Who should not be laid off when downsizing in 2021

Can't cut it, leave it

According to Article 261 of the Labor Code of the Russian Federation, it is impossible to dismiss due to staff reduction:

Articles on the topic (click to view)

• What to do and where to go if you are not paid upon dismissal
• What to do if you are laid off at work
• What to do if the employer does not want to fire at his own request
• What to do if the date of the dismissal order is later than the date of dismissal
• What to do if the employer does not give the work book after dismissal
• What to do if you didn’t work officially, you were fired, you didn’t get paid
• What is the employer obliged to give the employee on the day of dismissal?

• a pregnant woman;
• a woman with a child under 3 years old;
• a single mother who is raising a disabled child under the age of 18;
• a single mother raising a child under 14 years of age;
• another person raising the above children without a mother;
• parent or guardian if he is the sole breadwinner of a disabled child under 18 years of age or a large family with a child under 3 years of age.

In addition, according to Article 82 of the Labor Code of the Russian Federation, employees who are members of a trade union can be dismissed only with the consent of the primary trade union organization. Reductions are not permitted during an employee’s illness or vacation.

Important:

The law does not contain a ban on layoffs of working pensioners and persons of pre-retirement age. Workers in this category may be dismissed due to layoffs on a general basis. The employer is obliged to follow the standard procedure: warn the employee in writing about the upcoming layoff at least two months in advance and offer him another vacancy.

In what cases, according to the law, can this be possible?

The labor legislation of the Russian Federation introduced a ban on the reduction of the categories of people described above and gave other categories advantages when reducing the number of workers, however, there are amendments that still make it possible to reduce persons from this list.

These reservations can be found in Article 261, according to which even protected categories of citizens are subject to dismissal if their behavior in the workplace does not comply with the legislation of the Russian Federation and goes against labor discipline.

Reference. Also, dismissal due to reduction is completely legal if the organization completely liquidates its activities.

Read our material about how reductions occur during the liquidation or reorganization of an enterprise.

Who has the priority right to retain a job?

The Labor Code requires that when laying off employees, the employer must retain employees with higher qualifications and labor productivity (Article 179 of the Labor Code of the Russian Federation). But the preemptive right applies only when the number of staff is reduced - that is, if the number of employees occupying the same positions decreases. For example, an employer decided to retain only two out of five sales managers. By law, he must leave those who do the job better.

If employees are equal in terms of qualifications and productivity, the following persons have a preferential right to retain their position:

• persons who support two or more disabled family members;
• persons in whose family there are no other independent workers;
• employees who received a work injury or occupational disease while working for this employer;
• disabled veterans of the Second World War and disabled combatants in defense of the Fatherland;
• employees who improve their skills at the direction of the employer without interruption from work;
• persons who have a preferential right to remain at work under a collective agreement (Part 3 of Article 179 of the Labor Code of the Russian Federation);
• persons who received radiation sickness or other diseases in connection with the Chernobyl disaster.

In practice, the pre-emptive right is not always respected. However, an employee can use this legal requirement to protect his rights in court.

Who has the advantage

In addition to the list of those who cannot be fired due to staff reduction, the Labor Code also has such a concept as “preemptive right”. According to Article 179 of the Labor Code, this right gives employees of organizations the advantage of maintaining their jobs in case of staff reduction, depending on the quality of their work duties or social reasons. These workers are the last to be laid off.

Employees with a high level of qualifications and labor productivity have priority rights. Work experience and education are also taken into account. Qualification must be confirmed by documents on graduation from educational institutions, certificates of advanced training, extracts from the protocols of commissions on the assignment of a category or rank, etc. To assess the level of qualifications of employees, enterprise management can conduct certification, including unscheduled ones. However, the procedure for conducting such certifications should be reflected in the internal documents of the organization. If all employees have equal qualifications and labor productivity, the manager makes a decision on dismissal together with the trade union organization.

The following employees also have a priority right to retain their jobs:

• Supporting two or more dependents (family circumstances).
• Those who independently support their family (there is no other source of income other than the salary of this employee).
• Those who received injuries or occupational diseases from the employer carrying out the layoff while fulfilling their labor obligations.
• Disabled combatants.
• Improving qualifications without interruption from the work process in the direction of management.

The collective agreement may also establish other categories of employees who have a preferential right to retain their jobs.

Where to go if you are being laid off illegally

If you have reason to believe that your employer is laying you off unreasonably, you can challenge the dismissal in court. A claim for reinstatement at work must be filed within a month from the date of receipt of a copy of the dismissal order or work record book (Article 392 of the Labor Code of the Russian Federation).

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How to apply for a job?

Traditionally, the wording included in the dismissal order is transferred verbatim to the employee’s employment document. In the column where data on admission, transfer or dismissal is entered, enter the following entry: “Dismissed due to staff reduction/liquidation of the enterprise.” Depending on the reason for the reduction, the paragraph of the first part of Article 81 of the Labor Code of the Russian Federation is selected. Reduction of staff or numbers - point 2, complete liquidation of the organization - point 1.

Who can't be laid off in 2021

As always, we will try to answer the question “Who can’t be laid off in 2021.” You can also consult with lawyers for free online directly on the website without leaving your home.

If you have any questions, you can ask them in the comments after the article or to our lawyer on duty. Contents Job loss is the biggest problem that can be caused by a financial and economic crisis. To get out of a difficult financial situation, organizations resort to optimization of the production process. As part of optimization, staff reductions are often made.

Who cannot be fired due to staff reduction according to the Labor Code of the Russian Federation as amended in 2021?

Union notification of layoffs

• 4.2 2. Notification of the employment service
• 4 Procedure for dismissal due to layoffs in 2021 4.1 1. Notification of the trade union about layoffs
• 4.2 2. Notification of the employment service
• 4.3 3. Drawing up an order for reduction
• 4.4 4.

This is important to know: Sample letter of resignation for health reasons

Dismissal due to staff reduction in 2021: registration, what payments and compensations are due to employees

These include: single parents raising a child who is disabled and under the age of eighteen; single parents raising a child under fourteen years of age; women with children under three years of age; parent (or other legal representative) is the sole breadwinner of a disabled person

Expert opinion

Polyakov Pyotr Borisovich

Lawyer with 6 years of experience. Specialization: civil law. More than 3 years of experience in drafting contracts.

• single parents raising a child who is disabled and under eighteen years of age;
• single parents raising a child under fourteen years of age;
• women with children under three years of age;
• a parent (or other legal representative) is the sole breadwinner of a disabled person under eighteen years of age, provided that the second parent is not employed;
• parent (legal representative) is the sole breadwinner of a child under three years of age in a family raising young children (three or more), if the other parent does not work;
• pregnant women.

Who should not be fired

In Russian labor legislation there is a list of those employees who cannot be dismissed due to staff reduction. Who can't be fired?

• Women with children under 3 years of age.
• Women on maternity leave (Labor Code of the Russian Federation, Article 256).
• Single mothers with children no older than 14 years old (if the child is disabled - under 18).
• Persons raising children under 14 years of age without a mother (if a disabled child is under 18, Article 261 of the Labor Code of the Russian Federation).
• Employees of organizations who are on vacation or sick leave.
• Minors without the consent of the state labor inspectorate.

Also, according to the Labor Code of the Russian Federation (Article 256), parental leave can be granted until the child reaches 3 years of age at the request of the mother. 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.

About abbreviation

Who is not subject to reduction if the number of departments with employees of the same positions is reduced? The one who has the right of first refusal. Persons with higher labor productivity and qualifications have this right (Article 179 of the Labor Code of the Russian Federation).

You cannot fire if the employee agreed to the transfer

For seasonal workers, the notice period is much shorter. It is seven calendar days. And employees with whom an employment contract has been concluded for a period of less than two months must be notified at least three calendar days in advance.

• who support more than 2 dependents (for family reasons);
• individually supporting their family (when there are no other sources of income other than the salary of a specific employee);
• who acquired illnesses associated with their professional activities, suffered injuries and injuries at an enterprise that is reducing staff;
• recognized as combat disabled;
• who, on the initiative of managers, improve their working skills in one way or another, without ceasing to fulfill their work obligations.

Who can't be cut

Development of an enterprise and optimization of its efficiency sometimes require staffing reductions. Employers and employees need to know who cannot be laid off when reducing the staff of the Labor Code of the Russian Federation. For some, this knowledge will allow them to prevent violations of their rights, while for others they will not end up as a defendant in court.

Actions in case of wrongful dismissal

As a rule, HR departments and departments involved in hiring and firing are well aware of those employees who, in accordance with the requirements of labor legislation, are not subject to redundancy. They inform managers about this in order to avoid incidents with regulatory and judicial authorities. If, despite this, the dismissal of an employee belonging to the category of “untouchable” does take place, then his reinstatement in the workplace will be carried out through the court. A wrongfully dismissed employee who is not legally subject to redundancy must take action. First, you should file a complaint about the illegal actions of management with the labor inspectorate or the prosecutor's office. These authorities will check the legality of management’s actions for compliance with the norms of the Labor Code of the Russian Federation. The next step is filing a claim in court. After the court makes a decision declaring the reduction illegal, the employee will be immediately reinstated, since court decisions of this category are those that require immediate execution. He is also required to pay him the money he did not receive due to being forced to not attend work.

If you were laid off due to redundancy, what should you do? You can contact several authorities. To begin with, you can send a written application to the trade union organization of the enterprise. The union must respond to the complaint within a week. An incident of wrongful dismissal due to reduction may be considered by the Federal Labor Inspectorate and the Prosecutor's Office. If the trade union organization and the labor inspectorate do not reveal any violations of the procedure, a lawsuit can be filed. This can be done within a 90-day period from the moment the employee learned of a violation of his labor rights. If the dismissed employee decides to challenge the termination of the employment contract, the statement of claim must be filed within 30 days from the date of issue of the work record book or a copy of the relevant order. Wrongfully dismissed employees do not pay fees and other legal costs. If dismissal due to reduction is recognized as unlawful, the employee is reinstated at his previous workplace by the body that was authorized to consider the labor dispute. In this case, the employee is compensated for the average salary for the period of forced absence or the difference for the period of performing low-paid work, as well as moral damages.

The amount of severance pay may be disputed. In this situation, the organization pays the employee the undisputed portion of the amount. The remaining portion is paid based on an agreement between the employee and management or by court decision.

Payments to those laid off due to redundancy

If an employee is fired due to staff reduction, he must receive severance pay, the amount of which is equal to the average monthly earnings. Within two months, the employee is paid severance pay while searching for a suitable job. This payment can be made in the third month if the dismissed employee contacts the employment service within 14 days after termination of the employment contract and does not find a suitable job.

• Pay wages for days actually worked;
• Compensate for unused vacation days;
• Pay severance pay;
• Compensate wages for 2 months or until the employee gets a new job.

This is important to know: How many disciplinary actions are required for dismissal?

If an employee belongs to one of the above groups, he cannot be dismissed due to reduction. If this does happen, the employee has the right to be reinstated in his position through the court. In this case, it is also possible to recover money for the period that the employee was absent from the workplace.

Employee rights

• The sole breadwinner of the family in the absence of other sources of income;
• Workers injured at work;
• Employees with 3 or more dependent children;
• Those on maternity or child care leave;
• Single mothers;
• Women with a child under 3 years of age;
• Pregnant women;
• Workers under 18 years of age;
• Employees undergoing advanced training courses at the time of layoff;
• Disabled employees on sick leave;
• Disabled people.

Step 2. An expert commission is assembled to evaluate candidates for redundancy. The formation of such a body is recorded in the order, as is the list of its members. Usually these are personnel officers, lawyers, deputy directors, heads of departments, and trade unionists.

Step 5. A meeting (and possibly more than one) is held at which the council discusses the candidates. Each meeting is recorded. It is important to compare identical positions. For example, it is unacceptable to compare the qualifications of a chief accountant and a primary accountant. If the reconciliation reveals equal indicators, then of the two employees, the one who has preferential rights is retained. If they turn out to be the same, the director will have to make a personal subjective decision.

List of persons who cannot be dismissed due to reduction

• having more than two dependents. Please note that dependents include not only children, but also elderly parents, disabled relatives, and other relatives who live on the income of a working loved one and, for objective reasons, cannot earn their own living;
• the only earner in the family;
• who lost his health while working for this employer;
• improving their qualifications without interruption from work;
• disabled combatants.

If the company does not have a job that matches the employee's qualifications, the employer may offer a lower-level position in the local area. The employer is obliged to offer vacancies in other localities if this is provided for in collective or labor contracts or agreements.

The Labor Code prescribes to the employer who he should “sacrifice” last. This information is contained in Article 179 of the Labor Code of the Russian Federation. If there are two identical positions, then employees with higher labor productivity and higher qualifications should be retained in the company.

Who cannot be fired due to reduction?

• pregnant women,
• women with children under three years of age,
• single mothers raising a child under 14 years of age (disabled child under 18 years of age),
• other persons raising these children without a mother.

In 2021, amendments were made to the Labor Code of the Russian Federation, which indicate that in the notification to the employee, in addition to the dismissal period, the employer must offer another option that will help avoid layoffs. For example, another position or short working hours. Unfortunately, there are not always vacancies available.

How to challenge dismissal at the initiative of the employer

If the dismissed person does not agree with management’s decision to dismiss him, he can challenge it - contact the Labor Inspectorate, and then go to court. To regain his right to work, an employee can use the following instructions:

1. Write an application in free form and indicate:
   personal data;
2. place of work and position held;
3. address where he lives;
4. your contacts for communication, if desired - contacts of the manager from your previous place of work;
5. the reason for dismissal and the facts according to which the employer violated the rights of the dismissed person. In other words, describe why the applicant disagrees with the manager's decision.
6. Submit the application to the labor inspectorate.

The period for its consideration is 15 calendar days. The inspector may extend the period, but is obliged to warn about this.

If the inspector makes a decision that the dismissal was illegal, the dismissed person will receive an order demanding his reinstatement. The employer will have to take the subordinate back and pay wages for the days of forced absence.

If the employer does not agree to return the former subordinate to his previous position, the latter may go to court. And by court decision to be reinstated in the company.

If an employee was laid off illegally, he can restore his rights through the court

Returning to a position through the courts is a common practice in the work of lawyers. The Labor Code of the Russian Federation often takes the place of the dismissed person. The main thing is to be able to correctly explain your rights and prove that you were fired illegally. I do not encourage anyone who has been fired to sue the company. But if you choose between protecting your rights on your own and a lawyer, then choose the latter if you really want to return to your previous job.

Payments for staff reductions in accordance with the Labor Code of the Russian Federation

Employers are liable if they violate the rules of the procedure for dismissing employees when reducing the number of staff. If payment deadlines are violated, in accordance with Article 236 of the labor law, the employer is obliged to reimburse, in addition to the entire amount of money due to the employee, interest amounting to at least one three hundredth of the refinancing rate of the Central Bank of Russia for each day of delay. The same sanctions apply to employers in case of delay in payment of wages. If the employer does not fulfill the obligation to provide dismissed employees with vacant positions at the enterprise, this threatens him with a fine of 5-50 times the minimum wage in accordance with Article 5.27 of the Administrative Code.

Who should not be laid off?

; average monthly earnings for the period of employment within two months from the date of dismissal (including severance pay). At the end of the second month, if the employee presents you with a work book without a record of employment and writes a statement, pay him the average salary for the period of employment, including the severance pay paid on the day of dismissal (Part 1 of Article 178 of the Labor Code of the Russian Federation). If the former employee was employed in the middle of the second month, calculate the benefit in proportion to the time during which the employee was not employed. At the end of the third month.

Expert opinion

Polyakov Pyotr Borisovich

Lawyer with 6 years of experience. Specialization: civil law. More than 3 years of experience in drafting contracts.

Dear readers of our site! Our articles talk about typical ways to resolve legal issues, but each case is unique.

If it is determined that the employer has violated the layoff procedure, he faces significant fines. Individual entrepreneurs are subject to liability in the amount of up to 50 minimum wages; other organizations will receive a fine of up to 500 minimum wages. Accordingly, the employer is obliged to take all measures to lay off an employee within the framework of the law. To follow the procedure, the employer must know the procedure established by law.

Change of owner

The legislation does not contain the concept of “to lay off an employee.” However, Article 180 specifies which employee rights must be respected when an employee is laid off due to staff reduction or liquidation of an enterprise.

If there is a staff reduction at the enterprise, the employer must warn the employee about the upcoming dismissal two months in advance. In this case, a verbal notification is not enough; you must sign the corresponding order.

Perhaps the main advantage of this organization is the opportunity to receive unemployment benefits. Only those who are registered with the employment service have the right to this payment. Moreover, if you were fired due to staff reduction or in connection with the liquidation of an enterprise, unemployment benefits will not be accrued to you immediately, but only after you have received payments from the employer due to you for the period of employment, that is, two or three months after job loss.

This is important to know: How to write a letter of resignation without work: sample 2021

WHAT PAYMENTS ARE ALLOWED TO PEOPLE WHO LOST A JOB?

Every tenth employer, 12 percent, wants to introduce new non-material bonuses for employees. Companies providing business services intend to motivate employees most in this way, and companies in the financial sector least of all. Another ten percent of respondents decided to focus on one area of ​​business, six percent decided to move due to company expansion.

It is necessary to note that according to Art. We have to wait for him to go to work. This rule is also relevant for situations where layoffs are carried out to reduce the number of employees. Dear readers, if you see an error or typo, help us fix it! We will learn about the inaccuracy and correct it. You may be interested in:. How many points will your company receive from Rostrud? Is it necessary for an LLC without employees to submit a report on the average headcount? Subscribe to the daily newsletter. Every weekday we will send you everything that was published yesterday. You won't miss anything!

After making the appropriate decision, when reducing the number or staff of employees, the employer, the person in charge or members of the commission find out which of the employees whose positions in the unit are abolished has a preferential right to remain in the organization Art. It is available to state employees who have higher qualifications if the state has employees performing the same duties.

Who can't be laid off?

Large enterprises can seek professional services; you can always get advice from regulatory and executive authorities, for example, from the local Labor Inspectorate. The calculation is made on the last working day, as is established for all other cases. Composition of payments:. According to Art. If an agreement is reached to terminate the contract before the expiration of the notice period, additional compensation is paid based on average earnings for the period remaining before the expiration of the notice period.

If he refuses to familiarize himself with the written notice, then it is sent to him at his home address by registered mail with notification. It is also necessary to draw up an act of refusal to read the written notice. Subsequently, this will help the employer if a former employee goes to court with a claim about the illegality of the dismissal procedure. The employer will be able to document that he did everything to comply with the procedure, and it was the employee who violated it.

What is an “invalid” layoff, or how to avoid a labor dispute?

The Labor Code does not directly oblige the employer to explain to anyone the reasons and justifications for laying off employees. However, the frequency of labor disputes and the judicial practice of making decisions based on their consideration still call for being prepared for hard-hitting questions. If the company really decided to reorganize or radically change its activity profile, then you need to stock up on evidence in advance. After all, a dismissed employee may not agree with the reasons for his dismissal and will go to seek the truth in court.

Unscrupulous employers can take advantage of the opportunity to get rid of some employees by simply renaming a department or position, while at the same time recruiting new specialists. For example, disband the sales department and lay off all managers, and in parallel, create a sales and promotion department and hire sales specialists. Managers laid off under this scheme who are not accepted into the newly created division can go to court and there seek reinstatement. The employer will be obliged to compensate for financial damage in connection with forced absence during the period of proceedings, from the moment of illegal dismissal, and in addition also for moral damage.

Another mistake is restoring old positions a few months after staff reductions or increasing the number of specialists in optimized departments. Such short-sighted actions by management can also become grounds in court for the reinstatement of dismissed workers. Even if you change the names, change the list of job functions and the level of workload. If the qualification requirements for hired employees remain the same, then the court may consider this a failure to fulfill the employer’s obligation to employ redundant workers and find suitable vacancies for them.

Moreover, the enterprise that carried out staff reductions, with the subsequent restoration of the number of the same specialists, will be obliged to submit information about the vacancies that have appeared to the employment authorities. Then a situation beyond the control of the employer may arise, and a previously laid off employee, registered as unemployed, will be sent to his old employer. Firstly, it will be quite difficult to refuse such an applicant a job. Secondly, there may be a legitimate question about the validity of the initial reduction. The court may also recognize the former employee’s doubts as justified.

It is also worth considering that, after issuing an order about the inevitability of the upcoming reduction, suspending the hiring of external employees for vacant jobs. At least until there is clarity on the issue of transfers and employment of the company's laid-off workers.

Although the Labor Code does not oblige you to explain the reasons for staff reductions, you should still carefully prepare its justification. If a labor dispute arises, the employer will be forced to prove that the procedure was carried out in reality and not fictitiously.

Notify employment authorities and trade union

Elected trade union body, in accordance with Art. 373 of the Labor Code of the Russian Federation, considers this issue within seven working days from the date of receipt of the draft order and copies of documents and sends its motivated opinion to the employer in writing.

Issue an order to terminate the employment contract

Downsizing is inevitable from time to time. But even in this case, the employer does not have the right to lay off some employees. Who, when and for what reason has special rights and “privileges” during staff reductions?

Complete liquidation of an enterprise: how to reduce the number and staff?

A decision made by the owners of an enterprise or an entrepreneur to completely liquidate and terminate commercial activities frees the employer from the need to comply with only one restriction. Such an entity has no obligation to worry about the transfer and employment of “special” employees. There is no longer any need to prepare certain documents confirming the validity of the reduction.

Otherwise, the procedure for carrying out this procedure does not differ from that described. I am glad that even under such circumstances, dismissed employees will not suffer financially; they will receive all compensation payments prescribed by legislators without cuts or delays.

Who cannot be fired due to staff reduction?

Persons who cannot be dismissed on this basis are listed in Art. 261 Labor Code of the Russian Federation. These include:

• single parents raising a child who is disabled and under eighteen years of age;
• single parents raising a child under fourteen years of age;
• women with children under three years of age;
• a parent (or other legal representative) is the sole breadwinner of a disabled person under eighteen years of age, provided that the second parent is not employed;
• parent (legal representative) is the sole breadwinner of a child under three years of age in a family raising young children (three or more), if the other parent does not work;
• pregnant women.

This category of workers cannot be laid off under any circumstances.

Regulatory Regulations

The reduction is subject to the following regulations:

• Clause 2 of Article 81 of the Labor Code - on the basis of this clause, dismissal is carried out due to a reduction in the number or staff of employees of an organization or individual entrepreneur.
• Resolution of the Plenum No. 2 of March 17, 2004 (clause 10) confirms the right of the head of the enterprise to personally make personnel decisions, including the dismissal of personnel.
• Article 178 of the Labor Code of the Russian Federation reveals the main mechanisms for calculating and paying severance pay.
• Article 179 of the Labor Code lists the categories of persons who have a priority right to remain in office when the number or staff of employees is reduced.
• Article 261 of the Labor Code of the Russian Federation specifies the categories of persons who must retain their jobs, even if layoffs are made.
• Article 84.1 of the Labor Code lists in detail the general procedure for termination of work in an organization.