The procedure for dismissal in case of staff reduction. Dismissal due to staff reduction: nuances and procedure for registration

When dismissing an employee due to a reduction in headcount or staffing, it is important not only to correctly carry out the entire reduction procedure, but also to correctly calculate the payments due to dismissed employees, as well as to correctly calculate taxes. Albina Ostrovskaya, leading tax consultant at the TaxOptima consulting company, talks about how to do this.

Who can't be fired due to redundancy?

First, let's say a few words about how downsizing differs from downsizing. When staffing is reduced, the number of staff positions for a particular position is reduced. For example, instead of six accountants, four remain on the staff. And when staffing is reduced, the position(s) itself is excluded from the staffing table. For example, the position of legal adviser is abolished in an organization.

The reduction procedure requires special documentation. In addition, laid-off employees are entitled to certain guarantees and compensation. Violation of the procedure may result in legal action from dismissed employees. Often, former employees win cases precisely because the company did not comply with the legally established procedure for layoffs.

First of all, you need to know that for some categories of workers there is a ban on layoffs. Thus, it is impossible to lay off pregnant employees, women with children under the age of 3, single mothers raising children under the age of 14 (a disabled child under the age of 18) and other persons raising these children without a mother. It is also prohibited to lay off those workers who are the sole breadwinners in a family with a disabled child under 18 years of age, or the breadwinners of a child under 3 years of age in a family raising three or more young children, if the other parent does not work (Article 261 of the Labor Code RF).

Preemptive right

Now let’s look at the concept of “preemptive right to remain at work.” So, if a decision is made to reduce the accounting staff by 2 units, the employer needs to select from several accountants those who will have to be fired, and this choice must be justified. Article 179 of the Labor Code of the Russian Federation clearly states that when the number or staff of employees is reduced, the preferential right to remain at work is given to employees with higher labor productivity and qualifications.

The Labor Code of the Russian Federation does not answer the question of how higher labor productivity and qualifications are determined. However, there is a definition of qualification. An employee's qualifications are the level of knowledge, skills, professional skills and experience of an employee. Consequently, in deciding whether to remain at work, both the level of education of the employee will be important (an employee with a higher education will have an advantage over an employee with a secondary vocational education, with a higher rank over an employee with a lower rank), and specific work results (for example, achievement of certain indicators and results in work). Length of service in a particular position should also be important when selecting employees to be retained. In general, in practice, when deciding the issue of labor productivity of employees subject to dismissal due to reduction in headcount or staff, the employer, most often, proceeds mainly from the subjective opinion formed about a particular employee during the performance of his official duties.

If the level of qualifications and productivity of several employees subject to layoffs are the same, preference is given to the persons specified in Part 2 of Article 179 of the Labor Code of the Russian Federation. Such persons include, in particular, family workers with two or more dependents, workers in whose family there are no other persons with independent earnings.

Are there any vacancies? Offer!

If during a layoff there are vacant positions in the company, the employer is obliged to offer them to the “redundant” employee (Article 180 of the Labor Code of the Russian Federation). Moreover, the proposed position may be lower than the one the employee previously occupied, both in status and in salary.

For example, at the time of reduction of the position of a senior tax consultant in an audit company, there is a vacancy for a tax consultant. In this case, the employer must offer the retrenched senior consultant a consultant position. If the employee does not agree to these conditions, the company can lay him off (Part 3 of Article 81 of the Labor Code of the Russian Federation). The employee’s refusal must be recorded on paper so that the company has evidence that it has complied with the requirement to offer available vacancies to the dismissed employee.

And if a tax consultant is laid off, but the company has a vacant position as a senior tax consultant, can the laid-off employee apply for this vacancy? No, he can not. The fact is that the position of senior tax consultant has higher requirements and the consultant who is leaving will most likely not meet these requirements. As the Plenum of the Supreme Court of the Russian Federation noted, when deciding on the transfer of an employee to another job, it is also 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 Supreme Court of the Russian Federation dated March 17, 2004 No. 2 ).

Please note: you should not limit yourself to offering only those vacancies that existed in the company at the time the decision to make redundancies was made. Vacancies in the company may appear constantly. Therefore, the employer is obliged to offer another available job during the entire period of reduction measures, including on the day of dismissal.

Step-by-step actions of the employer

Step 1. The head of the company issues an order to reduce the number or staff, which indicates the positions to be reduced and the number of staff units to be reduced. This document is published at least 2 months before the expected start of layoffs. If the proposed reduction is massive, then the reduction order must be issued at least 3 months before the reduction.

Step 2. At the same time, an order is prepared (according to the unified form No. T-3, approved by Resolution of the State Statistics Committee of the Russian Federation dated 01/05/04 No. 1) and an order is issued to approve the new staffing table.

Step 3. Employees who are subject to layoffs are warned of their upcoming dismissal. To do this, a notice of termination of the employment contract due to a reduction in staff or numbers is drawn up. It must indicate the date of familiarization, under which the employee signs. The employee must be familiarized with such notice at least 2 months before dismissal.

Step 4. Notifications are drawn up about the offer to the employee of another vacant position (if any). The employee must also sign the notification, and in case of refusal of the proposed vacancy, record his refusal in writing in this document.

Step 5. The employer notifies the employment service of the upcoming layoff. The notification form is contained in Decree of the Government of the Russian Federation dated 02/05/93 No. 99 (Appendix No. 2). The full names of the laid-off workers, their education, profession (or specialty), qualifications, as well as their average salary are indicated there. But regional employment centers can also approve their own forms for submitting information about laid-off workers. The employment service should be notified no later than 2 months before the start of the relevant activities (in case of mass layoffs - 3 months).

Step 6. An order is issued to terminate the employment contract with the employee in the unified form No. T-8 (approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1).

Step 7 Entries are made in the work book upon termination of the employment contract. The entry will look like this: “Dismissed due to a reduction in the number (staff) of the organization’s employees, paragraph 2 of part 1 of Article 81 of the Labor Code of the Russian Federation.”

Step 8 All necessary amounts are paid to dismissed employees. Payment is made on the day of dismissal (Article 140 of the Labor Code of the Russian Federation).

Please note: this algorithm must be used by employers who do not have a trade union.

Entitled payments

The laid-off employee is entitled to wages for the days worked in the month of dismissal (including the advance payment, if it was paid for that month). Compensation for unused vacation, if any, is also paid. In addition, the company is obliged to pay the laid-off employee severance pay in the amount of average monthly earnings (Article 178 of the Labor Code of the Russian Federation). All these amounts are paid to the employee on the day the employment contract ends.

Also, the laid-off employee retains his average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay). An employee can receive this payment after he writes a corresponding application to the organization and presents a work record book confirming that he did not work anywhere at that time.

In exceptional cases, the average monthly salary is retained by the dismissed employee during the third month from the date of dismissal by decision of the employment service body, if within two weeks after the dismissal the employee applied to this body and was not employed by it. To pay for the third month, an individual must submit a document from the employment service to the company.

Please note: the amount of severance pay may be higher than the average monthly salary if this is provided for in the labor or collective agreement.

Early layoff

As noted earlier, the employer is obliged to warn the employee about the upcoming layoff at least two months before dismissal. However, he can dismiss an employee earlier, but subject to the payment of additional compensation (Part 3 of Article 180 of the Labor Code of the Russian Federation) and the consent of the employee. The amount of compensation is determined based on average earnings, calculated in proportion to the time remaining before the expiration of the notice period for dismissal. And the employee must give his consent in writing. Usually in this case the employee writes a statement.

Taxation of severance pay

Severance pay, as well as average monthly earnings for the months following the reduction, should not be taxed, since these amounts are classified as income exempt from taxation (clause 3 of Article 217 of the Tax Code of the Russian Federation). However, only an amount up to three times the average monthly salary is eligible for benefits. Anything that exceeds this amount is subject to personal income tax.

But insurance premiums do not need to be charged on these payments, regardless of the amount of payments (subclause 2, clause 1, article 9 of the Federal Law of July 24, 2009 No. 212-FZ).
As for profit taxation, accruals to employees released due to layoffs are classified as labor costs (clause 9 of Article 255 of the Tax Code of the Russian Federation). At the same time, increased amounts of payments are also included in expenses if they are provided for in an employment or collective agreement (letter from the Ministry of Finance of Russia

Sometimes the reason for the dismissal of one or more employees of an enterprise is not the decision of the employer or the employee himself, but an objective necessity. The situation may be related to the transition to a new (automated) level of production or to the fact that the organization no longer needs the same number of employees. In such cases, there is a reduction in the number or staff of employees.

For the employer, this becomes a legal tool that allows optimizing the composition of personnel and the structure of the staffing table. However, the use of such a technique is associated with a large number of nuances and requires compliance with many rules.

Basic concepts and terms

In order to understand the intricacies of the topic and understand who, how and under what circumstances can be fired if there is a reduction in staff, you should define the main concepts:

1. The number of employees is the number of all employees of the enterprise, in other words, this is the payroll. If we are talking about dismissing several representatives of the same profession performing similar functions, while maintaining the position on the staff list, then this is a reduction in the number of employees. An example would be the dismissal of three out of five architects.
2. The staff of employees is absolutely all positions represented in the company (managerial, administrative, workers and others). Their list represents the staffing table, in accordance with which the structure of the organization’s personnel is formed.
3. Reducing the number of staff may be necessary in order to exclude from the list positions that duplicate each other, or those that can be combined into one staff unit. This concept also includes measures aimed at eliminating any division.

This means that staff reduction is accompanied not just by a decrease in the number of employees with the same responsibilities, but also by the dismissal of all employees performing specific job functions. Returning to the example above, a downsizing would result in all five architects being laid off. Perhaps it is more profitable for the company not to keep these employees on staff, but to hire them from time to time to perform a separate task (outsourcing).

Legislation on dismissal due to staff reduction

The legal aspects accompanying the severance of labor relations due to changes in the structure of the staffing table are regulated by the Labor Code of the Russian Federation. A reduction in the number of employees (due to the liquidation of an organization or a change in its owner) is discussed in Article 81. Other common situations related to the termination of contracts with employees at the initiative of the employer are also listed here.

Among other cases, this article provides for the procedure for dismissing employees:

Who can be laid off?

The decision on which the reduction of the number or staff of employees depends is made by the employer, but at the same time he must take into account the rights of employees enjoying certain benefits.

When considering candidates for employees subject to dismissal, the manager is obliged to comply with the rule set out in Art. 179 TK. It states that staff reductions should occur at the expense of the least qualified personnel, who have the lowest labor productivity indicators. The practical implementation of this rule is often associated with an assessment of the experience and length of service of employees. It is assumed that those who have recently worked at the enterprise represent the least value to the team.

To assess the importance of an employee, the result of the qualification exam, his education and the level of performance for the previous period are also of great importance. This means that when comparing two employees occupying the same position, preference will be given to the one who has a higher education. His colleagues who received secondary specialized education will probably be laid off.

Categories of personnel not affected by dismissal due to staff reduction

The reduction in staff does not affect the following categories:

• Parents of children with disabled status.
• Mothers and fathers raising children on their own (single).
• Parents of large families until the youngest child turns 14 years old.
• Citizens who are the sole breadwinners of their families.
• Employees who have suffered an occupational injury or illness as a result of their work at that company.
• Disabled people who suffered as a result of wars, the Chernobyl disaster or the Semipalatinsk tests.
• Employees of the company who have awards (Hero of the USSR, Knight of the Order of Glory) or the title of inventor.
• Workers who combine the performance of their work functions with training.

Dismissal due to staff reduction does not affect those employees who are members of a trade union or act as elected representatives of the work collective and take part in negotiations with the company's management.

Also, employees of an enterprise who are on sick leave, regular or maternity leave cannot be fired. True, this can be done with their written consent or upon complete liquidation of the company.

How retirees and part-time workers are laid off

The Labor Code of the Russian Federation (Article 3) contains a ban on employer discrimination based on age. Most often this applies to employees who have reached retirement age and continue to perform their job duties. If necessary, they will also be affected by redundancy, but it is illegal to use their social status as a basis for dismissal.

Taking into account the experience and qualifications of pensioners, they, on the contrary, fall under the definition of employees with preferential rights. Based on the fact that they can be one of the most useful employees of the enterprise, they are the last to be laid off.

When planning the dismissal of an employee who combines two positions, the employer performs almost all standard actions. The only difference is that the law does not establish whether it should accrue payments to such an employee.

In fact, redundancy benefits are necessary for those who lose their source of income. However, while remaining in the company, the part-time worker continues to receive wages. Here the decision on payments and their amount remains with the employer.

Why do employers resort to layoffs?

The state allows enterprise managers to independently decide on the need to reduce staff or the number of personnel. However, in the event of controversial situations, the economic feasibility of these measures can be verified by the judiciary.

This condition places the obligation on the employer to inform its subordinates about why the workforce is being reduced. This information is set out in the relevant order and may be related to the following factors:

• With a low level of profitability. The lack of profit does not allow management to pay at the proper level for the work of the previous number of employees. By reducing labor costs, an organization can save some money to pay off debts or purchase a new batch of materials.
• Ineffective staff structure. If among the organizational positions there are those that duplicate each other or do not represent value for business activities, their elimination will be justified.
• Introduction of new technologies or equipment. When production becomes more automated and does not require the same number of employees, staff reduction can significantly reduce costs and increase profitability.

What rules must an employer follow when reducing staff?

The forced dismissal procedure can significantly affect the well-being of those employees who are subject to layoffs. They do not always have the opportunity to find a workplace with the same conditions as at this enterprise. For this reason, the state dictates certain conditions to managers, compliance with which to a certain extent protects the interests of dismissed workers:

In the event that the company’s management “forgets” to inform the employment service about its intentions, in addition to fines, the court may oblige them to pay wages to employees for forced absences.

How staff reduction occurs: step-by-step instructions

Any head of a company or organization, when planning and implementing staff reduction measures, must know and comply with all legal norms and requirements. Ignoring or unintentionally violating one or more rules can lead to quite serious consequences: a fine or legal proceedings.

Based on this, the employer is interested in carrying out a phased reduction of staff (the Labor Code of the Russian Federation establishes a list of necessary documents and procedures):

In the event that an employee does not agree to the transfer and continuation of cooperation with the company, the last on the list of required documents is an order for his dismissal. The unified form T-8 is recognized as usual for this document.

How is dismissal due to staff reduction completed: compensation for vacation, severance pay

The dismissal of an employee who was informed on time and refused the offered vacancies takes place simultaneously with the payment of all necessary funds to him.

Along with the work book, the former employee is given:

• Wages accrued for the last period worked.
• Compensation payments for unused vacation (if any).
• Special payments in case of staff reduction (severance pay). Their amount is often equal to the average salary, but can be higher if this is specified in the collective agreement.

The company continues to pay redundancy benefits to the employee for another two months if he is listed on the labor exchange but cannot find a job. Its size is set at the average salary, but it does not take into account the amount that has already been issued.

If an employee wishes to resign earlier than the deadline set by the employer, he must be paid the money accrued for unworked time. That is, in fact, in any case, he will be paid for the two-month period between the announcement of the reduction and the date on which this procedure is planned.

Payments to certain categories of personnel

The procedure for laying off some employees is slightly different from the one outlined above. This is due to the non-standard nature of their work functions or special circumstances:

1. For those employees whose duties are considered seasonal, redundancy payments amount to an amount equal to the average salary for two weeks.
2. Employees of organizations located in the Far North are paid a one-time severance pay and an average salary for three months (if they are not hired earlier).

What will be indicated in the work book

According to Art. 81 of the Labor Code, staff reduction is indicated as a basis for termination of an employment contract in the employee’s work book. It is issued on the day of dismissal along with the accrued amount of money. Upon receipt of them, the former employee of the enterprise signs several documents (personal card, work record book, insert).

The confirmation of the entry that the employment contract has been terminated is the signature of the HR department employee (who maintains work records) and the employee being dismissed, as well as the seal of the manager.

What should an employee's behavior be like when being made redundant?

When a person receives notice that they are planning to be laid off, they should take the following actions:

1. Make inquiries about the list of persons who do not have the right to dismiss and find out if he is included in this category. In the event that they discover any factor that gives the right to privileges or benefits, this should be stated in a letter and submitted to the manager. The best option is to write the letter in two copies. One of them is given to management with a request to put a mark of receipt on the second. This will be useful evidence in favor of the employee if the case goes to court.
2. Present demands regarding an alternative place of work at this enterprise. The employee does not have to agree to the offer, but a written refusal by the employer to provide vacancies may also become grounds for canceling the decision to lay off.
3. To receive additional payments, you must register with the employment service within a period of no more than two weeks after the staff reduction was made. The Labor Code of the Russian Federation specifies exactly this period. Then the employee becomes entitled to two months' allowance (average wage) if he fails to find a new job.

The most important aspect is that the employee should not write a letter of resignation himself after he becomes aware of the upcoming layoff.

Also, you should not give in to your boss’s persuasion and compromise, because dismissal by agreement of the parties does not provide for the payment of severance pay.

Professions at risk

Given the difficult economic situation, layoffs may affect a fairly wide range of companies and organizations. Doctors and teachers may not fear for their jobs, but many firms will still undergo reorganization.

Among employees of budgetary enterprises, funding for the following professions may be limited:

• Employees involved in the telecommunications sector.
• Librarians.
• Postal workers.
• Mosgotrans employees.
• Reduction of the staff of the Ministry of Internal Affairs.

In addition, some employees of state and commercial banks will have to look for new jobs.

Experts say that against the backdrop of such a disappointing situation and in the absence of wage increases, many highly qualified personnel will quit on their own initiative. Without waiting for layoffs, they will learn new relevant professions or look for applications for their talents in other countries.

The need to reduce the number of employees arises when optimizing production, falling volumes, or reducing economic activity. When the number of jobs is reduced, some workers are fired on the basis of clause 2, part 1 of Art. 81 of the Labor Code of the Russian Federation, changes are being made to the staffing table.

Reduction of staff is a complex procedure both socially and psychologically for workers, therefore the legislation strictly regulated the procedure for dismissal due to reduction of staff or numbers. The basic requirements are specified in Art. 82,179,180,373 Labor Code of the Russian Federation.

Not all employees can be fired due to staff reduction. An entire department or workshop can be laid off. There are employees whose right to preferential retention at work is guaranteed by law.

Let's look at who cannot be fired due to staff reduction:

1. Employees undergoing treatment. Temporary disability must be documented.
2. Employees on leave: maternity, regular, educational, without pay.
3. Pregnant women.
4. Single parents whose children have not reached 14 years of age and 18 years of age if the child has disabled status.
5. Mothers raising children under 3 years of age.
6. Representatives of the work team.

Advantages of some employees during layoffs

Situations arise during downsizing when one of the identical positions is eliminated. The legislation provides rules that make it easier to choose an employer. Preferential retention at work in accordance with Art. 179 of the Labor Code of the Russian Federation have:

1. Employees who have two or more minor children.
2. The only breadwinners in the family.
3. Employees with an occupational disease or injury received in this organization.
4. Employees studying under the direction of the employer.
5. Military disabled people.
6. Persons affected by radiation sickness.

Stages of dismissal when cutting jobs

Let's consider how dismissal due to staff reduction occurs. Step-by-step instructions for 2018 include:

1. Staff reduction cannot be carried out arbitrarily. An order is required to amend the staffing table indicating the positions that will be eliminated.
2. Next, interested parties are notified: trade union organization, if any. Notification is sent at least two months before layoffs.
3. Also, the Employment Center is notified at least two months before the layoff. A list of persons indicating positions and professions is sent. In case of mass layoffs, the central control center must be notified 3 months in advance.
4. Employees are also given two months' notice. The notification must be in writing, employees familiarize themselves with it against signature. Dismissal before the expiration of the notice period for layoffs is possible upon written application from the employee. Compensation is calculated for the period remaining before the expiration of the two-month period.
5. The presence of vacancies in the organization obliges the employer to offer these places to laid-off employees. Vacancies may appear within two months from the date of notification; these vacancies must also be offered to employees who have been laid off. Vacancies must correspond to the qualifications and health status of workers, but the entire list is offered. The procedure is documented in writing; if the employee refuses the proposed vacancy, a corresponding entry is made on the offer form and signed. If the employee agrees to the proposed vacancy, a transfer order is issued.
6. After the expiration of the two-month period, an order to terminate the employment contract is issued, which must be familiarized to the dismissed employees.
7. The last day of work is the day of dismissal; the employee receives a work book, calculations and certificates of average earnings. At the request of the employee, the employer is obliged to issue other documents related to his work. The basis for dismissal is entered into the work book as Article 81 of the Labor Code of the Russian Federation - dismissal due to staff reduction, paragraph 2, part 1.

Learn more about layoffs during staff reductions in this video

Payments in case of staff reduction

Retrenchment of an employee involves payment of compensation in the amount of the employee's average monthly earnings. If an employee who registers with the employment center within two weeks after being laid off is not employed within three months, then payments are made for each month of unemployment. Compensation paid upon dismissal is considered payment for the first month. Also, on the day of dismissal, wages and vacation pay are paid for unused days of the next vacation.

In case of violation of the dismissal procedure or illegal layoff, the employee has the right to appeal to the State Labor Inspectorate and the court. The State Labor Inspectorate will check compliance with the law when laying off workers; the results of the check will be good evidence in court. The court reinstates the employee in case of illegal dismissal and obliges the employer to pay compensation in the amount of average earnings for the period when the employee was forced not to work.

In this case, the dismissal of an employee occurs at the initiative of the employer and occurs as a result of a reduction in staffing positions or positions at the enterprise and is regulated by Article 81 of the Labor Code. Let's look at the step-by-step procedure, the compensation due to the employee and some of the nuances that may arise. We will also determine which categories of citizens fall under this formulation and which do not.

General concepts

Downsizing is a fairly legal tool that an employer resorts to when wanting to “optimize” its staff. But in turn, this can cause a number of problems and additional financial burden for the employer, so they often resort to the trick - “you were laid off, write a statement on your own - this wording is better.” It all depends, among other things, on the initiator of the process.

Of course, all actions during such dismissal must be observed in accordance with the law and deviations from it can cause problems for the organization. Therefore, it is in the employer’s interests to do everything right so that the employee does not go to court.

The employee has the preemptive right not to be laid off

It is worth noting an important point that when forming a list of employees, certain categories have an advantage:

• During the period when the employee is on vacation
• In case of temporary disability
• It is prohibited to fire the following employees: pregnant women and women who have a small child under 3 years of age
• A single mother who is raising a child under 18 years of age who is disabled or a minor under 14 years of age
• An employee with higher performance indicators and qualifications should be retained.
• If the choice fell on employees who are in equal positions, then priority is given to family employees who have 2 or more dependents; in whose family there are no other persons with independent income; received an occupational disease or work injury from the employer; participants in hostilities or WWII; workers who improved their skills without interruption from production.

Dismissal due to staff reduction step by step instructions

Step 1. Issuing an order to carry out reductions

For the legality of actions it is necessary to issue an order. For understanding, we note that the dismissal order and the order to reduce staff are different documents. The form of the order to carry out staff reduction measures does not have an approved form, however, its preparation requires a responsible approach. It must reflect the date of reduction and reflect changes made to the staffing table. A new approved staffing table will also be required.

Step 2. Notifying employees, offering other vacancies

According to the rules of the Labor Code, the employer is obliged to notify the employee 2 months before the reduction of staff, number of personnel, or in the event of liquidation (bankruptcy) of the company. Based on the decision made, a new staffing table and an order are issued, which is communicated against signature to each employee who has been laid off.

In the event of reorganization or reduction, but not liquidation, the employer’s responsibility is to offer employees who have been laid off all vacant positions corresponding to their experience and qualifications (clause 3 of Article 81 of the Labor Code). But in practice, the organization simply “forgets” about this, and employees simply do not know about it.

Upon receipt of a notification regarding the proposed vacancies, the employee has the right to accept such a place or not. In the first case, the employee is transferred, and in the second, the employee is fired.

Step 3. Notification of the trade union organization and employment authorities

If there is a trade union organization, it must also be notified of the reduction taking place. The issue of timing was controversial for some time, but according to definition No. 201-O-P, which was issued on January 15, 2008, the timing was determined - to notify 2 months before the date of layoffs, in the case of mass actions - 3 months.

The opinion of the trade union organization must be sent to the employer within 7 days, otherwise it will not be taken into account. If the trade union does not agree on the fact of dismissal, consultations must be held within 3 days, and they should be recorded. If consent to these actions and agreements was not reached within 10 working days, the employer has the right to make a final decision on the reduction.

By the same principle, it is necessary to notify the employment service. Notifications were approved by government decree as amended No. 1469 dated December 24, 2014 - in case of layoffs at the enterprise, 2 months in advance (download the notification form, according to Appendix No. 1) or in case of mass layoffs, then 3 months in advance (download the form, in accordance with Appendix No. 2).

Step 4. Order of dismissal

To finally initiate dismissal, it is necessary to issue an order in the T-8 form. In this case, in the “grounds” column, you should indicate the reason for dismissal - due to staff reduction. After this, the order must be signed by the director and also, after review, signed by the employee.

Step 5. Entry in the work book

Next, you should enter the appropriate wording into the work book, in which you should display the reason - reduction, referring to the article of the Labor Code. For example, “The employment contract was terminated due to a reduction in the organization’s workforce, clause 2, part 1, art. 81 Labor Code of the Russian Federation."

Step 6. Entry in the labor record book and employee card

Simultaneously with the issuance of a work book to an employee, you should obtain a signature from him in the journal for issuing work books. And then you need to enter data into the employee’s personal card - the date of dismissal and the reason.

Step 7. Dismissal due to staff reduction and payment of benefits

Let's look at what benefits and payments are due to an employee. It is the fulfillment of obligations under this clause that pushes the employer to negotiate with the employee, and sometimes even intimidate him, into writing a statement of his own free will. Payments are regulated by Art. 178 TK.

Upon dismissal due to staff reduction, the employee is entitled to severance pay, which is the amount of one average monthly salary, and the average monthly salary is also retained for the period of his employment, not exceeding 2 months. Upon dismissal, the employee is given a certificate of his average monthly earnings (including the amount of severance pay). If the employee is not employed within 2 months, the organization is obliged to pay the employee for another 2 months.

To receive these compensations, the employee must register with the employment service. In exceptional cases, by decision of the service, the employee may be paid for the third month. To receive the payment, the employee must provide the employer with his or her work record book, which contains no employment records, including an application. Payments are made after 2 months from the date of dismissal.

In addition, the employee is due standard payments - compensation for unused vacation (if any) and along with it a calculation for days worked.

After signing the documents, the employee must be paid on the last day of his work.

Appealing actions by an employee in court

In case of unlawful actions, the employee has the right to sue and appeal the decision. To do this, within a month from the date of receipt of a copy of the dismissal order (or receipt of the work report, or from the date of refusal to receive the order or work report under Article 392, Part 1 of the Labor Code), it is necessary to submit an application to the district court to recognize such dismissal as illegal, as well as to impose a penalty from the employer during his absence the amount of average earnings.

By a court decision, the employee may be reinstated at his previous place of work and may also be able to recover an amount of compensation in his favor for the time he was absent. In particular, they can change the wording according to which the employee was dismissed to dismissal at his own request (Parts 3, 4 of Article 394 of the Labor Code), as well as award moral compensation.

You might also be interested

An article on the liability of employers in case of delay in payment of wages.
Dismissal by agreement of the parties, pros and cons.
Dismissal for absenteeism step by step instructions.
Dismissal at your own request.

Step-by-step instructions for the redundancy process

Recently, cases of employers using staff reduction procedures as a reason for dismissal have become very frequent. Despite the complexity of such a process, often for management this option is the only correct and possible one.

Therefore, it is worth understanding the legal intricacies of the procedure and the rights of employees to compensation of various types.

In what case is it carried out?

Dismissal of employees due to staff reduction should be carried out in cases where there is an economic need for this. Moreover, the law requires the employer to indicate the specific reason for the forced reduction in the number of employees in the text of the dismissal order.

Among the cases due to which management may decide to reduce staff, the following can be noted:

• carrying out reorganization of the enterprise;
• the presence of prerequisites for liquidation;
• changes in technological working conditions that will make some positions unnecessary;
• low profitability, which requires management to optimize costs, primarily on labor costs;
• the presence of positions that are not needed, or such job functions can be consolidated and redistributed.

Who can't be fired

Staff reduction is always the initiative of the employer. But labor legislation defines a number of categories of employees who cannot be dismissed under this article.

When reducing the number of positions in the staffing table, management does not have the right to dismiss:

1. Pregnant employees.
2. Women on maternity leave (leave to care for a child up to 3 years of age).
3. Single mothers whose child is under 14 years old (18 years old for disabled children). It is important here that the mother has official single status, or that the second parent does not have a constant source of income. This point also applies to single fathers, since the Labor Code does not separate the concept of single parents by gender.
4. The only breadwinners in a family with a disabled child under 18 years of age, or a large family with children under 3 years of age.

The employer does not have the right to fire under Art. 81 employees with the highest qualifications in the field of professional activity of the enterprise. The restrictions also apply to employees with high labor productivity.

But, in this case, you will have to document the fact of good work with various documents, for example, diplomas, certificates of completion of specialized courses for advanced training, certification documents.

If all workers have approximately the same level of qualifications, the employer must retain the job first:

• persons who are married and have dependents;
• sole breadwinner in the family;
• employees who were injured or fell ill while performing their professional duties;
• disabled people of the Second World War and other military operations;
• employees who are undergoing advanced training courses.

It is important for the employer to take into account the collective agreement, since other protected categories of employees may be specified there, for example, those related to length of service. Immunity often extends to certain union members.

Video: The essence of the procedure

Step-by-step instructions for dismissing an employee due to staff reduction in 2018

The full procedure for reducing staffing is located in the articles of the Labor Code, and each employer must strictly follow the procedure provided there.

Conventionally, this procedure can be divided into 4 stages:

1. Preparation of the order.
2. Familiarization of each employee with the text of such a document against signature.
3. Notification of government agencies.
4. Direct dismissal.

Each stage has many bureaucratic features, both for its conduct and for preparation. Let's look at each step in more detail.

Notification

It is impossible to legally reduce staffing levels in just a few days. Article 180 of the Labor Code of the Russian Federation requires the employer to issue a corresponding order at least 2 months before the layoff.

The countdown date for these two months is the day the relevant notice is given to employees.

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Also, the management of the enterprise must notify the Employment Service of the upcoming dismissal. The notice lists the full names of all employees subject to reduction, their experience, qualifications and salary level.

Moreover, if a mass layoff is planned, the notice must be sent no later than 3 months before the start of the layoff. For individual entrepreneurs, the notice period for the Central Health Insurance Center is two weeks.

If there is an established trade union in the company, in parallel with the notification of the Employment Service, this body is also notified. If there are union members on the dismissal list, the company management must justify its choice.

The trade union's objections may be raised within 1 week from the date of receipt of the notice.

The form of notification is not fixed by law and is determined by the enterprise independently. Additionally, the document must contain a list of vacant positions to which employees will be offered to move.

Order

2 months before staff reduction, the management of the enterprise must issue a corresponding order. Before this, a new staffing table is developed and approved.

An order of dismissal due to staff reduction must contain the following information:

• reasons for the reduction;
• persons responsible for the event (HR and accounting department employees);
• clear deadlines for the procedure.

In the order, it is important to indicate all the nuances of payment and settlement. The document is certified by both parties.

Possibility of translation

In order to carry out the staff reduction procedure legally, the employer must go through the procedure of creating new jobs and offer employees subject to redundancy the opportunity to transfer.

New vacant positions may be low-paid, require less qualifications, or be located in a different region altogether. The employee’s refusal of the proposed alternative must be recorded in writing and signed.

To prevent employees from delaying the process, it is worthwhile to stipulate in the notice clear deadlines for making a decision on the transfer.

In case of refusal, the employer begins the procedure for terminating the employment relationship.

Entry in the work book

When employees are dismissed due to staff reduction, a corresponding entry is made in the work book with reference to Part 2 of Article 1. 82 Labor Code of the Russian Federation.

Payment of salaries and compensation

All employees affected by staff reduction must be calculated correctly.

According to the norms of the Labor Code, such employees have the right to count on payment of wages and severance pay, including:

• wages for all actually worked days of the current month;
• compensation for unused vacation;
• compensation in the form of average monthly earnings;
• average monthly salary.

A slightly different scheme is provided for receiving payments to laid-off pensioners.

Calculation

The employer is obliged to pay all payments and compensations provided for by law to the employee on the day of dismissal. However, this only applies to the first three payments.

He has the right to apply for an average monthly salary only 2 months after the layoff. To receive payment, you need to write a corresponding application and present your work record book.

In another month, you can apply for a similar payment again, but you will need a certificate from the Central Health Service stating that the person is not registered with them.

It is important to comply with the deadlines, and also not to try to obtain compensation for employment during this period, since such actions threaten legal proceedings and fines.

Delivery of documents

The procedure for terminating the employment relationship is formalized in the HR department. Department employees make an appropriate entry in the work book of the dismissed employee, a copy of which is placed in his personal file.

For subsequent employment, it is very important to comply with all requirements for making such records.

On the day the documents are issued, the employee must sign in the accounting book to confirm receipt of the work book. Additionally, he is given a dismissal order.

Delays in payments and issuance of a work book, in accordance with current legislation, provide for financial liability on the part of the employer.

If payments are delayed, interest is charged in the amount of 1/300 of the Central Bank refinancing rate for each overdue day.

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Reduction of staff according to the Labor Code of the Russian Federation in 2018: instructions and registration

The reduction in the number of employees under the Labor Code of the Russian Federation in 2018 is associated with the need to strictly comply with the requirements for the preparation of documents and the deadlines for their submission to employees and trade union organizations. The abolition of a position may result in the transfer of the employee to perform another job function, if there is mutual agreement.

When an employer has to resort to staff reduction procedures

The reduction of the workforce under the Labor Code of the Russian Federation in 2018 is regulated by the presence of significant circumstances, among which the following should be highlighted:

1. The enterprise will be reorganized;
2. There are prerequisites for liquidation;
3. It is planned to change technological working conditions.

In fact, the reduction is due to the need to optimize costs through structural changes and reducing the bloated workforce, enlarging the work function of each employee and redistributing responsibilities.

When dismissal due to staff reduction, the following procedure must be followed:

• Reduction is permissible only if there is a compelling reason;
• The procedure must be agreed upon with the trade union organization;
• The employer, if possible, is obliged to offer an alternative position or job function within the scope of the employee’s qualifications;
• Exclude from the number of employees persons who have the prerogative to remain on staff in accordance with the law;
• Notice deadlines must be clearly provided;
• All orders issued as part of the procedure for abolishing the staffing table and terminating labor relations must be registered in the journal of orders (orders).

Step-by-step instructions for downsizing employees

In order for the employer to avoid legal liability, it is necessary to correctly formalize the entire procedure for staff reduction, based on the provisions of the Labor Code of the Russian Federation.

Dismissal due to staff reduction has the following step-by-step instructions:

1. Preparation and adoption of a document on staff reduction in view of the corresponding decision of the founders and owners of the organization;
2. Determine personnel who cannot be dismissed on the basis of the law and those whom the employer grants preferential rights due to their work characteristics (this measure must be documented in writing in the form of a summary comparison table, which indicates the analyzed data for each employee);
3. Approval of the new number of employees remaining on staff;
4. Initiating an order to reduce the number of company personnel.

• Exhaustive reasons for staff reductions;
• Positions subject to abolition;
• The timing of the procedure and the timing of termination of the employee’s labor function;

Familiarization with the order of employees:

• No later than 2 months before the date of expected dismissal;
• The document is drawn up in writing, in two copies, one of which remains with the employee, and the second is returned to the employer;
• Personally for each employee;
• For painting;
• The order first provides for the abolition of the position and further reduction of the employee.

Notification of the trade union organization of workers, employment service:

• with a slight reduction. approval is carried out within 2 months;
• if mass layoffs are planned, then a 3-month period is given for approval;
• the message contains information about abolished positions, professions, specialties, qualification requirements for them and the amount of wages personally for each of the dismissed employees;
• the message is necessarily recorded in the journal of outgoing documents;

Termination of the contract with each of the laid-off employees:

• implies the issuance of dismissal orders for each employee in the abolished position;
• the employer cannot lay off employees who are on official leave or temporarily disabled at the time the order is issued.

Entering relevant data into the employee’s work book;

Drawing up a settlement note based on the termination of the employment relationship;

Making settlement payments, issuing work books.

From the moment the order to reduce the number of employees is created, the employer assumes the responsibility to notify such employees in relation to newly opened vacant positions that are not subject to abolition. The employee retains the right to choose: accept the new position or refuse.

The Labor Code of the Russian Federation specifies other deadlines for notifying employees about staff reductions, due to some peculiarity of the labor function or organizational and legal form.

These include the following deadlines:

• 7 calendar days – notice period for employees engaged in seasonal work;
• 3 calendar days – notification period for employees who have entered into a fixed-term employment contract with the employer for a period of up to two months;
• 14 calendar days is the notification period for employees carrying out labor obligations with the employer - an individual entrepreneur.

Which employees can be fired

The law introduces restrictions on the circle of people who are prohibited from being fired due to a reduction in staff numbers. Among them:

• Pregnant women or women on maternity leave (until the child reaches 3 years of age);
• Single mothers or any other parent, guardian raising a child through single efforts;
• Mothers raising a child with disabilities;
• Persons who are the sole breadwinners of the family;
• Persons working out a previously stipulated period (for example, when distributed upon completion of training on the basis of a contract to subsidize the cost of the educational process at the expense of the organization).

1. Due to the liquidation of the organization;
2. By agreement of the parties (coincidence of intentions of the employer and employee).

There is another classification of workers, which is endowed with low risks (preferential right to retain their job function) of dismissal when staffing levels are reduced. These include workers:

• having high labor productivity;
• having at least two dependents;
• disabled people from combat and labor;
• received a work-related injury, injury or occupational disease while working for this employer;
• disabled people of the Second World War;
• improving their qualifications without interrupting their work function in accordance with the direction of the employer.

Additional grounds for preferring persons from dismissal may be contained in an employment or collective agreement, among which the employer may give preference to those subjects who have worked in its team for more than 20 years or those who have the last year left to work before retiring.

Employees who are not included in a special category may be dismissed in accordance with the rules of Art. 81 Labor Code of the Russian Federation.

There is a certain order according to which the first to be fired are:

• workers with lower qualifications (the decision is made by a specially created qualification commission);
• those who have worked for a shorter period of time.

The commission's decision must be made on the basis of objective data, which is based on the level of fulfillment of production standards for specific employees, the quality of the work they perform, educational documents, certification results, and certificates of advanced training.

If each of the employees whose position is subject to abolition has equal production opportunities, then the manager makes a decision on reduction in favor of those who:

• a greater number of days on sick leave is tracked;
• there are more delays, reprimands, mistakes or manufacturing defects.

Payments and compensation to employees dismissed due to staff reduction

All payments in case of staff reduction are made on the day of termination of the employment relationship with the employee.

The reduction in staff according to the Labor Code of the Russian Federation in 2018 implies the following compensation:

• earnings for the current month;
• payment of severance pay in accordance with the average monthly earnings (paid in a lump sum);
• compensation for unused vacation days;
• payment of sick leave;
• preservation of average monthly earnings for the period of searching for another job (no more than 2 months and including severance pay).

A separate type of compensation is payments due to an employee who, by mutual agreement with the employer, ceased his work duties before the end of the 2-month dismissal period. Such payments are calculated based on the proportion of average earnings and the time remaining before the expiration of the notice period.

1. persons engaged in seasonal work are awarded severance pay in the amount of 2 weeks' earnings;
2. employees of the Far North and equivalent regions have the right to claim severance pay and preservation of their average monthly earnings for a period of 2 to 6 months (subject to contacting the employment service in the first month from the date of dismissal, through whose efforts they were never employed).

To fully understand what compensation payments can be made to an employee who has been laid off, let’s look at a detailed example:

• Severance pay = number of working days in the first month after dismissal * average daily earnings;
• Average daily earnings = total annual income: number of working days in a year;
• According to the conditions, the total annual income of Ivanov A.A. will be 180,000, the number of working days per year is about 247. Based on this, the average daily earnings will be 728.7 rubles.
• The number of working days in the month following the day of dismissal is 23.
• Ivanov A.A. will receive severance pay in the amount of 16,761.1 rubles.

When calculating severance pay, it is worth considering the following nuances:

• payments attributable to periods of temporary disability and vacation pay are excluded from the total annual earnings;
• when calculating financial assistance, the countdown starts from the next day after dismissal;
• the amount of income may be affected by other one-time bonuses and personal monetary incentives of the employee;
• Vacation and temporary disability days are deducted from the number of days actually worked in a year.

Conclusion

Dismissal due to a reduction in the number of employees can only occur on the basis of a decision of the company’s founders and if there is a compelling argument. The law identifies categories of citizens who cannot be laid off a priori, with the exception of cases related to liquidation measures. In the process of carrying out the procedure for reducing the number of staff, the employer is obliged to correctly fill out all related documents, offer dismissed employees other available vacancies, ensure compliance with deadlines and provide former employees with mandatory and compensation payments.

Staff reduction procedure: step-by-step instructions

When laying off employees, we adhere to the established procedure

When laying off workers, it is extremely important to follow the procedure established by the Labor Code (Articles 179, 180 of the Labor Code of the Russian Federation). If you break something and do it your own way, it can result in additional troubles and expenses for the organization. After all, the court can reinstate a dismissed employee and force the organization to pay him for forced absence (Article 394 of the Labor Code of the Russian Federation). Therefore, it is better not to violate the established algorithm for laying off an employee.

The reduction algorithm is established by the Labor Code of the Russian Federation

For the convenience of readers, our specialists have prepared step-by-step instructions for staff reduction in 2018, which should be followed when reducing staff:

Step 1. Issuing an order

The first thing you need to do is issue an order to reduce the number (staff), and also prepare a new staffing table for the organization. It is clear that in practice there may be several editions of the new staffing table.

Step 2. Determining whether employees have preferential rights

Next, you need to establish whether any of the employees have a preferential right to remain at work. This procedure must be carried out before compiling a list of laid-off workers (Article 179 of the Labor Code of the Russian Federation).

Step 3. Preparing a list of dismissed employees (positions being reduced)

The next step is to prepare a list of employees (positions) to be laid off. Moreover, this is not a formal document. Without such a list, the court may declare the employee’s dismissal invalid and reinstate him in his position.

Step 4. Notify employees

After the list of those being laid off has been compiled, it is necessary to warn employees about the upcoming layoff (Part 2 of Article 180, Part 2 of Article 292, Part 2 of Article 296 of the Labor Code of the Russian Federation). To do this, all employees affected by the reduction must be given notice of the reduction. This must be done in advance: at least two months before the date of dismissal.

Step 5. Offer vacancies

The next mandatory step in case of reduction is the offer of vacant positions in the company to dismissed employees (Part 3 of Article 81, Part 1 of Article 180 of the Labor Code of the Russian Federation). Moreover, it is not at all necessary to offer positions of equal status; the main thing is that the employee does not have medical contraindications for the proposed job.

Step 6. Registration of transfer of employees who wish to remain in the company

If one of the employees agrees to the position offered to him, then the transfer must be formalized by signing an additional agreement and issuing an order (Article 72.1 of the Labor Code of the Russian Federation).

Step 7. Notification of the employment service

Next, it is necessary to notify the employment service and the trade union, if, of course, it is created in the organization. This must be done in writing (part 1 of article 82 of the Labor Code of the Russian Federation, paragraph 2 of article 25 of the Federal Law of April 19, 1991 No. 1032-1). After notifying the trade union about the upcoming reduction, it is necessary to coordinate with it the dismissal of workers who are members of the trade union (Part 2 of Article 82 of the Labor Code of the Russian Federation).

Step 8. Dismissal and payment of severance pay and compensation

Finally, after following all established procedures, employees can be dismissed by paying them severance pay. Employees dismissed ahead of schedule (with their consent) must be additionally paid compensation in the amount of average earnings for the time remaining before the expiration of the dismissal period specified in the notice of layoff (Clause 2, Part 1, Article 81, 178, Part 3, Art. 180 Labor Code of the Russian Federation).

These are the step-by-step actions of a personnel officer when reducing staff in 2018.

The article was written based on materials from the sites: otdelkadrov.online, infportal.ru, 101zakon.ru, mbfinance.ru, blogkadrovika.ru.

According to the Labor Code, companies have the right to lay off workers if there are good grounds and reasons for this. The procedure must be carried out taking into account numerous requirements and rules, since otherwise employers may be held liable for violations. Reduction of staff according to the Labor Code of the Russian Federation can be standard or massive. To implement the procedure, workers should be notified about it in advance, and the employment center and trade union should be notified of the planned event.

Legislative regulation

Dismissal to reduce the number of employees under the Labor Code of the Russian Federation is used quite often by different companies. When implementing this procedure, company managers should be guided by the provisions of the following legislative acts:

• Art. 81 of the Labor Code states that the basis for the procedure is staff reduction carried out officially in the company;
• Part 3 Art. 81 contains information about the procedure for laying off employees at work, as well as what mandatory actions must be performed by the employer;
• in Art. 82 of the Labor Code provides the specifics of taking into account the opinion of the trade union regarding the conduct of this procedure;
• Art. 178 - art. 180 of the Labor Code are intended for the transfer of guarantees and compensation intended for specialists being laid off in the company.

Firm management must strictly follow the requirements of the above regulations so as not to violate the law. Otherwise, various penalties may be applied to them under the Labor Code and the Code of Administrative Offenses, and often the Criminal Code.

Types of abbreviation

A reduction in the number or staff of employees according to the Labor Code of the Russian Federation can be carried out by employers only if there are compelling reasons. In this case, significant and numerous amendments to the staffing table are necessarily made. Based on such adjustments, specialists whose positions were reduced are dismissed. It is important not to confuse the two different concepts represented by a reduction in the number of employees. The Labor Code of the Russian Federation clearly delineates these concepts:

• a reduction in staffing assumes that, as a result of adjustments to the staffing table, the number of staffing units for one position is reduced, for example, four installers worked in the organization, and after the changes only two specialists remain in this position;
• staff reduction implies that individual positions or even structural divisions are removed from the organization, so all installers in the company are completely laid off.

Although the above two procedures are different, their implementation follows a similar scenario.

Reasons for the procedure

All employers must understand the procedure and rules for reducing the number of employees under the Labor Code of the Russian Federation. Therefore, initially there must be truly compelling reasons for using this process. These include:

• an economic crisis in the company, leading to the fact that the company cannot continue to support a large number of full-time employees;
• a change in the direction of activity, so certain specialists are no longer needed for the operation of the enterprise;
• amendments to tax legislation;
• reorganization of the enterprise;
• change of owner who decides to operate in another area.

Regardless of the reason, it is important to correctly formalize such a decision, as well as take into account the opinion of the trade union and labor inspectorate. There are certain situations in which a layoff may be considered illegal, so workers dismissed from a company can go to court to receive compensation or hold the head of the company accountable.

How is an order drawn up?

Employers must know how to correctly formalize a reduction in staff according to the Labor Code of the Russian Federation. To achieve this, company managers perform the following actions:

• an appropriate decision is initially made, so if there are several founders of the enterprise, then a general meeting is held, where voting is carried out and a protocol is formed;
• based on the decision made, an order is issued containing data on the need to reduce specific employees or positions;
• the documentation must indicate how long the procedure will take;
• persons responsible for the implementation of the process are appointed;
• if a massive reduction is implemented, then it is additionally required to create a special commission that will deal with all issues related to this procedure.

Reduction of staff according to the Labor Code of the Russian Federation is considered a rather complex and lengthy process, during the implementation of which numerous rules must be observed. If they are violated, this will become the basis for holding company officials accountable.

Procedure for organizing the process

The procedure for reducing the number of employees according to the Labor Code of the Russian Federation is carried out in the correct sequence of actions:

• as soon as a decision is made by the heads of enterprises, a corresponding order is issued;
• the person in charge of the company determines who is not allowed to be laid off and who will have to be fired;
• persons who have a preferential right to remain in the company are listed in Art. 170 TK;
• all persons who do not have this right are subject to dismissal through reduction;
• employees are notified in writing about the upcoming event;
• they are offered the opportunity to take another position in the organization on the basis of Art. 81 TK;
• such a position may correspond to the qualifications of a specialist or be of a lower level, therefore it is allowed that the payment for it be less than for the previously held position;
• when offering a position, it is taken into account that the employee should not have medical contraindications;
• employees are notified of layoffs two months before the event, and for this purpose a written document is used, signed by all selected specialists listed in the order;
• if an employee refuses to sign the notification, then the responsible person of the enterprise draws up a corresponding act;
• if employees do not want to occupy any other positions in the company, then they are laid off at the appointed time, for which they are given the required payments and severance pay;
• on the day of dismissal, the specialist is provided with a work book, which indicates his reduction, and a 2-NDFL certificate is also provided, containing information about the citizen’s income over the last two years.

Within two months, workers can search for a new place of employment. If they find a job before they are fired, they can get paid in advance.

The rules for reducing the number of employees under the Labor Code of the Russian Federation take into account that a period of 2 months is established only for permanent workers, and for temporary ones it is reduced to two weeks. If a specialist has been working in the company for less than two months, then he can be notified of the layoff three days before this process.

Nuances of notifying employees

A prerequisite for competent reduction of staff according to the Labor Code of the Russian Federation is correct and timely notification of specialists about the planned event. The main nuances of this process include:

• the notification is provided in writing;
• All employees who will be laid off must sign on it;
• Employees should be familiarized with the document two months before layoffs;
• It is permissible to reduce this period only if the employee himself wishes to terminate the relationship with the employer early, but at the same time he retains all guarantees and payments.

If specialists are not notified of the layoff within the established time frame, they can challenge such a decision through the court. Additionally, they can file a complaint with the labor inspectorate, which will lead to the holding of the enterprise management accountable.

Do I need to notify the union?

Based on the provisions of Art. 82 of the Labor Code, the trade union must certainly take part in all issues related to the reduction of staff according to the Labor Code of the Russian Federation. Therefore, enterprise managers take into account the following nuances:

• after an appropriate decision is made to lay off specialists, it is necessary to notify the trade union two months before this event;
• if a mass dismissal of specialists is planned, then notification is given three months before the dismissal of workers;
• the management of the enterprise must take into account the motivated opinion of the trade union, therefore the decision and order are considered by this body within 7 days;
• then a response is provided, which can be positive or negative;
• consent to reduction is valid only for one month, but if necessary it can be obtained again;
• If a specialist who is the head of a trade union is being laid off, then a notification should be sent to a higher organization to obtain a reasoned opinion.

If the employer does not comply with these requirements, this may become the basis for the reinstatement of dismissed employees.

What payments are given?

Payments to employees due to staff reduction are required. The Labor Code of the Russian Federation contains data on how to correctly calculate the amount that must be transferred to laid-off specialists. The basic rules of the process include:

• funds are correctly calculated and paid to the employee directly on the day of dismissal;
• it is allowed to postpone this period only in a situation where the amount of payment is disputed through the court;
• The amount of the benefit depends on various factors.

Often, employees are faced with the fact that the employer asks them to resign of their own free will, but in this case, specialists will not be able to count on severance pay. Therefore, it is important to strictly follow the requirements of the Labor Code. If the staff of workers is reduced under the Labor Code of the Russian Federation, payments for northerners will be significant due to their high salaries. Therefore, it is in the interests of the specialists themselves to insist on the correct execution of the reduction.

When calculating payments to an employee for staff reduction according to the Labor Code of the Russian Federation, various points are taken into account:

• whether the citizen was a permanent or temporary worker;
• what is the size of his salary, and for this it is important to calculate his average income in the company for two years of work;
• the number of sick leave issued during this period;
• business trips and unused vacations are taken into account.

The calculation is carried out by the company's accountant, but each specialist can independently verify the correctness of the determination of severance pay.

When are payments made?

Every employer must correctly formalize the reduction of staff. Articles of the Labor Code of the Russian Federation 178-180 contain data on the rules for determining severance pay. All funds must be transferred to specialists on the last day of their work. It is at this moment that monetary settlements are made with dismissed employees. In case of a standard or massive reduction in staff, the Labor Code of the Russian Federation requires the following payments to be transferred to employees:

• severance pay equal to the average earnings of a citizen in the company for a month of work;
• the average income is double or triple the size, and the main purpose of these funds is the opportunity for a citizen to find a well-paid and good job, while having the means to live;
• additional compensation equal to twice the average monthly salary of a specialist;
• vacation compensation;
• sick leave payments;
• travel allowances for professional trips of a specialist;
• salary for actual days worked in the company for the last month.

If the calculation is carried out for temporary workers, then two weeks’ income is taken into account in the calculation process.

What guarantees and rights do employees have during layoffs?

According to the Labor Code of the Russian Federation, reducing the number or staff of employees is a complex and lengthy process that requires compliance with certain requirements and notification of government agencies. At the same time, employees who leave the organization have certain rights and guarantees. Their main purpose is the ability to mitigate the consequences of job loss for workers and adapt to new conditions.

If a staff reduction is made ahead of schedule in accordance with the Labor Code of the Russian Federation, employees can count on additional guarantees, and at the same time they receive the same payments as with a standard reduction.

The basic rights of workers include:

• The employer must definitely offer specialists to fill other vacancies in the company if there are vacant positions at the enterprise that correspond to the skills and qualifications of the employees;
• if the company has branches in other regions, then work may be offered in such divisions;
• based on a written application, an employee can be laid off early, while receiving average monthly earnings and severance pay;
• The employer is obliged to notify the employment center of the planned layoff three or two months before the actual process, which allows laid-off citizens to more quickly find the optimal place for employment.

Employees of organizations themselves should be well versed in the rules and features of downsizing, as this will allow them to defend their own interests. If, according to any article of the Labor Code of the Russian Federation, the reduction of staff is carried out with violations, then the employees of the enterprise can write a complaint to the labor inspectorate, on the basis of which the company will be held accountable.

Who can't be laid off?

There are certain employees who cannot be laid off because they belong to vulnerable categories of the population. Who can't be laid off? A reduction in the number of employees under the Labor Code of the Russian Federation cannot affect all persons listed in Art. 261 TK. These include specialists:

• women raising disabled children alone;
• single parents raising children under 14 years of age;
• women with children under three years of age;
• parents who are the sole breadwinners of a disabled minor;
• pregnant women.

The above mentioned citizens cannot be laid off under any circumstances. If this requirement is violated, the head of the company not only pays significant fines, but may also be held criminally liable. Therefore, it is important to understand how to correctly reduce the number of employees in accordance with the Labor Code of the Russian Federation, who cannot be laid off, and also what actions must be taken by the employer to take into account all legal requirements.

When is it impossible to fire an employee?

Additionally, during downsizing, it is not allowed to dismiss specialists under the following conditions:

• the notice was not given to the employee within the established time frame, so if a person is fired under such conditions, he can go to court to declare the employer’s actions illegal;
• The specialist agrees to transfer to another vacant position in the company.

When offering available vacancies, the qualifications, health and experience of the employee must be taken into account.

Who has the right to remain in the company?

Some employees have a preferential right to remain employed by the company if they are laid off. All such specialists are listed in Art. 179 TK. Therefore, preference is given to the following employees:

• citizens who have several dependent people;
• employees who were injured or have an occupational disease in the process of work;
• disabled people of the Second World War;
• employees who improve their qualifications without interrupting their work activities, and the initiator of this process should be the employer.

In the process of drawing up and signing a collective agreement, the head of the enterprise may provide other employees with a preferential right to retain their jobs in the event of staff reduction.

When is a reduction considered unlawful?

Employers must take into account all legal requirements, otherwise, by decision of the labor inspectorate or court, the reduction may be declared illegal. Employees must ensure that their rights are respected. Therefore, the reduction will be unlawful under the following conditions:

• employees were not offered other jobs in the company;
• the head of the enterprise insists that employees write a letter of resignation of their own free will;
• notification of the reduction was not transmitted to specialists within the established time frame;
• employees who are on vacation or sick leave are dismissed;
• absence of an order containing data on the reduction of employees;
• on the last day of work of specialists, all necessary calculations are not carried out with them.

Under such conditions, workers can file a complaint with the labor inspectorate. The company and its officials will be held administratively liable. Additionally, specialists can file a lawsuit to recover moral damages from their former employer or even challenge the layoff.

How is the employment center notified?

The head of the company must not only correctly notify employees about the layoff, but also provide this information to the employment center. To do this, a written message is drawn up containing information:

• the names of all employees being laid off at the enterprise;
• positions held by these specialists;
• their qualifications and work experience;
• average earnings.

If employees are fired en masse, notification is sent three months before this event. Shorter deadlines are established for individual entrepreneurs, so entrepreneurs can notify the employment center 2 weeks before laying off workers.

Additionally, the trade union should be notified if there is one in the company.

Conclusion

Reducing staff or employees is a complex procedure that affects many people and structures. The process must only be carried out in the correct sequence of actions and taking into account legal requirements. Violations by the employer may become grounds for holding him liable.

It is important to notify the workers themselves, the employment center and the trade union in advance about the layoff. In this case, the motivational opinion of government organizations regarding the procedure applied is taken into account. Under certain conditions, a reduction may be considered illegal.

If necessary, the employer may decide to reduce the number or staffing levels. To avoid litigation with dismissed employees, a certain redundancy procedure must be followed.

Maria Blagovolina,
senior associate at Allen & Overy

Certain categories of workers who are subject to social protection and who cannot be laid off: pregnant women; women with children under three years of age; single mothers raising a child under 14 years of age (a disabled child under 18 years of age) (Article 261 of the Labor Code of the Russian Federation). It is also impossible to lay off an employee during the period of his incapacity for work or vacation (Part 6 of Article 81 of the Labor Code of the Russian Federation)

Can temporary vacancies be offered?

A vacancy is a position provided for in the company’s staffing table; no employment contract has been concluded for the performance of work for it. That is, a position is not considered vacant if it is actually occupied by an employee, but he is on maternity leave, child care leave or temporarily transferred to another position. This is due to the fact that during this period the employee retains his workplace (position in the staffing table).
Thus, if you follow the logic, the employer is obliged to offer so-called permanent vacancies. However, there is no direct prohibition in law from offering temporary vacancies to employees who have been laid off. That is, the employer can offer employees temporary vacancies, but they need to conclude a fixed-term employment contract - for the duration of the absence of the previous employee. It should be noted that the court practice on this issue is not clear (rulings of the Moscow City Court dated July 1, 2010 No. 33-19668, St. Petersburg City Court dated August 30, 2010 No. 33-11908).

Dismissal before the expiration of two months

If an employee who has been laid off agrees to early dismissal, the employment contract with him can be terminated before the expiration of the two-month period. Such an employee must be paid additional compensation, the amount of which depends on the time remaining before the expiration of the two-month notice period (Part 3 of Article 180 of the Labor Code of the Russian Federation).
In this case, the employee may resign not due to layoff, but at his own request (Article 80 of the Labor Code of the Russian Federation). In this case, the employer is not obliged to pay the employee compensation related to dismissal due to reduction (Article 178 of the Labor Code of the Russian Federation).

Footnotes:
1 tbsp. 81 Labor Code of the Russian Federation
2 tbsp. 179 Labor Code of the Russian Federation
3 tbsp. 179, 180 Labor Code of the Russian Federation
4 tbsp. 394 Labor Code of the Russian Federation
5 tbsp. 180 Labor Code of the Russian Federation
6 hours 3 tbsp. 80, part 1 art. 180 Labor Code of the Russian Federation
7 paragraph 2 art. 25 of the Federal Law of April 19, 1991 No. 1032-1
8 tbsp. 178 Labor Code of the Russian Federation
9 approved fast. Goskomstat of Russia dated January 05, 2004 No. 1

One of the grounds for termination of an employment contract at the initiative of the employer is a reduction in the number or staff of the company's employees 1. Before downsizing, the HR department and company management need to decide in advance whether there will be a reduction in staff or just numbers.
Downsizing is a reduction in the number of staff for a specific position. For example, instead of seven analysts, four remain on staff. Staff reduction is the complete elimination of certain positions from the staffing table. For example, the position of an analyst is completely excluded from the staffing table.

Which option should the employer choose?

Despite the fact that the Labor Code provides for the same amount of guarantees and compensation for employees subject to dismissal due to a reduction in numbers and staff, in practice the situation looks different.
In the event of a reduction in the number of employees, the question inevitably arises about the preferential right to remain at work 2 . The employer needs to choose from several employees with the same positions those who will have to be fired, and this choice must be justified. Of course, the Labor Code clearly states that the preferential right to remain at work (in the event of a reduction in both numbers and staff) is given to employees with higher labor productivity and qualifications. However, most practitioners are inclined to believe that in the event of staff reduction, the preemptive right does not apply. After all, all employees with a chosen full-time position are being laid off, that is, the employer does not have to choose which employees to keep and which to fire.
Judicial practice also proceeds from the fact that when staffing is reduced, the right of pre-emption is not taken into account when offering vacant positions. In this regard, from the point of view of the risks of litigation with dismissed employees, a more reliable option is the staff reduction procedure.

We follow the dismissal procedure

When laying off employees, it is important to correctly carry out all procedures and complete documents 3. Violation of the established procedure may lead to the fact that the dismissed person will have to be reinstated and paid for his forced absence 4 . The court can reinstate an employee dismissed due to redundancy, even if the employer made errors of a purely technical nature when preparing documents. The procedure for reducing the number or staff of employees consists of several stages.

Reduction order
First of all, the head of the company issues an order to reduce the number or staff, which indicates the positions to be reduced. The new staffing table (with the changes that resulted from the reduction) must be approved by the same or a separate order.

In 2011, Aktiv LLC rented a building for an office in which it carried out its activities. In 2012, management decided to reduce rental costs due to the unstable financial situation of the company. Since February 2012, Aktiv LLC has been renting half of the building, and therefore the manager decided to reduce the number of cleaners (from two to one).
An order was issued to reduce the number (see below).

ORDER No. 2
about reducing the number of employees

Due to a decrease in the total area of ​​rented premises for the office of Aktiv LLC
I ORDER:
1. To exclude from May 2, 2012 from the staffing table of Aktiv LLC the following position:

2. Head of the HR Department A.L. Kalashnikova in the manner established by current labor legislation: notify employee Mayevskaya O.G. about the upcoming dismissal due to downsizing; inform the employment service authorities about the upcoming dismissal of the employee; prepare a list of vacant positions for proposals from the dismissed employee.

3. Approve the staffing schedule No. 05-ShR dated March 1, 2012 and put it into effect from May 2, 2012.
Director Olkhin I.D. Olkhin
I have read the order:
Head of HR Department Kalashnikova A.L. Kalashnikov

Notification to employees
About the upcoming dismissal due to a reduction in the number or staff of employees, it is necessary to warn in advance - personally and against signature at least two months before the dismissal 5. If an employee refuses to mark the receipt of the notice, it is necessary to draw up a report in front of witnesses (at least two people), which will confirm the fact of the notice of dismissal.

The head of Aktiv LLC decided to eliminate the position of “web application developer” in order to reduce labor costs in the company. Startsev I.P. will be dismissed due to staff reduction on 05/02/2012. The personnel service hands him a notice against signature (see below), which Startsev I.P. must sign, 03/01/2012 (at least two months before the date of dismissal). At the same time, Aktiv LLC has a vacancy for a web designer, and it was offered to I.P. Startsev.

Notification
about the upcoming dismissal due to a reduction in the organization’s workforce

Dear Ivan Petrovich! In connection with the implementation of measures to reduce the number of employees, your position of “web application developer” will be reduced from May 2, 2012.
According to Part 1 of Article 180 of the Labor Code of the Russian Federation, you are offered the following job (vacant position) at Aktiv LLC, corresponding to your qualifications: web designer.
In accordance with Part 1 of Article 178 of the Labor Code of the Russian Federation, you will be paid severance pay in the amount of your average monthly earnings, and you will also retain your average earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay).
Reason: order No. 12 dated March 1, 2012.
Director Olkhin I.D. Olkhin
I have read the notification
Startsev I.P. Startsev 03/01/2012

Job offer
Employees must be offered the vacant positions available to the employer at that time to which they can be transferred 6 . This must be done not once along with the notice of dismissal, but several times. Employees subject to redundancy must be offered every vacancy that appears in the company during the notice period. Based on the practice and position of the courts, we recommend informing employees subject to layoffs about vacancies three times: along with the notice, a month after reading the notice, and on the day before the last working day.
Please note that it is necessary to offer not only a vacant position or a job that corresponds to the employee’s qualifications, but also a vacant lower-level position or lower-paid job. In this case, the employer is obliged to offer the employee all vacancies that meet these requirements that he has in the given area. An employer is obliged to offer vacancies in other localities only if this is directly provided for in a collective or labor agreement.
If an employer is reducing its workforce or workforce, it should not advertise for candidates specifically for such positions. We also recommend that you do not re-enter the position into the staffing table for at least six months after completion of the reduction procedure. Otherwise, employees have a chance to successfully challenge the dismissal and be reinstated by proving that there was no actual reduction in numbers or staff.

Employment service notification
The employer is obliged to report a reduction in the number or staff to the employment service 7. This must be done in writing no later than two months before the dismissal of employees. If the decision to reduce the number or staff of employees may lead to mass layoffs - no later than three months before the start of the relevant activities. The application to the employment service authorities indicates the position, profession, specialty and qualification requirements for them, as well as the terms of remuneration for each specific employee. The criteria for mass layoffs are determined in industry and (or) territorial agreements.
At the final stage of the downsizing procedure, compensation must be paid to dismissed employees who did not accept the vacancies and will not continue to work in the company in other positions. Employees must be paid severance pay in the amount of their average monthly earnings and retain their average earnings for the period while the dismissed person is looking for a job (but no longer than two months from the date of dismissal) 8 . You also need to issue orders to terminate employment contracts in Form No. T-8 9 and make entries in the work books of dismissed employees. The entry will look like this: “Dismissed due to a reduction in the number (staff) of the organization’s employees, paragraph 2 of part 1 of Article 81 of the Labor Code of the Russian Federation.”

Preparing documents for the court

Staff reductions must actually take place. This fact is confirmed by the presentation to the court of the staffing table before the reduction procedure and after its completion (after the reduction, the new staffing schedule approved by the order must be in effect). Judicial practice proceeds from the fact that the right to determine the number and staff of employees belongs to the employer. Although the employer is not required to prove the validity of the decision to reduce staff, it is recommended to prepare a feasibility study. The presence of such a document will strengthen the employer’s position in court and refute the employee’s arguments that the layoff was far-fetched. Often, employees bring printed notices to court stating that during the period of staff reduction, the company was looking for employees to fill the positions being reduced. Such evidence may indirectly confirm the unreasonableness of the reduction procedure, so I recommend refraining from publishing vacancies for the positions being reduced before the employee is dismissed and in the next 2-3 months.