Firing on Maternity Leave During Redundancy

Is it possible to dismiss an employee on maternity, childbirth, or childcare leave during redundancy

A reduction in workforce or staff does not give an employer the right to dismiss a pregnant employee, an employee on maternity leave, or an employee who has a child under the age of three. If the child requires home care and there is a medical certificate, this guarantee also extends to the period of unpaid leave until the child reaches six years of age. The only exception for dismissal at the employer's initiative is the complete liquidation of the enterprise, subject to mandatory employment placement. The liquidation of a department, division, line of business, or simply a change in the staffing table is not considered a complete liquidation of the enterprise. (Law of Ukraine)

For a business, this means: if a department or position needs to be eliminated, but the employee is in a protected period, the employer must either keep her on the staff until the protected period ends, offer another job, or formalize an allowable transfer within the same position and locality. Dismissal due to redundancy will become possible only after the protected period ends and strictly in full compliance with the procedure: a warning no later than two months in advance, an offer of alternative work, consideration of the pre-emptive right to remain at work, and payment of severance pay. (Law of Ukraine)

Which leaves are meant here

In HR practice, the word "maternity leave" often refers to several different periods at once, but it is important for the employer to distinguish them correctly:

The right to leave is ensured, among other things, by preserving the workplace for its duration. Childcare leave up to three years and leave up to six years are formalized based on a statement from the employee or another authorized person by an employer's order. (Law of Ukraine)

Who exactly cannot be dismissed due to redundancy

The Labor Code prohibits dismissal at the employer's initiative of:

These guarantees also apply to a father raising a child without a mother, as well as to guardians and custodians in cases provided for by Article 186-1 of the Labor Code. That is, the employer should evaluate not only the gender of the employee but the status of the protected person itself. (Law of Ukraine)

Is it possible to dismiss upon liquidation of a department or position

No, if it is specifically about workforce or staff reduction, and not about the complete liquidation of the enterprise. Paragraph 1 of part one of Article 40 of the Labor Code allows dismissal due to changes in the organization of production and labor, in particular due to a reduction in numbers or staff. But for protected categories of employees, there is a special guarantee in Article 184 of the Labor Code, which blocks such dismissal. Therefore, the liquidation of a department does not give the right to dismiss an employee on leave related to pregnancy, childbirth, or childcare. (Law of Ukraine)

In other words, if a position disappears from the staffing table, this does not mean that the protected employee can be dismissed immediately. You will have to look for another legal HR solution for her or wait for the protected period to end. (Law of Ukraine)

When dismissal is still possible

1. Complete liquidation of the enterprise

This is the only case when the dismissal of such employees at the initiative of the employer is allowed. But even then, the law requires mandatory employment placement. The employer has no right to formally terminate labor relations without taking real actions regarding employment. (Law of Ukraine)

2. Expiration of a fixed-term employment contract

For pregnant women and women with children protected by Article 184 of the Labor Code, the expiration of a fixed-term employment contract does not mean the automatic termination of guarantees. In this case, the law also requires mandatory employment placement, and during the employment period, they retain their average salary, but for no longer than three months from the date of the expiration of the fixed-term contract. (Law of Ukraine)

3. The initiative of the employee herself

An employee can resign of her own free will or by agreement of the parties. But this is no longer a dismissal at the initiative of the employer, and therefore it is a different legal basis. For the employer here, it is important that the employee's expression of will be free, clear, and properly executed. (Law of Ukraine)

Which decisions are legal for the employer if the department must be closed now

Transfer to another position

If there is a vacant position to which the employee agrees, a transfer is possible. The employee's consent is required for transfer to another job. If dismissal still becomes necessary in the future after the protected period ends, then the usual redundancy procedure applies. (Law of Ukraine)

Relocation without changing position

Relocation to another workplace or to another structural unit in the same locality is not considered a transfer and does not require the employee's consent if the specialty, qualifications, or position specified in the employment contract are not changed. That is why, if there is the same position with the same functionality in another unit, the employer can use the relocation mechanism, but only within the law and without worsening conditions that go beyond Article 32 of the Labor Code. (Law of Ukraine)

Preserving the position until the end of the protected period

In practice, this is the most reliable option if there is no vacant work and a legal relocation is impossible. The employer changes the organizational structure but retains the workplace for the employee until the end of the period when she is protected from dismissal. After she returns, the redundancy procedure can be launched on general grounds. (Law of Ukraine)

What needs to be documented

It is important for the employer that every step is confirmed by documents. Depending on the situation, this is usually:

How to properly reduce staff after the employee returns

After the protected period ends, the employer can dismiss under paragraph 1 of part one of Article 40 of the Labor Code, but only if all the general requirements of the procedure are met:

Separately, it should be remembered: if an employee wants to prematurely return from childcare leave, she must notify the employer no later than 10 calendar days prior to the date of premature termination of such leave. This rule is important for planning HR decisions and the actual start date of the redundancy procedure. (Law of Ukraine)

Martial law: what has changed and what hasn't

During martial law, Law No. 2136-IX generally allows an employee to be dismissed at the initiative of the employer during a period of leave, but explicitly makes an exception for leave related to pregnancy and childbirth and childcare leave until the child reaches three years of age. At the same time, the State Labor Service in its official explanations emphasizes that the guarantee of Article 184 of the Labor Code remains in effect even during martial law: pregnant women, women with children under three years of age, and in the case of leave based on a medical certificate — up to six years, cannot be dismissed at the employer's initiative, except in the case of complete liquidation of the enterprise. (Law of Ukraine)

Therefore, staff reduction during martial law is possible in itself, but the rule does not change regarding protected employees: they cannot be made redundant during the protected period. (State Service of Ukraine for Labor Issues)

What are the consequences for the employer if dismissing illegally

Illegal dismissal can lead to the employee's reinstatement at work through the court and the payment of average earnings for the time of forced absence. In addition, the employer risks receiving financial sanctions under Article 265 of the Labor Code and administrative liability of officials under Article 41 of the Code of Administrative Offenses. (Law of Ukraine)

For an entrepreneur or manager, this means a double risk: initially, illegal dismissal will not solve the HR problem, and then they will also have to reinstate the employee, pay for forced absence, and undergo inspections or litigation. (Law of Ukraine)

Official sources

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