We reduce the staff: typical mistakes of employers. Reduction of an employee - procedure and rules for reduction Reduction of employees according to the Labor Code of the Russian Federation

Practicing lawyer and economist, director of "CPC "Dialogue Consulting" LLC, member of the National Union of Personnel Officers of Russia, expert reviewer of the SPS "ConsultantPlus".

Seminars M.V. Cherenkova are primarily recommended to heads of personnel management departments (HR), managers, specialists structural divisions participating in the development of collective agreements, local regulations, organizational and administrative documents, wage systems, in resolving labor disputes.

Education

1986-1991 — Novosibirsk Institute of Soviet Cooperative Trade; specialty: "Economics of trade";
1992-1993 — International School of Managers (Moscow); specialty: "Foreign economic activity";
1997-2002 — Law Institute of Krasnoyarsk state university(currently Yui SibFU) with honors; specialty: "Jurisprudence".

The most massive lecturer's seminar was held in Novosibirsk in April last year (298 people) on the topic: "Recent changes in the labor legislation of the Russian Federation: review of innovations, analysis of practice."

Most Popular Workshop 2015: "Effective contract: key points transitional period" organizers: CJSC "Quadro Plus" (Kemerovo), LLC "Center for Corporate Training" (Kemerovo), EMC "Union of Industrialists" (Barnaul), ANO DPO "STsPR" (Krasnoyarsk), LLC "CPC "Dialog Consulting" (Krasnoyarsk).

For 15 years of work in the field labor law M.V. Cherenkova prepared 35 training programs, attended by more than 10,000 people in different cities of the country (Krasnoyarsk, Lesosibirsk, Minusinsk, Sharypovo, Kansk, Achinsk, Arkhangelsk, Velsk, Severodvinsk, Vologda, Perm, Irkutsk, St. Petersburg, Novosibirsk, Kemerovo, Novokuznetsk , Barnaul, etc.).

In 2014, the first book by M.V. Cherenkova "Employment book: complex issues of management" (publishing house "Thought", Novosibirsk, circulation 5000 copies).

Currently, work continues on the second book with the working title: "Personnel documents of the organization: we draw up correctly."

1. How to document the reduction in the number or staff of employees.

2. What payments are due to employees in case of reduction.

3. What are the features of the reduction of employees of an individual entrepreneur.

The employer does not have much legal grounds dismiss employees on their own initiative. One of these grounds is dismissal due to a reduction in the number or staff of employees (clause 2, part 1, article 81 of the Labor Code of the Russian Federation). This measure, the reduction of workers, can be either planned (for example, when automating production, when certain positions are simply not needed - their functions are performed by machines), and forced (for example, in a difficult economic situation, when you have to cut costs, including by reducing the number of employees and labor costs). However, in any case, regardless of the reasons, the reduction of employees requires careful preparation from the employer, and first of all, in terms of documentation. Even the most “insignificant”, at first glance, violation of the procedure and deadlines for processing documents can give rise to serious claims from the regulatory authorities in the field of employment, up to litigation and recognition of the dismissal of employees as illegal. In order for the staff reduction to take place systematically and in full accordance with the law, I suggest you read this article to the end.

First of all, let's decide on the wording that is given in the Labor Code of the Russian Federation: “reduction in the number or staff of employees of an organization, an individual entrepreneur” (clause 2, part 1, article 81 of the Labor Code of the Russian Federation). In fact, it includes two grounds for dismissal of employees:

Downsizing- in this case, the number of employees holding certain positions decreases, but the positions themselves remain.
Downsizing- in this case, it is the positions that are reduced, and, accordingly, all employees occupying these positions are subject to dismissal.

It should be noted that both with a reduction in the number and with a reduction in the staff of employees, the staffing table changes. For example, when reducing the number of drivers from five to two employees, the position "driver" in staffing will remain, however, the number of staff positions will not be five, but two. With a reduction in staff, the position of "driver" is completely removed from the staff list.

The procedure for carrying out a reduction in the number or staff of employees

The reduction of employees requires the employer to follow a clear sequence of actions. Special attention should be given to paperwork, as well as the timing of interaction with employees and regulatory authorities. In order not to miss anything, consider the procedure for reducing workers in steps.

1. Making a decision to reduce the number or staff of employees

The very first step that an employer must take is to decide on the upcoming reduction of employees. This decision is formalized by order of the authorized body of the employer. In an organization, as a rule, such powers are vested in the head, unless otherwise stated in the charter. If the employer is an individual entrepreneur, then the entrepreneur himself signs the reduction order.

The following information is usually recorded in the order for reduction:

the reasons for the need to reduce;
positions and the number of staff units to be reduced;
further reduction measures, deadlines for their implementation and responsible persons.

2. Approval of the new staffing table

As mentioned earlier, the reduction of employees is always associated with a change in staffing. Therefore, in accordance with the order to reduce employees, it is necessary to prepare a new staffing table, as well as an order to approve the new staffing table indicating the date from which the changes take effect (taking into account the two-month notice period for employees).

3. Determination of employees who have the preferential right to remain at work

The reduction in the number of employees involves the dismissal of not all employees occupying a certain position, but some. At the same time, the employer does not have the right to determine these "lucky ones" at its discretion - it is necessary to be guided by the requirements Labor Code(Article 179 of the Labor Code of the Russian Federation). The sequence of employees who have the priority right to leave at work is determined as follows:

Employees with the highest productivity and qualifications.
With equal productivity and qualifications, employees have an advantage:

who are fully supported by two or more family members;
in whose family there are no other self-employed workers;
received work injury or an occupational disease while working for this employer;
who are invalids of the Great Patriotic War and invalids of military operations for the defense of the Fatherland;
undergoing advanced training in the direction of the employer without interruption from work;
other categories of employees established collective agreement.

! Note: to reduce the number and staff cannot be fired(part 4 of article 261 of the Labor Code of the Russian Federation):

pregnant employee;
an employee with a child under the age of three;
a single mother raising a disabled child under the age of 18 or a young child (under the age of 14);
an employee who brings up these children without a mother.

As a rule, in order to form a list of employees who are the last to be dismissed by reduction (or cannot be dismissed under the law), a commission is created, the composition of which can be approved by a reduction order. The final list is approved by the decision (minutes) of the commission and is the basis for the dismissal of some employees and leaving others at work.

4. Notifying employees of upcoming layoffs

After the composition is determined specific workers subject to reduction, the employer is obliged to notify each of them of the upcoming dismissal in writing against signature. The notice is drawn up in any form, preferably in two copies: one for the employee and the other for the employer (as confirmation of the fulfillment of the specified requirement).

! Note: The employer is obliged to notify employees of the upcoming dismissal due to a reduction in the number or staff within the following timeframes:

at least two months prior to dismissal general case(with part 2 of article 180 of the Labor Code of the Russian Federation);
at least seven calendar days in advance - seasonal workers (part 2 of article 296 of the Labor Code of the Russian Federation);
at least three calendar days— employees who have entered into labor contract for up to two months (Article 292 of the Labor Code of the Russian Federation).

The indicated deadlines are set for employers that are organizations - this follows from a literal reading of the wording of the Labor Code of the Russian Federation. Thus, an employer who is an individual entrepreneur is not obliged to comply with the deadlines for notifying employees about the upcoming reduction, unless such deadlines are provided for in employment contracts (Determination of the Constitutional Court of the Russian Federation of March 20, 2014 No. 2010 in case no. 33-4591).

An employee who has received a notification has the right not to wait for the period specified in it, but to agree to early termination of the employment contract. Consent must be provided in writing. In this case, the employee is paid the average salary, calculated in proportion to the time remaining until the expiration of the notice of dismissal. In addition, the employee is entitled to all other payments, which will be discussed below.

5. Notification of employees about vacancies

Even sending a notice to an employee about the upcoming reduction does not guarantee his dismissal: the Labor Code obliges the employer to offer employees to be laid off other available vacancies, as well as work corresponding to the qualifications of the employee (part 3 of article 81 of the Labor Code of the Russian Federation). The job offer may be included in the text of the reduction notice, or it may be issued separate document, with which the employee is acquainted under the signature. Refusal of the employee from the proposed work or vacancy must be made in writing.

6. Notice to the employment service

The employer is obliged to notify the employment service authority in writing about the upcoming reduction in the number or staff of employees (clause 2, article 25 of the Law of the Russian Federation dated April 19, 1991 No. 1032-1 “On employment in Russian Federation»). The notice periods are as follows:

for organizations: not less than two months in general, and in case of mass layoffs not less than three months;
for individual entrepreneurs: not less than two weeks.

! Note: Regional employment centers may provide their own forms for submitting information about laid-off workers.

7. Notice trade union organization(if any)

In accordance with Art. 82 of the Labor Code of the Russian Federation, the employer must inform the elected body of the primary trade union organization in writing about the upcoming reduction in the number and staff of employees. The terms are the same as for notifying the employment service: 2 months and 3 months (with a massive reduction). If there are trade union members among the workers to be laid off, then the decision to dismiss them must be agreed with the trade union body in the manner prescribed by Art. 373 of the Labor Code of the Russian Federation.

The procedure for dismissal of employees for reduction

Dismissal of employees in connection with the reduction occurs in general order established by Art. 84.1 of the Labor Code of the Russian Federation.

1. Issuing a dismissal order

The order is drawn up according to the unified form No. T-8. The column "Basis" indicates the details of the order to reduce the number or staff of employees. If the employee was dismissed ahead of schedule by agreement, then this column also reflects the details of such an agreement (employee's statement). The order indicates the last day of work.

2. Drawing up a note-calculation

3. Registration of a personal card, making an entry in work book

An entry is made in the employee’s personal card and work book that the employment contract has been terminated due to a reduction in the number or staff of employees on the grounds of clause 2, part 1, art. 81 of the Labor Code of the Russian Federation. The entry in the work book is certified by the signature of the employee responsible for maintaining work books, the seal of the employer and the signature of the dismissed employee (clause 35 of Decree of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books”). The work book is issued to the employee on the day of termination of the employment contract. Upon receipt of the work book, the employee must sign the personal card.

The wording of the entry in the work book upon dismissal due to a reduction in the number of employees looks like this: The employment contract was terminated due to the reduction in the number of employees of the organization, paragraph 2 of the first part of Article 81 of the Labor Code of the Russian Federation

Payments to employees upon dismissal due to reduction

In addition to the usual termination benefits, such as pre-employment wages (including bonuses, allowances and other benefits) and compensation for unused vacation, employees who have fallen under the reduction, and rely on additional payments. In accordance with the Labor Code of the Russian Federation, upon dismissal due to a reduction in the number and staff of employees organizations, the employer must pay(part 1 of article 178 of the Labor Code of the Russian Federation):

Severance pay in the amount of average monthly earnings is paid on the day of dismissal.
The average monthly salary for the period of employment within two months from the date of dismissal (including severance pay) is paid to the dismissed employee if, within two months from the date of dismissal, he did not find another job. For confirmation, the former employee must present a work book.
The average monthly salary for the third month from the date of dismissal is paid in exceptional cases, subject to certain conditions:

the employee was registered with the employment service within two weeks after the dismissal;
during the third month, the employee is employed by a new employer;
right former employee to receive the specified payment is confirmed by the decision of the employment service.

! Note: The Labor Code of the Russian Federation, namely part 1 of article 178, provides for the above payments in relation to employees organizations. If employer is individual entrepreneur, then severance pay and others compensation payments upon dismissal due to a reduction in the number and staff of employees, they are paid on a mandatory basis only when they are provided for by the employment contract (part 2 of article 307 of the Labor Code of the Russian Federation, Ruling of the Constitutional Court of the Russian Federation of March 20, 2014 No. 476-O, Cassation ruling of the Khabarovsk Regional Court of 07/09/2010 in case No. 33-4591).

personal income tax and insurance premiums in the FSS, PFR, FFOMS are not charged on the amount of severance pay, as well as on the amount of payments in the form of average monthly earnings for the period of employment, if the amount of these payments as a whole does not exceed three times the average monthly earnings (clause 3 of article 217 of the Tax Code of the Russian Federation, subparagraphs "e" p 2 hours 1 article 9 federal law No. 212-FZ, paragraphs. 2 p. 1 art. 20.2 of Federal Law No. 125-FZ). In the part exceeding the specified limit, compensation payments to employees upon reduction are subject to personal income tax and contributions.

So, we examined the procedure for the employer to carry out a reduction in the number or staff of employees: what documents and in what time frame should be drawn up. If all activities are carried out in strict accordance with the norms of the law, then inspections by regulatory authorities in the field of employment of the population, as well as litigation regarding the reinstatement of dismissed employees at work, are not terrible for you.

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Normative base

Labor Code of the Russian Federation
Tax Code of the Russian Federation
Federal Law No. 1032-1 dated April 19, 1991 “On Employment in the Russian Federation”
Federal Law No. 212-FZ dated July 24, 2009 “On Insurance Contributions to Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund
Federal Law No. 125-FZ dated July 24, 1998 “On Mandatory social insurance from accidents at work and occupational diseases
Decree of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books”

How to get acquainted with the official texts of these documents, find out in the section

Experts of the Legal Consulting Service GARANT spoke about the procedure for dismissal due to a reduction in the number or staff of employees, including employees of retirement age and pensioners

10.03.2017

In accordance with paragraph 2 of the first part of Art. 81 of the Labor Code of the Russian Federation, an employment contract may be terminated at the initiative of the employer in connection with a reduction in the number or staff of the organization's employees. At the same time, the legislator has established a number of restrictions that must be applied when dismissing employees due to a reduction in the number or staff of the organization's employees. Thus, in particular, Art. 261 of the Labor Code of the Russian Federation establishes a ban on dismissal under paragraph 2 of part one of Art. 81 of the Labor Code of the Russian Federation for pregnant women and women with children under the age of three. It is also not allowed to dismiss an employee due to a reduction in the number or staff of employees during the period of his temporary disability and during his vacation (part six of article 81 of the Labor Code of the Russian Federation).

No specific features of dismissal to reduce the number or staff of persons of retirement age have been established by labor legislation. Their right to remain at work is assessed on an equal basis with other employees on a general basis (see, for example, the appeal ruling of the Investigative Committee on civil cases of the Omsk Regional Court dated 09.09.2015 in case No. 2015 in case No. 2-1357/2015). The reduction of employees who are pensioners is also carried out on a general basis (see, for example, the decision of the Kezhemsky District Court Krasnoyarsk Territory dated June 27, 2013 in case No. 2-367/2013). Accordingly, in the case under consideration, the employer must comply with all stages of dismissal on the indicated grounds, as well as provide such employees with all the due guarantees and compensations.

The procedure for downsizing or staffing

The procedure for terminating an employment contract due to reduction can be divided into the following stages:

making a decision to reduce staff;
notification of the employee about the termination of the employment contract;
offer to the employee vacancies;
issuance of a dismissal order;
payment to the employee of all amounts due to him (including compensation).

Decision to reduce staff or staff

The adoption by the employer of a decision to reduce the number or staff of employees, as a rule, is formalized by an order (instruction) of the employer, the form of which is not approved by law. After the issuance of the order, the employer must approve a new staffing table, in which the reduced positions (staff units) are no longer indicated.

Employees subject to dismissal due to redundancy are determined by the employer, taking into account the number of staff units remaining in the staffing table for each position (profession, specialty), as well as the benefits of staying at work, provided for in Art. 179 of the Labor Code of the Russian Federation.

In accordance with the first part of Art. 179 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), when reducing the number or staff of employees, the priority right to remain at work is granted to employees with higher labor productivity and qualifications.

With equal labor productivity and qualifications, preference in leaving at work is given to family - in the presence of two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is for them a permanent and main source of livelihood); persons in whose family there are no other self-employed workers; employees who received an industrial injury or occupational disease during the period of work with this employer; disabled people of the Great Patriotic War and invalids of military operations for the defense of the Fatherland; employees who improve their skills in the direction of the employer on the job.

The collective agreement may provide for other categories of workers who enjoy the preferential right to remain at work with equal labor productivity and qualifications (parts two and three of article 179 of the Labor Code of the Russian Federation).

As seen, retirement age and the retirement of an employee is not a reason either for his dismissal in the first place, or for preferentially leaving him at work when reducing the number or staff of the organization's employees (part six of article 81 and article 179 of the Labor Code of the Russian Federation).

As follows from the provisions of Art. 179 of the Labor Code of the Russian Federation, exercising the preferential right of employees to remain at work in case of reduction, the employer first of all compares their labor productivity and qualifications, and then (with equal labor productivity and qualifications of several employees) the comparison is carried out according to other criteria.

In other words, all named in the second part of Art. 179 of the Labor Code of the Russian Federation, the circumstances of the employee’s personal life that are not directly related to his work can be taken into account only with equal labor productivity and qualifications, after determining the main issue of the preemptive right to leave persons with higher qualifications and labor productivity at work ( appeal ruling of the IC in civil cases of the Supreme Court of the Kabardino-Balkarian Republic dated February 27, 2013 in case No. 33-199 / 2013, appeal ruling of the IC on administrative affairs Orel Regional Court dated August 22, 2013 in case No. 33-1805/2013).

From the rules of Art. 179 of the Labor Code of the Russian Federation also follows that the priority right can only be exercised between employees occupying the same positions, in a situation where there is a reduction in one or more staff units for this position, and at least one position, labor function according to which the laid-off workers perform, remains. After all, only in this case it is possible to make a choice between several employees based on their productivity and skill level (see also the appeal ruling of the Moscow City Court dated January 10, 2014 No. .2013 in case No. 33-2118 / 2013, appeal ruling of the IC in civil cases of the Astrakhan Regional Court dated July 25, 2012 in case No. 33-2098 / 2012).

Notice of termination of an employment contract due to a reduction in the number or staff

Employees are warned about the upcoming dismissal due to a reduction in the number or staff by the employer personally and against signature at least two months before the dismissal (part two of article 180 of the Labor Code of the Russian Federation). The law does not establish a maximum warning period, therefore, it can be more than two months. The warning, drawn up in free form, usually indicates the specific date of dismissal. The legislation does not prohibit giving employees a notice of impending dismissal during the period when they are on vacation or on sick leave.

On the possible termination of employment contracts with employees in connection with the decision to reduce the number or staff of employees, the employer must not later than two months before the start of the dismissal of employees in writing notify the elected body of the primary trade union organization (if any), as well as the employment service bodies (part one of article 82 of the Labor Code of the Russian Federation, clause 2 of article 25 of the Law of the Russian Federation dated April 19, 1991 No. 1032-1 "On employment in the Russian Federation"). Notifications are drawn up by the employer in any form (for example, in the form of a letter on the employer's letterhead). The information that must be reported to the employment service is listed in paragraph 2 of Art. 25 of the said Law.

Vacancies in case of downsizing or staff reduction

According to Art. 81 of the Labor Code of the Russian Federation, dismissal to reduce the number or staff is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer. The employer is obliged to offer the employee all vacant positions or work available to him in the given area, both the relevant qualifications of the employee, and lower positions or lower-paid work that the employee can perform taking into account his state of health. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

The Labor Code of the Russian Federation does not define the concepts of "vacant position", "vacancy". Based on the meaning given to these terms, a vacant position can be defined as a position that is on the staff list, but for which no employment contract has been concluded. Accordingly, a position is not vacant if an employment contract has been concluded for it:

with a part-time partner (see, for example, the ruling of the St. Petersburg City Court dated 07.07.2011 No. 33-10321);
with an employee who temporarily does not perform labor duties (for example, is on a long vacation), but who, in accordance with the law, retains a place of work (position) (see, for example, the ruling of the Omsk Regional Court of February 15, 2012 No. 33-1239 / 2012) .

According to Rostrud, set out in a letter dated July 29, 2009 No. 2263-6-1, the employer is not obliged, but has the right to offer an employee who is dismissed due to a reduction in the position of an employee who is on parental leave.

From the provisions of the third part of Art. 81 and part one of Art. 180 of the Labor Code of the Russian Federation it follows that the employer is obliged to offer other available work during the entire period of measures to reduce the number or staff of employees. In other words, the employer must offer the employee to be dismissed another available job (position) not only on the day of the notice of the upcoming dismissal, but throughout the entire period of the notice of dismissal every time a vacant position (job) appears. At the same time, both existing positions and those newly introduced during the period of the reduction measures should be offered (see, for example, the ruling of the Omsk Regional Court dated 05.23.2007 No. 33-1597, the ruling of the Moscow City Court dated 05.14.2012 No. civil cases considered in the Nazarovsky City Court for 2010 and 6 months of 2011).

Since the measure to reduce the number (staff) of employees ends on the day of dismissal, the employer must offer available vacancies on this day as well (see, for example, the ruling of the Perm Regional Court dated 03.10.2011 No. 33-9870). If the employer does not have vacancies or the employee refuses to transfer to the offered vacancies, the employee may be dismissed.

Dismissal order due to downsizing or staff reduction

On the day specified in the notice of dismissal due to a reduction in the number or staff of employees (if the employment contract is not terminated earlier than this date on the basis of part three of Article 180 of the Labor Code of the Russian Federation), the employer must formalize the termination of the employment contract according to the rules established by Art. 84.1 of the Labor Code of the Russian Federation.

Thus, the employer must issue an order to dismiss the employee, familiarize the dismissed employee with its contents, make an appropriate entry in his work book, and issue, at the request of the employee, duly certified copies of documents related to work. In addition, by virtue of paragraph 3 of part 2 of Art. 4.1 of the Federal Law of December 29, 2006 No. 255-FZ "On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Maternity", the employer on the day of dismissal must issue to the employee a certificate of the amount of earnings for the two calendar years preceding the year of termination of work (service, other activities), in the form and in the manner prescribed by the order of the Ministry of Labor and social protection RF dated April 30, 2013 No. 182n.

Downsizing or downsizing payments

On the day of dismissal, the employer must make the final settlement with the employee (Article 140 of the Labor Code of the Russian Federation). So, the employee must pay:

wages due to the employee for the time worked, not yet paid to him by the day of dismissal;
monetary compensation for unused vacations during work with this employer (when an employee is dismissed due to a reduction in staff before the end of the working year in which he has already received annual paid leave, deductions for unworked vacation days are not made (part two of article 137 of the Labor Code RF));
severance pay in the amount of average monthly earnings (Article 178 of the Labor Code of the Russian Federation);
additional compensation in case of termination of the contract before the expiration of the notice of dismissal (part three of article 180 of the Labor Code of the Russian Federation).

On this, the procedure for reducing the number or staff of employees can be considered completed.

In the future, for a dismissed employee for the period of employment, but not more than two (in exceptional cases - three) months from the date of dismissal, the average monthly salary is retained. The severance pay paid upon dismissal in the amount of the average monthly earnings is counted towards the average earnings (part one of article 178 of the Labor Code of the Russian Federation). Accordingly, the first month of the job search does not need to be paid additionally. In the second and third months after the dismissal, the average salary is paid only for those days when the employee did not work at the new place of work. To receive an average salary for the second month after dismissal, it is enough for an employee to present a passport or other identity document and a work book in which there is no record of employment. The employer, in our opinion, is also obliged to keep the pensioner's average earnings for the third month after dismissal due to a reduction in the number or staff of employees, if former employee during this period will not be able to find another job and will submit the appropriate document from the employment service.

The procedure for calculating average earnings for calculating severance pay and average earnings for the second and third months of a job search is determined by Art. 139 of the Labor Code of the Russian Federation and the Regulation on the peculiarities of the procedure for calculating the average wage, approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922.

Dear Dmitry,

Dismissal
due to a reduction in the number or staff of employees

IN
accordance with paragraph. 2 of the first part of Art. 81
Labor Code of the Russian Federation, an employment contract may be terminated by the employer in connection with
reduction in the number or staff of employees of the organization, individual
entrepreneur.

IN
labor law does not provide an official explanation of what exactly is
downsizing, and what downsizing, and how these concepts
correlate. In our opinion, downsizing should be understood as
reduction of staff units for a certain position while leaving the most
positions in the staffing table, and under the reduction of staff - the elimination of all
staff units for one or more positions. However, since the procedure
layoffs of employees both in the event of a reduction in the number and in the event of a reduction in staff
is the same, the selection of features by which these categories differ does not have
practical value.

An exception
from the staff list of vacant positions (staff units) by reduction
the number (staff) of employees is not.

procedure
reductions can be divided into the following steps.

1. Acceptance
by the employer of the decision to reduce the number (staff) of employees and approval
new staffing table.

2. Definition
the circle of employees who will be affected by measures to reduce the number
(state).

3. Written
notification of decision employment and trade union services (if any).

4. Personal
warning each employee whose staff unit is subject to reduction about
imminent dismissal and offer him another available job.

5. Accounting
reasoned opinion of the representative body of employees or obtaining
the consent of such body in the cases provided for in Articles 39, 373, 374 and 405
TK RF.

6. Decoration
dismissal of employees under clause 2 of part
first st. 81 of the Labor Code of the Russian Federation in the general manner established by Art. 84.1 of the Labor Code of the Russian Federation, with payment of all
amounts due.

Dismissal
in connection with a reduction in the number or staff of employees is lawful when
observance following conditions:

Reduction
the number (staff) of workers actually took place, that is, in fact
In fact, there was an abolition of the functional rights and obligations that make up
the content of the reduced position, and not, for example, a simple renaming
any of the positions being cut.

Constitutional
The Court of the Russian Federation in the ruling of December 17, 2008 N 1087-О-О
confirmed the necessity of such a condition as the reality of reduction, and at the same time
pointed out that the employer cannot be limited in the right subsequently
to restore the abolished post in the staffing table in order to implement
efficient economic activity and rational property management,
but in such cases the possibility of abuse of the right to
side of the employer using the reduction in the number of employees to lay off
specific person. And since in such cases the employee can learn about
reinstatement in the staff list of the position he held, only on
expiration of the first paragraph
Art. 392 of the Labor Code of the Russian Federation, the court does not have the right to refuse to restore
missed procedural term without investigation of factual circumstances
cases that may serve as the basis for such restoration;

Dismissal
produced in compliance with the procedure established by law (clause 23 of the decision of the Plenum of the Supreme Court of the Russian Federation
dated March 17, 2004 N 2).

paragraph 2
or 3 parts of the first
of this article is allowed if it is impossible to transfer an employee from his
written consent to another job available to the employer (as a vacant
position or job corresponding to the qualifications of the employee, and the vacant
lower position or lower-paid job) that the employee can
perform according to his state of health. At the same time, the employer must
to offer the employee all the vacancies that meet the specified requirements, available to
him in the area. Offer vacancies in other localities employer
is obliged, if it is provided for by the collective agreement, agreements, labor
contract.

The procedure for reducing the staff - step-by-step instructions for it are described in the Labor Code of the Russian Federation, and additional explanations are given Supreme Court RF. About how it is correct from the point of view of the law to carry out staff reduction, is described in the proposed article.

How to properly reduce an employee due to a downsizing: procedure

You can legally dismiss an employee by observing step by step instructions on the reduction of the number of employees and a number of rules:

Offer all available vacancies that correspond to the qualifications of the employee (Article 81 of the Labor Code of the Russian Federation).
When choosing employees for reduction, remember the pre-emptive right to remain at work and the impossibility of dismissing some employees under the Labor Code of the Russian Federation (Article 179 of the Labor Code of the Russian Federation).
To pay compensations provided by the current legislation and local acts organizations (Articles 178, 180 of the Labor Code of the Russian Federation).

Step by step reduction of staff includes the following steps:

Informing employees about the upcoming staff reduction in accordance with Art. 180, 296, 318 of the Labor Code of the Russian Federation.
Informing the trade union body about the upcoming reduction. By general rule Part 1 Art. 82 of the Labor Code of the Russian Federation, it is made 2 months before the dismissal. If we are talking about mass dismissal, then the notice should be carried out 3 months in advance.
The offer to laid-off workers of all possible vacancies that meet their qualifications, under Part 1 of Art. 180 of the Labor Code of the Russian Federation.
Registration of dismissal of employees who have decided to dismiss before the expiration of the established period. At the same time, it is obligatory to pay all the required compensations, taking into account the additional early dismissal according to part 3 of Art. 180 of the Labor Code of the Russian Federation.
Dismissal of employees after the expiration of the period indicated in the notices.

How to properly warn an employee about dismissal under the article on staff reduction

It is necessary to talk about how to properly reduce an employee to reduce staff, taking into account the obligation to warn the employee about the upcoming dismissal. It is necessary to observe the procedure and terms of such a warning.

Article 180 of the Labor Code of the Russian Federation states that the minimum threshold for warning an employee is 2 months about the deadlines for reducing the staff. The employer may notify longer term, the law does not contain restrictions of this kind. The parties have the right to agree on early dismissal.

The second important aspect is the form of the warning. The notification always takes place in writing, under the signature, individually for each employee. The law does not establish a rigid form for such a notice, but it is important that the grounds for dismissal and deadlines follow from it.

The law does not specify how the notification should be sent. The main thing is that it be in writing, handed over under the signature and personally. At best, it should be handed directly to the employee, but this is not always possible. In extreme cases, the notice can be sent by certified mail, for example, if the employee is sent on a long-term trip.

It is in the interests of the employer to draw up a notice in 2 copies and keep a copy signed by the employee.

Who cannot be fired

Law highlights 2 separate categories employees are those who:

cannot be made redundant under any circumstances;
enjoy the right to remain at work.

employees who are pregnant;
female employees raising children under the age of 3;
single mothers raising a disabled minor;
single mothers raising a child under the age of 14;
employees raising a child without a mother;
sole breadwinners of a disabled minor;
the only breadwinners of a child under 3 years old in a large family, provided that three children are minors, and the second parent is not employed.

Art. 81 of the Labor Code of the Russian Federation supplements this list with employees on vacation or disabled, because dismissal at the initiative of the employer during this period is prohibited.

Priority right to stay at work

Priority when leaving at work is determined primarily by the Labor Code of the Russian Federation, but additional categories of workers can enjoy this right on the basis of a collective agreement.

In Art. 179 of the Labor Code of the Russian Federation defines categories of workers who have an advantage in choosing persons who fall under the reduction. The main thing that an employer should be guided by when choosing employees to leave at work is:

qualification;
labor productivity.

Preference is given to those with higher scores. If they are equal, then priority under Part 2 of Art. 179 of the Labor Code of the Russian Federation is given:

persons who have a family in which 2 or more dependents remain on their support (at the same time, the assistance received by the dependent must be constant, being the main source of finance for existence);
employees who improve their skills on the job;
the sole breadwinner in the family;
employees who, while working at the enterprise where the reduction is taking place, have received an occupational disease or injury;
disabled veterans of the Second World War and other disabled people who became disabled as a result of participation in hostilities to defend the Motherland.

Problems can arise when an employee feels that the employer has unfairly chosen him for layoffs and his labor productivity is higher than that of the employees who were left. In such a situation, he can go to court. An example of proving such a fact and taking it into account by the court is the decision of the Bogatovsky District Court dated February 26, 2015 No. 2-60/2015 2-60/2015~M-42/2015 M-42/2015.

What are the guarantees and compensations for laid-off workers

Art. 178, part 3 of Art. 180 of the Labor Code of the Russian Federation guarantee such employees:

Full pay for all hours worked in the last working month.
Cash compensation for unused vacation.
Severance pay in the amount of average monthly earnings.
Average monthly earnings for 2 months as a period of employment with offset of severance pay. The period of saving earnings can be extended up to 3 months by decision of the employment authority, if the employee registers with it within 2 weeks after the termination of the employment contract and is not employed. For workers in the Far North, this period may be extended to six months under Art. 318 of the Labor Code of the Russian Federation.

For early dismissed employees, additional compensation is provided - the average earnings for the entire time for which the period of work after the warning was reduced, including when the warning was made more than 2 months in advance or its validity period was extended (appeal ruling of the Sverdlovsk Regional Court dated February 14, 2018 to case No. 33-2730/2018).

An exception when calculating severance pay is made for seasonal workers. For them, it is paid in the amount of the average earnings for 14 days.

What are the features of reducing a part-time job

Compatibility under Art. 60.1 of the Labor Code of the Russian Federation is the performance of other work in free time from the main job with the same employer or with another.

At the same time, the law does not make an exception regarding the procedure for dismissing a part-time worker on the basis of Part 2 of Art. 81 of the Labor Code of the Russian Federation, and art. 287 of the Labor Code of the Russian Federation says that guarantees are provided to such employees in full, with the exception that part-time workers cannot count on additional guarantees provided to employees of the Far North. They are provided only at the main place of work.

Whether the worker is external or internal part-time, he must be informed 2 months in advance of the upcoming reduction of his position and receive all possible offers of vacancies that he can occupy by virtue of his qualifications. In case of refusal, he is dismissed according to the general rules.

IMPORTANT! For each place of work, the parties conclude an independent employment contract, an order is issued to hire an employee for a position.

This means that the reduction of a part-time job during a reduction in staff is not a basis for his dismissal from the main position, even if we are talking about internal part-time work.

Grounds for challenging the dismissal of an employee due to staff reduction

It is not uncommon to go to court to challenge a dismissal due to staff reductions. The Constitutional Court of the Russian Federation laid the foundations for the consideration of such cases, determining that personnel policy enterprise is the responsibility of the employer and he has the right, at his discretion, to carry out a reasonable reduction in staff in accordance with the norms current legislation(for example, the definition of the Constitutional Court of December 22, 2015 No. 2768-O).

Among the grounds for the position of the employee in disputes about staff reductions, it is worth noting:

Violation by the employer of the redundancy procedure. The burden of proof is on the employer. Thus, the Soviet District Court of Samara issued a decision dated 07/05/2017 in case No. 2-2200/2017, satisfying the plaintiff's claims, since the employer was unable to document compliance with the staff reduction procedure.
The dismissal of an employee for other reasons than the real reduction in staff. To establish such facts, the court takes into account the actual change in the number of departments. An example of this is the decision of the Buynaksk City Court dated June 29, 2017 in case No. 2-467/2017.

So, the decision to reduce the number of employees is fully the responsibility of the employer. However, at the same time, he must comply with all legal requirements regarding the process of reduction, payment of compensation and preservation of guarantees to former employees.

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