Prohibition on dismissal of employees of pre-retirement age

Today we will tell you about the law that introduces a ban on dismissals of workers of pre-retirement age in 2021. We all remember the public outcry caused by the proposal to increase the retirement age. In September 2021, the President addressed the population of the country and proposed a softer transition to new conditions, and also guaranteed the opportunity for citizens to work until they apply for an insurance pension.

At the same time, this guarantee must be supported by measures that the state has the right to apply to unscrupulous employers. Then it was proposed to introduce criminal liability in cases of infringement of the rights of persons of pre-retirement age in connection with:

• unjustified refusal to hire;
• unjustified dismissal.

The legislative framework

Pre-retirement age is the status of a citizen whose years are approaching the retirement mark. The legislation sets an age threshold, upon reaching which you can apply for a pension. Also leave your job.

In practice, most mature citizens try to continue working. They are considered working pensioners, simultaneously receiving a pension + salary .

The concept appeared recently, due to recent reforms related to the retirement age itself. It was increased in Russia. In fact, the pre-retirement period for citizens occurs 4-5 years before their subsequent retirement. It is appointed based on length of service or reaching the required age.

However, everyone has the right to continue working if their health and capabilities allow. The payments are small, even regular indexation does not help.

The authorities try, to the best of their ability and ability, to protect older citizens from sudden dismissal:

• rapid professional development programs are being created;

• criminal penalties for negligent employers who decide to illegally deprive an employee of a job;

• additional social support – maintaining certain tax benefits;

• benefits are provided for pre-retirees at the federal and regional levels.

Due to the annual increase in the retirement age threshold, the period of pre-retirement years will increase accordingly.

Pension reform is a large-scale and long-term program, according to which the age is increased in stages. You can determine when a person is considered a pre-retirement or a full-fledged pensioner based on his year of birth.

It turns out that last year, 2021, pre-retirement women were women born in 1964-1966, and men were born in 1959-1961; in 2021, women were born in 1965-1968.
and men - from 1960-1963, in 2021 - women born in 1967 and men born in 1962.

Payments to the unemployed

People should think about it earlier, because... according to the amended provisions of the law (FZ-32, No. 1032-1), not everyone receives benefits for the next 36 months after dismissal. This prerogative depends on the accumulated experience.

A dismissed employee who has already reached pre-retirement years enters the general Employment Service. He is assigned only an annual allowance (allowance). Further financial support is calculated based on length of service.

For each year a citizen works, he is paid an allowance of +2 weeks. For example, a person has been at work for 26 years, then the payment period is: 12 months (standard) + 2 weeks. 40 years = 12 months (initial) + 7 months, 2 weeks.

If there is a layoff, the employee should take out an early pension or try to get a new job. Find another place.

Early pension is assigned by authorized bodies subject to the following conditions:

· the citizen is officially recognized as unemployed;

· has a documented work experience of 20-25 years;

· the employment service acknowledges in writing that it is impossible for a citizen to find a job;

· he actually has 1.5-2 years left before retirement (maximum) .

In order to maintain unemployment benefits, a laid-off employee must continue to look for work. Attend interviews and training courses offered by the Labor Exchange. Managers regularly draw up various lists, write directions - they try to accommodate people by offering various, even low-paid, vacancies.

If a citizen deliberately ignores calls from the Exchange, he will be denied a pension, and in addition, will be removed from the general register of unemployed.

A project is currently being developed on pension contributions (the funded part of the pension) on a voluntary basis by future pensioners; you can read more about the guaranteed pension plan separately. Starts in 2021.

Reduction of persons of pre-retirement age

This topic is quite relevant for older people.

Question: Do they have the right to lay off an employee of pre-retirement age in 2021?

Rostrud spoke out unequivocally: they can, but only in compliance with the procedure. Otherwise, when considering a claim for reinstatement at work, the court will side with the dismissed person.

The procedure for dismissal due to reduction of position and staff is as follows:

• termination of the employment contract on the basis of clause 2, part 1, art. 81 of the Labor Code of the Russian Federation, each employee must be warned about this in writing at least two months in advance;
• At the same time, the employer offers another vacancy on the basis of Part 1 of Art. 180 Labor Code of the Russian Federation;
• The preferential right to avoid dismissal belongs to highly qualified workers, and, with equal qualifications, to persons with two or more dependents who have received an occupational disease, etc. Pre-retirees are not included in this list (although otherwise may be contained in the collective agreement), but during layoffs, rights are provided for them in another law.

Thus, in accordance with the norms of the Law of the Russian Federation of April 19, 1991 No. 1032-1 “On Employment of the Population in the Russian Federation,” there is a benefit for certain categories of persons who are pre-retirees. For example, if a citizen has 2 years or less left before retirement, if there is an offer from the employment center, during this time he may be paid a pension if employment is impossible. In such cases, they also pay attention to the insurance period: it must be at least 25 (men) and 20 (women) years.

Thus, dismissal due to staff reduction of workers of pre-retirement age is possible, but with the specified features. Like other categories of employees, upon dismissal, the employer is obliged to:

• pay average monthly earnings (severance pay);
• maintain the average monthly salary for 2 months (including severance pay), in some cases - for 3 months.

If the collective agreement of an enterprise states that pre-retirement workers belong to the category of employees who have a preferential right to remain at work, this provision is mandatory for the employer. In such situations, if a preemptive right is not provided, the dismissal procedure due to reduction will be considered illegal.

Reasons for leaving before retirement

By law, employers cannot fire employees on their own whim or personal grudge. must be compelling reasons , the list of which is described in the Labor Code of the Russian Federation, the contents of Article 81.

The loss of a job by a citizen is accompanied by termination of the existing employment agreement. This is considered a dismissal made at the initiative of the employer.

What will protect the employee? – a collective agreement, when there is a separate clause regarding the impossibility of dismissal. For example, a person cannot be kicked out until he reaches a certain (retirement) age. In practice, few managers write such agreements or the specified clause is not included there.

The following are considered valid reasons for dismissing an employee:

· liquidation of the organization (then everyone loses their jobs, this is a common misfortune);

· reduction of staff/total number of employees;

· inadequacy of the employee (his professional unsuitability);

· change of owner (then the manager/his deputies + chief accountant are changed, ordinary employees remain);

· repeated violation/ignoration by the employee of his own duties;

· violations of general labor discipline and safety rules;

· a person committing an immoral act or making wrong decisions that resulted in large-scale losses;

· Submitting false documents/incorrect information during an interview;

· carrying out fraudulent schemes at work ;

· committing thefts, forgeries or damage to company property.

Any of the above factors must be confirmed first. Acting thoughtlessly is dangerous.

It is punishable to force someone to quit.

Staff reduction

When a company is going through a difficult time - productivity is falling, investors are leaving, the effects of inflation are taking their toll - the manager thinks about how to more effectively reduce costs. He is obliged to pay all employees on staff. By law, production downtime does not affect people's receipt of payments.

Reduction - measures taken by management, as a result of which some employees will be fired. Who exactly the leader decides. To be fair, he needs to evaluate not the years of employees, but their professional and personal qualities. Therefore, the first to be fired are unreliable people who have accumulated enough reprimands and penalties while working. Then they get rid of those who did not complete the internship.

Read more about pre-retirement reduction in a separate article.

If the usual staffing table has changed, the company faces imminent liquidation, then the director’s actions are lawful. He can even drive out pregnant women or mothers of many children.

In the order and work books of those being dismissed, the reason is clear: “staff reduction” . It does not prevent a person from getting settled again, because such events happen, and not everyone is able to influence this.

Law prohibiting the dismissal of future retirees

According to the provisions of Federal Law No. 352, updated on October 3, 2018, the requirements for the actions of employers have become stricter.

You cannot expel people unreasonably , this applies to any category: pre-retirement age, expectant mothers, parents of large families and other citizens, retirement age.

Directors and other authorized persons who dismiss employees, justifying their actions by their age, are punished:

· fine of 200 thousand / total 18 monthly income of the enterprise;

· compulsory work (terms are assigned individually, maximum 360 hours).

This is regulated by Article 144.1 of the Criminal Code of the Russian Federation. Employees whose dismissal was illegal have the right to submit a corresponding application to the authorities.

Important! Supplement the claim with supporting evidence. For example, a copy of the dismissal order, which states the reason. Call recordings, correspondence screenshots, etc.

About pensions for the self-employed in a separate article.

How employers can avoid breaking the law

Any boss is interested in the efficient and uninterrupted operation of the organization. This is ensured by a properly selected team of specialists of various ranks and professions. The pension reform changed the order of things. A threat has arisen to individuals - “future pensioners” - that their employers will rush to fire them or will not want to hire them. Criminal liability has been introduced regarding unlawful actions of directors.

For this reason, those responsible for the selection and placement of personnel (managers, personnel officers) must follow these rules:

1. Do not indicate specific age restrictions when publishing advertisements for applicants.

2. Remember that citizens - “future pensioners” are now socially protected along with pregnant employees. Some have the right to receive pensioner status earlier, for example, mothers of many children.

3. When formulating a refusal to hire a person, it is worth indicating the reasons more clearly. For example, that he is not professional enough, has no experience, or does not yet have the appropriate qualifications.

4. It is impossible to fire such people simply on the initiative expressed by the employer.

All actions - acceptance of a new employee, promotion/demotion, transfer, dismissal - must be documented.

Legality of termination of contract by employer

The term unjustified dismissal is deciphered in Art. 64 TK. This is how the actions of a manager are qualified due to the persecution of an employee on the basis of race, gender, nationality, status in society or property, age, place of residence, or beliefs.

It is also noted that the criterion for an employer to make a particular decision on hiring or dismissing an employee is the person’s business qualities. This concept is explained in Resolution No. 2 of March 17, 2004 of the Plenum of the Supreme Court of the Russian Federation; it includes the following characteristics of a person:

• possession of the required specialty, profession, sufficient qualifications;
• level of education – it must correspond to the position held;
• having work experience in the field where the job applicant intends to work;
• state of human health.

In other words, if the business qualities of a pre-retirement employee do not meet the requirements established by the enterprise for the position in question, he can be fired, and the decision about this will be justified.
The last item on the list, dismissal for health reasons, is often used by company management when there is an intention to get rid of an older employee. At the same time, they sometimes forget that there must be serious reasons for this .

It is necessary to confirm that the employee is really not fulfilling his duties, to obtain an expert opinion from the VKK or VTEK about the impossibility of working in the position held by the employee if the disease is detected.

Rights of working citizens of “pre-retirement”

What should the management of the employer company provide them with:

• Additional days when they undergo mandatory medical examination. 2 days, they are paid at the rate of average earnings. The break gives you the opportunity to leisurely go through all the appointments of doctors, take tests and wait for their results.

There are no specific dates; this is established by agreement between the parties. To use this opportunity, the employee only needs to write an application.

According to generally accepted rules, medical examination is required once every 2 years periodically. This is a voluntary action, with the exception of special services where there are health requirements.

• Receive benefits - financial support for the unemployed; for people of pre-retirement age, the minimum amount of unemployment benefits will be 1,500 rubles, the maximum - 12,130 rubles.

How to get a pre-retirement certificate, what kind of status it is and how to apply for it – in the article.

• The right to improve qualifications or undergo retraining. Moreover, the cost of the courses is paid by the employer. His expenses are reimbursed from the local budget. This program has been successfully implemented in several regions. Thanks to this, it is possible to improve your skills for free, learn new things in order to meet the requirements of the time.

Compensation will be paid if the following conditions are met:

· the citizen has completed full training - partial training is not reimbursed;

· protection from dismissal during this period - pre-retirement workers who decide to study will not be fired (with the exception of if they themselves express a desire);

· one-time right.

The employment service monitors the degree of implementation of the program and the activity of citizen participants. Employers initially enter into an agreement with her.

By the way, about the rights of pre-retirement people - on March 12, 2019, the State Duma in the third reading adopted a law that citizens of pre-retirement age (55 women and 60 men) have the right to request alimony for parents from children, ex-spouses, and relatives.

Previously, pensioners enjoyed this right. The state decided that shifting the responsibility for caring for the disabled population onto the shoulders of loved ones is more correct than taking responsibility themselves.

Dismissal at your own request

The dismissal of an older employee by agreement of the parties or due to the end of the employment contract occurs according to the general rules (Article 78, Article 79 of the Labor Code of the Russian Federation). There are no special conditions that must be met for voluntary termination of employment.

It is important that this truly be by mutual consent. If an employee wrote a letter of resignation under pressure or forced, this may result in criminal liability for the employer (Article 144.1 of the Criminal Code of the Russian Federation).

Who is granted early retirement?

People holding special positions and working every day in difficult and stressful conditions. In this way, the calculation of length of service occurs in a different way, when a year can go by in two or three .

Early retirement and possibly early dismissal
may be granted to:
· doctors;

· teachers;

· Railway workers – locomotive transport;

· public transport;

· who works in the Far North, also involved in complex underground work (they are entitled to northern bonuses and preferential conditions for retirement);

· mothers of many children;

· providing for a disabled person.

There are only 30 categories . However, to receive your pension early, you must meet several conditions:

· retirement age (specified by law) will occur in 1.5, maximum 2 years;

· accumulated work experience (more information about the minimum work experience is here);

· if a person was unable to get a job again after the reduction/liquidation of the enterprise.

To apply for an early pension, a citizen must independently visit the local Employment Center. Provide documents there, and if the decision received is positive, take a certificate. Go with her to your Pension Fund, leave a statement indicating your desire to apply for a pension.

Galina Narrowed

Practicing lawyer, providing consultations, representation in court, writing articles

Question for a lawyer

If you lose your job, what year can a pre-retiree retire?

This is possible 2 years before the established retirement age, for example, in 2021 these were women aged 54.5 years and men aged 59.5 years.

I heard that pre-retirement people who have lost their jobs due to the coronavirus pandemic for 3 years can retire. This is true?

The Ministry of Labor proposed this measure (allowing those who have lost income and have 3 years left to retire) - women 53.5 years old and men 58.5 years old. But what conditions will be offered is not yet clear. General conditions for early termination are 20 and 25 years of insurance experience (men/women) + confirmation from the central insurance company that they are registered, but there is no work.

Another measure for people who lost their jobs due to self-isolation measures was the proposal to increase the minimum unemployment rate to 4.5 thousand, but at the level of discussion at the moment.

Is it possible to fire a pre-retirement employee?

Some employers often have the mistaken opinion that the fact that a person is approaching retirement allows for his dismissal only on this basis.
However, the rights of officially employed persons who have a year or two left before going on vacation, in this case correspond to the rights of other workers. This means that the process of terminating the contract must be carried out in accordance with the regulations, similar for all other situations and recorded in the Labor Code of the Russian Federation (Chapter 13). Accordingly, answering the question whether it is legal to dismiss a pre-retirement employee due to age, we can say no, the termination of the employment relationship in this case is unlawful. Here there is a fact of discrimination based on personal characteristics. Such actions directly contradict the provisions of the Labor Code.

Important! If dismissal due to reaching old age is nevertheless carried out, then the employee can contact the labor inspectorate or send a claim to the court. In this case, the consequence of the consideration of the dispute will be the reinstatement of the person in his position in conjunction with the payment of compensation for moral damage caused.

The procedure for dismissing a future pensioner

When an employer has the right to deprive a pre-retirement employee of work:

· own desire - the employee notifies management about this in writing;

· termination of the contract due to agreement of the parties;

· staff reduction/liquidation of the enterprise.

The dismissal procedure will depend on the main reason for its initiation.

Expert opinion

Andrey Tychkov, labor lawyer

Over the last quarter of 2021, the number of unemployed people of pre-retirement age at labor exchanges increased by 15%. There are no data for 2020 yet. The statistics reflect ONLY registered pre-retirees. Plus those who didn’t want to are looking for an opportunity to earn money on their own. For the unemployed, the amount of unemployment payments is 11,280 rubles maximum.

Some situations and ways out of them

Many questions and reviews about pre-retirement people losing their jobs are related to layoffs and inappropriate positions for medical reasons. There are also cases of dismissals under pressure from the employer - at their own request.

Situations of the latter type are resolved through the citizen's appeal to the court with evidence that the real reason for leaving was age. In this case, the manager will be punished, and the employee will be reinstated.

Features of pre-retirement reduction:

1. Keeping the best employees at work, example: reducing the number of accountants - out of two you need to leave one. The difference between the workers in age: the younger employee is a single mother, the older one is working until retirement. The latter will be reduced, since a woman with a child under 14 years of age is protected by law. Pre-retirement benefits do not work in this case.
2. Receiving benefits at the Employment Center - this opportunity is provided to a citizen who has lost his job before retirement.
3. Early retirement. In some cases, this is possible with the direction of the employment service.

Dismissal due to health – this is something drivers, machinists and pilots often face. Here you need to remember that the employer is obliged to offer the pre-retirement worker another job, and can terminate the contract with him if the future pensioner agrees.

If no vacancies are offered, you can contact the trade union, request an official response from management about the lack of vacancies, or appeal the medical report.

Actions if forced to resign

The law limited the ability of directors to fire people, especially those approaching retirement age. However, regulations should not prevent businesses from functioning normally. Therefore, managers who doubt an employee’s professional or physical ability to perform daily duties have the right to require him to take an exam. If the result of the inspection only confirms the citizen’s skills, all claims should be immediately withdrawn.

Sometimes employers use various measures of pressure, forcing a person to write a statement. On paper, the situation looks legal, but in practice, the employee simply lost his job thanks to the intrigues of his superiors.

Future pensioners cannot write such statements; these actions will automatically deprive them of benefits issued by the Employment Center, as well as other payments.

If you keep your job and there is no opportunity, it’s easier to ask your boss to indicate the reason: “downsizing . Or arrange for the person to be transferred to another, similar place. Some firms have a collective agreement policy that details the general terms and conditions. They apply to all hired employees. It is worth studying the provisions of the agreement more carefully. Perhaps it stipulates the issuance of a significant bonus when an older employee leaves the service to become a pensioner.