Prohibition on layoffs. Who cannot be laid off at work (Labor Code)? Provide written notice of reduction

With the difficult economic situation in the country, downsizing is not uncommon. Even highly qualified employees are not immune from it, but some have preferential rights. In this article, you will find out who is the first to be laid off, who is given preference for equal skill levels, and who cannot be fired at all on this basis.

What is an abbreviation

There are 2 concepts - downsizing and downsizing. In Art. 81 of the Labor Code of the Russian Federation does not decipher the differences between them. In practice, the difference is also negligible. In case of downsizing, the position is retained for staffing, but the number of people occupying it decreases. When the staff is reduced, the position is liquidated.

The reasons for the reduction in the company are:

  1. Difficult economic situation in the country.
  2. Merger, reorganization or acquisition of companies.
  3. Internal optimization.

Who and why is the first to be laid off

Curious information

Not only specific positions, but also entire divisions, divisions, departments can fall under staff reduction. The employer has every right to do this. However, in both cases, during the reduction, observance of the rights of workers is mandatory, and those who are not allowed to be fired must remain at the enterprise. If entire divisions are going to be reduced, then employees who have “special” rights should be transferred to other departments.

Consider who is the first to be laid off at work and on what basis. The employer determines preferential rights, and for this a certain algorithm is provided:

  1. Of all candidates for dismissal, employees who are prohibited by law from being laid off are excluded. According to Art. 261 of the Labor Code of the Russian Federation, these include pregnant workers, mothers of children under 3 years old, single parents with children under 14 years old or disabled children under 18 years old, as well as some others. It is forbidden to dismiss in connection with the reduction and employees who are in maternity leave(part 4 of article 256 of the Labor Code of the Russian Federation and part 6 of article 81 of the Labor Code of the Russian Federation).
  2. The remaining workers are assessed by skill levels and labor productivity. Comparison is carried out between employees who occupy the same positions created within the same structural unit. Correctly assess the qualifications of two lead accountants working in the same department. It is wrong to compare a leading specialist and an accountant of the 2nd category - this is indicated in the appeal ruling of the Moscow City Court No. 33-27711 / 2015 of 08/06/2015. Similar rules apply to the evaluation of labor productivity.
  3. If the comparison revealed the same levels of skills and productivity, then family circumstances and other advantages are taken into account when reducing the worker. There is one exception. If a position is abolished or all staff units one position, then pre-emptive rights are not taken into account. This is indicated in the appeal ruling of the Moscow City Court No. 33-1708 of 01/22/2015.

What are preemptive rights and who has them

With equal levels of qualification and labor productivity of employees, preference is given to those who have advantages in terms of staff reduction. According to Art. 179 of the Labor Code of the Russian Federation, the following categories of workers can apply for retention of work:

  • family people who have two or more dependents (minor children, other disabled family members who are on full content employee or who regularly receive assistance from him, representing their permanent and main source of livelihood);
  • the only "breadwinners" in the family are employees whose families do not have other persons with a constant income;
  • employees with injuries and occupational diseases received while working in this organization;
  • workers who are in this moment improve qualifications in the direction of the employer.

If you have been illegally fired due to redundancy, then you need to contact several authorities. First, send a written application to the organization's trade union. The trade union must consider the complaint within a week. Also, this case can be considered by the Federal Labor Inspectorate and the prosecutor's office. If the trade union and the labor inspectorate did not reveal violations, then a lawsuit must be filed.

  • military spouses;
  • military personnel transferred to the reserve;
  • authors of inventions;
  • invalids of the Great Patriotic War and military operations;
  • persons affected by radiation;
  • and some others.

Priority rights to leave at work may also be provided for by internal collective agreements in the company.

How employees are compared

Some facts

At the end of the employment contract in connection with the liquidation of the enterprise, or a reduction in the number or staff of the company's employees, the dismissed employee must be paid severance pay according to average monthly income. For the dismissed employee, the average monthly earnings are fixed at the time of the job search within 2 months from the date of dismissal.

The law does not describe the specific requirements for the procedure for identifying the preferential rights of employees. Practice shows that the courts have more confidence in the decisions of the commissions when fixing the results in writing.
Here are the main nuances that should be considered when comparing candidates for redundancy:

  1. It is recommended that the commission include the heads of departments in which staff reductions are planned, as well as members of the trade union organization and specialists from other structural departments (lawyers, personnel officers responsible for quality control, etc.).
  2. It is necessary to issue an order on the organization of a commission with a definition of the competence of each of its members. Personnel officers may fulfill the obligation to provide information on the imposed penalties and incentives. Heads of departments should be entrusted with the formation of reports on work, the preparation of characteristics, etc.
  3. It is advisable to compile summary tables that reflect the results of comparing the qualifications and labor productivity of workers according to a number of criteria.
  4. The conclusions of the commission should be recorded in the official minutes of the meetings.
  5. The commission must make its conclusions based on the results of comparing the productivity of each employee, taking into account the entire set of criteria. The decision that one employee has a higher qualification because the second has less experience, the court recognizes as illegal.
  6. If candidates for reduction are registered in a trade union and regularly pay membership dues, the employer is obliged to take into account the opinion of this organization on the advisability of dismissing an employee. This is a requirement of Part 2 of Art. 82 of the Labor Code of the Russian Federation.

Watch a video that will tell you about the categories of workers who are prohibited from layoffs

List of persons who cannot be fired for redundancy

The list of those who cannot be reduced by law includes the following categories of workers:

  • temporarily disabled persons;
  • employees on vacation (including student and unpaid);
  • mothers of young children under 3 years of age;
  • women and men raising a child under 14 years of age or a minor child with a disability alone;
  • trade union members.

Those who cannot be laid off from work also include pregnant employees and women on maternity leave. If an employee from the “inviolable” category is nevertheless fired due to a reduction in staff, he will be automatically reinstated at work by a court decision.

We are ready to answer your questions - ask them in the comments

The process of employees or entire departments starts from the moment the order is issued for the enterprise and from the moment. However, some employees cannot be laid off under any circumstances. The law provides for categories of citizens that are officially considered "non-reducible."

Who is prohibited by law

If the employer's plan has a reduction in one or more divisions, then employees falling under the category of "non-reducible" should automatically go to other sections of the same organization.

First of all, the law prohibits employers from depriving women of work who have dependent children under the age of three. In addition, if a disabled minor child is dependent on the father or mother, then under no circumstances is such an employee subject to dismissal. However, in this case there is a clause in the law: dismissal is prohibited if the other parent is absent or does not have a permanent source of income.

  • single mothers raising a child under 14;
  • guardian or parent who is the sole breadwinner of 3 or more children (dismissal is again prohibited if the second parent is absent or does not have a permanent source of income);
  • pregnant employees;
  • employees who, according to the findings medical expertise are recognized as temporarily disabled (the employer has the right to demand appropriate medical certificates to confirm this fact)
  • employees who are promised the preservation of employment during the forced absence (this category includes women on maternity leave who stay in);
  • employees staying in (meaning not only planned);
  • members ;
  • representatives of the working team who are entrusted with the function of conducting;
  • representatives of the working team who are participants in the consideration of corporate disputes.

In addition, there is a clear answer to the question of who cannot be fired for redundancy: the law strictly protects the rights of workers who are on or undergoing treatment in the inpatient department of a licensed medical institution.

The dismissal of an employee belonging to any of the above categories is a priori illegal. If such a dismissal nevertheless took place, then its illegality is easy to challenge in court.

Dismissal by reduction: formalities

The dismissal procedure can be less painful if the employer follows all the rules. First of all, having compiled for himself a list of employees to be laid off, the employer is obliged to notify them in advance.

Since this issue is complex, it quite often becomes the subject of consideration in the conflict commission. Therefore, in order to avoid conflict situations, it is necessary to warn the personnel in writing.

And this does not mean a list that is brought to the attention of the team and under which signatures are collected. Notice of the upcoming reduction should be targeted, personal.

In addition, according to part 2 of article 180 of the Labor Code, the employer does not have the right to notify team members of the upcoming reduction less than 2 months before the planned dismissal. This period is required so that people can orient themselves with intra-family circumstances and try to find a place for a new job during this time.

This makes an exception for employees. They are also notified of the reduction in advance, but the period in this case is much shorter: 17 days. As for the part of the staff that is employed for a period of less than 2 months, the notice of the upcoming reduction must be received 3 days before the start of the dismissal procedure.

There is no federally approved form of notification of an impending reduction. The only requirement is the signature of both parties.

Sometimes an employee misinterprets current laws and refuses to sign the notice. In this case, the employer must ensure that the notice is read to him in the presence of witnesses (at least two). Then it is compiled, which reflects this situation: Notification and refusal to sign.

Even in force majeure situations, the employer should not carry out a reduction without prior notice to the staff. At the first consideration of this situation in the conflict commission, the dismissal is recognized as groundless.

Offer of vacancies in case of staff reduction

If the management has vacancies, then before starting the dismissal procedure, it is obliged to offer them to the staff.

In this case, it is necessary to adhere to the existing standards:

  1. The proposed job site must match the qualifications of the employee.
  2. In the absence of a new job that matches the qualifications of the employee, the employer must offer a lower position.
  3. In the absence of a free subordinate position, the employer must offer the employee any lower-paid job.

In addition, any proposals by management to transfer to another position or to a lower-paid job should be focused on the health status of the employee. Sometimes the offer of a vacancy corresponds to the qualifications of an employee, but he cannot perform labor functions for health reasons.

For example, Petrov Ivan Gavrilovich was the head of the household. Due to the reduction in staff, he is offered the position of head of the warehouse. Functional responsibilities Petrov Ivan Gavrilovich are largely identical: accounting for material values.

However, the maintenance of the warehouse involved lifting boxes of finished products on the shelves. Despite the fact that this process is mechanized and lifting mechanisms were actively involved in the maintenance of the warehouse, Petrov refused this position. The fact is that he would have to move some of the boxes on his own. He could not do this for health reasons: Ivan Gavrilovich was contraindicated in lifting any weights after surgical operation for appendicitis.

The employer retains the right to offer vacancies that are available not only on this specific enterprise but also in other areas. That is, before firing a person for redundancy, management must exhaust all possible options. This ensures social support that part of the team that is subject to reduction.

In writing and under a personal signature, the employees are also informed of the fact that there are no vacancies in the state.

Dismissal is not allowed if the employee is not offered all the vacancies available to the employer.

For example, Malakhova Olga Ivanovna was a laboratory assistant in a chemical laboratory. In connection with the modernization of production, the functionality of the chemical laboratory was abolished and this division of the enterprise was completely liquidated.

Accordingly, all employees of the laboratory were fired for reduction. However, after the dismissal of Malakhov, Olga Ivanovna found out that at the time of her dismissal there was a position as a laboratory assistant in the raw materials laboratory. That is, the employer neglected the fact that there was a similar vacancy that corresponded to the skill level of Malakhova.

Moreover, the salary of a laboratory assistant in a raw materials laboratory was no lower than that which Olga Ivanovna received as an employee of a chemical laboratory. Conflict situation recognized the correctness of Olga Ivanovna. Her dismissal was deemed unfounded.

If the employee accepts the offer new vacancy, then a local act is drawn up.

Priority right upon dismissal

When starting the dismissal procedure, the employer must carefully analyze all the legislative nuances associated with this procedure. First of all, he must clearly understand who cannot be fired due to redundancy. In this regard, in the area special attention management should be employees who have .

According to Article 179 of the Labor Code, it applies to that part of the staff that systematically demonstrates high performance. In addition, high-skilled employees are in priority positions for management.

If the employer is forced to choose from employees with equal qualifications, then the following should remain in the state:

Finally, the employer, under no circumstances, has the right to dismiss or reduce employees who have been injured or injured during the performance of their work duties. In this case, the employer must have a conclusion medical commission, which would confirm the presence of an occupational disease.

In addition, local acts of the enterprise may provide for other categories of employees who have a pre-emptive right. In each such case, the employer makes a personal decision, but it is based on the professional qualities and degree of preparedness of the employee.

Retirement payouts

Compensatory deductions are regulated by clause 2 of article 81 of the Labor Code. The employer is obliged to provide each laid-off employee with severance pay. Its size is determined by the average monthly earnings. This allowance is accrued for the first month following the dismissal by reduction.

The management of the former enterprise is obliged to ensure average monthly earnings and for the second month, if the employee did not find new job.

As for the 3rd month, in the event of a lack of employment, the employer will also pay the corresponding allowance. However, now it will be accrued only upon presentation of an official certificate from the regional population.

Sometimes a cut is inevitable. But even in this case, the employer does not have the right to lay off some employees. Who, when and why has special rights and "privileges" in case of downsizing?

Some employees have special “privileges” when reducing staff or headcount. Simply put, the employer generally does not have the right to fire them for redundancy. True, the workers themselves are often unaware that they have any special rights. Therefore, before you get upset about the upcoming layoff, you first need to make sure that you really do not have any benefits, and the employer has the right to cut you.

Of course, each case is individual, and sometimes it is more profitable to “downsize”, look for a new job and receive financial compensation from the previous employer in parallel. But situations are different, and knowing your rights, in any case, is useful.

So, which employees are considered according to Russian laws"irreducible"? All of them are listed in the Labor Code.

Retrenchment: "unreduced" workers

By the way, not only individual positions, but also entire divisions, divisions, departments can fall under staff reduction. The employer has every right to do this. But, in any case, during the reduction, the rights of employees must be respected, and those who cannot be reduced must remain in the company. If it is planned to reduce the entire unit, then the "non-reducible" employees should be transferred to other departments of the organization.

The employer does not have the right to dismiss the following categories of employees due to layoffs:

Employees who are temporarily disabled - part 6 of article 81 of the Labor Code of the Russian Federation (medical certificates will be required to confirm disability);

Employees who are guaranteed to keep their jobs during their absence. For example, this includes women on parental leave (part 4 of article 256 of the Labor Code of the Russian Federation), as well as other employees on vacation (this includes the most different types vacations: educational, basic leave, additional, leave without pay);

Pregnant women (an exception is the case when the entire enterprise is completely liquidated) - on the basis of Article 261 of the Labor Code of the Russian Federation;

Women raising children under the age of three; single mothers raising a child under the age of 14 or a disabled child under 18, and other persons (this includes guardians, foster parents, etc.) who are raising such children without a mother (an exception to this rule is, again the liquidation of an enterprise or the commission of guilty actions by these persons) - on the basis of Article 261 of the Labor Code of the Russian Federation;

Members of trade unions (their rights are described in paragraphs 2, 3 and 5 of Article 81 of the Labor Code of the Russian Federation);

Representatives of workers who conduct collective bargaining;

Participants in the resolution of collective disputes.

If an employee belongs to any of these categories and was, nevertheless, fired on a reduction, reinstatement through the court is easy, one might say, almost “automatically”.

Downsizing: Workers with “Perks”

In addition to workers who cannot be laid off, there are also workers who have advantages over their colleagues. First of all, this applies to a situation where the employer is forced to cut one of two identical positions. For example, out of two accountants working with the “bank, cash desk” section, only one should remain. Whom to choose for reduction? It would seem that the choice depends entirely on the employer. But it is not so.

The Labor Code prescribes to the employer who he should “sacrifice” last. This information is contained in article 179 of the Labor Code of the Russian Federation. If there are two identical positions, then employees with higher labor productivity and higher qualifications should be left in the company.

What if the productivity and qualifications of employees are equal? In this case, the employer must take into account other factors. Of the two employees, one of which is subject to reduction, the right to remain in the organization has:

Employees who have a family with two or more dependents;

Employees whose families do not have other self-employed workers;

Employees who received an industrial injury or occupational disease during the period of work with this employer;

Employees who improve their skills in the direction of the employer on the job;

Disabled fighting for the defense of the Fatherland.

So, the Labor Code does not proceed from the fact that “in the face of layoffs” all employees are equal. There are employees who should not be laid off, as well as those who should be laid off only as a last resort. If you belong to one of these categories, you should not forget about your rights.

Edition "Job & Salary"

Reducing the number of employees is one of effective ways cut costs or slow down production activities if the organization's product is no longer profitable. In the article we will tell you how to avoid mistakes when reducing the staff.

If the employer decides to reduce the number of employees, he needs to take into account all the nuances of this complex process. The mistakes made do not reduce, but, on the contrary, significantly increase the cost of personnel.

For example, the court may reinstate an employee at work and oblige the employer to pay him the average earnings for the entire period of forced absenteeism (Article 394 of the Labor Code of the Russian Federation, hereinafter referred to as the Labor Code of the Russian Federation), as well as compensate for moral damage (Article 237 of the Labor Code of the Russian Federation). In this case, the employer is obliged to pay all legal expenses (Article 88 of the Civil Procedure Code of the Russian Federation).

In addition, if an employee applies for the protection of his rights to the labor inspectorate, if the reduction is incorrectly drawn up, the employer faces administrative liability under Art. 5.27 of the administrative offenses RF.

Consider typical mistakes that employers do when they make redundancies.

1. INCORRECTLY DEVELOPING THE NOTICE OF REDUCTION

When warning employees about layoffs, it is necessary to take into account all the requirements of the law, as well as established practice, in order to reduce the risk of disputes in the future. We recommend that you issue a notice of reduction in the number (staff) of employees. The more detailed the document is, the less questions, misunderstandings and irritation it will cause among employees (Example 1).

2. EMPLOYEES ARE NOT NOTIFIED OF REDUCTION OR HAVE BEEN NOTIFIED IN VIOLATIONS

An important nuance is that absolutely all laid-off workers must be warned about the reduction and on time.

According to the second part of Art. 180 of the Labor Code of the Russian Federation, the employer is obliged to warn employees in writing against signature of their reduction at least two months before dismissal.

If the employee refuses to read the notice or sign for familiarization with it, then the employer will have to read the notice aloud to the employee and draw up an act in which two or three employees who were present at the time of familiarization must sign (Example 2).

However, there are exceptions to the notice period for an employee.

Several days notice. For example, if a fixed-term employment contract is concluded with an employee for a period of up to two months, then he must be warned about the reduction in writing at least three calendar days in advance (part two of article 292 of the Labor Code of the Russian Federation). An employee who is engaged in seasonal work must be notified in writing of the reduction at least seven calendar days(part two of article 296 of the Labor Code of the Russian Federation).

Notice of sickness and vacation. If the employee needs to be notified of the reduction, and he is on vacation or on sick leave, it is better to wait for him to go to work and hand the notice in person. But if this is a remote worker or the management requires to notify the employee despite the vacation?

In this case, you need to send a notice of reduction to all known addresses where the employee is located by a valuable letter with a list of attachments and a notice of receipt (Example 3). The date of notification is the date the employee receives the valuable letter.

If the employee is available on the phone, you should call him and tell him about the need to receive a notification. Moreover, this must be done on a speakerphone and in front of witnesses. The conversation must be recorded in an act (Example 4). Such an act speaks of the employer's good faith and confirms that he has done everything possible to notify the employee of the reduction.

3. DO NOT OFFER ALL SUITABLE JOBS

If there are vacancies in the organization, they should be offered to the reduced employee (if they are suitable for him in terms of qualifications and health status) as they appear within two months, while the notice period for dismissal due to reduction is in effect (part three of article 81 of the Labor Code of the Russian Federation) .

Often, the courts reinstate workers precisely because they were not offered all the vacancies. The courts carefully check whether the positions in the staff list and in the job offers coincide (see, for example, the Appeal ruling of the Krasnoyarsk Regional Court dated February 2, 2015 in case No. 33-949 / 2015, A-9).

It is necessary to offer not only positions corresponding to the qualifications of the employee, but also subordinate ones.

QUESTION TO THE TOPIC

Do I need to offer a vacant higher position?

If you know for sure that the qualifications are insufficient, you do not need to offer this vacancy (see the Appeal ruling of the Moscow City Court dated March 30, 2015 in case No. 33-10408 / 2015).

But if it is not known for sure whether an employee can occupy a higher position (perhaps he has undergone additional training or he has experience that is not reflected in the work book), the risk of disputes increases. To do this, we propose in the notice of reduction to report on qualification documents unknown to the employer (see Example 1).

Thus, you need to ensure that there are no extra vacancies in the staff list (just in case). All vacancies that are not yet searched should be excluded.

The employer is obliged to offer vacancies only in the given locality, if the labor or collective agreement otherwise provided (see Appellate ruling of the Moscow City Court dated December 24, 2012 in case No. 11-25754).

It should be noted that the position held by a woman on maternity leave is not considered vacant in the opinion of most courts (see, for example, Ruling of the Moscow City Court dated May 29, 2014 No. 4g / 8-3516). This position is temporarily vacant - after all, a woman can return, and we do not know when - in three months or in three years.

4. REDUCING "PROTECTED" WORKERS

Although defining organizational structure and staffing - the right of the employer, the law protects certain categories of workers who need state support. "Protected" workers include:

Pregnant woman (part one of article 261 of the Labor Code of the Russian Federation);

A woman who has a child under the age of three (part four of article 261 of the Labor Code of the Russian Federation);

A single mother raising a child under 14 or a disabled child under 18 (or a person raising such a child without a mother) (part four of article 261 of the Labor Code of the Russian Federation). According to paragraph 28 of the resolution of the Plenum Supreme Court RF dated January 28, 2014 No. 1, a single mother is considered a woman who brings up her children (relative or adopted) and is engaged in their development independently, without a father. In particular, if the father:

Died, recognized as missing (you need to ask the employee for a death certificate, a corresponding court decision);

Deprived of parental rights, limited in parental rights (corresponding court decision);

Recognized as incapable (partially incapacitated) or for health reasons cannot personally raise and support a child (court decision or certificates, for example, on disability);

Serving a sentence in institutions that carry out punishment in the form of deprivation of liberty (corresponding certificate);

Avoids raising children or protecting their rights and interests. We are talking about divorced women who applied for the recovery of alimony to the court and the service bailiffs, but, despite this, it was not possible to collect alimony (certificate from the bailiff service that it was not possible to collect alimony);

Other situations (for example, when the paternity of the child is not established and there is a dash in the birth certificate);

A parent, if he is the sole breadwinner of a child under three years of age or a disabled child under 18 years of age in a family of three or more children under 14 years of age, and the other parent (representative of the child) is not a member of labor relations(part four of article 261 of the Labor Code of the Russian Federation).

To reduce risks litigation, it is better not to reduce such workers.

Also note that employees under the age of 18 can be fired due to layoffs only with the consent of the labor inspectorate and the commission on minors (Article 269 of the Labor Code of the Russian Federation).

In addition, if an employee is a member of a trade union, he can be fired only in agreement with the primary trade union organization (part two, Articles 82, 373 of the Labor Code of the Russian Federation).

And finally, do not dismiss an employee during his period of temporary disability and during his vacation (part six of article 81 of the Labor Code of the Russian Federation, subparagraph “a” of paragraph 23 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

5. THE PRIORITY RIGHT TO STAY AT WORK IS NOT ACCOUNTED

With such a problem, when reducing, you can encounter if there are several positions of the same name in the staffing table. For example, there are three sales managers in a department, and only one needs to be cut. In this case, the first part of Art. 179 of the Labor Code of the Russian Federation requires that the employer, during the reduction, leave at work workers with higher labor productivity and qualifications.

Qualifications can be checked against the document on education and work book, however, the assessment of labor productivity will require certain efforts from the employer.

  • How to evaluate labor productivity? It is not difficult to assess the productivity of working personnel - it is enough to find out whether employees comply with labor standards (time and output). The situation is much more complicated when it comes to evaluating the productivity of knowledge workers. Here are some hints:

1. If the organization conducts an annual assessment of personnel, we recommend that you attach its results. The results of the attestation, if any, will also be useful.

2. If the organization has established bonus indicators, the productivity of employees can be assessed by the size and frequency of bonuses accrued to them. You can also take into account the regular performance of additional work (for example, part-time or by special order). We recommend to evaluate labor discipline worker. If discipline is low or there are comments, reprimands, then such an employee has no preemptive right.

  • How to document performance appraisal. The first step is to issue an order to create a commission to determine the pre-emptive right to leave at work. The order must contain the following provisions:

The results of the assessment must be indicated in the minutes of the meeting of the special commission. In court, the protocol is proof that the employer has taken into account the preferential rights of employees. Tables should be attached to the protocol with an assessment of the fulfillment by employees of production or service standards, plans, instructions, etc. (see table).

If the productivity and qualifications of workers in the same positions are approximately equal, you should go further and give priority to the following categories (part two of article 179 of the Labor Code of the Russian Federation):

Family with two or more dependents;

Persons in whose family there are no working family members;

Employees who, while working in the organization, received an industrial injury or occupational disease;

Disabled people of the Great Patriotic War and military operations;

Employees who improve their skills on the job in the direction of the employer;

Such employees should be asked to provide supporting documents. For example, an employee with two or more children must provide birth certificates, as well as a passport with registration confirming residence with children; combat invalid - certificate.

6. DO NOT NOTIFY THE EMPLOYMENT SERVICE AND THE TRADE UNION

In accordance with paragraph 2 of Art. 25 of the Law of the Russian Federation of April 19, 1991 No. 1032 - 1 "On employment in Russian Federation”(as amended on 07/29/2017, hereinafter - Law No. 1032-1) to reduce the number or staff, even if only one position or one employee is reduced, the employment service must be notified no later than two months in advance. If the reduction is massive - three months before the start of the reduction. Each region has its own form of notification. It should be specified on the websites of the employment service of the regions. Let's give an example of a notification for Moscow (Example 5).

The criterion of mass character is determined by sectoral, territorial or regional agreements between trade unions and employers (part one, article 82 of the Labor Code of the Russian Federation).

If these agreements are not applicable to a particular employer, paragraph 1 of the Regulations on the organization of work to promote employment in conditions of mass dismissal (approved by Government Decree No. 99 of February 5, 1993) should be followed.

According to the first part of Art. 82 of the Labor Code of the Russian Federation, if the organization has a trade union, it must be notified within the same time frame (Example 6).

7. PERSONNEL DOCUMENTS ARE ISSUED WITH ERRORS

Design errors personnel documents can lead to fines and even reinstatement of the employee. To avoid them, it is necessary to carefully draw up his dismissal on the last day of work (paragraph two of the first part of Article 84.1 of the Labor Code of the Russian Federation, clause 35 of the Decree of the Government of the Russian Federation of April 16, 2003 No. 225).

Below we list the actions of the employer on the last working day of the dismissed employee.

With the order of the employee must be familiarized with the signature. In case of refusal to familiarize, it is necessary to draw up an appropriate act, which must be signed by two or three employees (Example 8).

  • We make a note-calculation. A note-calculation is a mandatory document for publication and is sent to the accounting department on the day the employee is dismissed. It is issued either in the unified form No. T-61 or in the form approved by the organization. In it, the personnel officer reflects the number of days of unused or used leave in advance (Example 9).
  • We make an entry in a personal card. An entry must be made about the dismissal of an employee in section XI of the personal card of form No. T-2, with which the employee must be familiarized against signature (Example 10).

  • Issue a work book. On the day of dismissal, the employee must be given a work book with a record of dismissal (Article 84.1 of the Labor Code of the Russian Federation) against signature in the work book record book (Example 11).

If an employee refuses to receive a work book, an act must be drawn up about this signed by two or three employees (Example 12).

If the employee did not appear for the work book, it is necessary to send him a notification before the end of the working day about the need to pick up the work book (Example 13) or give written consent in any form to send it by mail (part six of article 84.1 of the Labor Code of the Russian Federation). It is better to send a notification to all known addresses of the employee in order to increase the likelihood of receiving it.

  • We issue certificates. Upon dismissal, the employer is also obliged to issue to the employee:

A certificate of the amount of his earnings, on which insurance premiums were charged to the Social Insurance Fund (part 2 of article 4.1 federal law dated December 29, 2006 No. 255-FZ “On compulsory social insurance in case of temporary disability and in connection with motherhood”);

Certificate with information on accrued and paid insurance premiums to the Pension Fund of the Russian Federation (Article 11 of the Federal Law of 04/01/1996 No. 27-FZ "On Individual (Personalized) Registration in the Compulsory Pension Insurance System").

8. LEAVING THE STAFF

The position of the dismissed employee must be excluded from the staff list on the day after his dismissal. If an employee is dismissed on September 30, then from October 1 this position should not be on the staff list.

At the same time, it is necessary to refrain from introducing the same or similar position for several months (see the Appeal ruling of the Novosibirsk Regional Court dated 05.05.2015 in case No. 33-3752/2015).

9. THE EMPLOYEE IS WRONGLY ESTIMATED

On the day of dismissal, the employer must pay employees a severance pay in the amount of the average monthly earnings, wages and compensation for unused vacation.

The size wages is determined in the amount that is due to the employee for the time actually worked in a given month. Compensation for unused vacation must be calculated in accordance with Art. 121 of the Labor Code of the Russian Federation.

If on the last day of work the employee is not paid off, the employer must pay the employee interest under Art. 236 of the Labor Code of the Russian Federation in the amount of not less than 1/150 of the key rate of the Central Bank of the Russian Federation in force at that time for each day of delay, regardless of the fault of the employer. The employer is obliged to pay the average earnings for the second and third months if the employee has not found a job.

To receive benefits for the second month, the employee will need to provide the employer with an identity card, the original work book no job records after the cut date.

If an employee does not get a job and wants to receive severance pay for the third month, he must comply with the following conditions:

Within two weeks after dismissal, register with the employment authority as unemployed;

Be unemployed by this employment agency within the third month after dismissal;

Provide the employer with the decision of the employment authority on the payment of the average monthly salary to the employee for the third month.

If the employment service makes such a decision, the benefit will have to be paid for the third month.

Note: if the organization or its branches are located in the regions of the Far North or areas equivalent to them, then in accordance with Art. 318 of the Labor Code of the Russian Federation, the average earnings of laid-off workers remain for up to three months. AT exceptional cases- up to six months (by decision of the employment service).

In conclusion, we present step by step algorithm reduction in the number of employees (flowchart).

Decrease in demand for offered goods and services often pushes manufacturers to reduce the number of employees. The procedure is carried out in a certain order and in strict accordance with labor law.

What is an employee reduction under the Labor Code?

Reduction is the basis on which the employer has the right to dismiss the employee (clause 2 of article 81 of the Labor Code of the Russian Federation).

The concept includes:

  • Downsizing when decreasing total workers (for example, instead of 5 sellers in the store, three are left).
  • Staff reduction. In this case, any position or an entire structural unit is removed from the state.

The procedure begins with the issuance of an order. It spells out:

  • the reasons why the number of employees is reduced or the staffing table is changed;
  • lists of positions or units to be reduced;
  • the timing of the procedure and the date of termination of employment contracts with employees;
  • responsible persons.

The list of reasons for which the reduction procedure may be initiated is established by the Labor Code. As a rule, the main ones are:

  • intraorganizational financial difficulties;
  • economic crisis in the country;
  • enterprise reorganization.

Important: according to Art. 10 of the labor legislation, the employee is notified of the reduction 2 months before the dismissal. On familiarization with the date of dismissal, he signs in the order.

How are workers selected for layoffs?

The selection of candidates for layoffs is carried out in accordance with the Labor Code. By virtue of the law, some categories of persons cannot be reduced, with the exception of the complete liquidation of the organization.

Which employees are eligible ?

Employees with more than a high degree qualifications. This can be confirmed:

  • diploma of availability higher education by specialty;
  • a paper about attending special training courses;
  • the results of the certification exam;
  • a description written by the immediate supervisor;
  • extracts from the accounting department on receipt of bonuses for high results at work.

The level of qualification is confirmed by the high productivity of labor and the quality of the work performed. Various skills and abilities are also taken into account (knowledge foreign language, computer programs etc.). Personal qualities are also taken into account (sociability, stress resistance, punctuality, etc.).

With equal labor productivity, preference is given to:

  • family persons with two or more children;
  • citizens who are dependent on disabled persons (parents, spouse, children, etc.);
  • employees who are the only breadwinners in the family;
  • workers injured or ill as a result of professional activity, at this enterprise;
  • invalids of the Great Patriotic War or military operations;
  • persons who improve their qualifications on the job;
  • other categories of persons provided for by the collective agreement.

Who can't be made redundant at work?

According to the Labor Code of the Russian Federation, they cannot reduce with a reduction in staff:

  • mothers with children under 3 years old;
  • women on maternity leave;
  • single mothers raising children under 14 on their own;
  • other persons raising children under 14 without a mother;
  • mothers raising children with handicapped up to 18 years;
  • other persons caring for a disabled child under 18, if the mother is not present.

In accordance with the provision of Art. 269 ​​of the Labor Code of the Russian Federation, an employee under the age of 18 cannot be reduced. Dismissal of persons on sick leave or vacation is not allowed. The exception is the complete liquidation of the enterprise. In this case, the employee must be offered another job. Moreover, it does not have to be of the same qualifications and correspond to the previous pay.

What can a laid-off worker qualify for?

The employer must pay the employee:

  • Salary for hours worked;
  • Compensation for unused days holidays;
  • severance pay. Its size is equal to the average earnings per month (separate rules are established for seasonal work and persons hired for a period of not more than 2 months).

The indicated amounts must be paid on the day of dismissal (Article 84.1, Article 140 of the Labor Code of the Russian Federation). The period of employment is based on the average monthly earnings. The exception is persons working part-time, under a contract for a period of not more than 2 months or seasonal work. According to Art. 178 of the Labor Code of the Russian Federation, the average salary can be paid within 3 months, including severance pay. When working in the regions of the Far North, payments are made up to six months (Article 318 of the Labor Code of the Russian Federation). The calculation takes place in the same way as for dismissal for other reasons. The reason for termination of the employment contract does not matter.

According to paragraph 4 of the Regulations approved by the Government Decree of December 24, 2007 No. 922, the calculation period for determining the severance pay is the time of work for Last year. For example, if the dismissal occurred in March 2017, then the period from March 2016 to February 2017 is taken for calculation.

Important: in accordance with paragraph 9 of the same Regulations, the amount of severance pay is determined by the formula: the amount of earnings for the reporting period / the number of days worked in the billing period.

According to Art. 81 of the Labor Code of the Russian Federation, the employee must be offered a different position in the organization, and if it is not available, then in another structural unit. Payment for the third month is carried out if there is a certificate from the employment service that the employee is registered within two weeks from the date of dismissal. Additional condition the absence of employment for 2 months is considered.

The situation is more complicated with the reduction of a working pensioner. Some experts in the field of law are of the opinion that the pensioner is not entitled to payment for the third month, since he is not unemployed (he has the status of a pensioner and receives a pension). Others believe that a person cannot be discriminated against on the basis of age. Therefore, the payment for the third month should be made on equal conditions with the rest of the employees.

What to do if an employer violates your rights?

The employer, if the reduction procedure is not followed, can be brought to administrative, disciplinary and even criminal liability. All actions of the leader must be recorded. Employee redundancy warning is carried out in statutory terms and under the signature.

In case of violations, the employee has the right to go to court. In court, the employer will be obliged to reinstate the illegally reduced employee in his position, as well as pay him lost profits and moral damage.

According to Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, penalties are applied in the amount of:

  • from 30,000 to 50,000 rubles in respect of legal entities;
  • up to 5,000 rubles for individual entrepreneurs.

In case of repeated violation, the employer is subject to criminal liability.

If an employee believes that his rights have been violated, he can contact:

  • to the Trade Union body, if there is one in the organization;
  • to the Labor Inspectorate;
  • to court.

Previously, the employee can write a claim to the employer. If the requirements are ignored or not fully met, then the person has the right to write a complaint to the above authorities.

Thus, a reduction is a dismissal due to a decrease in the number of employees or the liquidation of an entire staff (structural unit). Some categories of persons established by labor legislation cannot be laid off at work. In case of non-compliance with the procedure, the employee has the right to complain to the Trade Union, the Labor Inspectorate or the court.

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