Termination of employment is one of the most sensitive issues in labor law, particularly when it concerns a specially protected category of employees, such as women on maternity leave and leave for childcare.

The development of information technologies, as well as organizational and economic changes in business operations, increasingly lead to company closures, reductions in the number of employees and the termination of employment of a large number of employees. In such circumstances, the question particularly arises: can women on maternity leave have their employment terminated during the period of leave?

Although the period of maternity leave and leave for childcare should be a carefree period for every woman, unfortunately, the protection afforded to this category of employees is not absolute and reveals inconsistencies and shortcomings in the legislative system of our country.

Maternity leave and leave from work for childcare

An employed woman is entitled to leave from work due to pregnancy and childbirth, i.e. maternity leave, as well as leave from work for childcare, for a total duration of 365 days.

An employed woman is entitled to commence maternity leave on the basis of a finding issued by the competent healthcare authority, no earlier than 45 days and mandatorily 28 days before the expected date of childbirth. Maternity leave lasts until the expiry of three months from the date of childbirth.

After the expiry of maternity leave, the employee is entitled to leave from work for childcare until the expiry of 365 days from the date on which maternity leave commenced.

An employed woman is entitled to maternity leave and leave from work for childcare for her third and each subsequent newborn child for a total duration of two years.

The right to maternity leave and leave from work for childcare for a total duration of two years also belongs to an employed woman who gives birth to three or more children in her first childbirth, as well as to an employed woman who has given birth to one, two or three children and, in a subsequent childbirth, gives birth to two or more children.

During maternity leave and leave from work for childcare, an employed woman is entitled to wage compensation, i.e. salary compensation.

Special protection against termination of the employment contract

Article 187 of the Labor Law provides for special protection against termination of the employment contract, according to which the employer may not terminate an employee’s employment contract during pregnancy, maternity leave, leave from work for childcare and leave from work for special childcare.

If the employee is employed by the employer for a fixed term, this means in practice that her employment contract must be extended until the expiry of the period in which she exercises the right to leave.

On the other hand, if the employee is employed for an indefinite term, the employer has no right to terminate her employment contract during the period of leave.

Therefore, even if the employer is implementing redundancies, i.e. if, due to technological, economic or organizational changes, the need to perform certain work ceases or the volume of work is reduced, the employment contracts of employed women may not be terminated. Only after the period of leave has ended may the employment status of the employed woman be resolved.

If the employer acts contrary to the mandatory provision of the Labor Law and terminates the employee’s employment contract, such decision on termination of the employment contract is null and void. If the employee, within 30 days from the date of termination of employment, notifies the employer of the existence of the relevant circumstances and submits an appropriate certificate issued by an authorized physician or another competent authority, the decision is also null and void.

When termination of employment is nevertheless possible

Although at first glance it may seem that termination of employment during maternity leave is not possible under any circumstances, there is an exception. The employment relationship may terminate independently of the will of both the employee and the employer in the event of cessation of the employer’s operations.

Therefore, this is a situation in which the employer, in accordance with the law, ceases to operate, i.e. ceases to carry out its activity. Such cessation should not be equated with a redundancy situation, where there is a reduction or reorganization of the number of employees and other changes at the employer, but with continuity of business operations. One of the key differences between these two grounds for termination of employment is that the employer is not obliged to pay severance pay to the employee if the employment relationship terminates due to cessation of the employer’s operations.

Consequences of termination of employment during leave

The Law on Financial Support to Families with Children provides that wage compensation during maternity leave is exercised by employees employed by legal entities and natural persons.

If the employee’s employment relationship terminates during the period of leave, she loses the status of an employee and, consequently, the right to payment of wage compensation.

Although this is not a wage earned exclusively through work performed for the employer, but rather wage compensation which, moreover, is not paid by the employer from its own funds, but is provided from the budget of the Republic of Serbia, a woman who had until then been employed and from whose wage health insurance contributions had been paid loses, upon termination of employment, the basis for further payment of this compensation. It is precisely here that the illogical nature of the statutory solution and the legal gap in the protection of women in the event of cessation of the employer’s operations become apparent.

If the employee has no possibility of entering into employment with another employer, she may register as unemployed with the National Employment Service (“NES”), in accordance with the rules governing the exercise of rights in the event of unemployment, and submit a request for the exercise of the right to unemployment benefit within 30 days from the date of termination of employment.

Regardless of the fact that there is a possibility of receiving compensation, the option of receiving unemployment benefit is less favorable than receiving wage compensation, bearing in mind the difference in the amount of these payments.

It should also be taken into account that a person is entitled to unemployment benefit if they were insured for at least 12 months continuously or with interruptions during the last 18 months.

It is important to emphasize that, although the Law on Employment and Unemployment Insurance prescribes the duration of unemployment benefit depending on the length of the insurance period, payment of this benefit continues during maternity leave and leave for childcare. This means that, for example, an employee who has an insurance period of between one and five years, and who would otherwise be entitled to unemployment benefit for a duration of three months, will continue to receive payment even after the expiry of that period, i.e. for as long as the right to leave on this basis lasts.

It should particularly be borne in mind that, if the employment relationship terminates after the commencement of maternity leave but before the birth of the child, the possibility of exercising other compensation on the basis of childbirth and childcare should also be examined, under the conditions prescribed by the Law on Financial Support to Families with Children.

What steps should the employee take?

If, during the period of leave, the employee is presented with the possibility of termination of employment, it is important first to verify the legal basis for the termination of employment, i.e. whether it is truly a case of cessation of the employer’s operations or a case of redundancies and changes in the employer’s business operations.

It often happens that employed women are offered an agreement on termination of employment, but it is important to emphasize that the employee is not obliged to sign such an agreement and that, without her consent and free will, termination of employment on the basis of an agreement is not possible.

Where there is no possibility of entering into employment with another employer, in the event of cessation of the employer’s operations, it is necessary to register with the NES in order to exercise the right to compensation.

In the event of termination of the employment contract contrary to the provisions of the Labor Law prescribing special protection, the employee has the possibility to protect her rights before the court and the labor inspectorate.

Conclusion

Although the objectives of the law on financial support to families with children are aimed at improving the conditions for meeting the basic needs of children, reconciling work and parenthood, providing special incentives and support to parents to have the desired number of children, as well as improving the material position of families with children, in a situation where the employee’s employment relationship terminates independently of the will of both the employee and the employer, the opposite is in fact demonstrated.

An employee whose employment relationship terminates due to cessation of the employer’s operations loses the right to payment of wage compensation, whereby she is placed in an unfavorable and unequal position precisely at a time when such support is most needed, which directly affects the livelihood and material stability of the woman and her family.

This article is to be considered as exclusively informative, with no intention to provide legal advice. If you should need additional information, please contact us directly.