Consent to early dismissal in case of layoff: sample 2021

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Published: 05/17/2016

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Reducing the number of workers largely depends on the employer's decision. Labor legislation gives him the right to take initiative in this case. One of the manifestations of this initiative is that an employee who is being laid off will not be able to leave work early without the consent of the immediate manager of the organization or enterprise.

And the employee’s reasons may be quite valid. For example, he has found a new job and wants to immediately begin fulfilling his duties. To obtain management’s consent to early termination of an employment contract, the employee must write and submit an application.

However, the presence of such a document does not guarantee that the employee will get what he wants . The legislation gives the right to early care in accordance with Federal Law No. 197, however, it does not impose such an obligation on employers. That is, the decision in this case will depend on the goodwill of management.

How to write a statement?
Early dismissal procedure
What payments are due?
Controversial issues

Regulatory basis for early termination of a contract during layoffs

Termination of employment relations with the employer due to a decrease in the number of people employed in the company is carried out on the basis of the provisions of clause 2 of Art. 81 Labor Code of the Russian Federation. When deciding to reduce the company's staff, the personnel to be dismissed are warned 2 months before the date of termination of the contract. At the same time, for seasonal personnel this period is reduced to 7 days, and for a fixed-term contract - 3 days.

Attention

At the same time, Art. 180 of the Labor Code of the Russian Federation is allowed by decision of the employer, but with the consent of the employee, termination of employment relations before the expiration of the specified period.

For a long time, disagreements arose among experts due to the wording of this paragraph of the article.

Clarity was brought to this issue after the appearance of the Constitutional Court of the Russian Federation of September 29, 2015 No. 1881-O, which stated that early termination of a contract at the initiative of the worker is not prohibited and is quite possible in the absence of objections from the employer

When is this acceptable?

According to Art. 180 of the Labor Code of the Russian Federation, a break in working relationships can occur ahead of schedule if the number of staff is reduced . The regulatory provisions of this article allow the employer:

terminate the employment agreement before the expiration of the 2nd period from the date of notification;
implement the process only with the consent of the individual in writing.

According to Article 180 of the Labor Code, every employee who is laid off must receive notice of the reduction in staff in writing. After this, he begins to look for a new place of work, while continuing to perform his duties at the workplace.

The following reasons may affect the termination of the employment agreement and staff reduction:

a new place of work and a desire to immediately begin fulfilling their duties;
retirement.

Prerequisites for terminating the contract before the end of the notice period

The initiator of early dismissal during layoffs can be either the person being laid off or the employer who previously provided him with work. The desire of an individual to terminate the contract before the end of the allotted period of notice of dismissal, as a rule, is explained by the fact that he has already found a new job and the potential employer is not ready to wait so long for him.

In this case, he notifies the company of his intention and, in the absence of objections from the current employer, he is fired due to staff reduction.

Information

If an agreement fails, he always has the opportunity to write a statement of his own free will, without receiving the amounts due to him according to the law.

For an employer, there are many more reasons for offering a redundant person to vacate his or her job early:

Hostile relationships and excessive conflict of the dismissed person;
There is a need to quickly release the occupied space being reduced for other production purposes;
The need for accelerated staff reduction in connection with the upcoming merger, reorganization, etc.

If the initiative comes from the employee, then he can express it both in written and oral form. The subsequent termination of the contract in connection with the reduction and the issuance of the corresponding order will, in fact, be an expression of consent by the action on the part of the employer.

In this case, no additional written agreements are required. If early dismissal is the employer’s idea, he needs to notify the worker in writing against signature, and only after that can he issue a dismissal order due to the reduction.

Payment calculation examples

The current legislation clearly defines the procedure for calculating payments that must be made in favor of an employee who has been laid off. Employers should use the following formulas.

Due to early termination of the employment contract

This type of payment is calculated using the following formula:

Additional compensation = Average daily salary × Number of days remaining before the expiration of the two-month period.

For clarity, we can analyze the calculation of such compensation using a specific example:

Ivanov I.L. is an employee of the sales department who was laid off. The employer notified him of his imminent dismissal on January 15, 2020, informing him that he would be laid off on March 16, 2021. The employee wished to leave early (February 10, 2020), for which he prepared a corresponding application. His average daily earnings is 2,000 rubles. Open 5 days a week.

Calculation procedure: 2,000 × 23 (number of working days remaining until the date of official layoff) = 46,000 rubles (additional compensation in connection with leaving the organization ahead of schedule).

How to calculate severance pay?

This amount is calculated in accordance with the procedure prescribed in clause 9 of Decree of the Government of the Russian Federation dated December 24, 2007 No. 922. When determining the amount of severance pay for the billing period, the 12 months preceding the month of dismissal are taken into account. This type of payment is calculated using the following formula:

Severance pay = Amount of salary received by the employee during the reporting period / Number of working days in the reporting period × Number of working days in the month of dismissal.

For clarity, you can look at the procedure for calculating severance pay using a specific example:

The employee was dismissed due to staff reduction on February 1, 2021. The amount of wages he received for the billing period (02/01/2019–01/31/2020) is equal to 350,000 rubles. In this case, 200 days were worked. There were 20 working days in the month of dismissal (with a five-day work schedule).

Severance pay: 350,000 / 200 × 20 = 35,000 rubles.

When calculating severance pay, days on vacation, sick leave, etc. are not taken into account . They should be deducted from the total billing period.

Compensation for unused vacation

Paid in the event that the employee did not have time to fully use his annual paid leave. The payment is determined by the formula:

Vacation compensation = Average daily salary × Number of days of unused vacation.

For example:

Employee Petrov I.V. was laid off. At the same time, he has 10 days of unused vacation. The average daily salary is 1,700 rubles.

Vacation compensation: 1,700 × 10 = 17,000 rubles.

Key points related to early redundancy

Initially, both parties to the employment contract are notified of the upcoming headcount optimization. The severance of an employment relationship before the deadline for working out is preceded by several mandatory stages:

The company issued an order about the upcoming reduction, and employees were given notice that they would be fired in 2 months.
Those being dismissed sign the appropriate written notices and submit them back to the personnel department.
Attention
If any of the personnel refuses familiarization, a certificate of refusal to familiarize is drawn up, which also remains in the personnel service.

The sequence of actions for early dismissal should then be as follows:

Informing one party of an employment contract to the other party of its intention. The law does not establish a clear form for such notification. For this, a statement written by the employee or a written notice drawn up by the employer and handed to him against signature can be used.
Reaching an agreement on a future early separation.
Attention
In the event of an initiative on the part of the employer, it is advisable to formalize in writing the consent received from the hired personnel to terminate the contract before the end of the two-month period. It can additionally describe the conditions under which the reduction will be made, in particular all the payments due to the staff.
Drawing up a dismissal order due to layoff before the end of the notice period. Such a document can be generated either in any form or using the standard T-8 form, approved by Decree of the State Statistics Committee of the Russian Federation No. 1 of 01/05/2004. The person being reduced must be familiarized with the specified document against signature. At the same time, a certificate is drawn up - a calculation of the due accruals in connection with the dismissal. The necessary entries are made in the employee’s work book.
Payment of all due components of wages, including payment for time worked, as well as those established by legal acts in the event of a reduction in guarantees and compensation. All specified amounts must be issued to the employee strictly on his last working day.
Issuance of all documents required by the employee upon dismissal. A work book and a certificate of earnings in form 182 N are required. Moreover, based on a written application from the employee, he may be issued other documents related to employment with a former employer.

Important

After this, the dismissal procedure can be considered completed.

How is the calculation done?

In case of early dismissal due to staff reduction, the final payment is made in accordance with the generally established procedure prescribed in Art. 140 Labor Code of the Russian Federation . As per the rule mentioned above, all amounts due to the departing employee must be paid on the day of dismissal.

However, if for some reason the employee was not present, the employer is obliged to make the necessary payments the next day after the dismissed person submits the corresponding request.

Thus, the company’s management can dismiss an employee who has been laid off before the deadline prescribed by law. However, to exercise such a right, the employee’s written consent is required. In addition, he must be paid additional compensation.

What to write in the work book when terminating an employment contract early

Based on the logic of the content of the procedure itself, it is necessary to enter into the work book as a reason for termination of labor relations a reduction in the number/staff of the organization (clause 2, part 1, article 81 of the Labor Code of the Russian Federation). Approximate content could be as follows:

“Dismissed due to a reduction in staffing levels on the basis of clause 2, part 1 of Art. 81 Labor Code of the Russian Federation."

Next to it is the number and date of the dismissal order, as well as the date the entry was made, the signature and transcript of the signature of the inspector who made the entry in the book. If the company has a seal, it is additionally expected to be affixed. After the specified entry is made, the person who quits must receive the book in hand.

Stages of the procedure

The sequence of actions for early dismissal from a position is almost identical to the standard termination of employment contracts. Step-by-step algorithm:

Employee statement.
Leader's order.
Recording in labor.

Having considered the subordinate’s request for early dismissal due to reduction before the expiration of the notice period, the manager satisfies it or refuses it, setting special conditions. A resolution is placed on the application. A positive response means the issuance of a new order, on the basis of which the accounting department will calculate the due payments. All funds are given to the former employee on the day of dismissal, which he himself indicated in the application.

Early departure in the context of a change in the number of staff requires the employee to competently draw up an application. A sample petition for termination of employment can be easily found on the Internet, but it is important not to blindly follow the template, but to note three main points. Firstly, it is necessary to agree with the fact of dismissal due to reduction, secondly, indicate early departure in connection with this and, thirdly, declare a demand for all payments.

The employer has no legal reason to refuse a person resigning early due to layoffs, but may impose certain conditions. For example, ask for the completion of current tasks and the transfer of documentation to the responsible person of the employer. This must be a voluntary agreement between the manager and the employee. The law allows no more than two weeks for the implementation of such conditions.

The end of an employee’s obligations is recorded by an entry in the labor record. A book with the appropriate marking is issued to the former employee on the day of dismissal. Example of an entry: relieved of duty due to staff reduction.

List of payments due upon early dismissal

Personnel who resign due to staff optimization, but before the end of the work period after being informed of the termination of the employment contract, are entitled to the same payments as in the case of termination of employment strictly after the end of a two-month period. The composition of the amounts that must be paid to the employee is as follows:

Payment for actual work performed on days worked in the month of termination of the employment contract.
The employee is paid compensation in the amount of the average salary for the time period remaining until the end of the working period after notification of dismissal (clause 3 of Article 180 of the Labor Code of the Russian Federation).
Severance pay in the amount of average monthly salary (paid within 2 months).
If an employee registered at the employment center within 2 weeks after termination of the contract and was unable to conclude an agreement with the new employer, he is entitled to be paid the average salary for the third month after dismissal (Article 178 of the Labor Code of the Russian Federation).

Dismissal due to staff reduction: legal norms

The legislative norms of the Labor Code regulate the procedure for staff reduction. An additional list of requirements is possible only under the following conditions:

they do not contradict the law;
fixed in writing (agreement, internal company regulations - instructions).

The employer's right to lay off is enshrined in Art. 81 (Labor Code of the Russian Federation). The dismissal procedure is contained in Art. 179 (Labor Code of the Russian Federation). Compensation and severance benefits are set out in Art. 178 (Labor Code of the Russian Federation).

According to the law, not everyone can be laid off. The staff of any company is not homogeneous. As a rule, management is faced with a choice of whom to keep jobs.

The legislator determines the advantage of maintaining employment for the following persons:

with the greatest qualifications or productivity;
family with at least two dependents;
sole breadwinners for the family;
with the presence of illness or injury received at work in this company;
disabled war veterans;
Implementing professional development without taking time away from work.

An unconditional ban on reductions (as stated in Article 261 (Labor Code of the Russian Federation)) is provided for the following categories:

women expecting the birth of a child;
employees raising children under three years of age;
a single parent with a son or daughter under 14 years of age, or with a disabled person under 18 years of age;
the sole breadwinner for a family with a child with disabilities or a minor under three years old, as well as if there are three children.

It is necessary to dismiss pensioners on a general basis. Under such circumstances, it is possible to lay off citizens who are under eighteen years of age with the permission of the Labor Inspectorate for Minors. Employees on vacation or temporarily disabled are not included in the number of employees being laid off.

Liquidation of the company removes all of the above prohibitions on dismissal.

In some cases, the law may provide for special conditions for the reduction of certain categories of persons. For example, the Presidential Decree of 2021 regulates the reduction in the number of government officials. The civil servant also receives severance pay in case of layoff.

Possible violations by the employer upon early termination of the contract

One of the most common tricks on the part of the employer during dismissal is pressure on the employee to formalize the early termination of the employment relationship at his own request or by agreement of the parties.

In this case, the company will be able to save on additional payments, because no compensation is provided for the employee for such reasons for parting with the employer.

Attention

The employee should clearly write in his resignation letter the conditions under which he agrees to terminate the contract and what payments he is entitled to. Thus, he will protect himself from abuse by the employer.

In addition, the organization should understand that any pressure on an employee to make a decision beneficial to the company is illegal and can lead to negative consequences. In particular, forcing the employee to terminate the contract at his own request, through psychological influence on the employee, will most likely lead to litigation.

Appealing in court against unlawful actions of an employer

The legislator obliges employers to notify about impending layoffs 2 months in advance. The remaining period until the designated day of dismissal, the person works in a standard mode. Unfortunately, even today there are stories where employees leave early “on their own initiative” before the official layoff date under pressure from their employers.

It is important to know! The right to submit a complaint to the court is retained for 3 months from the day the final payment was made (Article 392 of the Labor Code). It is very important not to miss the specified deadline.

Obtaining the payments due in court depends on the ability to prove the presence of coercion on the part of management. And this is very difficult. When considering such claims, the court will carefully study all the details:

the reasons that prompted you to apply for dismissal;
the circumstances under which it was compiled;
the employee's true intentions;
the text of the resignation letter, including the presence of details (signature, date, employer’s resolution).

If a former employee can prove coercion to submit an application for resignation, then the latter will be declared illegal. In this case, the employer is obliged to change the official reason for dismissal and make a calculation taking into account all compensation due, including moral damages and legal costs of the former employee. At its discretion and at the request of the employee, the court may reinstate him in his previous position and oblige the employer to pay for the forced absence.

Registration of a pension in case of layoff

Registration of a pension early in the event of a reduction is regulated by Article 32 of the Federal Law No. 1032-1. The law indicates that it is possible to receive a pension earlier if certain requirements are met.

The main condition for early retirement by age is the remaining period, no more than 2 years. The initiative must be put forward by the employment service; it issues a certificate stating that it is impossible to provide a new job to a pre-retirement person.

The following requirements must be met:

the employee was laid off;
required insurance experience: for women/men is 20/25 years;
Availability of insurance points necessary for retirement.

To receive an early pension, you must register with the employment center within 14 days after stopping work.

The procedure for terminating the contract does not differ from the standard one; an employee of pre-retirement age can count on the payments due, even in case of early dismissal in agreement with management.

Dismissal procedure

The actions of the company's management represent a certain sequence of steps:

The decision to reduce the number or staff , the formation of a new staffing table. It is necessary to issue appropriate orders, because not only people are involved in the process, but also staff units.
The employment authorities are notified of their intention by a legal entity or individual entrepreneur in writing by filling out an approved form. The deadline for submission by an organization is two months, by an entrepreneur - two weeks. If the dismissal concerns a large number of people, then notice should be given 3 months in advance. This will allow the employment center to take measures to ensure that people start their new jobs as quickly as possible.
Determining the circle of persons not subject to dismissal. The law protects the rights of certain categories of workers who cannot be dismissed in this way. Thus, pregnant employees or those raising young children, and so on, quietly continue their work activities. Individual personnel can keep their jobs due to their professional uniqueness (Article 179 of the Labor Code).
Bringing the employer's initiative to the attention of employees. Each company employee who has been laid off is notified of the upcoming event in writing. The refusal to sign is recorded in an act.
Offering dismissed persons an alternative position. Before hiring an employee, the employer is obliged to do everything possible to ensure that he has the opportunity to work. Options for positions for transfer are documented so that during a possible legal dispute his personal refusal can be proven.
Obtaining consent to carry out dismissal at an earlier period of time. When the proposal comes from the manager, the employee’s affirmative answer can be recorded in the form of a mark on the layoff notice, made in his own hand, or by writing a corresponding statement. It indicates the agreed date of departure and the basis on which the calculation will be made. This document becomes the key to the success of the actions taken. It is also possible to sign an agreement on early termination of an employment contract due to staff reduction.
Issuance of an order. There are two scenarios for the development of events: when the person being laid off is ready to transfer to a vacant position and is not ready for this step. In the first case, a transfer order is issued, in the second case, a dismissal order is issued. They must indicate the reasons for the decision made and the employee’s signature. A citizen being on vacation or on sick leave makes it impossible to terminate the contract due to layoffs.
Preparation of documentation, issuance of a work book and final payment . A record of dismissal is entered into the employee’s personal card. Section XI of the card contains information about the termination of the employment contract with the employee and must be filled out similarly to the wording in the order. An entry in the work book is also made on the basis of an order, and discrepancies between the entry and the text of the order are not acceptable. Otherwise, it will be possible to cancel this order through the court. All documents and funds are issued on the last day of work.

Additional conditions for dismissal

In addition to drawing up documentation, dismissal includes a number of other points that must be completed. For example, set the date of dismissal, draw up and hand over a work book to the employee, etc.

Compensation and date of departure from position

In addition to the standard payments due to the worker by law, he may receive additional funds due to early dismissal. The list of payments that an employee is entitled to includes:

wages calculated days before the appointed date of dismissal;
compensation for vacation days that the employee did not use, or vacation days that were spent at work at the request of the employer (this must be taken into account);
in case of early dismissal at the request of the employee, he is also entitled to payment of severance pay;
average earnings calculated for 2 months.

An illiterately drawn up application can cause a loss when taking into account payments, so it is very important to pay attention to Article 77 of the Labor Code of the Russian Federation. In accordance with it, the final calculation takes place.

If an employee leaves his place of work of his own free will before being laid off, he is not due payment for unworked days before the conditional date.

The calendar date of the end of the employment relationship is reflected in the order. Based on the selected date, the amounts of compensation payments and wages for partial days worked are calculated.

The right to set the day for an employee’s early departure rests with the employer. This can be any day before the redundancy date. An employee can take the initiative and propose the day of his dismissal, but the final decision is still made by the employer.

Guarantees and compensation

Due to the fact that the employment agreement is terminated due to staff reduction on the initiative of the employer, the employee in this case is provided with a number of guarantees and compensations in order to somehow compensate the former employee for the premature loss of work and early layoff.

In general, in the situation under consideration, the law provides for the following payments for resigning citizens.

Salary for actual hours worked in the month in which he was fired.
Payment for vacation that a citizen did not have time to use, calculated on the basis of the average salary, taking into account the number of vacation days he did not use.
Severance pay (its amount is equal to average earnings).
A sum of money so that the former employee can continue to get a new job (within 2 - maximum 3 months), in the amount of the average salary of his work.

For the 3rd month, the company must pay the former employee this money only when the employee brings a certificate from the competent employment authority and his work record book, which proves that he has not yet found a job again.

These amounts (with the exception of the last one) are paid to the former employee on the day he officially leaves work.

If the employee was not at the workplace on the agreed day, then a representative of the organization must transfer this money to him on the next day, when the dismissed citizen asked him to pay.

If an employee is fired before 2 months have passed (early dismissal of the employee), then he is also entitled to all of the above monetary payments.

Attention! If an employee resigns, he should always remember that he has a legal right to demand payment of this additional amount, despite the fact that the employer may specifically want to dismiss him early without adequate compensation.

If an employee wants to file a layoff before the expiration of the notice period, then it is better to think about what will be more economically beneficial for him and there are several options:

if you still work all 60 days, then on the last day of your work the employee will receive severance pay, the same money can be received if you then do not find a job within a month;
if you finish work immediately after the administration of the enterprise announced an impending layoff, then the employee will receive only a salary, without taking into account all payments due during a regular dismissal (or in case of early dismissal initiated by management).

Calculation of severance pay

These payments to a resigning citizen are calculated based on the average amount that was accrued to him daily while working.

The calculation period for calculating such an amount is the last 12 months. If an employee was fired on 08/2015, then the average daily earnings are calculated based on all the actual amounts listed for the entire period from 08/01/2014 to 06/31/2015.

However, there are exceptions: when an employee has worked for an enterprise for no more than twelve months, then the period from the first to the last working day in the month that precedes the employee’s departure is taken as the time period for calculation.

Or if a citizen is officially hired and fired after a certain time, but in the same month, then the calculation period will include all the days he worked. There are other cases of exceptions to the described rule.

But the following days are excluded from this period:

paid leave provided every year;
business travel days;
period of temporary incapacity for work;
maternity leave;
leave at your own expense or to care for a child;
periods of time when the enterprise stopped work due to management;
a strike at an enterprise that does not allow work as usual if the employee did not participate in this strike;
care for disabled children;
days of suspension from work in situations justified by certain laws.

The HR department or accounting department calculates the average salary and compensation per employee for his early dismissal using the following formulas.

The total amount of income accrued for the billing period that can be included here

Number of days actually worked during the billing period

Number of working days for which payment will be made

Compensation for early termination of the contract

Average employee earnings per day

The number of days between the date of actual dismissal of the employee and the date specified in the notice that there will be a reduction in staff.

Drawing up a dismissal order

According to the requirements of the established rules, the basis for termination of the contract, when the number of employees is reduced, is the order of the head of the company. It is after its signing that there is a reason to fire the person being laid off.

The current regulations establish a special form for such a document. This simplifies the process of placing an order.

The text must indicate:

Company name;
its universal code;
the reason why workers will be laid off;
who made such a decision, this applies in a situation where the initiative came from a higher authority;
date of actual reduction;
information about the name of the person being dismissed and his number on the work report card;
the name of the position he holds and the structural unit in which he works;
types of monetary payments that must be made in favor of the dismissed person, the amount of compensation in the event of leaving before the expiration of the notice period is also indicated here;
the need to issue a work book, as well as other documents at the request of the dismissed person;
manager's signature.

Once approved, the worker must read and sign the document. Refusal to familiarize yourself is formalized by drawing up a special act. If the employee is absent on the day of approval, a copy must be sent to him by postal mail with notification of receipt.

It should be noted that the order can be issued in any form. For it to be valid, the specified conditions must be reflected in the text.

Is it possible to quit before the deadline?

Those workers who are on the redundancy list have the opportunity not to remain in their place until the expiration of the notice period for termination of the contract. Article 180 of the Labor Code allows an employee to receive early payment, while receiving average earnings for the remaining days (Article 139 of the Labor Code) and severance pay (our material tells us what payments are included in the calculation for layoffs).

At the initiative of the employee

Interestingly, the code gives the employee an unconditional right to early payment only if such an offer has already been received from his employer. Then you can simply write a corresponding application addressed to the director, and the employer is obliged to carry out all the activities prescribed by Art. 180 TK.

In this situation, it is enough for a person to competently draw up a statement, not forgetting to mention his intention to leave early, and not of his own free will.

At the initiative of the employer

For an employer, organizing the early dismissal of a specialist is much more difficult, and it cannot be done without the employee’s consent. Management can give the employee a written proposal to terminate the employment contract and list the terms of separation, and then wait for his response. If the employee intends to work until the last day, then the employer has no right to insist, Art. 180 TK.

However, the announcement of an upcoming reduction does not relieve the team from the obligation to efficiently perform their labor functions and comply with internal regulations. For gross violations of labor discipline, an employee may be dismissed in accordance with Art. 193 of the Labor Code, and the fact of warning about the reduction will not have justifying significance. It is clear that there can be no talk of any severance pay or compensation payments (except vacation).

The employer must inform the employee about the right to early payment in a written notice of layoff or document this in a separate document, but it must list the payments due.