People with disabilities, on an equal basis with other categories of citizens, have the right to work in government and commercial structures. Today, the labor rights of disabled people are protected by the Labor Code of the Russian Federation and a separate Federal Law No. 181 “On the social protection of disabled people in the Russian Federation.”
However, even the comprehensive legislative protection of a disabled person is sometimes jeopardized when he is included in the list of applicants for reduction in numbers or staff. Can an employer fire a disabled person using the usual scheme, and what guarantees and privileges are assigned to the socially protected category? We will consider these and other nuances in this material.
Dismissal procedure
All 3 disability groups have additionally prescribed limitations on performance. Even for the first group, the ability to perform some functions can be established, although in most cases, it confirms complete disability.
Attention
The degree of ability to work is indicated by MSEC documents where the disease is recorded. It is she who gives the group and outlines the framework of warnings for the work. The group and recommendations are fixed on the forms specified by Order No. 1024n (certificates, recommendations, certificates).
Before dismissal, management must make sure that the employee or the HR department has data from MSEC, as well as the availability of an IPR (individual rehabilitation program), which contains recommendations for workplace conditions.
Attention
Offering transfer places for disabled people during the redundancy process must be guided by these documents.
The nuances of reduction depending on the degree of disability that is determined for a disabled person are as follows:
| Disability | Peculiarities |
| Full | When a disabled person is recognized by the CEC and MSEC as completely incapable of performing labor duties, this fact itself serves as the basis for the vacancy of a vacancy, since a citizen in any, even easier conditions, will not be able to perform his functions. If complete incapacity for work is confirmed before the issuance of an order for dismissal due to reduction, then the employee is released for health reasons under clause 5 of Art. 83 of the Labor Code, and at the same time there are no benefits (and also for payments), unless otherwise provided by the employment contract. |
| Partial | The following is taken into account:
Otherwise, all preferences are the same as for regular staff, including the financial side of the event. |
So, reduction is possible, but with conditions:
- if the medical evidence does not contain the conditions of the positions that will remain, but there are no other places;
- a written refusal to take other positions based on recommendations was received;
- there are no places for translation at all.
Contrary to the belief that all disabled people should be left first, this is not the case. This guarantee is provided only to participants of the Great Patriotic War and the Civil War and those disabled people who, in addition to disability, have the parameters prescribed in Art. 179 TK:
- family with dependents;
- suffered health damage at the same enterprise;
- who do not have independent income earners in their family;
- improving qualifications without interruption from work.
Information
Citizens with disabilities do not have special preferences, since the guidelines according to Art. 180 should also offer other positions to other employees, that is, these categories have almost equal rights, but if an ordinary citizen can accept any position, then a disabled person can only accept the one that is shown to him according to the recommendations of medical institutions.
The event looks like this step by step:
- A decision is made and an order is issued.
- Notification of staff 2 months in advance. before the last working date. This time may be longer, but not less. For seasonal travelers – 7 days.
- This period can be abolished by mutual agreement and if the citizen writes a petition. Then he is paid compensation in the amount of average income in proportion to the balance of 2 months.
- Beneficiaries are determined (information is available in the HR department).
- They offer in writing to transfer to other places.
AttentionAn employer should offer this to everyone – not just people with disabilities. The latter are given the right of first priority only if they are veterans of the Second World War and military operations, or if, simultaneously with the presence of health restrictions, there are parameters from Art. 179..
- On the last date of the employment relationship, a work book is issued and calculations are made.
The employer offers the following places (this offer is stated in writing and given to employees against signature):
- vacant, corresponding qualifications;
- unoccupied subordinates and paid at a lower rate, who are suitable according to medical recommendations;
- all of the above, which are in the region where the company is located, and if this is stated in the employment contract, then in other areas.
Retrenchment due to disability
Not all employers are friendly towards people with physical disabilities. Quite often, at the very first contraction, they try to get rid of them in every possible way. But it is important to note here that dismissing an employee because of his disability is a direct violation of the law. Here you need to take into account the nuances outlined in the law:
- a disabled person has no different rights from other company employees. His dismissal can be considered solely in the context of his professional qualities or medical contraindications;
- the employer is obliged to take all possible measures to employ a disabled person whose position is being reduced. The absence of such an attempt may lead to further reinstatement of the dismissed person to his position with payment of compensation for forced absence;
- The law obliges companies to provide positions on their staff for the employment of people with disabilities. They must be present regardless of the future organizational structure;
- In addition to disability, a citizen may have other reasons that require employment (young dependents, disability while performing work functions, a higher level of qualifications than other workers).
Remember, it is illegal to fire someone due to disability. For such actions, depending on the consequences, the employer may face legal liability.
Working off
When there is a layoff, there is no “work off”; instead, the employer warns those being laid off about their release at least 2 months in advance. until the last working date. There are no concessions for this condition for disabled people. This period can be excluded if the employee agrees to this in writing by mutual agreement with the employer, Part 2 of Art. 296 Labor Code of the Russian Federation. In this case, the citizen is transferred compensation in proportion to this period.
Since during a reduction, management carries out all activities on its own initiative, it often seeks to speed up all formalities; accordingly, it is not against the abolition of the 2-month notice period. with payment of compensation for it. This is possible with the written consent of those being laid off.
Attention
There is a peculiarity: in our case, such compensation is not provided at the discretion of the employer, but is mandatory.
In those rare situations when the authorities, for certain reasons, want the citizen to serve the specified 2 months, a trick can be used to miss work during this time or part of it: take unpaid vacations, if any.
What to do if an employee’s rights are violated
Examples of violations: standards for transfer to suitable places are not followed, notification procedures are violated, benefits and other amounts are not paid.
In case of disputes about the volume of financial obligations, the employer is obliged to transfer the undisputed part of the funds (Part 2 of Article 140 of the Labor Code of the Russian Federation).
Disabled people have significant benefits during work, but upon dismissal, the preferences for them are small, except for the priority right to remain in a position, but only in specially provided circumstances (participants of the Second World War, military operations). Otherwise, this norm applies as for ordinary citizens, provided that the parameters from Art. 179 Labor Code of the Russian Federation. There are no privileges regarding payments and other procedural issues.
Payments and benefits
Persons with disabilities for medical reasons are not given any preferences when leaving the company - everything is paid as standard, as when people without these disabilities are laid off.
The first thing to describe is severance payments. The first is transferred immediately in the amount of average monthly earnings. Further, for the duration of employment, a person has the right to receive an average monthly income, but only up to 2 months, including the first tranche transferred in advance.
When a citizen has registered with the employment authorities within 2 weeks. after leaving the enterprise, then, with the permission of this department, he is also entitled to a 3rd paid month. Those employed in the Far North are entitled to 6 such paid periods.
Attention
To receive severance pay, you must contact your former employer every month on the dates when earnings are transferred. In this case, it is required to provide a work book without a mark on employment, and write a statement demanding payment of what is due during employment. To receive funds for 3 months. and you must also present permission for this from the labor exchange.
In addition to the above, a disabled employee is entitled to all standard amounts:
- for actual work;
- financial equivalent of untaken vacations;
- other payments, if they are specified in the employment contract.
Do they have the right to dismiss a disabled person of groups 1, 2, 3?
Dismissal of a disabled employee of the 1st, 2nd or 3rd reduction group is permissible if there were no violations in the dismissal procedure (Article 81 of the Labor Code of the Russian Federation) and all conditions established by law were met.
The preferential right is assigned to a disabled employee under the following conditions:
- Receiving disability (occupational/illness or injury) while working for this person
employer. Article 179 of the Labor Code of the Russian Federation. - Higher qualifications and labor productivity (compared to other employees).
- Availability of dependents (2 or more).
- Lack of income earners in the family.
- Disabled people from WWII and disabled people from combat operations to defend the Fatherland.
- Persons who participated in eliminating the consequences of the Chernobyl nuclear power plant and received/suffered certain diseases in connection with this, as well as disabled people as a result of the Chernobyl disaster.
- Persons who received a radiation dose of more than 25 rem due to radiation exposure after nuclear tests at the Semipalatinsk test site.
If a disabled employee is not included in any category of employees who have a preferential right to remain at work, then he can be fired on the basis of the above reasons (lack of available vacancies, refusal of the employee to vacancy).
If an employee is recognized as a disabled person of the 2nd group (with the ability to work of the 3rd degree), he will no longer be able to work. The ITU Bureau ascertains the loss of his ability to work, and the employer can terminate the contract with a disabled employee on the basis of Article 83, paragraph 5, part 1 and paragraph 8 of the Labor Code of the Russian Federation.
Recording in labor
On the date of termination of the employment relationship, the person leaving the HR department receives a work book with a notice of dismissal. The record must comply with the “Rules for maintaining and storing work books”, approved by Resolution No. 255.
Briefly, the rules are as follows: the entry must be made in clear, easy to read handwriting. It should not contain abbreviations or abbreviations. Designations like “art., p., Labor Code of the Russian Federation” and similar ones are prohibited - these words are written in full.
Opposite the entry in a special column, enter the details of the order. At the end of the entry, the signature of an authorized employee (personnel officer) and a seal are placed.
Attention
The entry must reflect only the basis that is in the law, that is, no mention of disability is written.
Unlawful removal from work: where should an employee apply?
If an employee believes that he was suspended from work illegally, he has the right to contact regulatory authorities to protect his rights.
Application to the labor inspectorate
An employee has the right to make a written complaint against his employer to the labor inspectorate. This can be done by appearing in person at a government agency, or by proxy through your representative.
In the application you must provide information about yourself, your employer, and also provide detailed information about the act committed. You can attach documents confirming the employee’s innocence as attachments.
The Labor Inspectorate is obliged to conduct an inspection of the organization; based on its results, one of the following decisions may be made:
- Drawing up an order to eliminate the identified deficiencies;
- Bringing to administrative responsibility;
- Suspension of work of both the entire company and individual divisions;
- Suspension of individuals from work;
- Transfer of information to higher authorities for opening legal cases.
Going to court
If the labor inspectorate does not resolve the dispute with the employer, or the employee wants to receive money in the form of compensation (including moral damage), it is necessary to file a claim in court.
The law establishes the time frame within which this must be done:
- 1 month from the date of dismissal;
- 3 months from the date of violation of the employee’s rights.
If the deadline was missed for a good reason (for example, the employee was in the hospital), then there is a chance that the judge will reinstate it. However, it is necessary to prove that the application was not submitted on time due to reasons insurmountable at that time.
The judge’s decision cancels all previously made decisions on this issue (for example, the labor inspectorate sided with the employer).
Attention! If, as a result of the court hearing, the employee is awarded payment of funds, the company must do this within 5 days. Otherwise, a court order for collection is issued, which is transferred to the bailiffs.
Do I have to work 2 weeks after termination of the employment contract?
Dismissal of a disabled person on his own initiative requires a written application to the production administration no later than 14 days in advance. This working period begins the next day after submission of the document.
The Labor Code does not contain special requirements for the dismissal of disabled people. If an employee is not able to do his job professionally, then the organization’s management is obliged to dismiss him without work. If he wants to leave the enterprise on leave without pay, on the basis of Article 127 of the Labor Code of the Russian Federation, he can do so.
Approximate contents of the document
The agreement on termination of employment relations between the administration and the disabled person, according to legal law, includes the following provisions:
- date of the employee's last working day;
- the administration's obligation to pay severance pay in the amount of 2 monthly salaries;
- on the full settlement of the administration with the employee and the issuance of a work book on the last working day;
- the agreement is considered to have entered into force from the moment it is signed by both parties;
- the legally valid document is drawn up in 2 copies, 1 of which is given to the disabled person, the other remains in the archive at the workplace.
The document is signed by the manager indicating personal data.
