How not to violate the rights of an employee? Dismissal due to reduction after sick leave

If an employee is on sick leave, can the employer send him a registered letter notifying him of the reduction of his position or personally come to his home with a commission to deliver such notice of the reduction, or is it necessary to wait for him to return from sick leave and only then notify him of the reduction?

Having considered the issue, we came to the following conclusion:

The employer has the right to notify the employee of the upcoming dismissal due to a reduction in the number or staff during the period of his temporary disability, observing the requirements of part two of Art. 180 Labor Code of the Russian Federation.

According to part two of Art. 180 of the Labor Code of the Russian Federation about the upcoming dismissal due to a reduction in the number or staff of the organization's employees, employees are warned by the employer personally and against signature at least 2 months before dismissal.

Part six of Art. 81 of the Labor Code of the Russian Federation establishes a ban on the dismissal of 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 or while on vacation.

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• What to do if your employer does not accept electronic sick leave
• What to do if you are not given sick leave
• How many days does it take for sick leave to arrive from the Social Insurance Fund?
• What to do if the place of work is not indicated on the sick leave
• Are sick leave taken into account when calculating maternity leave?

Thus, the day of dismissal itself cannot, under any circumstances, fall within these periods. Direct termination of the employment contract in any case is carried out only after the end of the period of temporary incapacity for work.

At the same time, during the period of temporary incapacity for work, the employee does not perform work duties, therefore the employer does not have the right to oblige him to come to work, including to deliver written notice of the upcoming dismissal associated with a reduction in the number or staff of employees.

Since there are specific ways to notify an employee of the upcoming dismissal under clause 2 of the first part of Art. 81 of the Labor Code of the Russian Federation, labor legislation does not

If, in the case under consideration, the employee is notified of the upcoming dismissal less than two months before the planned date of dismissal of employees due to a reduction in their number, we believe that the date of dismissal of this employee must be postponed to the appropriate period of time. In our opinion, there is no need to start anew the procedure for reducing the number or staff of employees in the organization, again warning all other employees who are subject to reduction. The reduction is carried out solely on the initiative of the employer, therefore, only the employer decides how many staff positions and in what timeframe it is necessary to reduce. If the warning period for all employees is the same (for example, exactly two months), in our opinion, the later dismissal of an employee who, for objective reasons, was warned later than others, cannot be considered discrimination against other employees. In such circumstances, the employer will need to re-notify the employee of the reduction of his position and dismissal, indicating in the notice a new specific date or period after which from the date of notification the employee will be dismissed (naturally, to determine such a date or time of expiration of the period it is necessary from the date of the new notice count forward at least two months). There is no need to cancel the initial order to reduce the number or staff, however, in order to streamline office work, the employer, of course, has the right to decide to cancel the order regarding the reduction of the position occupied by this employee, and record it in the corresponding new order. Accordingly, termination of the employment contract with the employee must be carried out on the date specified in the new notice.

Expert of the Legal Consulting Service GARANT

Reducing a position during sick leave: actions to take during a reduction

There is a widespread belief among ordinary people that they have no right to be fired during sick leave under any circumstances, even if they are made redundant. This is not entirely true. Priority remains with people who belong to the so-called socially protected category, and even then not all. For the rest, the law does not provide any privileges, and job reduction in relation to sick people is possible. At the same time, it is important that all legal subtleties are observed - otherwise the employee has the right to appeal to the labor inspectorate and even to court.

Job reduction during sick leave

Why is notification needed?

The law provides guarantees for employees included in the redundancy list. In addition to implementing restrictions and prohibitions on layoffs, the enterprise administration must notify each such employee of the basis and date of termination of the employment relationship. This must be done according to the following rules:

• the notification is made in writing and signed by the manager;
• each notification is personal in nature, so the document must contain information about the employee, his position and structural unit;
• the notification will be the basis for issuing an order, therefore the text of the document must indicate the date of dismissal - it must be no earlier than two months from the date of delivery of the notification.

Having prepared the notices, the employer must hand them over to employees against signature. If the citizen is present at the workplace, there will be no problems with delivery. Even if he refuses to receive the document, a commission act is drawn up on familiarization with the contents of the notification. Such an act will be adequate evidence that the citizen has been notified of the grounds and date of dismissal.

Obvious difficulties may arise if a specialist is not at work - on a business trip, on vacation, on sick leave, etc. Does this circumstance prevent the delivery of written notice, or will the manager have to wait for the employee to return to work? Let's consider how to give a notice to a sick employee in order to comply with the requirements of the Labor Code of the Russian Federation and not delay the layoff procedure.

Sample notice of job reduction

Legal basis

The Labor Code (Article 81; Article 180) and Federal Law No. 255-FZ, Art. 5. According to these standards, the employer will have to pay for the period of forced absence of subordinates, depending on the time of illness and the length of their service. However, the boss is not at all obliged to tolerate personnel who are not needed in the business any longer, unless we are talking about, say, pregnant employees or subordinates caring for children. In all other respects, the question of priority remains with the merchant. Even a pensioner may be unlucky and it will be impossible to cancel such a dismissal.

Labor Code of the Russian Federation N 197-FZ. Article 180

Definition of the concept

Important! Before examining the issue of sick leave compensation for those being laid off, you should understand the difference between a reduction in position and number.

Position reduction is implied in a situation where the owner of the organization comes to the conclusion that it is unprofitable for him to keep an individual specialist in such a position. For example, the company had a lawyer and a junior lawyer. After a meeting of the directorate, it was decided to abolish the position of junior lawyer. This is staff reduction.

The second implies a reduction in the number of people in one position. For example, in a cafe there were two administrators, two junior salespeople and seven waiters. The management decided that feeding so many people was ruinous for their establishment and left only one cashier, one junior salesman, four waitresses and one administrator.

So, sick leave in itself does not act as an obstacle to job reduction and termination of cooperation. However, the employer is obliged to compensate the employee for this period.

This is important to know: Sick leave for disabled people: how many days in a year

Cases in which sick leave must be paid

What payments are due to those laid off?

Upon termination of the contract, the dismissed person must receive:

• salary calculation;
• compensation for missed vacation;
• severance pay;
• sick leave compensation.

Use the calculator to calculate compensation for unused vacation upon dismissal.

However, all this is possible only if the employment relationship is formalized and the person is fired precisely under this article - that is, it is precisely this article that appears in the director’s order and work book. Many employers act simpler, especially with obviously legally illiterate subordinates - they offer them, in order to save time and nerves, to resign on their own, by agreement of the parties (Article 77 of the Labor Code). This is actually justified in some situations. However, in this case, the person is not entitled to any severance pay and all guarantees are terminated - this is especially critical for expectant mothers and those employees who are caring for children at the time of dismissal.

If the subordinate and the employer were connected not by labor, but by civil law, all guarantees under the Labor Code are invalid.

Notice of upcoming dismissal

Payment of sick leave upon layoff

Temporarily disabled employees who are dismissed under the heading “staff reduction” are guaranteed to be paid for the days they are on sick leave. Payments to the employee can be made during the contract termination procedure or after it.

A sick leave certificate, drawn up in accordance with all the rules, must be submitted to the former employer within six months from the date of its closure. The settlement with the employee is carried out in the usual manner.

The sick leave form is filled out and submitted to the Social Insurance Fund within ten days. The amount of the benefit does not affect the fact of receipt of payment. The amount of sick leave payment depends only on the average earnings over the last couple of years and the person’s insurance record. The payment amount is 60% of the calculated amount. The company's management is also obliged to pay personal income tax on the amount of sick leave benefits.

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If you were laid off during illness

So, contraction during illness is more than likely. If this happens, the person being fired should answer three questions:

• whether he has the right to preferential retention at work;
• whether he was warned in time about the termination of cooperation;
• what the director offers in return.

The Labor Code requires the heads of the company to notify the candidate for layoff two months before the date of severance. Often such paper is handed over directly in the office, with a personal signature. However, nowhere does it say that this must be done in person, so you can send the warning by registered mail with notification and declared value. The only important thing is the term - sixty days (Article 180 of the Labor Code).

So, if at the time of writing the letter a person is not at work due to ill health or problems with a disabled family member, the document is sent by mail, and the moment of personal familiarization will coincide with the date of delivery.

Expert opinion

Polyakov Pyotr Borisovich

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

If at the time of writing the letter a person is not at work due to ill health or problems with a disabled family member, the dismissal document is sent by mail

If a person becomes ill after receiving the notice, during those same sixty days, this is also not a hindrance - the person will go to work and then he can be fired.

But that's not all. For example, they decided that the company no longer needed a specialist assistant. In exchange, the dismissed person must be offered other positions, which he can occupy due to his health and qualifications. If there are none or the person refuses, the contract is terminated.

Due to a child's illness

The same can be applied to cases when the reason for an employee’s reporting to the newsletter is not problems with his own health, but the illness of his son or daughter. In this case, all guarantees of Federal Law No. 255-FZ apply to it. That is, the entire period of absence is compensated and it is illegal to fire a person before he leaves the ballot. Even if a subordinate’s child fell ill just a couple of days before the day of the expected termination of cooperation, this date will be postponed.

What to do with pensioners

Federal Law N 90-FZ. Article 179

Many ordinary people believe that pensioners have priority during layoffs (Article 179 of the Labor Code). They are distinguished by greater experience, a greater store of knowledge, and a higher level of qualifications than their young comrades. However, this is not always the case, and often it is the young who surpass the older ones in terms of labor productivity. So here no obligations fall on the director; the final decision remains with him. It is important that a pensioner laid off on sick leave is notified of this in a timely manner and receives all due payments.

Payment of incapacity for work during and after layoffs

By the way, if an employee wrote a letter of resignation while already on sick leave, then the date of dismissal will be (Letter of Rostrud dated 09/05/2006 N 1551-6):

• or the last day of a two-week work period. Moreover, if on this date the employee was still ill, then he should not work again for two weeks after the end of his illness;
• or a later date specified in the employee’s application.

If the employee does not have time to recover before the date specified in the order, he is still fired in accordance with this document. And since on the last working day the employee must receive the final payment and work book, he needs to send a written request to appear at his former workplace and collect what is owed to him.

After the doctor closes the certificate of temporary incapacity for work and signs it, and the employee provides this document to the boss, the company is obliged to pay in full for all days of sick leave, even if some of them were after the date of dismissal, because by law the employer pays up to thirty days of sick leave for a dismissed employee, if he did not find another job during this period.

Registration procedure

Sick leave received during layoff is the basis for extending the employee’s employment contract until the employee’s ability to work is restored.

According to the Labor Code of the Russian Federation, the execution of the dismissal order is postponed to the date of closing the certificate of incapacity for work.

Registration procedure

Within 30 days from the date of dismissal, the employer is obliged to accept the former employee's sick leave for payment, provided that the employee has not yet found a new job.

The employee indicates their previous place of work as the employer.

This procedure is established by the legislator. The rule works provided:

• the illness occurred within 30 days from the date of dismissal;
• the sick leave was issued for an illness or injury, and not for caring for a child, infirm relatives, etc.

The law guarantees the insured the right to receive payment in the event of loss of work and insurance compensation in the event of temporary disability.

Payment for sick leave after layoff must be made by the employer within a month from the date of submission of documents. A delay in insurance payment of more than two months threatens the company with a fine.

The employee needs to remember that they will not be able to fire him automatically. Therefore, on the first day after the end of sick leave, you need to go to work and write a statement about termination of work.

A sick leave certificate in the hands of an employee and drawn up in accordance with all the rules can be handed over for payment to the former employer within 6 months from the date of its closure.

We invite you to read: Dismissal on the last day of vacation: step-by-step instructions 2019

Payment for sick leave when an employee is laid off during illness is made in the usual manner. The employee submits sick leave to the employer. The necessary data of the insured person is entered into it and the form must be submitted to the Social Insurance Fund within 10 days (see the list of documents for sick leave compensation at the Social Insurance Fund here).

The employer is also responsible for paying personal income tax on the amount of sick leave benefits.

If someone who has been laid off falls ill, the dismissal is postponed until he recovers!

Sick leave is paid if illness or injury occurs within 30 days from the date of dismissal.

A person dismissed due to redundancy is guaranteed to receive insurance benefits under l/n, subject to:

• no more than 30 days have passed from the date of release from work to the onset of incapacity;
• the sick leave was not issued for caring for a sick child or relative, or for any other reason, but for illness or injury;
• the former employee will contact the employer with a correctly completed personal identification document no later than 6 months from the date of dismissal;
• the sick leave was not issued in connection with an attempted suicide or specific self-harm.

The rules for paying sick leave after layoffs are outlined in the video

If the company does not have funds in its account, the benefit will be paid by the regional Social Insurance Fund.

The Center for Social Protection of the Population, in the event that the enterprise from which the insured was dismissed is liquidated, assumes obligations to pay benefits due to disability.

In this case, it is necessary to take into account the norms of labor legislation so as not to violate the employee’s rights.

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As a rule, it is quite difficult to obtain paid sick leave after dismissal due to staff reduction, but in some circumstances, within the framework of the law, the law allows such an outcome.

The procedure for registration and issuance of certificates of incapacity for work is covered by the norms of Order of the Ministry of Health and Social Development of Russia dated June 29, 2011 N 624n, where paragraph 1 states that a person who has been fired has the right to receive a certificate of incapacity for work over the last 30 days along with citizens who have a permanent place of work .

That is, if a former employee at a medical institution presents a work record book, they have no right to refuse to issue a work record.

Registration procedure

Of course, getting a certificate of incapacity for work at a clinic is quite simple, because you just need to present a work book with a record of dismissal and ask for a certificate to be issued in accordance with Article 5 of Federal Law No. 255.

But sick leave is not enough to pay compensation from a former employer:

• you will need to show a work book, which will confirm that the former employee was never employed;
• You will need to submit a sick leave note, to which is attached an application requesting payment on the basis of Federal Law No. 255.

As a rule, after 30 days have passed from the date of dismissal, pregnant women can no longer count on paid sick leave under the BiR, but there is an exception to this situation.

In particular, by virtue of Article 6 of the Federal Law of May 19, 1995 N 81, in the event of dismissal due to reduction due to the liquidation of the company, a woman has the right to claim sick leave payment for the next 12 months, but not from the former employer, but from the state by submitting a sheet for payment to the Employment Center, of course, provided that the status of unemployed has already been received.

If children are sick

In most cases, exemption from work in the form of sick leave is issued to a sick person not only in case of personal illness, but also to care for a relative.

If the employee has already been fired, nothing further prevents him from providing assistance to the same child.

That is, if the baby gets sick a few days after the termination of the legal relationship, you will have to forget about paying for days of incapacity under the preferential procedure defined by Article 5 of Federal Law No. 255.

Documentation

Sick leave when an employee is laid off, of course, is the basis for payment of compensation due to incapacity for work, but only before his dismissal.

After issuing an order to terminate cooperation, you will also need:

• employment history;
• application requesting payment for sick days.

Payment

The amount of disability benefits is determined taking into account the norms of Article 7 of Federal Law No. 255, which provides payment limits in direct proportion to the total length of service.

However, it is precisely in the situation of compensation for sick leave after dismissal that length of service no longer matters, since within the framework of Part 2 of this article, the amount of the benefit is equal to 60% of the former average earnings for the last 24 months.

How is sick leave paid for those dismissed due to job reduction?

The principle of payment largely depends on when recovery occurs.

If the ballot is closed before the day indicated in the order, then they are fired according to the general rule. Compensation for illness is given to a person along with salary calculation, severance pay and compensation for vacations not taken.

If a subordinate does not have time to recover, this will not save him from dismissal. Moreover, the sick person is obliged to send a written request to his superiors with a request to come to his now former workplace and collect the money owed to him. After this, he can calmly recover. When the doctor closes the ballot, the document is provided to the director, and the latter, in turn, pays for all days of incapacity for work. Even if part of the subordinate’s illness occurred in the period after dismissal. The employer is obliged to compensate the dismissed employee for up to a month if he did not manage to find another place of employment during this period.

Formulas for calculating payments

Reduction of a position in the staff list during sick leave

As mentioned above, it is impossible to fire those who are temporarily disabled, but an agreement to terminate the employment contract for layoffs is reached long before the day of dismissal, and the date of the last working day has long been determined. However, what should an employer do if his employee gets sick on the eve of dismissal?

If the sick leave was closed before the date specified in the order, the dismissal procedure occurs as in the general case, and along with wages and severance pay, the employee receives sick leave payment.

If the employee does not have time to recover before the date specified in the order, he is still fired in accordance with this document. And since on the last working day the employee must receive the final payment and work book, he needs to send a written request to appear at his former workplace and collect what is owed to him. After the doctor closes the certificate of temporary incapacity for work and signs it, and the employee provides this document to the boss, the company is obliged to pay in full for all days of sick leave, even if some of them were after the date of dismissal, because by law the employer pays up to thirty days of sick leave for a dismissed employee, if he did not find another job during this period.

ipinform.ru

How should an employer act when laying off a sick employee?

The principle of breaking the contract is as follows:

Step 1. The directorate makes a decision on the reduction.

Step 2: Notify all candidates for care.

Step 3. Order for the company.

Step 4. Statement from the employee about the need to appear for money.

Step 5. Calculation on the last working day.

Attention! If the employer warned a person about the job reduction later than the sixty days specified in the law or did not offer other places in return, this makes the dismissal illegal!

The head of the company should remember that he cannot fire his subordinates simply because he wants to. The justification must be indicated both in the written notice, which is handed to each candidate against personal signature, and in the order.

Next, the employer must determine for each candidate whether this person belongs to a special category who cannot be fired or not. At the same time, it is worth preparing for the fact that you will have to prove the fairness of the reduction - that those fired brought much less benefit to the business than those who remained. However, if you have to choose one of two candidates, where the first is a highly qualified employee with solid experience, bringing a stable profit, and the second is a pregnant employee who only managed to work for a couple of months, and even had to be sent to college for tests, you will have to part with the first , despite its obvious advantage.

After this, the director decides what he can offer those fired in return. Places offered may involve lower qualifications and income. You can offer work in another area, if this is permissible according to the local regulations of the company. If the employee does not like anything proposed, he must put it in writing.

This is important to know: Sick leave at your own expense at work

The director decides what he can offer those fired in return

Notification

The director is obliged to warn about upcoming staff changes in the company in writing, against a personal signature. Sometimes an employee who has received unpleasant news refuses to sign the notice. In this case, a special act is drawn up in the presence of two witnesses from the company’s employees - they then put their signatures under it. If it is a small company, one witness is enough.

In this case, the document is written in the first person and must include the following points:

• full name of the company;
• date and place of compilation;
• to whom it is addressed;
• date of decision, basis - minutes of the meeting of founders;
• reference to current legislation;
• what positions are offered in return;
• date of proposed dismissal;
• signature with transcript.

In addition to the employees, the director is obliged to notify the employment service and the company's trade union committee (if there is one) about the changes. The opinion of the trade union, if the person being dismissed was a member, must be taken into account when breaking cooperation.

The director is obliged to notify the employment service of changes in personnel

When the benefit is not paid by the employer

Typically, compensation for periods of ill health is provided by the head of the company. But if the exempt employee has already left the company and registered with the local employment center (that is, officially declared himself unemployed), then the State Employment Fund transfers hospital compensation equivalent to unemployment compensation to him. This responsibility falls on the territorial division of the social security service if the reduction was associated with the complete liquidation of the company.

Controversial issues

What to do if the employer refuses?

Paying sick leave after dismissal is not the employer’s right, but an obligation, so he cannot refuse because, based on a complaint from a former employee, legal proceedings are inevitable with one result - you will have to pay.

When can I file a claim with my employer?

According to the provisions of Article 12 of Federal Law No. 255, an employee can apply for compensation due to incapacity for work within six months from the date of full recovery.

Consequently, the employee, even after dismissal, has the right to count on paid sick leave within the specified period.

If the child fell ill on the last working day. Will the BL be paid?

The day of dismissal is the last working day during which the workers are still subject to the norms of the Labor Code of the Russian Federation and Federal Law No. 255 in full.

That is, if an employee’s child falls ill, she can apply for sick leave, which will entail not only payment, but also a change in the date of dismissal, given that, within the framework of Article 81 of the Labor Code of the Russian Federation, it is impossible to terminate the employment relationship during the period of incapacity.

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Sick leave

What a correctly formatted newsletter should look like

A correctly issued sick leave is drawn up on a special registration form of the medical institution. Its duration can be no more than two weeks, after which the issue is decided by a medical control commission. In this case, a correctly completed copy has:

• seal of the institution;
• diagnosis code;
• personal seals of each specialist, accompanied by a signature with a transcript;
• completed fields for opening the sheet and going to work.

Correctly issued sick leave

All names appearing in the text must be written correctly and without corrections, and coincide with those indicated on the seal impressions. The form must be filled out on a computer or in black ink and block letters. Corrections, deletions, or fundamental errors that affect the meaning of what is written.

Attention! The ballot is closed by the same institution in which it was opened. Otherwise, such a form is considered to be filled out incorrectly, and therefore not subject to payment (Order of the Ministry of Health No. 624n).

If you get sick after termination of your employment contract

If an employee who was dismissed due to a reduction in headcount or staff fell ill within 30 days from the date of termination of employment with him and received sick leave, he can count on payment of temporary disability benefits by his former employer.

To do this, it is necessary to submit it to the organization in which the person previously worked no later than 6 months from the date of closure of the certificate of incapacity for work.

It should be borne in mind that payment for sick leave in this case is not made in full, but in the amount of 60% of the employee’s average daily earnings for the previous 2 years. At the same time, his work experience does not matter.

It is important that at the time of illness the laid-off employee was not officially employed in another job. If this happens, the current employer will pay for sick leave.

Example.

Miroshnichenko L.P. fell ill after her dismissal on March 8, 2019.

The certificate of incapacity for work was issued from 03/17/2019 to 03/26/2019. Average daily salary Miroshnichenko L.P. was 1560 rubles.

By contacting the employer on April 1, 2019, Miroshnichenko L.P. has the right to receive temporary disability benefits in the amount of:

1,560 rubles * 60% * 10 days = 9,360 rubles minus personal income tax of 13%.

Reference. Sick leave is paid only if the former employee is temporarily incapacitated; if the sick leave is issued due to the need to care for a sick family member, the benefit is not paid.

Deadlines for submitting and paying for the certificate

The General Director is obliged to compensate for the period of illness if the employee applied for it within a six-month period. This is exactly what the article says. 12 of Federal Law No. 255-FZ. This applies to both public and private institutions.

Expert opinion

Polyakov Pyotr Borisovich

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

That is, it turns out that a laid-off employee has the right to do this even a few months after being released from his position, and now the ex-boss has no right to refuse him, even citing the fact that there is no money in the company.

Terms of payment for the sheet

One more aspect should be noted, namely, the procedure for paying sick leave, which also has its own characteristics.

Thus, within the framework of Article 7 of Federal Law No. 255, the amount of compensation for days of incapacity for work depends on the following parameters of length of service:

• 100% if you have 8 or more years of service;
• 80% from 5 to 8 years;
• 60% up to 5 years.

Moreover, by virtue of Part 2 of Article 7 of Federal Law No. 255, if an employee falls ill after dismissal due to layoff, but no later than 30 days, his benefit will be calculated based on 60% of earnings without taking into account the total length of service.

The name of the organization is not indicated in the newsletter, what should I do?

Sometimes the heads of organizations are faced with an incomprehensible situation: the ballot seems to be formatted correctly, on the computer, but the field reserved for the sick person’s place of work remains blank. The question arises: should such a ballot be considered invalid or accepted without question?

The Social Security Fund does not consider this a violation. The fact is that very often a sick employee himself does not know the exact name of his organization. For example, all he knows is the name of the store “Ogonyok”, but the organization itself is called Ogonyok-M LLC. The difference is fundamental; these are not interchangeable concepts, but two different names. And if the doctor writes down the wrong name, then this will definitely be considered a violation and such a sheet will not be compensated for with good reason. Therefore, if a person himself is not sure that he will name the exact name of the legal entity where he works, he has the right to leave the column blank. The director himself will write the correct name with a black gel pen.

The Social Insurance Fund does not consider it a violation if the name of the organization is not indicated in the ballot

So, if everything else is correct, then missing a company name is not a reason to reject a ballot.

How is the payout amount calculated?

The calculation of benefits after termination of employment for a reduction in headcount or staffing is carried out in the general manner, that is, by multiplying the average daily salary of the former employee received by him during the 2 years before dismissal by the number of days of incapacity for work.

Formula. Benefit amount = average daily salary × number of days on sick leave.

It should be borne in mind that in case of illness that occurs before the day of termination of the employment relationship, the percentage that is taken into account in payments is affected by the employee’s length of service:

• persons with less than 5 years of work experience are paid 60% of the average daily earnings;
• if the experience is from 5 to 8 years - 80%;
• with more than 8 years of experience – 100%.

If, at the time of illness, the employment contract with the employee had already been terminated, the benefit is paid in the amount of 60% of the average salary (Part 2, Article 7 of Federal Law No. 255-FZ).

Also, do not forget that temporary disability benefits are subject to personal income tax in the amount of 13%, withheld by the employer.

Example.

Afanasyev I.G. 18 days after dismissal due to reduction, he provided the former employer with a sick leave certificate, according to which the employee was temporarily unable to work for 8 days; the sick leave certificate was opened after the termination of the employment contract. Average daily earnings Afanasyev I.G. was 2,050 rubles.

The benefit calculation will look like this:

2,050 rubles * 60% * 8 days = 9,840 rubles.

From this amount it is necessary to deduct personal income tax in the amount of 13%:

9,840 – 13% = 8,560.80 – the amount of benefits that must be paid to Afanasyev I.G.

If an employee falls ill after termination of the employment contract, the benefit is fully paid from the Social Insurance Fund.

After the former employee submits a certificate of incapacity for work, the employer is obliged to pay benefits within 10 days.

Read more about how sick leave is calculated and paid after dismissal here.

Who should not be laid off?

So, it is clear that not a single working person can consider himself insured against layoffs. However, there are categories of employees who cannot be fired under any circumstances. The same applies to:

• pregnant subordinates;
• single parents with small children who have not celebrated their fourteenth birthday;
• mothers of children under three years old;
• parents of minor children with disabilities.

They can be relieved of their positions only on their own initiative or as a result of bankruptcy and the complete cessation of the company's existence.

An example of the reduction calculation is shown in the photo below:

Example of calculating a person being reduced

So, it is possible to fire someone during illness and reduce their position - in relation to those with whom this is legally possible. However, no matter who we are talking about, the employer is obliged to observe all the subtleties of the procedure so as not to face a complaint from an angry subordinate for infringement of his rights.

Video - Can an employee be laid off while he is on sick leave?

Is sick leave paid after dismissal?

If a sheet of temporary disability was opened for a person who is still working, then it is paid on a general basis (even if by the time the treatment was completed the relationship with the company had already been terminated).

The organization is obliged to pay sick leave within a month from the date of dismissal of the employee. The amount that a former employee receives is usually 60% of his average salary.

Expert opinion

Irina Vasilyeva

Civil law expert

A person has the right to demand payment for sick leave within a six-month period from the date of restoration of his working capacity.

Reduction of number and staff

Before talking about how an employee is dismissed due to staff reduction, it is necessary to clarify the difference between staff reduction and reduction in the number of employees.

In the first case, positions are excluded from the staffing table. For example, the enterprise had a junior salesperson, a sales consultant and a sales floor administrator. As a result of the decision of the management, the position of administrator was abolished - this will be a reduction in staff.

In the second case, a decision is made to reduce the number of people working in one position. For example, at the same enterprise, the schedule includes five junior salespeople, seven sales consultants and two sales floor administrators. By decision of the management, for example, in order to save money from a certain date, the enterprise will have three junior salespeople, four consultants and one administrator.

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LLC "NTVP "Kedr - Consultant" » Services » Legal consultations » Labor disputes » Peculiarities of dismissal of an employee due to staff reduction if he was on sick leave and was not given notice of layoff

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The organization is planning staff reductions. The employees were given layoff notices 2 months before dismissal, except for one employee who was on sick leave.

Questions.

Is it possible to make changes to the reduction order and adjust the date of reduction of the position of an employee who has not been given notice?

If the date changes, do I need to notify the Employment Center about the change in the dismissal date?

Is it possible not to make changes to the order, but to dismiss 2 months from the date of delivery of the notice (that is, until the day of dismissal, the employee will be on staff)?

Lawyer's answer

In accordance with clause 2, part 1, art. 81 of the Labor Code of the Russian Federation, an employment contract can be terminated by the employer in the event of a reduction in the number or staff of employees of an organization or individual entrepreneur.

By virtue of Part 2 of Art. 180 of the Labor Code of the Russian Federation about the upcoming dismissal in connection with the liquidation of the organization, reduction in the number or staff of the organization's employees, employees are warned by the employer personally and against signature at least two months before dismissal.

{Question: ...Is it legal for an employer to postpone the date of staff reduction if employees were notified two months in advance? (Expert Consultation, 2017) {ConsultantPlus}}

Since the current labor legislation does not establish specific ways to notify an employee of an upcoming dismissal, an employee can be notified of this by any means, subject to the requirements of the Labor Code of the Russian Federation (warning in person and signed) in connection with a reduction in the number or staff of employees, for example: you can familiarize yourself with the notification at home or send a letter with acknowledgment of delivery or a telegram. In this case, the two-month notice period for dismissal will begin to count from the moment the employee receives written notice.

If the employer does not have time to warn about the upcoming dismissal due to a reduction in the number or staff of an employee on sick leave 2 months before the dismissal, then he must postpone the date of dismissal of such an employee with the condition that the employee is notified of dismissal within the above period.

{Question: ...We approved a new organizational structure (decision dated 02/21/2017), which comes into force on 05/05/2017, made an order to introduce personnel changes from 05/05/2017 and prepare a new staff member (order dated 02/27/2017), approved a new staff , which will also come into force on 05/05/2017. That is, no later than 03/05/2017, we must notify the employee of the upcoming layoff. But he has been on sick leave since February 13, 2017. On 03/05/2017 the employee will also still be on sick leave. What should the employer do in this case? (“Website “Onlineinspection.RF”, 2017) {ConsultantPlus}}

The appeal ruling of the Chelyabinsk Regional Court dated March 1, 2016 in case No. 11-2796/2016 states that the provisions of Art. 180 of the Labor Code of the Russian Federation establishes only the minimum period for warning an employee about an upcoming dismissal - at least two months, which does not prohibit the employer from dismissing an employee due to staff reduction after the expiration of the two-month notice period.

The Primorsky Regional Court’s Ruling dated 02/04/2015 in case No. 33-718/2015 notes that the employer’s postponement of the date of dismissal from 05/06/2014 to 05/21/2014 did not result in violations of the employee’s rights.

In the Appeal Determination of the Sverdlovsk Regional Court dated July 17, 2014 in case No. 33-9598/2014, it was noted that in its Determination dated January 27, 2011 No. 13-О-О, the Constitutional Court of the Russian Federation indicated that Part 2 of Art. 180 of the Labor Code of the Russian Federation does not give the employer the right to arbitrarily, unilaterally extend the period of warning to employees about upcoming dismissal in connection with the liquidation of the organization, reduction in the number or staff of the organization's employees. At the same time, the indicated Determination of the Constitutional Court of the Russian Federation did not resolve the issue of inconsistency of the named norm of the Labor Code of the Russian Federation as it is presented (on notifying the employee of the upcoming dismissal at least two months before dismissal) with the provisions of the Constitution of the Russian Federation. On the contrary, it is indicated that parts 1 and 2 of Art. 180 of the Labor Code of the Russian Federation, which are elements of the legal mechanism for dismissal to reduce the number or staff of employees, are of a guarantee nature and cannot be considered as violating the constitutional rights of citizens.

From the above, we can conclude that postponing the reduction date to a later date is possible by notifying employees about this, as well as by following the staff reduction procedure before its end.

{Question: ...Is it legal for an employer to postpone the date of staff reduction if employees were notified two months in advance? (Expert Consultation, 2017) {ConsultantPlus}}

In this case, for the period of the employee’s work, the staffing table must provide for the position of the specified employee. Taking this into account, changes must be made to the relevant order to provide for the availability of the employee’s position in the staffing table until the day of his dismissal.

{Question: The company is reducing its workforce. In accordance with the established procedure, employees, the trade union and the employment center are notified. One of the employees, due to being on annual leave, was notified later and, accordingly, will still work until the expiration of the two months required for notification. 1. If, by order, rates are reduced from September 11, 2017, on what date should the employee who was notified later be fired - July 23, 2017? 2. Is it necessary to make any changes to the layoff order due to the fact that the employee will still be working? (“Website “Onlineinspection.RF”, 2017) {ConsultantPlus}}

On the question, is it necessary to re-notify the central employment center and the employee 2 months in advance, observing the notice period, or is the initial warning sufficient for the central employment center and the employee about the layoff?

Yes need. About dismissal due to a reduction in the number or staff of the employee’s organization and the employment service authorities must be notified no later than two months in advance.

{Question: ...The company is conducting layoffs to reduce the number of staff, the employee and the central control center were warned 2 months in advance. The employee's notice indicates the upcoming dismissal date of June 15, 2017. The employee fell ill before his vacation, wrote an application to postpone the vacation, in which he demands to postpone it to 06/15/2017 (28 k/day). If the employer postpones the vacation, the designated date of dismissal will be shifted and instead of 06/15/2017 it will be 07/13/2017. In connection with the postponement of the employee's vacation, does he not violate the notice period for his reduction or is it enough to write in the notice that, in connection with the postponement of the vacation, the dismissal date has been changed to 07/13/2017? Is it necessary to notify the central control center and the employee again 2 months in advance? Or is the initial warning sufficient? (“Website “Onlineinspection.RF”, 2017) {ConsultantPlus}}

Selection of documents (see appendix):

Question: ...The company is conducting layoffs to reduce the number of staff, the employee and the central control center were warned 2 months in advance. The employee's notice indicates the upcoming dismissal date of June 15, 2017. The employee fell ill before his vacation, wrote an application to postpone the vacation, in which he demands to postpone it to 06/15/2017 (28 k/day). If the employer postpones the vacation, the designated date of dismissal will be shifted and instead of 06/15/2017 it will be 07/13/2017. In connection with the postponement of the employee's vacation, does he not violate the notice period for his reduction or is it enough to write in the notice that, in connection with the postponement of the vacation, the dismissal date has been changed to 07/13/2017? Is it necessary to notify the central control center and the employee again 2 months in advance? Or is the initial warning sufficient? (“Website “Onlineinspection.RF”, 2017) {ConsultantPlus}

Question: The employer warned the employees about the upcoming dismissal due to staff reduction two months before the dismissal, during which the employer needed to postpone the dismissal date to two weeks later. Does the employer need to start the redundancy process again? (Expert Consultation, 2014) {ConsultantPlus}

Situation: What is the procedure for dismissal due to staff reduction? (“Electronic magazine “ABC of Law”, 2018) {ConsultantPlus}

Question: ...An employee took five months of leave for family reasons without pay. Two months later, the organization began reducing staff. It was decided to reduce the employee's position. How can I notify him? Is it legal to recall him from leave for dismissal? Does the employer have the right to dismiss this employee due to redundancy? (Expert Consultation, 2015) {ConsultantPlus}

The explanation was given by Igor Borisovich Makshakov, legal consultant of LLC NTVP Kedr-Consultant, April 2018.

When preparing the answer, SPS ConsultantPlus was used.

This clarification is not official and does not entail legal consequences; it is provided in accordance with the Regulations of the CONSULTATION LINE ().

This consultation has passed quality control:

Reviewer - Candidate of Legal Sciences, Associate Professor of the Department of Labor Law and Fundamentals of Law of the ISUB Udmurt State University, Honored Lawyer of the Udmurt Republic, Sobolev Sergey Anatolyevich

Dismissal of employees due to reduction in staff or positions

The procedure for terminating an employment contract follows the standard procedure:

• employee statement;
• order for the enterprise;
• settlement with the employee on the last working day.

But there is one significant difference: when an employee is released from performing labor duties in connection with the abolition of his position, he must be warned about this in advance, namely two months before the dismissal.

It should also be remembered that you cannot decide to reduce the ranks of employees simply because the manager wanted it so; there must be a justification, and it must be indicated in the dismissal order.

Who should not be laid off?

When deciding which employees you will have to part with, you need to keep in mind that some categories of citizens are protected by labor legislation and can only be dismissed at their own request or in the event of liquidation of the enterprise. This:

• pregnant employees;
• single parents with children under fourteen years of age;
• minor workers;
• mothers of children under three years of age;
• parents who have a disabled child who has not yet turned eighteen.

How to make a decision to downsize?

If the company has free vacancies, for example, the schedule indicates eight salespeople, but in fact only six people work in these positions, the first step should be to reduce these two unoccupied units.

The next step for an employer reducing its staff is to exclude those employees who cannot be fired by law. Then you need to select from the remaining workers, guided by their experience and qualifications. At the same time, the employer must be prepared to prove that those fired are indeed less qualified and valuable than those who remain at the enterprise. At the same time, if you need to part with one of two employees, the first of whom is very qualified and experienced, and the second is a pregnant woman who has only graduated from an educational institution for six months, and has only been working in the organization for the second month, the first employee will have to be fired.

But before this happens, employees need to be asked to move to other vacancies available in the organization. The proposed positions may require less knowledge and experience, and be less paid - the law does not prohibit this. An employer should offer to move to work in another location only if this is provided for in the internal documents of the organization. It is also better to record each refusal to take an offered vacancy in writing.

Notification of laid-off employees about upcoming layoffs

Notice to employees must be given in writing, and employees must sign that they received it. If an employee refuses to give such a signature, an act is drawn up, which must be signed by two witnesses from among the employees of the enterprise (or one, if the enterprise is small).

Employees can be dismissed only two months after the notice is served, so the date must be indicated in the document. The same paper is sent to the regional employment service and to the trade union committee, if there is one in the organization.

How to properly notify?

We have found that it is legal to serve a layoff notice on an employee during the period of his temporary incapacity for work. This is now beyond doubt.

But the question arises: how to give notice of layoffs if the employee is on sick leave ?

After all, being at home due to illness, he does not perform labor functions, which means he cannot be called to work by the employer.

Since labor legislation does not provide specific methods for notifying an employee of layoff while on sick leave, the employer should consider the following options that could allow him to act within the legal framework :

1. Letter of receipt – this is one of the simplest and most convenient means for the employer. The notification letter is sent by the employer through various communication channels (mail, courier delivery, etc.).
   The fact of receipt is reflected on the document and is expressed in the employee’s signature with a transcript (initials, surname).

   ATTENTION. Although a notification letter is the most preferable option for management, it is also the most problematic. After all, the letter may not be delivered to the address, the employee may not reflect the fact of familiarization with it and, thereby, postpone the date of dismissal due to reduction. It is worth paying attention to this when resorting to this method of information.

2. Telegram - an operational document that differs from similar ones in its transmission channel - the telegraph network. The use of specific abbreviations and wording is a distinctive feature of the telegram.
   It is convenient because data on receipt of a telegram is, for the most part, the fact that the employee received the information contained in the notification.

   REFERENCE. In addition to the telegram, you can also use a fax, i.e. facsimile, which transmits data with all the features of the original. Having previously notified the employee about the direction of the document, the employer sends the information. This is evidence that he was familiar with the content of the data being sent.

3. Familiarization at home, i.e. This method involves the formation of a special commission to serve notice of layoffs on sick leave.
   Not the easiest way, but effective.

   This procedure will allow you to avoid many problems that are possible when implementing the two methods indicated above.

   The commission consists of people from among the organization's employees.

IMPORTANT! The notice delivery commission is a temporarily created structure consisting of employees appointed by the employer.

Whatever method the management chooses, it is necessary to remember what the notice of layoff on sick leave should consist of. We will not list details. We will only indicate the key points of the text that should be reflected in the document .

1. Greeting.
2. A reference to the Labor Code of the Russian Federation (Article 81, paragraph 2) indicating the reason that prompted the management to reduce the number (staff).
3. Link to reduction order.
4. Offering the employee another (vacant) position within his competence or notification of the absence of one (Article 180 of the Labor Code of the Russian Federation).

These points are a guarantee that the employer will inform the employee about the dismissal in accordance with all the rules provided by law.

REFERENCE. It would not be amiss to mention in the document that the trade union and the employment service were notified of the reduction, respectively. This will eliminate unnecessary problems at the output.