Features of dismissal of workers of pre-retirement age: how does it happen and what restrictions exist?

Pension Fund - employer - employee

In order for an employee of pre-retirement age to take advantage of benefits, the employer must promptly submit information to employment centers (Rostrud letter No. 858-PR dated July 25, 2018).
The Pension Fund will rely on this data to determine the legality of providing benefits to citizens and compensation to employers, for example, for employee training. Why is this necessary? If an employee retires on a general basis, determining the pre-retirement age is simple - subtract five years from the 55 or 60 specified in the law. And if there are grounds for early assignment of a pension (work in the North, on preferential lists, etc.), it is easy to make a mistake. In addition, the next three years will be transitional; the boundaries of the retirement age will shift. Therefore, the employer needs to conclude an additional agreement with the Pension Fund on information interaction to the previously signed document “On the exchange of electronic documents in the electronic document management system of the Pension Fund of Russia via telecommunication channels.”

For his part, an employee who has reached pre-retirement age must issue a certificate giving the right to benefits (Resolution of the Board of the Pension Fund of the Russian Federation dated November 29, 2018 No. 464p). You can contact the Pension Fund branch, leave a request at the MFC or on the State Services website. Within one working day, the employee will receive an electronic document or refusal explaining the reasons.

Don’t forget to submit information so that your employees don’t have problems applying for the benefits they are entitled to.

When is pre-retirement age?

The concept of “pre-retirement age” is not new. It appeared in Art. 5 of the Law on Employment[1]. Previously, for the purposes of applying this law, citizens were classified as “pre-retirees” two years before the age entitling them to an old-age insurance pension, including those granted early. Currently, pre-retirement age is considered to be five years before the appointment of a pension (old age or early).

Interestingly, the approach to defining workers of pre-retirement age is ambiguous. From a literal reading of the law, it follows that the pre-retirement age is five years preceding the year of granting a pension (position 1). According to this point of view, if a worker was born, for example, on July 1, 1968, she will become eligible for a pension on July 1, 2028 (at age 60). Consequently, her pre-retirement period will begin five years earlier, that is, July 1, 2023.

The Pension Fund thinks differently (position 2). Department experts suggest taking into account the transition period. In their opinion, men born in 1963 and women born in 1968 are “pre-retirees” already in 2021 and will be recognized as such for 10 years (the corresponding table is posted on the Pension Fund website).

The five-year period is also relevant when, when assigning a pension, both the achievement of a certain age and the development of special experience are taken into account. This applies, first of all, to workers in dangerous and difficult professions according to Lists No. 1, 2[2], etc., which allow early retirement. Pre-retirement age begins and the right to receive benefits in such cases arises five years before the age of early retirement, subject to one of the conditions:

• development of the required preferential length of service if the person has already stopped working in the relevant specialty;
• fact of work in the relevant specialty.

The pre-retirement age of doctors, teachers and other workers, whose right to a pension arises not from certain years, but after developing special experience, occurs simultaneously with the acquisition of this right. Thus, a school teacher who completed the required teaching experience in July 2019 is considered “pre-retirement” starting from the same month.

Next, we will tell you what benefits are provided for “pre-retirees”.

The right to additional days for medical examination

In 2021, Art. appeared in the Labor Code of the Russian Federation. 185.1 of the Labor Code of the Russian Federation, which obliges the employer to annually provide an employee of pre-retirement age with two additional days for a medical examination. In this case, the employer is obliged to maintain the employee’s position and average salary.

The employee must write a statement and agree with the manager on the dates of the upcoming medical examination.

The law does not oblige the employee to be sent for medical examination. The employee undergoes such a medical examination voluntarily, except for the cases specified in the Labor Code of the Russian Federation.

They ask you to leave “on your own”: what to do?

In connection with the introduction of criminal liability for the dismissal of persons of pre-retirement age, the employer can force them to fill out an application and leave at their own request. In this regard, these individuals are equal to ordinary employees.

First of all, you need to decide for yourself whether this job is worth holding on to. If you continue to persist, then the employer, as revenge, may resort to outright provocation, and then fire this employee under the article (which is not prohibited by law).

Therefore, the following rules must be observed:

• Do not sign any forms that mention dismissal; read each document carefully;
• Strictly comply with all internal rules, and in no case be late;
• Record all controversial issues in writing with the assistance of witnesses;
• Do not give in to provocations;
• Be prepared that controversial issues will periodically arise - safety knowledge tests, denial of permission to work due to failure to undergo a mandatory inspection, etc.

If such a situation arises, you can file a complaint with the labor inspectorate or the prosecutor's office. However, it must be remembered that proof of forced dismissal in this case falls entirely on the employee.

Important! Therefore, before contacting regulatory authorities, it is important to collect evidence confirming that the employee was forced to resign.

Job security guarantees

We talked in detail about the rights of an employee and the responsibilities of an employer regarding the dismissal of pre-retirees in our previous article. Here we just recall the main provisions.

Federal Law No. 352-FZ of October 3, 2018 introduced Art. 144.1, which for unjustified dismissal (and unjustified refusal to hire) threatens an official with a fine of up to 200 thousand rubles or in the amount of his salary for a period of up to 18 months or compulsory work for up to 360 hours. Dismissal at the initiative of the employer must be justified and properly formalized. If you are not satisfied with an employee, but there are no legal grounds to part with him, you should not persuade him to write a statement of his own free will. The Resolution of the Plenum of the Supreme Court dated November 27, 2018 No. 37 states that if evidence of pressure on an employee is found, the employer will be punished in accordance with the Criminal Code of the Russian Federation.

Right to study

A special federal program guarantees pre-retirement people the right to undergo retraining or improve their skills. Order of the Ministry of Labor of the Russian Federation dated March 1, 2019 No. 131 determined the directions for the implementation of the program:

• studying supply and demand in the educational services market;
• professional development and advanced training of citizens of pre-retirement age;
• development of Internet technologies for distance learning;
• monitoring the employment of pre-retirees;
• professional skills competitions, etc.

5 billion rubles have been allocated for the implementation of the federal program. During 2021, regional authorities must develop their programs.

Pre-retirees can undergo retraining:

• in the direction of the employment center in educational institutions;
• under the programs of the WorldSkills Russia union, leaving a request on the organization’s website;
• at the direction of the employer within the organization or under an agreement with a third-party educational institution.

Compose orders for medical examination, retraining and advanced training easily and quickly in the Kontur.Personnel program.

To learn more

A training course in any of the options can last from 16 to 500 hours, while the law does not limit educational institutions in formats: full-time, correspondence and distance learning are acceptable.

If an employer sends you for training within the framework of a regional program, he must agree on the list of employees with the employment center and the Pension Fund branch. An organization can reimburse costs from the federal or regional budget if two conditions are met:

• training must be completed;
• After training, employees must maintain their employment in the organization in the reporting year (with the exception of voluntary dismissal).

The Ministry of Labor plans to monitor the employment of pre-retirement workers who have completed training under the regional program, but in what form is still unclear.

Other benefits and guarantees

The government has approved several more benefits for citizens of pre-retirement age. They do not directly affect employers, but you need to be aware of them. Let's briefly list:

1. Pre-retirees have preferences in terms of payment of unemployment benefits (Resolution of the Government of Russia dated November 15, 2018 No. 1375):

The government also approved a special rule for the unemployed of pre-retirement age: for those who have an insurance period of more than 25 years (for men) and 20 years (for women), the payment period will be increased by two weeks for each additional year of work. But no more than 24 months in 36 months.

1. The government has retained tax benefits (Article 407 of the Tax Code of the Russian Federation) for those who have reached 55 years of age (women) and 60 years of age (men), namely:

• exemption from property tax on one piece of real estate (apartment, house, garage, outbuilding);
• land tax deduction (for six acres).

1. The State Duma of the Russian Federation is considering a draft law that will give pre-retirees the right to alimony due to disability.

Legal mechanisms for terminating an employment contract

How can you fire citizens of pre-retirement age? Since it is impossible to fire an employee approaching retirement without reason, the manager must obtain compelling reasons for this. He has the right to terminate the employment contract on his own initiative in the following cases:

In the first two cases, a corresponding order must be issued , which employees must familiarize themselves with 2 months before the liquidation or staff (position) reduction procedure.

In the latter case, the basis for dismissal of a person of pre-retirement age is direct evidence of the employee’s guilt (an explanation according to which he had no valid reasons for absenteeism or tardiness, showing up at work while drunk, theft of property proven in court, etc.).

Only with a good reason will the employment contract be terminated according to the standard scheme:

• the manager issues a dismissal order;
• the HR department prepares the work book and personal file;
• The accounting department makes the calculations.

Important! An employee approaching retirement age is not untouchable; he is subject to the same rules for dismissal as regular employees. However, special attention should be paid to the grounds for termination of an employment contract. Unjustified dismissal of a pre-retirement employee threatens serious liability for the employer.

Prerequisites

What should an employer take into account if he decides to fire a person of pre-retirement age? There is no direct prohibition on dismissal: only its unreasonableness.

Also, the labor inspectorate will side with the laid-off pre-retirement employee if it is discovered that the manager did not comply with the established part 3 of Art. 81 and art. 180 Labor Code of the Russian Federation procedure:

• did not notify about the reduction 2 months before the start of the procedure;
• did not offer another job if available;
• did not take into account the qualifications and high productivity of the employee (in accordance with Part 1 of Article 179, this category of employees is not subject to reduction at all).