Reasons for reducing staff in 2021

When is a reduction legal and when is it not?

Dismissal of an employee under clause 2, part 1, art. 81 of the Labor Code of the Russian Federation (reduction of staff) is legal only if a reduction in staff or number (or both) of workers actually took place.

Let us explain the concepts of “downsizing” and “staff reduction”.

The number of employees refers to the payroll. As a result of the reduction, the total number of employees working in one position is reduced, although all existing positions remain in place.

For example, out of 5 people working as accountants, 2 are laid off.

Staffing refers to the totality of positions available in an organization. The result of its reduction will be the abolition of entire structural divisions with all positions, or certain positions within one or more divisions.

For example, the position of assistant manager was eliminated, so all employees holding such a position are subject to dismissal. At the same time, the number of employees may not change, since the employer can create new positions and divisions.

Not any change in the organizational structure of an enterprise is grounds for dismissal of employees due to reduction, since it may not lead to a reduction in numbers or staff (for example, renaming and moving positions from one division to another). The fact of reduction must be confirmed by making appropriate changes to the staffing table, i.e. it must be clear that staffing units for certain positions or specific positions have been excluded.

Labor legislation does not define the goals and grounds for reducing staff or the number of employees, and also does not oblige the employer to justify its decision to reduce the number of employees.

Indeed, the employer has the right to decide for himself how to arrange personnel at the enterprise in order to achieve the desired economic effect. The main thing during layoffs is compliance with the guarantees provided for by the Labor Code of the Russian Federation in relation to dismissed employees.

There can be many reasons that prompted an employer to make a reduction. Let's list some:

economic - reduction in the volume of production of goods, performance of work or provision of services, suspension of activities, increase in taxes;
structural - changes in the management system, organizational structure (for example, due to the identification of ineffective units), reorganization;
technological - production automation, replacement of equipment with more advanced ones, introduction of innovative technologies.

The above does not mean that the order for reduction does not need to indicate the justification for the relevant measures. On the contrary, it must be indicated. At the same time, the employee’s mere disagreement with the justification for the reduction (without additional arguments) is not enough to declare the dismissal illegal. But if facts are revealed indicating that the reduction is fictitious, the court will reinstate the employee at work.

If there are no vacancies during layoffs, what to do?

In my case, the salary was whiter than snow, and the department was actually cut. If this is not the case for you, then you will have to act differently.

Retrenchment is the process by which an employee is fired and their position is eliminated. If, during a regular dismissal, another specialist is hired to replace an employee, then during a layoff, this will not work. When I left, I returned everything to the same place where I took it.

In some companies, employees fill out a bypass sheet through 1C or their own program.

In our company, employees tour departments in person.

What should we do if we do not have a position that can be offered in the event of a reduction?

The following positions will be excluded from the staffing table as of May 7, 2014: 2. Head of the HR Department E.E.

Gromova, in the manner prescribed by current labor legislation: – notify employees of the upcoming dismissal due to staff reduction; – bring to the attention of the trade union and employment service authorities information about the upcoming release of employees; – prepare a list of vacant positions for offers to laid-off employees.

The basis for issuing the order is the decision of a joint meeting of the board of directors and the trade union committee of Alpha (minutes dated February 25, 2013).

Reducing staff: typical mistakes of employers

The date of notification is the date the employee receives the valuable letter.

How to behave if there is a layoff at work

You come to the office, and the boss says: “There’s a layoff at work.” If they are going to fire you too, we advise you not to get upset or fall into a stupor. Lawyer Maria Molodtsova will tell you what exactly to do.

Let us separately highlight the categories of workers who cannot be laid off for any reason, ever.

Wrong. They offer nothing and do not justify it in any way. Or they offer options that are obviously not suitable for you (for example, due to health reasons). 2. You may have a preferential right to retain your job if you are laid off (Art.

179 TK). Wrong. You have an advantage, but for some reason your bosses don’t take it into account. 3. You are entitled to a strictly defined severance pay (Art.

178 TK). Wrong. “What payments? We have layoffs, there is no money in the company!” Or “You write “on your own”, and we will pay you... something... someday. Later. You trust us, right?”

Reduction at work: employee rights

2 of part 1 of Article 81 of the Labor Code of the Russian Federation, the manager must pay him in full and pay: - Wages for the entire period of work.

— Compensation for vacation if it was not used. If the employee has already been on vacation, but the period has not been fully worked out, then in the event of a reduction, deductions from his salary are not made for this.

Full payment to the employee must be made on the last day of his work, otherwise this will be a violation of Article 140 of the Labor Code.

No vacancies were offered due to staff reductions

Thus, another area is an area outside the administrative-territorial boundaries of the corresponding settlement (post.

Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2). It does not matter whether we are talking about vacancies in another branch or structural units, since the only criterion is the need to offer all vacancies in a given area.

When and how to offer vacant positions? Is the position occupied by a part-time worker vacant?

Part-time work is the performance by an employee of other regular paid work under the terms of an employment contract in his free time from his main job (Article 282 of the Labor Code of the Russian Federation). Yuri Ivanov. senior associate in the labor law practice of the law firm Goltsblat BLP Temporarily available positions as vacancies Please note that this position will be temporary and not permanent.

Retrenchment at work: common mistakes of employers and employees

What to do if you are downsizing at work if both factors are equivalent to each other? After carefully studying the necessary documentation, the employer gives preference to employees: Basic rights of employees:

after notification of a layoff, the employer is obliged to offer any other position, including a vacant one; the organization is obliged to notify persons included in the list of reduced staff at least 2 months in writing against signature; after the consent (written) of the two parties after the expiration of the two-month period established by law, the employment contract is terminated; when an employer decides to fire an employee, including a pensioner, during a regular vacation or sick leave, then his actions are considered illegal; it is also impossible to dismiss an employee if the new staffing table contains the position that he occupied; on the day of dismissal, the employer is obliged to pay all amounts.

If there are no vacant positions due to staff reductions

If I agree to be transferred to a lower-paid position, can I indicate somewhere the transfer date at the end of the two-month period in order to save as much money as possible?

Can they refuse me this? Separate notice - why?

But in the notification about the position you can write about the absence of vacancies.

The fact of the matter is that this is not indicated in the notice of layoff. Well, then do it separately and hand it over for signature in the presence of third parties - to be on the safe side if you have to draw up a notice of refusal.

(if there is no redundancy commission appointed by order) The duration of the notice period is in calendar days, nothing is “transferred”.

But pay attention to Part 6 of Article 81 It is not allowed to dismiss an employee at the initiative of the employer (except in the case of liquidation of an organization or termination of activities by an individual entrepreneur) during the period of his temporary disability and while on vacation.

Thus, another area is an area outside the administrative-territorial boundaries of the corresponding settlement (post.

Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2). On the merits of the question asked, we report the following.

2 hours 1 tbsp. 81 of the Labor Code of the Russian Federation, an employment contract may be terminated by the employer in the case of the number or staff of the organization’s employees.

An employment contract may be terminated by the employer due to a reduction in the number or staff of employees of an organization or individual entrepreneur (clause

2 hours 1 tbsp. 81 Labor Code of the Russian Federation). Employees are warned about the upcoming dismissal on these grounds by the employer personally and against signature at least two months before dismissal (Part 2 of Art.

The procedure for reducing the number or staff of employees consists of several stages.

To exclude from May 2, 2012 from the staffing table of Aktiv LLC the following position: 2. Head of the HR Department Kalashnikova A.L.

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. This must be done not once along with the notice of dismissal, but several times.

Please note that it is necessary to offer not only a vacant position or a job that matches the employee’s qualifications, but also a vacant lower-level position or lower-paid job.

Source: https://credit-helper.ru/esli-net-vakansij-pri-sokraschenii-chto-delat-25741/

Signs of a fictitious reduction: judicial practice

Often, employers use layoffs to get rid of unwanted employees, or simply do not follow the layoff procedure established by the Labor Code of the Russian Federation.

Let's consider several situations that may arise as a result of neglecting the rules of reduction or attempts by the employer to circumvent the law:

The position was reduced, but at the same time a new position with similar responsibilities was introduced. Under such conditions, there is a very high probability that the dismissal will be declared illegal due to the absence of an actual reduction in staff (ruling of the Supreme Court of the Republic of Chuvashia dated 04/18/2016 in case No. 3-1840/2016, appeal ruling of the Kurgan Regional Court dated 08/14/2014 in case No. 33-2429/2014 ).
The position has been reduced, while a new position has been added, which in addition to similar responsibilities provides additional ones. According to some courts (usually the appellate and subsequent courts), if the need for a certain job remains and the need to expand the responsibilities of the position, there are grounds for changing the terms of the employment contract, but not for layoffs. Therefore, dismissal in such cases is often considered illegal (appeal ruling of the Kurgan Regional Court dated August 14, 2014 in case No. 33-2429/2014).
At the time of dismissal of the employee, his position is still not excluded from the staffing table. In this situation, reinstatement of the employee at work by the court is the most likely outcome of the labor dispute. Therefore, it is important to make timely changes to the staffing table (appeal ruling of the Moscow Regional Court dated February 26, 2014 in case No. 33-2832/14).

Contents of the order to lay off workers

The employer's decision to make redundancies must be documented. In organizations, issues of reduction may be referred by the charter to the competence of a sole or collegial management body. In the first case, an order is drawn up, in the second - a protocol. Individual entrepreneurs formalize the layoff of employees by order.

The reduction order must include:

an indication of the reason for the reduction in the preamble;
the specific number of positions to be eliminated within certain positions and/or positions to be eliminated;
specific instructions - on the preparation of a new staffing table, on the creation of a commission to determine the benefits of remaining at work, on notification of layoffs of employees, the trade union, the labor inspectorate, on offering vacancies to laid-off employees.

Thus, the specific grounds specified by the employer in the order for layoffs are not significant in the context of the legality of the dismissal. When carrying out appropriate activities, the employer should pay more attention to confirming the reality of the reduction.

There are no vacant positions during staff reductions

In this case, the following points may be observed: • the employee’s consent to take the position provided presupposes compliance with the transfer procedure; • the employee's refusal of the proposed position must be in writing.

Compliance with this condition will allow the employer to have evidence that the employee was offered a vacant position, but he refused it; • the impossibility of providing an employee with a corresponding vacant position must be supported by the drawing up of an act that would document this fact; • when an employee is offered vacant positions, but he does not agree to read this offer in writing, then in this case an act is also drawn up.

Top 6 mistakes during staff reduction that may lead to the employee’s reinstatement

It is prohibited to dismiss some employees at the initiative of the employer, even when staffing is reduced. These workers will be reinstated by the court without fail (Art.

261 of the Labor Code of the Russian Federation): a) he is the sole breadwinner of a child under 3 years of age or a disabled child under 18 years of age; b) a family of three or more children under 14 years of age; c) the other parent is not in an employment relationship. 3.

Upon dismissal, the preferential right to remain at work is not taken into account. In addition, it is not necessary to evaluate the preferential right if all identical positions in a given department are subject to reduction (see, for example, the Appeal ruling of the Moscow City Court dated November 20, 2015 N 33-43335/2015)

Cancellation of a part-time working day (shift) and (or) part-time working week earlier than the period for which they were established is carried out by the employer, taking into account the opinion of the elected body of the primary trade union organization.

Changes to the terms of the employment contract determined by the parties, introduced in accordance with this article, should not worsen the position of the employee in comparison with the established collective agreement or agreements.

In case of staff reduction, severance pay is due, according to Art.

Staff reduction: is it always necessary to offer vacant positions?

An employment contract can be terminated by the employer due to a reduction in the number or staff of employees of an organization or individual entrepreneur (clause 2, part 1, article 81 of the Labor Code of the Russian Federation).

Employees are notified of impending dismissal on these grounds by the employer personally and against signature at least two months before dismissal (Part.

2 tbsp. 180 Labor Code of the Russian Federation).

So, in particular, according to Part 1 of Art. 180 of the Labor Code of the Russian Federation, when carrying out measures to reduce the number or staff of an organization’s employees, the employer is obliged to offer the employee another available job (vacant position) in accordance with Part.

3 tbsp. 81 Labor Code of the Russian Federation.

A law was adopted to limit the amount of payments in connection with the termination of employment contracts for certain categories of workers - GARANT.RU, March 24, 2014.

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Dismissal due to staff reduction

The employer must offer vacancies as they become available until the day of dismissal. Having received notice of layoffs, the employee signs on it and either agrees to take one of the proposed positions or refuses them. In the first case, a transfer will follow, in the second - dismissal under clause 2, part 1, art.

81 Labor Code of the Russian Federation.

The period during which the employee must agree to the proposed vacancy or refuse it is not established by law. The trade union is notified, among other things, of the layoff of employees who are not members of it. Also, two months in advance (if there is a threat of mass layoffs - three in advance), the employment service authorities must be notified .

Who cannot be fired due to staff reduction: Labor Code of the Russian Federation

The workplace and position in this case are retained by the woman.

Is it possible to fire a pregnant woman on the basis of a reduction?

Such dismissal is considered illegal. As Article 261 of the Labor Code of the Russian Federation states, dismissal is permissible only upon liquidation of the organization. The only exception is when the reduction takes place as part of the liquidation of the enterprise.

Job offer in case of layoff: form and review procedure

The legislation does not provide a specific form for such a proposal, therefore it is drawn up in any form in accordance with the requirements of the law. Moreover, the form of the proposal - oral or written - is not indicated.

You can familiarize the employee with vacancies orally in front of witnesses.

Written form is preferred.

Vacant positions The proposed positions must meet certain criteria: dismissal due to reduction - if there are no vacant positions style=" float:="" left;="" margin:="" 0="" 10px="" 5px="" 0;" ="" src="">

Source: https://myeconomist.ru/pri-sokraschenii-shtata-net-vakantnyh-dolzhnostej-19287/

Main mistakes when downsizing

family families that support two or more disabled family members who are fully supported by them (for example, an employee has two minor children);

employees in whose family there are no other people with independent income;
employees who received a work injury or occupational disease in this organization;
disabled people of the Great Patriotic War and disabled people fighting in defense of the Fatherland;
employees who improve their qualifications at the direction of the employer without interruption from work;
employees injured as a result of the Chernobyl accident;
employees exposed to radiation as a result of nuclear tests at the Semipalatinsk test site;
employees discharged from military service, provided that they first got a job.

Attention

Providing the employee with a list of available vacant positions that correspond to his level of qualifications and the position he previously occupied must be carried out on the day when he receives notice of the layoff. In the event of new vacancies, the employee must be informed about this until the moment of his dismissal.

On the day of dismissal, the employee is provided with a list of new vacant positions for signature, if they have appeared by this time. It is necessary to control that the vacancies included in this list are in the staffing table, where the salary or rate must be established, and that it must also contain a job description.

Any dismissal that is caused by a reduction in staff is allowed only when it is not possible to transfer the employee to another job with his consent (Article 81 of the Labor Code).

Vacant positions due to staff reductions

394 Labor Code of the Russian Federation). The reduction procedure is carried out in the following order. Necessary:

issue an order to reduce the number or staff and prepare a new staffing table;
determine whether any employee has a preferential right to remain at work;
create a list of employees (positions) to be laid off;
notify employees of the upcoming dismissal (part 2 of article 180, part 2 of article 292, part 2 of article 296 of the Labor Code of the Russian Federation);
offer those being laid off other vacant positions (Part 3 of Article 81, Part 1 of Art.

My own lawyer

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.

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 or vacation (Part.

6 tbsp. 81 of the Labor Code of the Russian Federation) 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.