Reduction of the following categories of women is not allowed. Who cannot be dismissed due to staff reductions: Labor Code of the Russian Federation. The procedure for dismissing employees in case of layoffs
According to the Labor Code of the Russian Federation, the basis for the dismissal of an employee, initiated by the employer, may be a reduction in the staff or the number of employees.
Downsizing means that a certain position will be abolished, and all employees who occupy it will be fired. The reduction in the number of employees means that the position remains, but the number of employees who occupy it decreases. In both the first and second cases, the reduction process should take place in accordance with the established procedure, without violating the rights of the employee.
Abbreviation notice
Having made a decision on the upcoming layoff, the employer, in writing, at least two months before the start of layoffs, is obliged to notify the employee personally about this. The fact that the employee was properly served with the notice of layoff will be evidenced by his signature on the letter.
The fact that the company is preparing to lay off workers must be reported not only to those who are fired, but also to the trade union organization and the employment service. The deadline for notifying the elected body of the primary trade union organization is the same as for the employee, i.e. no later than two months before the start of contractions, and in case of mass dismissal - in three months.
Dismissal of trade union members in connection with layoffs is possible only with the consent of the trade union organization. The deadline for notifying employment services about future reductions is the same - two months before the start of measures to lay off workers.
For employers working as sole proprietors, this period is two weeks. In his appeal to the above authorities, the employer must provide complete information about the position, qualifications and working conditions of each dismissed employee.
Guarantees for laid off workers
According to the legislation, by reducing the number of employees or staff, the employer must offer the dismissed employees another position at this enterprise.
In this case, the proposed position must correspond to the qualifications of the employee, his state of health, however, it can be both lower and lower paid. In case of redundancy, the employee has the right to receive from the employer data on all vacancies that exist in the given locality or, if it is provided for by the collective agreement, outside it.
And only on the condition that the employer cannot fulfill his obligations to the employee to provide him with a free vacancy, or the employee refused to provide written consent to the proposed job, can a reduction be made.
If the parties have reached an agreement, there is no need to wait for the end of the two-month term to terminate the employment contract.
Pre-emptive right to remain at work in case of redundancy
The guarantees established by law for laid-off workers also include the pre-emptive right when leaving work during layoffs. This right lies in the fact that the employer will have to leave at the enterprise the employee whose qualifications are higher and the quality of work is better than that of others.
If there are several such employees, then according to the law, the following categories have the right to retain their position:
- - workers who support two or more disabled family members;
- - workers whose earnings are the only source of income for the whole family;
- - employees who, while working at this enterprise, have received an injury or an occupational disease;
- - invalids of the Great Patriotic War and invalids who took part in hostilities to protect the state;
- - employees who improve their qualifications at the place of work in the direction of the employer.
In the collective agreement, which is drawn up at the enterprise or in the organization, an expanded list of categories of workers who have the preferential right to remain at work in the event of a reduction in staff may be indicated.
Can't be fired and workers who are on vacation or sick leave at the time of the layoff due to temporary disability. In case of violation of this provision, the employee has the right to appeal against dismissal in court and to be reinstated in his previous position.
This must be done within one month from the day the employee received a copy of the dismissal order or from the moment the work book was issued. Otherwise, the missed deadline will have to be restored in court. According to the Civil Procedure Code, the prosecutor must make his opinion on the issues of reinstatement at work, he can also appeal against the court decision.
Employee's entitlement to severance pay
An employee with whom an employment agreement was terminated due to staff or headcount reductions, has the right to receive severance pay from the employer... The amount of the allowance should be equal to the average monthly earnings during the period of work at the enterprise or organization.
The average monthly salary should be retained for the employee who has lost his job for the entire time that will be required for employment, but not more than two months from the date of dismissal. The payment of severance pay can be made in the third month after the dismissal, but only if, after the layoff, the employee registered with the employment service and for two weeks he could not find a new job.
The labor or collective agreement may stipulate increased amounts that are paid to employees in the event of redundancy. For those who work in the Far North or areas with the same status, labor legislation defines longer periods for the payment of severance pay in the event of a layoff.
For days unworked leave in connection with the reduction of deduction from wages is not allowed.
As you can see, the state protects citizens from unjustified redundancies, establishes compensation in case of loss of work and gives citizens the opportunity to challenge their dismissal.
What to do after receiving the cutback notification?
Do nothing in the first minutes or even hours. Any legal documents must be taken into account with a calm mind.
- Please read the reduction notice carefully. Pay attention to the dates, bank details, the presence of the signature of the manager.
- Read the list of job vacancies that you can apply for in the event of a layoff. It must also be certified by the signature of the head of the company.
- Find out if the union committee has agreed to layoffs.
- Sign the documents and work calmly for more than 2 months, if you agree and do not belong to one of the following categories of citizens:
- pregnant woman;
- a woman (or other person) raising a child under 3 years old;
- single parent (or other person) raising a child under 14 years old, or up to 18 years old if the child is disabled;
- the only breadwinner in a family with 3 or more children.
You can agree in writing with the administration's proposal for early dismissal. In this case, you are paid the average salary for the remaining period and all other money due to the reduction.
Is it possible not to sign the notice of staff reduction?
Yes, you can. The countdown will start only from the moment you sign the reduction notice. If the document does not contain the signature of the manager or the date of acquaintance, it cannot be signed.
Also, if you do not agree with the actions of the management or belong to one of the above categories of citizens, you can file a claim with the labor dispute commission without signing any document.
The employer may ask you to state in writing the reasons for refusing to sign the documents. Write explanations in duplicate, have your copy certified by the secretary. This document can also testify in court, both in your favor and in favor of the head of the enterprise.
But you can also opt out of these actions. If you disagree again, the administration has the right, in the presence of witnesses, to draw up an act reflecting the fact of the warning about the reduction and your refusal to sign.
If the labor dispute committee decides the cases not in your favor, the 2-month revision countdown will begin from the day the act is drawn up. Further, the employee has the right to apply to the people's court ( Art. 201 Labor Code of the Russian Federation).
Woman gets pregnant after signing a reduction notice
In the Labor legislation of the Russian Federation it is clearly indicated that it is not allowed to terminate an employment contract with a woman who is in a state of pregnancy, with the exception of the complete liquidation of the organization. The same rights are enjoyed by a woman who has already signed a notice of redundancy and then learned that she is expecting a child.
There can be no question of any pre-emptive right in case of staff reductions; she should not be fired at all. A woman has this right only if she submits a medical certificate of pregnancy before dismissal (within two months).
It is necessary to write a statement indicating the reason why you are requesting the suspension of the reduction order, with a note on the attachment of a copy of the document (medical certificate).
The application is written in duplicate... One is served on the table for the head, the other is certified by the secretary and kept with you.
If the employer does not agree to cancel the layoff order, a certified statement will be your proof in court of providing information to the administration about the pregnancy.
It must be remembered that an employee who finds out about a violation of his rights must go to court within a month from the date of dismissal (not the day of signing the dismissal order) or handing over (against signature) a work book.
The legislation of the Russian Federation protects the rights of citizens who are socially unprotected. It concerns not only the payment of various benefits, the provision of benefits, but even the protection of their interests in case of reduction or. So, there is a list of categories of employees who are not subject to dismissal.
Who can't be fired?
Based on articles of the Labor Code of the Russian Federation 256 (parts 4) and 261, first of all, categories of citizens protected from dismissal include:
- pregnant women, regardless of the duration of pregnancy;
- women raising a child under the age of 3;
- single mothers raising a child under the age of 14;
- single mothers raising a disabled child;
- employees with three or more young children, provided that the second spouse does not work.
Employees who are members of a trade union can be dismissed only after agreement with the primary organization, in accordance with Article 83 of the Labor Code of the Russian Federation, Part 2. It is forbidden to dismiss an employee for redundancy if he is on vacation or on leave.
Please note that the restrictions apply only to the case when the organization is downsized or a department is eliminated. If there is a complete liquidation of the enterprise, these categories of citizens will also be dismissed.
Employees with benefits
There is another list of categories of citizens who do not have the right to dismissal, or rather refer to the list of workers who should be left in their jobs, if any. The list of citizens is fixed in article 179 of the Labor Code of the Russian Federation.
These include:
- Employees with the highest labor productivity, that is, those employees who, within a specified time frame, perform more high-quality work volumes than others.
- Employees with a higher skill level. To confirm this, the employee can provide:
- certificate of completion of refresher courses;
- the results of the attestation carried out earlier;
- characteristics of the bosses;
- absence of mistakes and shortcomings in work;
- receiving prizes and incentives.
- Additional skills:
- PC ownership;
- Knowledge of foreign languages.
If several employees have equal qualifications and labor productivity, then preference should be given to:
- People who are married and have two or more dependents.
- Married people, provided that the other spouse is unemployed.
- Employees who are injured or have an occupational disease at the enterprise.
- Disabled people of the Second World War or military operations, injured while performing their military duty.
- Employees undergoing on-the-job training in the direction of the employer.
Please also note that this list is relevant only for the position that the person held prior to dismissal. For example, if the employer decided to liquidate the statistics department, then the specialists working in it can apply for the position of the secretary on an equal footing - regardless of productivity and qualifications.
Do minors have privileges in layoffs?
The rights of persons under the age of 18 are protected by law. Thus, according to the provisions of article 269 of the Labor Code, employers are prohibited from dismissing minors without the consent of state bodies. Therefore, initially, the employer must contact the inspectorate to obtain permission to dismiss such an employee. As a rule, based on the protection of children's rights, the authorities give a negative answer to such a request, recommending the reduction of another applicant.
What to do in case of violation of the employee's rights?
If the employee's rights are violated, he can go to court. In cases of dismissal, disputes take about a month from the day the employee was issued a dismissal order or work book. It should be noted that if, within one month from the date of dismissal, it was not possible to go to court for a valid reason, for example, due to illness, the case will still be considered.
Video: Who is forbidden to cut?
You will learn in more detail about the categories of citizens who have privileges for redundancy from the video, in which an expert in labor and personnel records management will also tell you what to do to an employee if at the time of redundancy he was on vacation:
The situation on the labor market is getting more complicated: the number of those left without work is gradually growing, approaching a million. To cut staff costs and eliminate "unnecessary" workers, employers use a simple trick: they announce a change in the staffing table.
Reduction of staff or the number of employees is a legitimate reason for termination of an employment contract at the initiative of the employer, explained to RG-Nedele in Rostrud. It is provided for by paragraph 2 of the first part of Art. 81 of the Labor Code of the Russian Federation. If an employee falls under this "sword of Damocles", as a rule, there is nothing to oppose to the authorities. And yet, for some categories of workers, the Labor Code provides for increased protection measures. Which ones are explained by the experts of Rostrud.
Who shouldn't be "cut"?
Termination of an employment contract is not allowed:
- if the employee has a child under three years old;
- if an employee single-handedly brings up a child up to 14 years old, and if the child has a disability, then the age increases to 18 years;
- if the employee has a large family (three or more young children), incl. a child under three years old or a disabled child, and the other parent does not work.
In addition, workers who are members of a trade union can be dismissed only by agreement with the primary trade union organization (part two of Article 82 of the Labor Code of the Russian Federation).
Important: it is not allowed to dismiss a staff member during his illness or vacation.
How are employees selected for layoffs?
The law requires that when a layoff is made, the employer retains workers with higher qualifications and higher labor productivity (part one of article 179 of the Labor Code). In fact, of course, this does not always happen. But, at least, this requirement, enshrined in the Labor Code, can serve as a basis for an employee to defend his rights in court. If, of course, he can prove that he works better and with greater productivity than those who remained on the staff.
If you have to choose between employees with approximately the same professional qualities, the employer must give preference to:
- family with at least two dependents (for example, two small children or one child and a disabled spouse);
- employees - the only breadwinner in the family;
- employees with disabilities, if an occupational disease or injury that led to disability happened at this enterprise;
- disabled people in combat;
- to employees aimed at on-the-job training.
How does the contraction take place?
The employee is warned about dismissal two months in advance, against signature. If he agrees, the employment contract can be terminated earlier, while the employee receives additional compensation in the amount of the average salary for the "unworked" days.
Important: layoffs for staff reduction are allowed only if it is impossible to transfer the employee with his written consent to another vacant position or job (both corresponding to the qualifications of the employee, and a lower position or lower-paid job), which the employee can perform taking into account his state of health ... The employee must be offered all available vacancies.
What does a "laid-off" employee get?
- severance pay in the amount of the average monthly salary;
- the average salary is retained for the period of employment, but for no more than two months from the date of dismissal.
It is important to know: if an employee contacts the employment service immediately after dismissal (no more than two weeks from the date of termination of the employment contract), and they could not find a new job, then the average salary can be saved for him for another (third) month.
How to get paid for the second and third months?
A dismissed employee must show the employer a work book to confirm that he did not get a job, as well as a passport. To receive money for the third month, you must also submit a decision of the employment service authority.
When is the money paid?
All money owed to the employee is paid to him on the day of dismissal. On the same day, he is given a work book.
Important: if the employee and the employer cannot agree on the amount of payments, in the event of such a dispute, the employee is paid an uncontested part of the amount.
How to go to court if there is a conflict?
This can be done within three months from the day when the employee's rights were violated. For disputes about dismissal - a period of one month from the day when the employee received an order to dismiss or a work book (part one of article 392 of the Labor Code of the Russian Federation). The court can accept the statement of claim later. You just need to present documents confirming that the delay was due to a valid reason, for example, due to illness.
On the one hand, you can understand an employer who, by all means and strength, is trying to keep his business afloat (including by reducing the number of employees). On the other hand, who will understand the workers themselves? Moreover, in an effort to reduce the cost of wages, employers often commit the most flagrant violations.
Note for pregnant women
According to the direct instructions of the Labor Code of the Russian Federation, pregnant women are among those workers who cannot be laid off (part 1 of article 261 of the Labor Code of the Russian Federation).
Despite the fact that not only according to the Labor Code, but also according to all moral laws, pregnant women have the right to count on the most attentive and careful attitude, a simple oral statement that you are pregnant is a weak guarantee against contraction.
We need documents. In the early stages, pregnancy is confirmed by a certificate from an antenatal clinic or from another medical organization that has registered a woman (clause 22 of the order of the Ministry of Health and Social Development of Russia dated December 23, 2009 No. 1012n).
There is no uniform form for such a certificate, and, as a rule, antenatal clinics and medical institutions issue just a written certificate, which contains the necessary details - the name of the consultation, the full name and the position of the doctor who issued it, signatures, seals and stamps.
At later stages of pregnancy (more than 30 weeks, and with multiple pregnancies - 28 weeks), the employee's pregnancy is confirmed by a certificate of incapacity for work (clause 46 of the Procedure for issuing certificates of incapacity for work, approved by order of the Ministry of Health and Social Development of Russia dated June 29, 2011, No. 624n).
A certificate of incapacity for work for pregnancy and childbirth is issued by an obstetrician-gynecologist, in the absence of one - by a general practitioner (family doctor), and in the absence of a doctor - by a paramedic.
The law does not oblige a woman to notify her employer that she is pregnant. Moreover, for a short period of time, a woman may not know about it at all. And nevertheless, if on the day of dismissal the woman was pregnant (and this fact is confirmed by the relevant documents), then the court recognizes the dismissal as illegal.
Judicial practice does not attach importance to the fact that the employer is aware or not aware of the pregnancy of a woman falling under the reduction: Part 1 of Article 261 of the Labor Code of the Russian Federation contains an unconditional prohibition on the dismissal of a pregnant employee.
By the way, literate employers (and these are the overwhelming minority) include in the notice of redundancy a clause that if the employee submits a pregnancy document, she will not be fired.
If the worker is a single mother
The Labor Code of the Russian Federation prohibits the layoff of single mothers raising children under the age of 14 (part 4 of article 261 of the Labor Code of the Russian Federation). Therefore, the mother must at least have a document about the age of the child - a copy of the birth certificate. However, for the mother of the child to be considered a single mother, this will not be enough.
The problem is that "single mother" and "single mother" are everyday concepts, and they are absent in the legislation.
The clarifications of the Supreme Court of the Russian Federation fill this gap. In the Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the first quarter of 2010 (approved by the resolution of the Presidium of the RF Armed Forces of June 16, 2010) it is stated that:
for a mother to be recognized as lonely, it is necessary that the column "Father" in the birth certificate is not filled in (or information about the child's father was entered according to the mother's words - at the same time, a certificate from the registry office on the grounds for making an entry in the birth certificate is presented);
the mother of the child must not be married. This is confirmed by a copy of your passport.
A divorced woman cannot be considered a single mother, provided that the child's father is alive, takes part in his maintenance (pays alimony) and is not deprived of parental rights (ruling of the Supreme Court of the Russian Federation dated 09.07.10 No. 81-B10-6).
If a single mother brings up a disabled child, then it cannot be reduced until the child reaches 18 years of age (a certificate of medical and social examination is required).
Having dependents
With equal labor productivity and qualifications, preference in leaving work is given to:
family - in the presence of two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is a permanent and main source of livelihood for them);
persons in whose family there are no other workers with independent earnings;
employees who received a work injury or an occupational disease during the period of work for this employer;
invalids of the Great Patriotic War and invalids of military operations to defend the Fatherland;
employees who improve their qualifications in the direction of the employer on the job (Article 179 of the Labor Code of the Russian Federation).
A dependent is a disabled family member who is fully supported by the employee or receives assistance from him, which is for him a permanent and main source of livelihood (part 2 of article 179 of the Labor Code of the Russian Federation).
A dependent may be the spouse of an employee, parents, as well as other relatives (Article 2 of the RF IC).
An employee who has children can also take advantage of the pre-emptive right to remain at work, as children are dependents by law.
However, employees with at least two dependent children have the preferential right to remain at work (Article 179 of the Labor Code of the Russian Federation). If at the time of the layoff at least one of the employee's children is already 18 years old, then he / she cannot be considered a dependent.
In this case, certified copies of the birth certificates of the children will be required.
If, for example, the employee's spouse is the dependent, then the following may be required:
ITU certificate of disability;
spouse's work book;
a certificate from the employment authorities.
Single father
Workers raising a child without a mother have a certain immunity from layoffs. According to the explanations of the RF Armed Forces (Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the I quarter of 2010, approved by a resolution of the Presidium of the RF Armed Forces of 06/16/2010), an employee can be recognized as such regardless of the specific case, as a result of which the mother of the child ceased to exercise for him care.
In practice, an employee is considered to be raising a child alone if the mother of the child:
died (declared dead);
deprived of parental rights;
limited in parental rights (for the period of restriction);
recognized as missing;
recognized as fully incapacitated or partially incapacitated;
is serving a sentence of imprisonment;
is in custody;
is suspected of committing a crime;
shies away from raising a child or protecting his rights;
refuses to take his child from an educational, medical institution;
the mother does not have the opportunity to personally raise and support the child due to her state of health.
Employees raising children with disabilities without the participation of a mother are not subject to dismissal until these children reach the age of 18.
Finally
So, before you go into conflict with the leadership, you need to clearly find out whether you really belong to the "protected" category. You can try for a while to avoid decisive action, declaring your "immunity" orally, but it should be understood that the employer has the right to require supporting documents. This is not only a right - it is also an employer's duty, since the unjustified provision of benefits to one employee may result in a violation of the rights of another employee who has the right to them.
IMPORTANT:
Ideally, before cutting staff, the employer should find out which of his employees cannot be fired on his initiative. And here there is an important point: unfounded statements that you have certain social privileges will not suit anyone. Maybe for some time you can hold out on your word of honor, but in the event of a dispute, which, quite possibly, will be considered in court, you will not be able to prove the illegality of your reduction.
According to the author, a single mother remains so even after marriage - until the new spouse adopts the child. According to the RF IC, spouses are obliged to take care of each other and financially support each other (Article 89), as well as support their minor children (Article 80 of the RF IC). Therefore, the new spouse is not obliged to support the child whose father he is not. Unfortunately, it was not possible to find judicial practice on this issue.
Employees raising young children cannot be fired until the child turns 14.
Marina ASTAPENKO, Lawyer
Labor Code of the Russian Federation, employee layoff: who should not be laid off under any circumstances
If a company plans to cut staff, the HR officer has a lot of work to do. Preparation begins long before the implementation of the planned activities. One of the most crucial preparatory stages is drawing up a list of candidates for dismissal. Before approving the final version of the document, assess the status of the dismissed workers: there may be those among them who cannot be made redundant in the event of a layoff.
With a reduction in staff, all employees who occupy positions excluded from the staffing table are at risk of dismissal. And when the number of staff is reduced, job positions are retained by employees who have the preferential right to remain at work. Both in the first and in the second case, one should take into account the legal prohibition on the dismissal of persons with family responsibilities.
Who cannot be reduced (Labor Code of the Russian Federation, article 261):
- a pregnant woman until the end of the pregnancy;
- a woman with a child up to three years old;
- single parent or guardian raising a child under 14 years old or a disabled child under 18 years old;
- the only breadwinner for a disabled child under 18;
- the only breadwinner for a child under 3 years old in a family where more than two young children (under 14 years old) are raised and the other parent does not officially work.
Attention! Working pensioners and people of pre-retirement age, people with disabilities and other representatives of privileged categories should be made redundant on a general basis, but do not discriminate on the basis of age or health status.
A statutory prohibition can be long lasting, as is the case with pregnant women or employees on maternity leave for several months or years. But sometimes the ban is only valid for a couple of days or weeks, for example, if an employee participates in a lawsuit as a juror, takes sick leave, or takes a vacation (the type of vacation does not matter). Waiting is the easiest way out of the situation.
Dismissal bypassing the statutory prohibition is a gross offense. If the case goes to court, the unlawfully dismissed employee will be reinstated. In this case, the employer will be forced to pay him for the entire time of the forced absence, and in some cases - also to compensate for moral damage.
In order not to have to act as a defendant, read the recommendations of the Sistema Kadry expert:
Which employees cannot be laid off due to preemptive rights
If the position remains in staffing table, but the number of specialists employed by it is decreasing, the employer has to make a difficult choice. The first thing to pay attention to is labor productivity and qualifications of workers. Comparing these indicators, be guided by objective data: educational level, certification results, certificates, certificates and other official documents. Keep the position for a more productive, experienced and qualified employee.
When reducing the number of staff, do not forget about the pre-emptive right to remain at work. With equal qualifications and labor productivity, the position is retained by those who cannot be made redundant due to the pre-emptive right, guaranteed by Article 179 of the Labor Code of the Russian Federation.
Employees have the advantage:
- financially supporting two or more disabled family members;
- raising qualifications on the job in the direction of the employer;
- having the status of a disabled person in military operations to defend the Fatherland;
- who have received a work injury or occupational disease while working in the company;
- in the family of which there are no other workers with independent earnings.
Additional norms defining who cannot be laid off at work can be established by a collective agreement and local regulations. So that neither former employees who have been laid off, nor the supervisory authorities have doubts about the objectivity of the decisions made by the employer, when compiling the list, do not limit yourself to a simple listing of names and positions. Indicate the specific reasons and factors due to which some workers retained their jobs, and some did not.
List of employees in case of downsizing (fragments): employees who have the pre-emptive right to remain in the staff
Sample list you can download.
The preemptive right provided for in Article 179 of the Labor Code of the Russian Federation is only meaningful if the employee retains his position. Therefore, if several candidates for dismissal have expressed an interest in the same vacancy, the employer decides on the transfer himself. In this situation, neither the order in which the dismissed employees agreed to move to another job nor their social or professional status are taken into account. The legality of this position is confirmed by judicial practice (see the ruling of the Moscow City Court No. 33-9379 of 03/30/2012). As soon as you decide on a candidate, complete the translation. , .
Do not fire pregnant women, single parents, or other individuals with family responsibilities who are legally guaranteed to keep their jobs even in the face of massive layoffs. When reducing the number of personnel, take into account the requirements of Article 179 of the Labor Code of the Russian Federation, objectively assess the qualifications, labor productivity, family and social status of employees.
To justify each dismissal and to avoid claims from the State Inspectorate, save the results of certification, copies of certificates of professional development and other documents, which were used to assess and compare the professional qualities of employees.
