee, an order with exactly this wording is formed.

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Important! If the manager initiates dismissal on the basis of an employee’s violations, then he is obliged to attach a full package of documents confirming the fact of illegal actions.

Documentation

The norms given in Art. 65 of the Labor Code of the Russian Federation oblige every newly employed person to provide documents according to the established list. It does not indicate the papers providing benefits. In this regard, to protect maternal rights, women are recommended to present photocopies of the following documents themselves:

children's birth certificates;
certificate of a large family;
certificate of disability of the child;
extract from the house register.

If you were fired illegally

There are several instances to protect your rights in case of illegal dismissal. You can contact the State Labor Inspectorate, the Prosecutor's Office, and the judicial authorities.

Before you go to write a statement of violation, you need to collect all the necessary documents, namely:

a copy of the dismissal order;
confirmation of the grounds for dismissal.

Important! Upon a written request from a dismissed employee, the employer undertakes to issue all documents within 3 days.

What are the consequences of illegal actions?

After the dismissal is declared illegal, the employee is reinstated to his job . The basis for this is a court decision or a proposal from a prosecutor or labor inspector. The enterprise issues an order declaring the dismissal illegal.

The employer may then be subject to penalties. This decision is made by the court or labor inspectorate in accordance with Article 5.27 of the Code of Administrative Offenses of the Russian Federation. For enterprises, the fine varies from 30 to 50 thousand rubles, and for private entrepreneurs - from one to five thousand. In especially serious cases, the official is suspended for a period of 1 to 3 years.

Thus, we can conclude that the legislation of the Russian Federation in the field of protection of workers who have disabled children is quite strict in relation to employers. It is very difficult to fire an employee who has good information to protect himself from illegal dismissal without his desire.

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What payments will parents receive upon dismissal?

By law, any person who is employed has the right not to tell the employer that he has a child with a disability. But in this case, he cannot count on benefits. If an employee wants to receive benefits and additional guarantees, he is obliged to provide the personnel officer with copies of his birth certificate and a certificate of disability. What kind of guarantees could these be?

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The mother of a child with a disability is entitled to:

Additional free vacation for two weeks.
Four paid days off every month.
120 days of paid sick leave per year if a child is ill.
Ability to work on a reduced schedule.

A parent with a disabled child cannot be sent on a business trip without his consent, or forced to work at night, on weekends, on holidays or more than the required time. In addition, such employees have privileges upon dismissal.

One of the parents who left work of his own free will must receive such payments from the employer as:

wages for working hours worked;
compensation for unused vacations.

Severance pay for those who leave work of their own free will is not given. Such a social payment is carried out if an employee is laid off due to the liquidation of an enterprise or a reduction in staff.

People who support disabled children should not come to the company on their own for personal dismissal. Legislatively, they have the right to send the employer a statement and accompanying documents stating that he needs to resign. This norm was established to ensure that people did not interrupt their sick leave and did not work out the two-week period.

Employees who were hired under a fixed-term employment contract can submit an application by mail. But this is observed less frequently, since the employee must personally appear at the HR department or the director of the enterprise to receive the required payments and pick up the work book. It is important that the father or mother of a disabled child immediately check the entry in the work book in order to contact social services and the pension fund the next day to apply for a pension and state benefits for the child.

How is the dismissal process carried out? Mothers who decide to quit their jobs to care for a disabled child are required to write the application correctly. This will make it possible to terminate the employment contract by agreement of the parties, as specified in Art. 78 of the Labor Code of the Russian Federation.

An employer who does not want to delay the process must accept the application and make all social payments. Despite the fact that dismissal due to caring for a disabled child is a valid factor, you should not delay dismissal until the last moment. Lawyers recommend submitting an application in advance, writing that the dismissal is at your own request in order to care for a disabled child.

The same phrase will be written in the work book, which will allow the mother or father to receive social payments from the state budget and apply for a disability pension for the child.

Important

Unfortunately, the presence of disabilities in children is a common occurrence in everyday life today. It can be either congenital or acquired as a result of injuries or illnesses.

Working parents, when it is necessary to care for such a child, sometimes have to make a choice about which of them should pay off work and be near the sick person. In choosing between a career and providing proper attention to a sick son or daughter, father and mother decide among themselves, depending on the amount of wages received, who is better off quitting their job and always being close to the child, who simply vitally needs the constant presence of an adult.

If there was no mistake, then the employer deliberately committed an offense, and this is worth fighting. The next option to protect your interests is to complain to the labor inspectorate. This can be done in person at the nearest branch, by writing a letter or filling out a complaint form on the website of the Labor Inspectorate itself. After the appeal, the Inspectorate will be obliged to conduct an investigation.

If she discovers a violation, she will oblige the employer to reinstate the employee and pay compensation. The last, and most effective way to achieve justice is to go to court.

To do this, you will need to file a standard claim and enlist the support of an experienced lawyer. The claim differs from a complaint to the Labor Inspectorate in that the mother will be able to demand not only reinstatement at work, but also payment of additional compensation.

Benefits in the labor sphere

Women raising children on their own can count on some privileges from their employer.

Attention! Labor benefits for single mothers in 2021 are enshrined in the Labor Code. A woman can sue her boss if he systematically violates her rights prescribed in the legislation of the Russian Federation.

These rights include:

if the staff in her organization is reduced, a woman raising a child under 14 years old alone cannot be fired;
employers cannot refuse to hire a single mother, citing the fact that she has children;
single mothers can take additional unpaid leave for at least 14 days;
if the child is under 14 years old, then his mother can apply for part-time work;
sending a woman on a business trip to raise a child without the help of his father is possible only after obtaining her consent in writing;
Women raising a child under five years old cannot be recruited alone to work at night, on weekends and on holidays;
If a single mother is dependent on a disabled child, she is entitled to 4 additional paid days off monthly according to a convenient schedule. It is prohibited to transfer holidays to subsequent months.

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Payment for sick leave for a single mother is carried out in the same way as payment for sick leave for women in two-parent families. No additional privileges have been established at the federal level .

Features of dismissal

According to the Labor Code, an employer does not have the right to fire a single mother who has a dependent minor under 14 years of age or a disabled child under 18 years of age. This also applies to staff reductions at the enterprise.

An exception is possible in the following cases:

upon liquidation of an enterprise or termination of the activities of an individual entrepreneur;
if an employee repeatedly fails to fulfill his job duties without good reason, there must be documentary evidence, for example, an official penalty);
violation of labor discipline and job responsibilities (absenteeism, tardiness, disclosure of official information, being intoxicated at the workplace, etc.);
the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;
if a single woman works as a manager, then the reason for dismissal may be a one-time gross violation of her work duties;
the use, including one-time use, of educational methods associated with physical and (or) mental violence against the personality of the student or pupil;
providing false information during employment.

Important! Labor legislation fully protects the rights of single mothers. If employers violate the rights of a single mother, before going to court, she can write a complaint to the Labor Inspectorate of her city. Specialists of this organization are obliged to conduct an inspection and take measures to prevent violations.

Labor rights and benefits of parents of disabled children

Raising and caring for disabled children is not easy work. Therefore, special rules apply to families with such children, and benefits are provided for them. They affect almost all areas of life. To provide a special child with the most comfortable conditions, you need to know what the law and social programs of the state provide for them. It is especially important to understand what the rights of a mother of a disabled child are at work.

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