How to notify the entire team about layoffs. Useful tips. Leave the position on the staff list

Unstable periods in the life of Russia are much more common than times of prosperity and general contentment. Therefore, all managers and their employees must be prepared for the fact that staff reductions and related layoffs may be required at any time. The editors of the site will help you understand how this procedure occurs, what you need to know so that temporary difficulties do not bring big troubles for the employer, and what payments are due to employees upon dismissal due to staff reduction.

One of the biggest troubles for a company is forced dismissal due to staff reduction. Let's consider what the 2018 compensation is, which must be paid to employees excluded from the state by the employing organizations, what are the documents that need to be completed, as well as the deadlines that need to be met. We will also tell you what rights of employees cannot be violated in the event of staff reduction or liquidation of the enterprise.

Who can't be laid off?

The current labor legislation defines a list of persons who cannot be fired during staff reductions. These include:

women who are on maternity leave (Article 265 of the Labor Code of the Russian Federation);
pregnant women;
women with children under three years of age;
single mothers raising a child under 14 years of age (disabled child under 18 years of age);
other persons raising children under 14 years of age (disabled children under 18 years of age) without a mother (Article 261 of the Labor Code of the Russian Federation).

You also cannot dismiss employees due to staff reduction who are on sick leave or on vacation. Exception - or termination of the activities of an individual entrepreneur. The reduction of minors is permissible conditionally: for this it is necessary to obtain the consent of the relevant state labor inspectorate and the commission for the affairs of minors and the protection of their rights (does not apply to the situation of liquidation of an enterprise).

Dismissal due to staff reduction: step-by-step instructions - 2019

Step 1. The procedure for staff reduction (as well as liquidation of an organization) begins with the appropriate. In this document, the manager must indicate:

which staffing units and in what quantity are subject to exclusion;
the reason for the reduction in staff;
list and timing of activities that need to be completed before the date of dismissal;
data of responsible persons.

A sample dismissal order for staff reduction looks something like this:

Obviously this is a general order. It is compiled in free text form. It must be familiarized with the signature of the HR specialist responsible for the listed activities.

Step 2. Compliance with the notice period is mandatory, but there are some exceptions. For example, it happens that an employer wants to dismiss an employee before the expiration of a two-month period. However, he has the right to do this only with his consent, and formalized in in writing. If a person is against it, no one has the right to force him. In case of dismissal earlier than the appointed date, employees who agreed to this are paid additional compensation upon dismissal for staff reduction in the amount of average earnings in proportion to the time remaining before the expiration of the notice of dismissal.

Step 3. Before dismissing an employee, the employer is obliged to offer him another available job - a vacant position. Moreover, it may correspond to the qualifications of a specialist, or it may not. Other work may be lower paid or in a lower position. This article of the Labor Code, with all the reservations, gives free rein to the manager who can offer, say, the chief accountant the position of a cleaner. Although in practice it usually does not come to this.

According to the provisions of Article 179 of the Labor Code, employees with higher qualifications and labor productivity receive an advantage when optimizing staffing: they are required to be fired last. But often managers neglect this responsibility. A simple rule applies here: higher productivity and qualifications must be documented. To do this, they use data on the fulfillment of production standards, the quality of work performed, and the absence of defects. Higher qualifications can also be indicated by the employee having primary, secondary, higher vocational education, as well as obtaining a second education, having an academic degree, academic title, etc.

It can be carried out according to a special procedure with passing an exam. It is advisable to do this if the procedure for dismissal due to reduction of staff or number of employees causes difficulties for management. Such independent assessments of qualifications are provided for in the relevant regulations on their conduct. You can also specify in the organization’s local acts the compliance with professional standards approved by the Ministry of Labor for those employees who will be the last to be laid off. If labor productivity and qualifications are the same, the manager usually decides together with the trade union. The following may be taken into account:

having two or more dependents;
absence of other independent workers in the family;
work injury or occupational disease received in this organization.

It is important to carefully consider these factors, since if a disagreement arises, a person can go to court and if the management did not take something into account or violated the established procedure for dismissal, the employee will be reinstated in his previous place, and the organization will have to pay him a salary for forced absence.

Step 4. In addition to the upcoming staff reduction procedure, the employer is also obliged to notify the trade union about this. A document is sent to the employment service with information about the position, profession, specialty, qualification requirements, and payment conditions for each specialist being laid off. This is done as required. All information must be submitted to the employment service and the trade union within the same time frame as notifying the workers themselves. That is, at least two months before the layoff. In case of mass dismissal - no later than three months. Typically, mass dismissal is considered to be the dismissal of more than 20 people at the same time.

For organizations that did not report the alleged mass layoffs or that violated the deadlines for providing information, the employment service must send information to the prosecutor's office for taking action against the perpetrators. The trade union (if there is one in the company) is notified of staff reductions in any form. In the notification, the employer is required to indicate the date, indicate the number of staff units being reduced, and provide a link to the order. The date is extremely important, because it is from this date that the two months for subsequent dismissal of employees will begin.

Step 5. When reducing staff, the first responsibility of the company is to provide employment for the laid-off employees. The law directly obliges the employer to do this constantly from the moment of notification of staff reduction, and at least twice - at the time of warning and immediately at the time of dismissal. If vacancies appear within this two-month period, they must immediately offer them in writing to the employees being laid off and under no circumstances hire new people to fill them. First of all, a person is offered a vacant position similar to the previous one. In the absence of such, the employer must offer the subordinate a lower position in which he can work, taking into account education, qualifications, work experience and health status. If the employee agrees, the transfer procedure is formalized. If he refuses, a written refusal is issued in the form of a special act. This gives the employer the right to offer this position to another employee who has been laid off. All vacancies must be present in staffing table with a set salary (rate) and be provided with a job description. If there are no vacant positions, the manager must draw up an act stating the impossibility of transfer. These documents are drawn up in any form.

Step 6. Based on the order to reduce staffing positions, it is necessary to issue personal orders for all persons who must be dismissed. They should be familiarized with the personal signature of each of the laid-off employees personally two months before dismissal. The two-month period is supposed to be counted from the next day after the employees are notified. Upon completion of a two-month period from the date of warning to employees, the employer must issue a new order for the organization approving its decision to reduce the number of staff and introducing a new staffing table. Remember that you can fire a person only after removing his position from the staff list. Moreover, in such a staffing table there should be no homogeneous vacant positions, otherwise the laid-off employee will be able to be reinstated at work through the court.

Termination of an employment contract with an employee is formalized by order using a special form approved by the State Statistics Committee of Russia. He must be familiarized with the order against his signature. If this is not possible, say, the person does not want to sign for familiarization, then the order must be written “refuse to familiarize with a signature.” On the day of dismissal, the employer is obliged to give it to the employee with the following entry: “Dismissed due to a reduction in the number of employees of the organization, paragraph 2 of part 1 of Article 81 of the Labor Code of the Russian Federation.” If on the day of dismissal the employee did not pick up his work book, he must be sent a notice with an invitation to come for the work book or allow him to send it by mail. From the day this document is sent, it is considered that the employer has fulfilled the obligation to issue a work book and is now not responsible for the delay in its issuance (Article 234 of the Labor Code of the Russian Federation). He is freed from the need to pay the employee the amount of wages he did not receive during the delay. In addition to the work book, the employee has the right to receive copies of other documents related to his work, but only upon his written application.

Step 7 In addition, it is necessary to pay severance pay and compensation in case of unemployment in the first two months after staff reduction. We talked about how to calculate all the necessary amounts in a separate section. It provides details of redundancy dismissals, and 2019 compensation is calculated using examples. All payments in this case are regulated; in particular, it says about the timing: “no later than the next day after the presentation of the request for payment.” Each employee who is subject to staff reduction must receive severance pay in the amount of average monthly earnings. In addition, he retains his average monthly earnings for another two months or less until he finds another job. Moreover, in order to receive compensation for the second month, the former employee must contact the employment service within two weeks after dismissal and not find a job until the end of the second month. In this case, his average monthly earnings will be retained for the third month. But only with a certificate from the employment service. By the way, when retired due to staff reduction, pensioners receive severance pay and other compensation like ordinary employees. And the head of the organization, his deputies and the chief accountant upon dismissal due to a change of owner have the right to receive compensation in the amount of not less than three average monthly earnings.

Responsibility for violation of the staff reduction procedure

The employer may be punished for each violation of the procedure for dismissing an employee due to redundancy. For violation of the deadline for payments upon dismissal, he will be obliged to pay the entire amount due to the employee, plus interest in the amount of not less than 1/150 of the key rate of the Central Bank (equal to the key rate) on the amounts not paid on time for each day of delay (Article 236 of the Labor Code), as and in case of delay in issuing a work book.

In case of failure to fulfill obligations to provide available vacancies, the employer may be fined under Art. 5.27 Code of Administrative Offences. It must be remembered that violations of labor legislation are monitored by the Federal Labor Inspectorate and the Prosecutor's Office. An employee who decides that his rights have been violated can first contact his trade union, if the company has one. In this case, employers are required to respond to the application within a week. If the problem cannot be solved, the person may contact the labor inspectorate and the prosecutor's office, and this will cause an unscheduled inspection of the employer.

In addition, anyone with a labor dispute can go to court. He can do this within three months from the day he learned or should have learned about a violation of his labor rights. And in disputes about dismissal - within one month from the date of delivery of a copy of the dismissal order or from the date of issue of the work book. At the same time, employees are exempt from paying fees and court costs. If dismissal or transfer to another job is recognized as illegal, the employee must be reinstated in his previous job by the body considering the individual labor dispute. In this case, he will be paid average earnings for the entire period of forced absence or the difference in earnings for the entire period of performing lower-paid work, as well as for moral damage. The decision to reinstate an illegally dismissed employee or to reinstate an employee who was illegally transferred to another job to his previous job is subject to immediate execution.

Magazine"Labor disputes" compiled a rating of five risks for employer companies when dismissing workers due to staff reduction.

Customer service manager Sergei Fedorov was fired due to a reduction in the organization's workforce. He considered that his employer fired him illegally and went to court. As the main arguments, the employee referred, firstly, to the inappropriateness of dismissal, since due to the nature of its activities the company could not do without a customer service manager. This means that the dismissal is imaginary. Secondly, the employee received notice of the planned layoff by mail, which is a violation of labor laws.

In accordance with Part 2 of Art. 180 of the Labor Code of the Russian Federation, employees are warned about dismissal due to staff reduction in person and against signature, which was not done in this case. Thirdly, the employer did not offer him all available vacancies, although the organization had temporarily vacant positions for female workers on maternity leave. For example, there was a vacant position for a quality control specialist, but it was offered to another layoff employee—a purchasing manager. According to the laid-off employee, he had a preferential right to occupy this position because he had a higher education, while the purchasing manager only had a secondary specialized education. And finally, fourthly, the employer, in violation of the requirements of the Law of the Russian Federation No. 1032-1 of April 19, 1991 “On employment of the population in Russian Federation“, did not notify the employment service about the planned reduction, although he was obliged to do so. All this became the main arguments of the employee when going to court with demands for reinstatement at work, payment for forced absence time and compensation for moral damage caused by illegal dismissal.

At first glance, the employee's arguments may seem convincing. However, let's find out whether the employer actually committed violations during dismissal that may lead to the recognition of his actions as illegal. Let's analyze each employee's argument and offer our own counterargument.

Arguments that employees most often use when challenging dismissal:

the employer had no objective reasons to reduce staff;
the employee was notified of dismissal by mail;
the employee was not offered temporarily vacant positions;
the employer did not take into account the employee’s preferential right to remain at work;
the employer did not notify the employment service of the planned reduction.

Risk one: the argument that staff reductions are unjustified

In court, the employee argued that the employer did not need to reduce his position - a company that professionally engages in sales cannot operate without account managers. However, this argument is unlikely to help the employee challenge the dismissal. The fact is that the law does not require the employer to justify why he eliminated a particular position. The fact of reduction is important. This is confirmed by the highest courts.

Supreme Court of the Russian Federation:

“The employer, for the purpose of effective economic activity and rational property management, independently, under his own responsibility, makes the necessary personnel decisions” (selection, placement, dismissal of personnel)” (clause 10 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).

Constitutional Court of the Russian Federation:

“Making a decision to change the structure, staffing table, number of employees of an organization relates to exclusive competence an employer who has the right to terminate an employment contract with an employee due to a reduction in the number or staff of the organization’s employees, subject to compliance with the dismissal procedure established by the Labor Code of the Russian Federation” (definition of the Constitutional Court of the Russian Federation dated July 15, 2008 No. 413-О-О).

Courts of general jurisdiction also share the approach formulated by the highest judicial authorities.

Arbitrage practice

The employee filed a lawsuit demanding that the dismissal be declared illegal. In his opinion, the reduction was imaginary, since his position in the organization was needed. The court of first instance, satisfying the employee's demands, indicated that there was no staff reduction in relation to the position held by the plaintiff, and in addition, the defendant did not provide the court with evidence of the need to reduce this position. However, the cassation court recognized this conclusion as unfounded, indicating the following. The court, checking the legality and validity of the dismissal of an employee under clause 2, part 1, art. 81 of the Labor Code of the Russian Federation, does not resolve the issue of the advisability of excluding a specific position from the staffing table, since this is within the competence of the employer, and therefore the court does not have the right to discuss the issue of the advisability of reducing staff. The fact of staff reduction was confirmed by orders from the general director, as well as staffing tables.
Based on this, the higher court overturned the decision of the court of first instance and refused to satisfy the employee’s claims (decision of the Moscow City Court dated September 09, 2010 in case No. 33-28514).

Similar conclusions are contained, in particular, in the rulings of the St. Petersburg City Court dated February 15, 2010 in case No. 33-1807/2010, the Moscow City Court dated July 1, 2010 in case No. 33-18716, etc.).

Thus, the employer does not need to justify the feasibility of the reduction. In court, he only needs to confirm that the staff reduction was real. To do this, it is necessary to submit orders for staff reduction, the previous staffing table and the current one. Absence in latest version the staffing table of the position, the reduction of which the employee is challenging, will be adequate evidence for the court.

Additional argument in favor of the company: employees do not have the right to appeal the employer’s decision to reduce headcount or staff

The workers appealed to the court to declare the order to reduce staff illegal. In their opinion, the company's board violated the established procedure for making such a decision. However, the court refused to satisfy the workers' demands. He pointed out that a person working under an employment contract with an organization is not given the right to appeal decisions of the collegial bodies of a legal entity, since only members of the board are given this right. The court emphasized that employees do not have the right to appeal the employer’s decision to carry out measures to reduce numbers or staff. He noted that reducing the number or staff of employees is an unconditional right of the employer, in the implementation of which he must fulfill the procedure defined by the Labor Code of the Russian Federation. In this case, employees can only check the facts of notification of their upcoming dismissal, offers of other vacant positions, but not the procedure for the employer to make a decision on layoffs (decision of the Sverdlovsk Regional Court dated 02.06.2009 in case No. 33-5558/2009).

Risk two: the employee was not notified of the upcoming staff reduction

The Labor Code of the Russian Federation indeed requires that the employee be warned about the upcoming reduction in staff personally and against signature at least 2 months before the date of dismissal (Part 2 of Article 180 of the Labor Code of the Russian Federation). For this purpose, as a rule, a notice of upcoming dismissal is drawn up. If the employee refuses to familiarize himself with such a document in writing, then a report is drawn up about this, and the notification itself is read aloud (this is also indicated in the report). Ideally, you should strive to notify workers in person. Courts are more accepting this method than using postal services. At the same time, nowhere in the law does it say that an employer cannot send notice of an upcoming dismissal by mail. Therefore, in the event of vacation or illness, notice can be sent to the employee at his home address by mail or courier. The main thing is that the employer has notification of delivery of the letter. Otherwise, it will be difficult to prove that the employee was notified.

According to clause 2 of the Rules for the provision of postal services (approved by Decree of the Government of the Russian Federation of April 15, 2005 No. 221), a postal item with a receipt notification is such an item, when submitted, the sender instructs the postal operator to inform him or the person specified by him when and to whom the postal item was delivered. Therefore, when delivering a postal item, the employee signs for its receipt. If the postal item contained a list of contents and a notification of delivery, then the employer can say that the employee was warned about the upcoming dismissal upon signature.

So, the employer can notify the employee of the upcoming layoff by mail, and this method of notification will comply with the law if two conditions are met: the employer has a document on which the employee has signed for receipt of the notification and notice of dismissal at least 2 months in advance. Please note that the calculation of the 2-month period does not begin from the moment the notice is sent, but from the moment the employee receives it.

If these conditions are met, then, most likely, the court will consider the dismissal procedure to have been followed.

Arbitrage practice

The company carried out organizational and staffing measures, as a result of which the position of deputy director for science was reduced. The employee who held this position did not agree with the dismissal and went to court with a demand to declare the dismissal illegal. In his opinion, there was no actual reduction, and the dismissal procedure was carried out in violation. In particular, the employer did not notify him of the upcoming layoff 2 months before his dismissal. However, the court sided with the company. He indicated that on February 18, 2010, a notice of upcoming dismissal was sent to the employee. On 04/16/2010 the employee was dismissed from 04/19/2010 under clause 2 of part 1 of art. 81 Labor Code of the Russian Federation. Referring to the employee’s explanations, the court noted that the notification was received by his daughter, who contacted him by phone on February 18, 2010 and informed him of the notification received, and also read out the list of proposed positions. This conclusion was also confirmed by the postal envelope, notification and duplicate notification received by the employee after his return from vacation on 03/26/2010, in which he confirmed the fact of familiarization with the notification and the list of vacant positions on 02/18/2010. Having assessed the evidence presented in its entirety, the court came to the conclusion that the plaintiff’s arguments regarding the employer’s violation of the warning period provided for by labor legislation about the upcoming layoff are unfounded. In this regard, the dismissal was recognized as legal (ruling of the Moscow Regional Court dated September 16, 2010 in case No. 33-18024).

It should be borne in mind that in the event of a conflict dismissal, the employee may not pick up the document at the post office. Therefore, if the employer has the resources, it makes sense to play it safe and deliver the notice of staff reduction to the employee personally (for example, send a courier or HR employee to his home). The main thing is that the laid-off employee signs for receipt of the notification. When the employee returns to work, the notification must be handed over to him again. At the same time, it is also important to keep all documents confirming the notification was sent to him.

When can an employer return a reduced position to the staffing table?

The legislation does not establish a time frame for returning an employee’s position to the staffing table. Since the employer determines the advisability of reducing staff, he also decides when he should expand the staff again. For example, if a reduction in staff was caused by financial difficulties, then after the economic situation normalizes, it will be legal to return the reduced position. However, the rapid return of such a position may raise suspicions that the reduction was in fact imaginary. And this automatically entails recognition of the dismissal as illegal. Therefore, if there is a need to immediately return a reduced unit, it is better to play it safe and introduce a position under a different name.

Risk three: the employee was not offered all vacant positions

Before dismissing an employee due to a reduction in numbers or staff, the employer will have to prove the impossibility of his employment within the company. And hide the availability of vacancies - difficult task. An employee, one way or another, learns about vacant positions: in a conversation with a colleague, from information on the corporate website, or through the court, he requests the company’s staffing table. Therefore, in order to avoid getting into trouble, the employer should better prepare and determine in advance a list of vacant positions that could be offered to the employee. At the same time, compiling such a list can be difficult. So, part 3 of Art. 81 of the Labor Code of the Russian Federation speaks of only two criteria suitable job:

compliance with the employee’s qualifications (regardless of whether it is a lower-ranking or lower-paid position);
no contraindications for health reasons for the employee.

It can be assumed that it was precisely because of the breadth of these criteria that in our example the employee stated that the employer should have offered employment for positions that were occupied by employees on maternity leave. Let’s try to figure out whether such an employee’s demand is legal. Indeed, it is not clear from this norm whether the proposed work should be temporary or permanent. However, a logical question arises: can an employer actually offer an employee a position held by an employee on vacation? By its legal nature, such a transfer will be temporary. By virtue of Art. 72.2 of the Labor Code of the Russian Federation, upon completion, the employee must be given his previous job. It will be impossible to do this, because his position will be reduced. The only way out in such a situation is to terminate the current employment contract and enter into a new one - a fixed-term one. But such a scheme goes beyond the scope of the staff reduction procedure. Also, a woman on maternity leave can return to work by virtue of the law at any time. Including the day after the laid-off employee took her position. Then he will have to be fired due to the expiration of the employment contract (Clause 2, Part 1, Article 77 of the Labor Code of the Russian Federation) without payment of benefits that he would be entitled to upon dismissal due to staff reduction.

In such a situation, the employer can be advised to use the following argument in court: the positions of employees on maternity leave were not offered to the employee, since they are not considered vacant, but are only temporarily available. This conclusion is confirmed by judicial practice.

Arbitrage practice

The employee was fired due to staff reduction. Considering the employer’s actions unlawful, she went to court with a demand to recognize the dismissal under clause 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation is illegal. In her opinion, upon dismissal, she was not offered all positions; in particular, there were temporary vacancies for workers on maternity leave. However, the court indicated that the employer’s offer to an employee subject to dismissal of positions temporarily vacant due to long-term leave of employees, including in connection with child care, is not provided for by law. The court noted that these positions are not vacant in the sense of the provisions of Part 3 of Art. 81 of the Labor Code of the Russian Federation, since work in these positions is temporary (determination of the St. Petersburg City Court dated August 30, 2010 No. 33-11908).

At the same time, we note that the issue of offering temporary positions is not clear-cut. Some courts believe that such an obligation is still assigned to the employer. So, for example, the Moscow City Court in one of its decisions indicated that the Labor Code of the Russian Federation does not contain clarifications as to whether the proposed job should be permanent or temporary, while the employer is obliged to offer all available vacancies (determination of the Moscow City Court dated July 1, 2010 to case No. 33-19668/2010). However most of judicial practice on this issue is still in favor of the employer (see, for example: Review of cassation and supervisory practice in civil cases for 6 months of 2005 of the Perm Regional Court; rulings of the Voronezh Regional Court dated June 26, 2007 in case No. 33-1629; Moscow city court dated July 22, 2010 in case No. 33-20380, dated August 19, 2010 in case No. 33-26128, dated September 16, 2010 in case No. 33-29046, etc.).

Thus, in court, the company will most likely be able to refute the employee’s argument that the dismissal procedure was violated, since he was not offered temporarily free vacancies.

Dismissal may be considered illegal if vacancies at the company's head office were not offered

The employee appealed to the court with a demand to declare the dismissal due to a reduction in staff illegal. She indicated that when she left, she was not offered all the vacancies available in the company. The court agreed with this argument. He noted that when carrying out the procedure for dismissing employees, by virtue of the law, the employer is obliged to provide vacant positions in the same organization, including all its branches and structural units located in the area. At the same time, the employee worked at the Bank of Russia, which, together with its structural divisions, makes up unified system. The court noted that only the Bank of Russia has the status of a legal entity, whose structure includes institutions throughout Russia, of which six are located only in St. Petersburg (where the employee worked). In this regard, the case was sent for a new consideration (decision of the Supreme Court of the Russian Federation dated June 25, 2009 No. 78-B09-12). Correctly compiling a list of vacant positions will help the employer avoid reinstatement of the employee. Offering another job is perhaps the most important stage of dismissing an employee due to staff reduction. To avoid mistakes, it is important to correctly draw up a list of positions for which an employee can apply. Let us remind you that the employer must offer not just all available vacancies, but only those that the employee can fill, taking into account his state of health and qualifications. At the same time, as the Supreme Court of the Russian Federation noted, it is necessary to take into account the real ability of the employee to perform the work offered to him, taking into account his education, qualifications, and work experience (clause 29 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2). The employer will be helped with this job descriptions for each position. They can be presented to the court to prove that the employee did not meet the requirements.

Risk four: upon dismissal, the employee’s preferential right to remain at work was not taken into account

Employees dismissed due to staff reduction often refer in court to their preferential right to remain at work. Indeed, by virtue of the law, before starting the layoff procedure, the employer must find out whether certain employees have a preferential right to remain at work. In accordance with Art. 179 of the Labor Code of the Russian Federation, the employer must give preference to an employee with higher labor productivity and qualifications. In the case of equal qualifications, persons who have two or more dependents, who support disabled family members, etc. must remain at work. Here you should remember several rules. First of all, the preemptive right should be taken into account only in relation to identical positions, that is, when there is a reduction not of a specific position, but of several staff positions. For example, when out of 8 purchasing managers they decided to leave only 5. In our case, the position subject to reduction is occupied by only one employee - the customer service manager. Therefore, the employer was not required to compare the preferential right to remain in the job of a purchasing manager with the position of an account manager, since they have completely different responsibilities. This conclusion has also been confirmed in judicial practice.

Arbitrage practice

The employee was fired due to staff reduction. Considering the dismissal illegal, she went to court. In her opinion, the procedure for terminating an employment contract due to staff reduction was violated. The court of first instance agreed with the employee’s argument and indicated that the employer did not take into account her preferential right to remain at work. However, the higher court found this conclusion untenable. He noted that, by virtue of the provisions of Art. 179 of the Labor Code of the Russian Federation, when the number or staff of employees is reduced, the priority right to remain at work is given to employees with higher labor productivity and qualifications. Within the meaning of this article, it should be applied when there is a question of leaving one of several employees performing equal job duties at work. In this regard, the employee was denied reinstatement at work (ruling of the St. Petersburg City Court dated December 6, 2010 No. 16436).

One more point should be noted. In our case, the employee was indignant that the vacant position of a quality control specialist was offered not to him, but to another employee who had a secondary specialized education. In this case, the employer had legal right choosing who to offer a vacant position first. Article 179 of the Labor Code of the Russian Federation talks about taking into account the preferential right to remain at work, but not about offering vacant positions. If the purchasing manager refused to move into the position, the employer would then have to offer it to the account manager. This follows from Part 3 of Art. 81 of the Labor Code of the Russian Federation, according to which the employer is obliged to offer the laid-off employee all available vacant positions.

Arbitrage practice

Due to job reduction, the employee was dismissed from the organization. Considering the employer's actions illegal, he went to court. In his opinion, the employer did not take into account his preferential right to remain unemployed and did not offer the vacancy available in the company. However, the court did not agree with this conclusion. He noted that the company had several employees whose positions were subject to reduction. The court noted that in such circumstances, when several laid-off employees apply for a vacant position, the right to select a specific employee to fill the existing vacant positions belongs to the employer. In this regard, the dismissal was recognized as legal (ruling of the Moscow City Court dated October 22, 2010 in case No. 33-30909).

Thus, when there are more laid-off workers than there are vacant positions in the company, the right to choose who to offer it to belongs to the employer. Since the purchasing manager agreed to fill the vacant position, there were no violations by the employer.

Three rules for painlessly dismissing an employee due to staff reduction

The employer can use additional criteria to assess labor productivity. When staffing is reduced, priority right to remain at work is given to employees with higher labor productivity and qualifications (Article 179 of the Labor Code of the Russian Federation). But the law does not stipulate exactly how to determine whose productivity and qualifications are higher. For these purposes, you can take into account, in particular, the period that the employee has worked in his specialty, his education and the number of incentives. If these indicators are the same for all candidates for dismissal, you must be guided by part 2 of this article, which contains a list of categories of citizens who have a preferential right to retain their jobs.
Dismissal of a pregnant employee is illegal, even if the employer did not know that she was expecting a child. Article 261 of the Labor Code of the Russian Federation prohibits the termination of an employment contract at the initiative of the employer with pregnant women (except in cases of liquidation of the company). In practice, it happens that an employee who has been informed of an upcoming layoff responds by announcing that she is pregnant. If such an employee is fired and the fact of pregnancy is confirmed, the court will reinstate her at work. Please note that similar situations may arise after the dismissal of an employee. For example, in early dates pregnancy, she herself may not know that she is expecting a child. Nevertheless, judicial practice shows that in such situations the legality of dismissal does not depend on whether the employer or employee knew about the pregnancy. In this situation, the employer can only be advised not to contact a legally savvy employee.
When a staff member is laid off, there is a risk of fraud with the work record book. A difficult situation can arise if an employee who has access to the work record books (for example, who is responsible for their storage) is dismissed. He can resign by taking his work book without signing for its receipt. Subsequently, he can make financial claims to his former employer, stating that he was not given a work book, and without it he cannot get a job. In this case, it is better for the employer to take preventive measures and create a duplicate of the lost work book. This will allow him to send the employee a notice of the need to appear for a work book. From the date of sending such notification, the employer is released from liability for the delay in issuing the work book.

Risk five: the employer did not notify the employment service about the employee’s dismissal

By virtue of clause 2 of Art. 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1, the employer is obliged to notify the employment service at least 2 months before the upcoming dismissal. In our example, the employee referred to the fact that the employer did not notify the employment service about the upcoming staff reduction. Since the employer did not do this, he thereby violated employment legislation. However, does this entail the illegality of dismissing an employee due to staff reduction? It should be noted right away that this issue is very difficult. Some courts are of the view that such a violation is not grounds for reinstatement of the employee.

Arbitrage practice

The employee was dismissed from the organization due to a reduction in the position she occupied. Considering the dismissal illegal, she went to court. In her opinion, the employer committed numerous violations, including failing to notify the employment service 2 months in advance. However, the court did not find any violations leading to illegal dismissal. The court stated that the employer had the right to reduce her position. Moreover, the fact that the employer did not send information about the dismissed employee to the employment service cannot serve as a basis for her reinstatement at work, since the Labor Code 6s of the Russian Federation does not contain such an obligation (decision of the Moscow City Court dated December 8, 2010 in case No. 33- 38126).

Thus, the employer can declare in court that, despite the violation he committed, this does not affect the lawfulness of the dismissal. In addition, some courts examine how the violation affected the employee’s rights. After all, the point of notifying the employment service about the release of an employee is so that this body can quickly find a new job for the employee. If the employment service is unable to do this precisely because the employer did not inform about the employee’s dismissal in a timely manner, then we can talk about a violation of the employee’s rights. However, this should be a separate subject of proof and the employee must prove it.

Arbitrage practice

In connection with the employer’s decision to improve the organization of work and the rational use of personnel in functional departments in the company, the position of head of the logistics group was reduced. The employee who held this position considered such actions of the employer to be illegal and went to court with a demand to reinstate him at work. In his opinion, dismissal under clause 2, part 1, art. 81 of the Labor Code of the Russian Federation is unlawful, since the procedures for terminating an employment contract were violated. In particular, the employment service was not notified of the upcoming dismissal. The first and second instances refused to satisfy the employee’s demands. The employee filed a supervisory complaint. However, the supervisory authority confirmed the legality of the dismissal. The court noted that the fact that the employer’s timely notification of the employment service about the upcoming reduction in staff at the enterprise and the possible termination of employment contracts cannot serve as a basis for canceling the appealed court decisions. The employee did not provide evidence of how this circumstance could or did result in a violation of his right to employment with the help of the employment service (decision of the Moscow City Court dated December 23, 2011 in case No. 4g/7-11008/11).

However, some courts approach this issue formally and check only the employer’s documented compliance with the procedure for dismissing the employee, and not how this affected the employee’s rights. In practice, there is a position according to which failure to notify the employment service, coupled with failure to notify the trade union, entails the illegality of dismissal.

Arbitrage practice

First Deputy Head of Administration municipality was fired due to staff reduction. Disagreeing with this decision, he went to court. In court, the plaintiff explained that in fact there was no reduction, since functional responsibilities remained and were redistributed among other employees. In addition, the dismissal procedure was violated, since the trade union committee and the employment service were not notified of his dismissal 2 months in advance. The court agreed with the plaintiff's arguments. He noted that the reduction of the position of the first deputy head of the administration of the Dzerzhinsky district of Perm was carried out in accordance with the procedure established by local regulations city administration. However, the procedure for dismissing the employee was violated, since neither the trade union body nor the employment service body were notified in writing of his upcoming dismissal due to a reduction in his position 2 months in advance. In this regard, the dismissal was declared illegal (ruling of the Perm Regional Court dated 08/01/2011 in case No. 33-7697).

It is worth noting that previously the same court took the view that these violations themselves cannot be grounds for reinstating an employee at work. It is necessary to provide evidence that this affected the employee’s rights (see Review of cassation and supervisory practice in civil cases for 2006 of the Perm Regional Court).

Thus, failure to fulfill the employer’s obligation to notify the employment service significantly reduces the employer’s chances of winning a labor dispute. However, if the company manages to convince the judge that all other elements of the procedure were followed, and this violation did not in any way affect the employee’s rights, there is a possibility that the court will refuse to reinstate the employee. The employer can also argue its position by the fact that violation of this obligation does not entail reinstatement at work, since it is not provided for by the Labor Code of the Russian Federation.

E. Yu. Koroleva, Deputy General Director for Legal Affairs of the law firm "Alternative Resolution"

Practicing lawyer and economist, director of KPC Dialog Consulting LLC, member of the National Union of Personnel Officers of Russia, expert reviewer of the Consultant Plus Union of Right Forces.

Seminars by M.V. Cherenkova is primarily recommended to heads of personnel management departments (personnel), managers, specialists of structural divisions involved in the development collective agreements, local regulations, organizational and administrative documents, remuneration systems, in resolving labor disputes.

Education

1986-1991 — Novosibirsk Institute Soviet cooperative trade; specialty: "Trade Economics";
1992-1993 — International School of Managers (Moscow); specialty: "Foreign economic activity";
1997-2002 — Law Institute Krasnoyarsk state university(currently - YuI SFU) with honors; specialty: "Jurisprudence".

The lecturer's largest seminar was held in Novosibirsk in April last year (298 people) on the topic: " Last changes labor legislation of the Russian Federation: review of innovations, analysis of practice."

The most popular workshop of 2015: "Effective contract: key points transition period" - organizers: CJSC "Quadro Plus" (Kemerovo), LLC "Corporate Training Center" (Kemerovo), UMC "Union of Industrialists" (Barnaul), ANO DPO "STsPR" (Krasnoyarsk), LLC "KPC "Dialogue Consulting" (Krasnoyarsk).

Over 15 years of work in the field of labor law, M.V. Cherenkova prepared 35 training programs, which were attended by more than 10,000 people in different cities of the country (Krasnoyarsk, Lesosibirsk, Minusinsk, Sharypovo, Kansk, Achinsk, Arkhangelsk, Velsk, Severodvinsk, Vologda, Perm, Irkutsk, St. Petersburg, Novosibirsk, Kemerovo, Novokuznetsk , Barnaul, etc.).

In 2014, the first book by M.V. was published. Cherenkova "Work book: complex issues of management" (Mysl publishing house, Novosibirsk, circulation 5000 copies).

Currently, work continues on the second book with the working title: “Personnel documents of the organization: we prepare them correctly.”

If a business manager is going through difficult times, he may cut the number of employees or positions if he needs to save money. But can he do whatever he wants, or are there any rules for laying off workers? This will be discussed in our article.

Labor Code

First, let's open Chapter 13 of the Labor Code of the Russian Federation and see what the legislation says about employee layoffs.

Dismissal due to reduction is mentioned in paragraph 2 of Article 81 and refers to cases of termination of an employment contract at the initiative of the employer.

Are we reducing staff or employees?

When planning staff reductions, it is necessary to understand the difference between reducing the number of positions and reducing the number of employees.

When job cuts are planned, several jobs are removed from the staffing table. For example, if the company had a manager, a production manager, an engineer and a salesperson, and as a result of the decision to make redundancies, it was decided to remove the position of manager - this is a reduction in positions.

If the enterprise had five engineers, three managers and two salespeople, and when the staff was reduced, they decided to leave only two engineers, two managers and one salesperson, then this is a reduction in the number of employees.

What does the employer have the right to?

It would seem that if the law stipulates that the employer has the right to reduce its staff if necessary, then everything is simple: you need to decide on which positions or people you can save money on, and act. But in reality, there are redundancy rules that must be followed. Let's take a closer look at them.

Reduction procedure

The procedure for terminating an employment relationship due to layoffs is structured as follows:

the employee receives notice of an upcoming layoff;
a dismissal order is issued for the enterprise;
On the last working day, the final payment is made to the dismissed employees.

As you can see, it is similar to the procedure for terminating an employment relationship in any other case.

Deciding to downsize

Although a business owner or employer may be going through difficult times, he cannot part with his employees at any time convenient to him. In order to cut people or positions, there must be a good justification - one that will satisfy the labor commission if a precedent arises. For example, it will be necessary to prove that the industry in which positions are being cut is completely unprofitable, and the owners of the enterprise simply had no other choice - only to close this area and exclude all employees employed there from the staffing table.

Where should you start cutting?

Before you start getting rid of employees, especially in a large enterprise, you should check whether there are so-called “empty” vacancies that can be excluded from the staffing table first. This means that if in an organization, for example, there are positions of five accountants, and only three people actually work in these positions, then you can exclude those two that do not have an actual employee. Then you won’t have to fire anyone, you can avoid paperwork, but if the enterprise really needs to free up free funds, then such a measure, of course, will not save or help anyone.

If it is not possible to simply cross off positions on paper from the list, you need to start cutting people off. In this case, the following should be fired first:

pensioners,
those employees who have less experience and seniority;
those employees who bring less benefit to the company.

But it is necessary to understand that formulations such as “brings less benefit” must also have a strong basis, for example, some criteria for comparison - otherwise the employee may try to challenge his dismissal in court.

Who can't be fired?

To understand how to properly lay off workers, you need to know that there are certain categories that cannot be dismissed due to layoffs, since this is illegal. These include:

minor employees;
pregnant employees;
women with children under three years of age;
employees who alone are raising a child under twelve years of age or a disabled child under eighteen years of age.

The employer can lay off such employees only in the event of complete liquidation of the enterprise - then there is simply no other choice left. In all other cases, if, for example, you need to choose between a very qualified and responsible employee and a pregnant employee who is not so good and not so experienced, the choice, alas, will have to be made in favor of the latter.

Transfer of employees

Even if the employer has outlined a list of employees with whom to part with, the rules for dismissal for staff reductions state that before terminating the employment contract, it is necessary to offer the released employees a transfer to other vacant positions. However, they may be less paid and less prestigious.

For example, a senior manager may be offered all the available vacancies at the enterprise, from just a manager to a watchman, and it is up to him to decide whether to accept the offer or refuse. The employer is not obliged to offer vacancies that require higher qualifications. It is advisable to record all such proposals in writing, as well as the employee’s refusals.

Notification

The most important point when reducing staff is that employees must be warned about this in writing two months before the upcoming event. Within the same time frame, the employment service and the trade union committee must be notified - if there is one at the enterprise. Moreover, if there is a decrease in the number of employees, for example, by fifteen people at once, it is impossible to issue one warning paper to everyone; each employee must be notified individually, against signature, and an act of refusal to sign will not be suitable in this case.

Order of dismissal

An order in form T-8 is drawn up in the same way as in other cases of termination of employment contracts. If there is a massive layoff, all employees can be included in one order. The wording “to reduce staff” or “to reduce staffing levels” is required.

Calculation

On the last working day, dismissed employees must be given everything Required documents and money.

Documents include:

work book with the corresponding entry;
certificate of average salary for the last year;
any certificates and documents, the issuance of which does not contradict the commercial or other secrets of the enterprise, upon the written request of the employee.

The funds that must be given to the employee must include:

current salary and bonus;
compensation for unused vacation days - in this case, compensation is not collected from the employee for those days that he took “in advance” this year;
severance pay in the amount of the average monthly salary.

If an employee was sick at the time of dismissal, the company pays him sick leave in full. For example, an employee should be fired on the fifth of November, but only closed the sheet on the tenth of November - he is entitled to payment up to the tenth inclusive.

If within a month after the layoff the former employee does not find a new job, the enterprise is obliged to issue another average monthly salary.

If the employee is registered with the employment service within two weeks from the date of dismissal, the rules for laying off an employee state that - by decision of the service - the enterprise can pay for the third month of the employee’s stay without work.

What is a redundant employee entitled to?

As mentioned above, the employee has the right to move to other vacancies available at the enterprise. As a rule, there should be at least three new job offers - if, of course, the company has so many unfilled vacancies.

A resignation letter from an employee who is being laid off is not required, since the initiative to terminate the employment relationship comes from the employer.

An employee can reach an agreement with his boss at any time and leave the company without waiting for the expiration of the two-month period - in this case, he must write a letter of resignation. And it must be remembered that in this case, benefits are not due, but compensation is due for all days before the expiration of the warning period. For example, if an employee was supposed to be fired on the first of October, but quits on the fifteenth of September, he is entitled to payment for the days from the fifteenth to the first.

Among other methods of terminating an employment contract, dismissal due to reduction stands out. The fact is that among other types of dismissal provided for by the Labor Code (Labor Code of the Russian Federation), this is the most labor-intensive, but at the same time, perhaps, the most guaranteeing compliance with the rights of the employee.

Tom, what an employee and employer need to know when reducing staff, I dedicated this article.

The dismissal of an employee due to staff reduction is included in Article 81 of the Labor Code of the Russian Federation, which considers all cases when an employment contract is terminated by the employer.

○ Dismissal due to staff reduction.

✔ Labor Code on dismissal due to staff reduction.

Article 81 of the Labor Code of the Russian Federation combines both cases of dismissal for absenteeism, violation of discipline or labor protection measures, and cases when an employee quits, although he is not guilty of anything (these include, in addition to layoffs, liquidation of an organization, for managers and their deputies and chief accountants - change of owner of the organization).

The Labor Code of the Russian Federation does not decipher the difference between staff reduction and staff reduction. In practice, the difference is also insignificant and consists only in the fact that when the number of employees is reduced, the position in the staffing table is retained, but there will be fewer workers in it (for example, instead of three managers, there will be only one left in the department).

When staffing is reduced, a specific position is completely excluded from the schedule (for example, the position of a personnel officer is abolished at an enterprise, and his duties are transferred to an accountant).

✔ Who can and cannot be laid off?

Despite the fact that the reduction in the number or staff of employees depends entirely on the initiative of the enterprise management, the law provides for certain benefits for a number of categories of employees.

I'll tell you more about them below. For now, I will say that when reducing there is a rule about preferential retention at work. Art. 179 of the Labor Code of the Russian Federation provides that during layoffs, workers with less qualifications and lower labor productivity should be dismissed first.

In practice this usually means that workers with less work experience are laid off first, since seniority usually implies experience.

When making redundancies, the results of qualifying exams, the employee’s education (in the same position, an employee with higher education will enjoy an advantage over a colleague with a secondary specialization), as well as the indicators achieved by each of the employees over the previous period.

The Labor Code of the Russian Federation and other acts also require that the following employees have priority when remaining at work:

Having disabled children.
Single mothers and fathers.
The only breadwinners.
Suffering from injury or occupational disease received at this enterprise.
Disabled war veterans.
Heroes of the USSR and the Russian Federation, holders of the Order of Glory.
Victims of the Chernobyl disaster and the Semipalatinsk tests.
Improving qualifications in the direction of the organization, combining training with work.
Employee inventors (oddly enough, the USSR Law “On Inventions in the USSR” in this part is still in force).

In addition, some employees cannot be dismissed by the employer at all except by at will, agreement or for committing an offense.

In relation to layoffs, in addition to regular beneficiaries, members of trade union leadership at least below the shop level cannot be dismissed.

It is prohibited to dismiss elected representatives of a collective of employees who participate in resolving disputes with the employer.

✔ The main reasons for the reduction.

The law does not directly establish in what cases an employer has the right to reduce the number or staff of employees.

The Constitutional Court of the Russian Federation, in its ruling No. 867-О-О dated December 18, 2007, established that this is the right of the employer in cases where economic necessity requires it.

However, in turn, the Supreme Court of the Russian Federation, by ruling No. 19-B07-34 dated December 3, 2007, introduced the rule that in the event of a dispute, the court has the right to verify the need and validity of the reduction.

Thus, an employer who wishes to take such measures must order about the reduction, indicate the exact reasons for the dismissal.

As a rule, the reasons forcing workers to be laid off are:

Low profit of the enterprise and the inability to pay salaries to the previous staff.
Low efficiency previous staff and the presence of positions that are not necessary.
Changes in technology or production organization, in which some workers are unclaimed.

✔ The necessary conditions.

Dismissals of employees due to reductions are possible provided that the employer meets a number of conditions

Full and strict compliance with the reduction procedure provided for by law.
If the enterprise previously concluded collective agreements with employees, or the employment contracts of those being dismissed contain additional guarantees upon dismissal, these must also be observed.
Justification for dismissal.
As already mentioned, in the event of a dispute, the court has the right to check whether the dismissal was justified economically and organizationally.
Employment service notification.
This point is worth highlighting separately, since some employers manage to completely forget about this requirement, as a result of which they are then forced to pay fines and pay employees for forced absenteeism.

✔ Procedure, procedure and rules for dismissal due to reduction.

Reduction of staff for any enterprise is a rather complicated procedure, and violation at any of its stages is fraught with a fine or legal proceedings for the employer.

Dismissal must be done in the following order:

The management of the enterprise issues an order on the planned reduction at least two months before the employee is to be dismissed (Article 180 of the Labor Code of the Russian Federation). Each of the employees subject to dismissal is personally warned that a reduction is expected and, upon signature, reads the text of the order. However, an order to reduce staff should not be confused with an order to dismiss a specific employee - such orders are issued much later, when the deadline for dismissal approaches.
For employees who are subject to layoffs, the management of the enterprise is obliged to offer any other position that meets the qualifications of the dismissed employee. It should be remembered that offering another job is not a one-time action: the employer is obliged to notify those being dismissed about vacancies opening at the enterprise right up to the termination of the employment contract. The employee is obliged to either accept the offer and continue working in another position, or refuse - and the refusal must also be recorded in writing, dated and signed by the employee.
The employer notifies the trade union organization, if one exists at the enterprise. The notice period is the same as for employees, but if a mass layoff is planned, the union should be notified not two, but three months in advance. This rule was established by the ruling of the Constitutional Court of the Russian Federation. In turn, the trade union must express its opinion on the dismissal within seven days. If the trade union does not agree to layoff workers, then by law, within three days positions must be agreed upon. If, in this case, no agreement was reached, the employer has the right to dismiss workers, but the trade union can appeal this decision to the Federal Labor Inspectorate (Rostrudinspektsiya). The inspectorate, in turn, may recognize the dismissal as illegal and demand that the dismissed person be reinstated at his previous place of work with payment. compensation and for forced absenteeism. The decision of the Rostrudinspektsiya can be appealed by the employer in court.
In addition to the trade union, the employer also warns the employment service within the same period of time (two, in case of mass layoffs – three months).
If within two months the employee does not agree to any of the vacancies offered to him, the employer issues a dismissal order due to staff reduction. The order is usually issued on the unified T-8 form. In this case, the employee is issued a work book, is paid a salary for the days worked in the last month of work and compensation for unused vacation days (depending on the time worked since the last vacation). The most important thing is for the employee, in accordance with Art. 178 of the Labor Code of the Russian Federation, severance pay is paid. Its amount is not less than the average monthly salary, but according to an employment contract or collective agreement with employees, the benefit can be increased.
If an employee is registered with the labor exchange after dismissal, but is not employed, former enterprise for two months continues to pay him the average monthly salary (but with the deduction of the severance pay already received).
If the employee agrees, he can resign due to reduction before the expiration of the two-month period. In this case, the employer pays him, in addition to severance pay, also a salary for the time not worked between the day when he actually quit and when he was supposed to quit according to the employer’s plan. Besides, employment contract or the collective agreement may provide for other payments in case of staff reduction.

Order on planned dismissal due to reduction - at least two months in advance;
Warning to the employment service and trade union organization (if there is one at the enterprise) - no less than two months, in case of mass dismissal - no less than three.
The deadline for paying wages for the part of the month worked, compensation for unused vacation and severance pay is no later than the day of dismissal.
The payment period for the average salary for an employee registered with the employment service but not employed is up to two months.

Violation of these deadlines may lead to a fine for individual entrepreneurs - up to 50 minimum wages, for legal entities– up to 500 minimum wage.