What is the difference between downsizing and downsizing? We reduce the staff: typical mistakes of employers The difference between downsizing and downsizing

You can dismiss an employee on his initiative or by decision of the administration of the enterprise. In the second case, this may happen due to a reduction. However, there are two options for this procedure - downsizing or downsizing. What is the difference, what consequences for its participants can be?

The downsizing means that all full-time positions remain, but there will now be fewer employees working for them. For example, if there were three people in the position of "Accountant", then after this procedure there will be two or only one of them. However, the position itself remains in the company.

If we are talking about staff reduction, then some of the positions will be removed from the schedule. Accordingly, it will be necessary to dismiss those employees who worked for them.

The only difference is that, perhaps, with a reduction in staff, it will not be necessary to determine the preferential right to leave the employee in his place, and with a decrease in the number of this procedure, this procedure cannot be avoided.

For employers

If only the number of employees is reduced at the enterprise, then it is necessary to create a commission that will determine which of the employees to keep at work. We are talking about the fact that from several people it will be necessary to choose candidates for dismissal. Since they all work in the same positions, the requirements are the same.

Therefore, it is necessary to take into account labor productivity, level of education, qualifications, experience, length of service (including in this organization), etc. In the event of a staff reduction, the issue is resolved by itself: all those who work in these positions are subject to dismissal .

For staff

By and large, the employee does not care, because he has already been notified of the upcoming dismissal. From a material point of view, in both cases, the size of the severance pay and the conditions for its payment will be the same.

But if, with a reduction in the number, the employee still has the opportunity to compete for his place, then in the event of the liquidation of his position, the maximum that he can claim is to get another place in the same organization. Of course, the position will be different.

What is more beneficial for the parties of legal relations

For the employer

Downsizing will be easier - in this case, you will not have to decide who to keep in office and who to fire. Accordingly, employees will not have to justify their decision.

For staff

This option is also more favorable. They can continue to work in this organization: management is obliged to offer other positions. When reducing the number of employees, the employer must choose those who will remain in the position.

For example, the position of an economist provides for two employees. One is an experienced person with higher education, has been working in the company for more than 10 years, he has adult adult children, no dependents. The second is a young woman with a 2-year-old child in care. According to the norms of labor legislation, the choice will be in favor of a woman.

The legislative framework

Art. 3 of the Labor Code of the Russian Federation - contains a ban on age discrimination;
Art. 81 of the Labor Code of the Russian Federation - contains provisions that determine the procedure for dismissal of an employee in connection with a reduction in the number or staff;
Art. 82 of the Labor Code of the Russian Federation - indicates the obligation of the organization to notify the members of the labor collective subject to dismissal;
Art. 178 of the Labor Code of the Russian Federation - lists the allowances and compensations payable during this process;
Art. 179 of the Labor Code of the Russian Federation - determines the conditions under which the preferential right to retain the workplace for the employee is revealed;
Art. 180 of the Labor Code of the Russian Federation - describes the procedure for the reduction;

In the event of a mass dismissal, the provisions of Decree of the Government of the Russian Federation No. 99 dated February 5, 1993 no.

The Big Difference: What is downsizing and downsizing, and how do they differ?

Dismissal on reduction is an unpleasant procedure for both parties of labor cooperation. Upon learning of an impending job loss, a person wonders if there is a difference between a reduction in the number and staff of workers .

What it is?

First, let's look at the concepts that characterize labor resources organizations:

number of staff is the total number of all who work in the company;
staff- this is a list of all positions provided for by the structure of the enterprise;
staffing- local normative document, containing complete information about the divisions, composition and number of workers, indicating positions, specialties and other information.

Formation personnel structure organizations at their own discretion - the legitimate right of management.

What is the difference?

To prevent the occurrence controversial situations, it is necessary to have a correct understanding of the difference between downsizing and downsizing. These activities can take place at the same time.

When the number of employees is reduced, there is a decrease in the total number of workers within one or more positions. Let's say the director believes that in the current economic situation, the company will need five sales managers instead of six.

The reduction of the personnel of the enterprise involves the removal of certain job positions from staffing. For example, the manager realized that the organization's evening operators were no longer needed, since the day shift was coping with the current volume of tasks. In this way, management regularly changes the structure of the enterprise in order to use labor resources more efficiently.

Loss of employment due to reduction in the number or staff of employees - what is the difference for staff? In general, there is no significant difference. If liquidated position, the subordinate will not be saved even by the preferential right to keep the job, since everyone who occupies this position will be removed.

A citizen who has lost his job should independently check whether his rights are violated, for this he needs to:

clarify your belonging to the circle of persons with a preemptive right;
demand that management offer another job;
register at the labor exchange within two weeks;
under no circumstances write a letter of resignation by agreement of the parties or of their own free will;
to control the entry by personnel officers of the correct entry corresponding to the reason for dismissal, in work book.

The total number of subordinates may remain unchanged or increase with the liquidation of any position if management decides to introduce new positions.

Are there any differences in the procedure for dismissing employees?

To reduce the number and staff of employees, paragraph 2 of Art. 81 of the Labor Code of the Russian Federation provides for the same procedure. It gives certain guarantees to laid-off workers.

The step-by-step algorithm of the leader's actions includes:

creation of an order to conduct personnel events. The document should contain information about the upcoming transformations of the enterprise structure with confirmation of their need. The new staffing table is approved by the same order or additional;
accounting for employees with pre-emptive rights. They are highly qualified and highly productive professionals. With equal indicators, management will give preference to: family employees with two or more dependent children, those who were injured or disabled at work, employees whom management sent to improve their skills without stopping work;
notification of staff about the dismissal two months before the start of the transformation. An exception will be mercenaries accepted under a contract for up to two months. They must be warned three days before the dismissal. Those hired for the season are notified of such events seven days in advance;
offer of available vacancies in this locality. It is allowed to offer a vacancy in another territory, if it is provided for by the collective agreement;
informing the regional employment center about upcoming personnel events;
termination of employment relations with employees implies the presence of an order to dismiss, full payment, issuance of documents.

The laid-off worker is also entitled to severance pay, representing the average monthly earnings. This manual is maintained while the citizen is looking for a new job. This process should not take more than two months.

By decision of the employment service, a citizen who failed to find a job receives benefits in the third month after dismissal, if registration was done no later than two weeks after losing his job.

What is the difference between downsizing and downsizing, and which is better for an organization's employees?

During the difficult economic situation in the country, many enterprises are experiencing difficulties in financial sector, and often there is a question of reducing the number or staff of employees.

This procedure is often painful and causes a lot of inconvenience for both the employee who will have to look for a new job, and the employer, who will have to spend a lot of time doing this procedure correctly and legally, since the dismissal procedure itself is quite conflicting, and often ends in lawsuits .

Let us consider in detail what it is and what are the fundamental differences between the two concepts.

Dear readers! Our articles talk about typical solutions legal issues but each case is unique.

Definition of concepts

Reducing the number of employees or curtailing positions for employees of an enterprise is one of the grounds for terminating an employment contract and is enshrined in Part 1 of Article 81 of the Labor Code of the Russian Federation.

What is the difference between them?

Despite the similarity in sound, these concepts are different and have different meanings. Here are some examples of the differences:

Features and nuances

The peculiarity of the dismissal of employees due to staff reduction is that the employee is deprived of the opportunity provided by law to stay at work, since all employees of this position are dismissed, and the employer cannot choose who to leave and who not.

One of the nuances in the abolition of a position is the legally enshrined right of certain categories of employees to remain in office. Thus, Articles 61, 65 of the Labor Code of the Russian Federation provide for the retention of work with a reduction in staff for certain categories of persons, such as the disabled, single mothers, etc. Such workers are usually retrained or given another job. About which categories cannot be fired for redundancy, it is said here, and from this article you will learn about the nuances of transferring an employee to another position.

You can find out about the priority right to work during layoffs here, and about who is laid off in the first place, it is said in a separate article.

The law guarantees even highly qualified pensioners to maintain their right to work. But if job loss is unavoidable, they claim appropriate payments. Read about the features of the reduction of pensioners in our material.

What is best for workers?

Since there is a difference between these concepts, in some cases the employee may have advantages. For an employee of an organization, the procedure for reducing the number of employees is more promising, since he has the right to prove to the employer that he is necessary at his place of work.

If the employer violates the law, the dismissed person can defend his rights in judicial order, and not only to return their work, but also to receive compensation for moral damage.

For the administration of the enterprise, it is more profitable to completely remove the position, since the need to choose exactly whom to dismiss is eliminated, and it will be more difficult for the employee to challenge the decision of the employer before the court.

Despite the whole unpleasant picture that develops when dismissed due to a reduction in staff or headcount, citizens are protected by law and can endure this painful procedure with minimal damage to themselves.

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Reducing the number or staff of employees is a rather painful procedure for both employees and the employer itself. The worker is faced with the need to search new work, and the employer often has to confirm the legality of the dismissal in court. We will tell you how the reduction in the number of employees differs from the reduction in staff, what documents must be issued during the procedure for reducing employees, why it is necessary to evaluate the preferential right to leave at work only when carrying out a reduction in the number of employees.

From this article you will learn:

How is downsizing different from downsizing?
what documents need to be issued during the procedure for reducing employees;
why it is necessary to assess the pre-emptive right to leave at work only when carrying out a reduction in the number.

The decision on the legality of dismissing an employee due to a reduction often depends on how complete, correct and timely the documents are drawn up.

It should be noted that redundancy dismissal is one of the most conflicting ways to terminate an employment relationship. The likelihood of an employee filing a claim for reinstatement is quite high. And any flaw in the paperwork may lead to the need to restore it to work.

When carrying out the reduction procedure, management needs to follow the sequence of actions, as well as established by law terms.

We combined the actions of the employer into step by step algorithm, which can be guided, taking into account the nuances that a particular leader has.

Step 1. We make a decision to reduce employees

First of all, the employer decides on the reduction. Moreover, at this stage it is necessary to determine what kind of reduction is planned to be carried out - the number or staff. There may be downsizing and downsizing at the same time.

The difference is as follows: when reducing the staff, certain positions are excluded from the staff list. If there is a reduction in the number, then the number of staff units for a certain position decreases.

The decision taken is formalized by an order to exclude staff units, positions from the staffing table or to approve a new staffing table. In this case, the order must indicate the date of entry into force of the new staffing table (changes in the staffing table).

Expert comments from electronic journal"Personnel business"

Alina GORELIK, Legal Counsel, MORGAN AND STOUT LLC (Moscow)
Agreement on early dismissal an employee can be canceled if the employer refused to reduce
In case of staff reduction, the employee and the employer have the right to conclude an agreement on the early termination of labor relations (part three of article 180 of the Labor Code of the Russian Federation). There is competition between the rules on dismissal by agreement of the parties with the rules on reduction (Article 78, paragraph 2 of the first part of Article 81 of the Labor Code of the Russian Federation). The agreement of the parties on dismissal is canceled only with the mutual consent of the parties, it cannot be canceled by order of the management (paragraph 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2). But to cancel the reduction, the will of the leadership is enough. If the agreement states that the contract is terminated by reduction and there is a reference to part three of Article 180 of the Labor Code, the termination of labor relations occurs at the initiative of the management, and not by agreement of the parties. Therefore, you can cancel the early dismissal agreement by order of the employer. Notify the employee. To eliminate legal risks, conclude an agreement with him to cancel the previously reached agreement on breaking the TD. So you fix the will of the employee, which will allow you to prove the position of the employer in case of disputable situations.

Irina AKSHONOVA, lawyer at the Bureau of Labor Law law firm (Moscow)
The employer has the right to offer the reduced position, the work on which is performed on a combination basis
With employees holding a position on a combination basis, a separate TD is not concluded. The employer has the right to cancel the order to perform additional work ahead of schedule by notifying the employee in advance. writing no later than three working days (Article 60.2 of the Labor Code of the Russian Federation). From this we can conclude that he occupies only one position, determined by the TD, and the combined position is vacant, which means that it can be offered to the reduced employee. But it must be taken into account that this issue is not clearly regulated by law, therefore, the opposite point of view is also found in court decisions. It is based on the fact that the early cancellation of an assignment to perform an additional function is the right of management, and not its responsibility.

Nikolay YAKOVLEV, Senior Legal Counsel, CJSC Russian Telephone Company (Moscow)
How to restore an employeeand by a court decision, if his position has already been reduced
By a court decision, an employee must be reinstated at work, even if his position has already been reduced. Moreover, such a decision is subject to immediate execution (Article 396 of the Labor Code of the Russian Federation). Therefore, the employer should: add to the staff list the position in which the employee must be reinstated by issuing an appropriate order; issue an order to cancel the order to dismiss and reinstate the employee in the position he held, and familiarize the employee with it against signature; make changes to the work book, in which it should be indicated that the record of dismissal is invalid and the employee has been reinstated; actually allow the employee to work at the previous position and note the time of forced absenteeism in the time sheet. After that, the management has the right to re-lay off the employee, warning him about it two months in advance (paragraph 2 of the first article 81 of the Labor Code of the Russian Federation). At the same time, he is obliged to comply with the established procedure and provide all the rights and guarantees established by law (Articles 179, 180 of the Labor Code of the Russian Federation).

When determining this date, it is necessary to take into account the two-month notice period for the upcoming dismissal. Therefore, a new staffing table (or changes to the staffing table) can be put into effect no earlier than two months after the issuance of the corresponding order.

sample order

Society with limited liability"Flight"

(OOO Polet)

ORDER

In connection with the organizational and staff activities

I ORDER:

1. From January 15, 2016, reduce the number and positions and make changes to the staffing table:

- exclude from the staff list the position of an accountant-cashier (financial department);

- exclude from the staff list the position of a marketer (advertising department);

- to exclude from the staff list three staff positions by the position of manager for work with wholesale customers(sales department);

- to exclude from the staff list five staff positions as a call center specialist (customer service department).

2. Before October 23, 2015, create a commission to determine the pre-emptive right to keep employees subject to dismissal at work.

3. By October 29, 2015, determine the list of employees who have a priority right to remain at work.

4. Before October 30, 2015, send a notice of reduction in the number and staff to the employment service.

5. By October 30, 2015, familiarize each employee personally against signature of dismissal on the basis of clause 2 of part one of Article 81 of the Labor Code.

6. Offer in writing under the signature of each employee to be dismissed, available in the organization vacancies, in accordance with his qualifications, as well as subordinate positions.

9. To impose control over the execution of the order on the head of the personnel administration department, K. P. Bolshakova.

CEO Ivanov V. T. Ivanov

Familiarized with the order

Head of Department Bolshakov K. P. Bolshakova

personnel administration

It is no secret that employers use the procedure of downsizing or staffing to get rid of objectionable employees. In this situation, managers act as follows: first, they exclude the position from the staff list and soon introduce a position into it, slightly different in name from the previous one, but with completely similar functionality. In such a situation, there is a high probability that the dismissed employee will be reinstated at work in court.

Example

The worker held the position of head of the administrative apparatus. The employer reduced the position and fired the employee. At the same time, a new position was introduced in the staffing table - the manager of the affairs of the administration.

Read about redundancy payments

According to the dismissed employee, the new position repeats the labor functions of the position she previously occupied. On this basis, she applied to the court with a claim for the restoration, recovery wages during forced absenteeism, compensation for non-pecuniary damage.

The court, considering the case, examined job descriptions on the abolished and newly introduced position and came to the conclusion that labor function matches for these positions.

Accordingly, the court concluded that there had been no actual liquidation of the position of chief of staff. In this situation, the position was retained with a changed name, subordination and additional duties.

Therefore, the termination of the employment relationship was declared illegal and her claims were satisfied with a reduction in the amount of non-pecuniary damage (Appeal ruling of the Omsk Regional Court dated May 7, 2014 in case No. 33-2490/2014).

Step 2. Determine the list of employees who cannot be fired

After making a decision to cut, management needs to decide which employees it wants to part with. At this stage, it is important to remember that certain categories of personnel are prohibited from being reduced, and some personnel have the preferential right to remain at work.

So, first of all, it is necessary to find out which personnel cannot be fired. This task can be performed by a personnel officer.

Labor legislation directly names the categories of employees who are prohibited from being reduced. These frames include:

pregnant employees;
women with a child under the age of three;
single mothers (other persons raising a child without a mother) raising a disabled child under the age of 18;
single mothers (other persons raising a child without a mother) raising a child under 14;
a parent (another legal representative) is the sole breadwinner of a disabled child under the age of 18;
a parent (another legal representative) is the sole breadwinner of a child under the age of three in a family raising three or more young children, if the other parent does not work.

Most often, questions arise regarding which mothers are classified as single. The answer to it is proposed by the Plenum of the Supreme Court of the Russian Federation. So, a single mother is considered a woman who brings up her children (relative or adopted) on her own without a father, in particular, if he:

died or declared missing;
deprived of parental rights or restricted in parental rights;
recognized as incapacitated (partially incapacitated) or for health reasons cannot personally raise and support a child;
is serving a sentence in institutions that carry out punishment in the form of deprivation of liberty;
evades the upbringing of children or the protection of their rights and interests (p. 28).

It should be noted that the Plenum of the Armed Forces of the Russian Federation does not include divorced mothers in the category of single mothers. Meanwhile, this clearly does not indicate that such mothers can be safely excluded from this category.

For example, the Moscow City Court found it illegal to dismiss a divorced woman with a minor child. The court took into account the fact that the employee receives child benefit from the management social protection of the population, and there is no information on the payment of alimony by the father of the child (Appeal ruling of the Moscow City Court dated September 4, 2014 in case No. 33-30170).

Careful consideration should be given to compiling a list of "untouchables", since in the event of their dismissal, such employees will be reinstated at work by a court decision.

Attention!

When recognizing an employee as “untouchable”, the age of the child is important. In this case, it is necessary to take into account his age at the date of termination of employment.

Employers often have a question: what to do if he intends to reduce a position in the staff list, and this position is occupied by an employee who is forbidden to be fired. Let's just say that it will not work to reduce the position. As an option, we can recommend offering him a transfer to another position. However, if the employee refuses to transfer, he has the right to work for same place. And the management has to wait until the employee loses the status of "untouchable".

Read about the procedure for laying off employees to reduce staff.

Step 3. Evaluate the pre-emptive right to stay at work

Article 179 of the Labor Code establishes that in the event of a reduction in the number or staff, the preferential right to remain at work is granted to personnel with higher labor productivity and qualifications.

Note that employees can actually take advantage of the preemptive right only if there is a reduction in the number. In a situation where there is a reduction in staff (that is, certain positions are excluded from the staffing table), the preemptive right rule does not work, since the degree of labor productivity and staff qualifications can only be compared by evaluating their performance of the same functions.

Thus, the Moscow City Court pointed out that the preferential right to leave at work is investigated by the employer if one of the same positions certain structural unit, that is, between employees occupying the same places, some of which are subject to reduction (appeal rulings of the Moscow City Court of January 22, 2015 in case No. 33-1708, of June 20, 2014 in case No. 33-22277).

So, personnel with higher labor productivity and qualifications have the preferential right to stay at work.

With equal labor productivity and qualifications, preference in leaving is given to:

family - in the presence of two or more dependents (disabled family members who are fully supported by a working family member or receive assistance from him, which is for them a permanent and main source of livelihood);
persons in whose family there are no other members with independent earnings;
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;
personnel who improve their qualifications in the direction of management on the job.

Labor legislation does not establish a procedure for assessing the pre-emptive right to stay at work. To avoid possible problems We recommend setting up a special committee working group). To do this, you need to issue an appropriate order.

Sample order on the creation of a commission to reduce the number

Based on the study of personal data, the Commission determines the right of pre-emption to leave. The result of the commission's work can be documented in a protocol.

sample protocol

Based on the analysis of information on the pre-emptive right to stay at work, the employer decides to terminate the employment relationship with certain staff units in connection with the reduction.

Step 4. Warn employees about the upcoming dismissal

The employer must notify the employee about the upcoming dismissal personally, against signature, at least two months before the upcoming event (part two of article 180 of the Labor Code of the Russian Federation). Note that there is no special form of warning, so the management has the right to independently develop a form of notification. The notice should indicate the upcoming dismissal, its reason and date.

It is important for the employer to obtain the signature of the employee that he has been notified of the impending termination of employment within the period established by law. It is this signature that will testify to the proper performance of the notification obligation by management.

Step 5. We offer the employee available vacancies

The employer must offer the laid-off employee the available vacant positions(part one, article 180 of the Labor Code of the Russian Federation). It is necessary to offer both a vacant position or task corresponding to the qualifications of the employee, and a vacant lower position or lower-paid work that the employee can perform taking into account his state of health.

The form in which the head should offer vacancies is not determined by the legislation. Meanwhile, in the event of a dispute, the employer must confirm the fulfillment of the obligation to offer vacant positions. Therefore, it is advisable to draw up a proposal with a list of proposed vacancies in writing in duplicate. One copy is given to the employee, on the second - he puts his signature confirming the receipt of the offer (this copy remains with the employer).

To streamline the workflow, you can combine the notice of the upcoming dismissal and the offer of vacancies into one document.

Note that if, after the information about available vacancies is transferred to the employee, new positions suitable for a particular employee appear, the employer must offer them to him. In other words, the management is obliged to offer another available job (vacant position) during the entire period of these events - from the date of notification to the date of dismissal (Appeal ruling of the Irkutsk Regional Court dated July 15, 2015 in case No. 33-6147 / 15).

The legislation does not provide for a maximum notice period for an upcoming dismissal, therefore, an employer can warn about the termination of an employment relationship at an earlier date: three or four months before the upcoming event.

At the same time, the legislation establishes reduced notice periods for dismissal for the following categories:

for staff working on fixed-term contract for a period of less than two months, the notice period is not less than three calendar days (part two of article 292 of the Labor Code of the Russian Federation);
for personnel engaged in seasonal work, the notice period is at least seven calendar days(part two of article 296 of the Labor Code of the Russian Federation).

Step 6. We warn the employment service about the upcoming dismissal

After making a decision to reduce the number or staff, the employer must notify the employment service about this. This obligation is established by paragraph 2 of Article 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 “On Employment in Russian Federation". Note that, since this obligation is not provided for by the Labor Code, but by the Employment Law, many managers simply do not know about this requirement.

You must notify the employment service no later than two months before dismissal. And if it is of a massive nature, the notification must be sent no later than three months.

The notification form "Information on the laid off workers" is approved. At the same time, regional employment centers have the right to develop their own notification forms. Therefore, we recommend that you contact the territorial employment service to clarify the issue regarding the form for submitting information about the reduced staff.

Attention!

The employer is obliged to notify the employment service of the upcoming procedure, regardless of the number of units to be reduced. Therefore, if a decision is made to reduce, for example, only one employee, a notice to the employment service must be submitted according to the general rules.

Note: judicial practice follows the path that if, during this procedure, the employer did not notify the employment service and this is the only violation, this is not recognized as a violation of the procedure for terminating employment relations and does not entail restoration (see, for example, the Appeal ruling of the Smolensk Regional Court dated March 12, 2014 in case No. 33-804).

However, if there is a complex of violations, then the failure to notify the employment service is taken into account by the court when making a decision to reinstate the employee.

Step 7. Warn the union

In the event that the organization has a trade union, it must be notified of the upcoming dismissal no later than two months before the start of the relevant events (part one, article 82 of the Labor Code of the Russian Federation). If the dismissal is massive, its term is no later than three months. The union must be notified in writing.

In practice, the question often arises related to the wording of the norm of part one of Article 82 of the Labor Code of the Russian Federation: what exactly can be considered the beginning of the relevant measures - the beginning of the procedure (issuance of an order) or direct dismissal? The answer to this question was given by the Constitutional Court of the Russian Federation in 2008. It is necessary to notify the trade union no later than two months before the start of the procedure (Determination of the Constitutional Court of the Russian Federation of January 15, 2008 No. 201-O-P). Thus, it is possible to send relevant information to the union at the same time as notifying the staff.

Note that the legislation special rules to terminate labor relations with trade union members.

Step 8. We issue an order to terminate the TD

We have already talked about the fact that employees who are being laid off should be offered suitable vacancies for them. If he agreed to take one of the proposed vacancies, the employee is transferred to a new position.

We recommend that the refusal of the proposed vacancies be made in writing. For example, on a notice with an offer of vacant positions, he can write “I refuse the offered positions”, date and sign.

If the employee refused the offered vacancies, the organization has no vacancies at all or there are no vacancies that suit the employee in terms of qualifications and health status, the TD is terminated. For this purpose, the employer issues an order to terminate the TD. The order can be drawn up using the unified form No. T-8. At the same time, management has the right to use independently developed and approved forms of documents. The column "Basis" indicates the details of the order to approve the new staffing table, notice of reduction.

Expert opinion

On the day of dismissal, the employee called and said that her child was ill and she took sick leave. When can this employee be fired?

An employee must be fired on the first working day after sick leave. The fact is that at the initiative of the employer, it is impossible to terminate the employment relationship with an employee during his period of temporary disability. This applies to a reduction in the number or staff and other grounds for breaking a TD, with the exception of the liquidation of an organization or the termination of activities by an individual entrepreneur. The prohibition on dismissal applies even to cases when the employee is on sick leave to care for a family member (part six of article 81 of the Labor Code of the Russian Federation).

Semikova Ksenia, lawyer, expert of the Kadrovoe Delo magazine

Step 9. We make a settlement with the employee

Upon dismissal due to a reduction, he must be paid wages, compensation for unused vacation as well as severance pay.

The amount of severance pay is the average monthly earnings for one month. At the same time, the employee retains the average earnings for the period of employment, but not more than two months, taking into account the severance pay (part one, article 178 of the Labor Code of the Russian Federation).

Note that the employer must pay the average salary for the second month, provided that the reduced one did not get a job. However, the legislation does not define the procedure for this payment. Meanwhile, the management needs to receive a written application with a request for payment, as well as a work book, in which there will be no record confirming the employment of the employee for a new job.

The average earnings for the third month are retained only on the condition that the employee applied to the employment center within two weeks after the termination of the employment relationship and was not employed by him. Accordingly, in order to receive payment for the third month, the employee, in addition to the application and work book, must provide a certificate from the employment service.

For certain categories established special rules for the payment of benefits. So, an employee who has concluded a TD for a period of up to two months is not paid severance pay, unless otherwise provided by federal laws, a collective agreement or TD (part three of article 292 of the Labor Code of the Russian Federation). An employee employed in seasonal work, upon termination of the TD, must be paid severance pay in the amount of two weeks of average earnings (Article 296 of the Labor Code of the Russian Federation).

Employees of the Far North are paid severance pay in the amount of their average monthly earnings. In addition, they retain their average monthly earnings for the period of employment, but not more than three months from the date of leaving their place of work (including severance pay) (Article 318 of the Labor Code of the Russian Federation). In exceptional cases, the average monthly salary is retained for the indicated personnel for the fourth, fifth and sixth months from the date of termination of labor relations by decision of the employment service body, provided that within a month after the dismissal he applied to this body and was not employed by it.

Step 10. Making an entry in the work book and handing it out

The rules for issuing and issuing a work book during reduction do not differ from general order. An entry on dismissal must be made in the work book with reference to paragraph 2 of part one of Article 81 of the Labor Code. The employee must certify this record with his signature.

On the day the TD is terminated, the work book must be handed over. Upon receipt of it, he must sign his personal card and the book of accounting for the movement of work books.

The employment contract may be terminated by the employer in cases of reduction in the number or staff of employees of the organization, individual entrepreneur.

1. Making a decision to reduce the number or staff of employees. Approval of the new staffing table.

The employer makes a decision to reduce the number and / or staff of employees and draws up it.

At least two months before the expected start of layoffs "by reduction", and if the proposed layoff is massive, then at least three months before, the employer issues an order (instruction) to reduce the number or staff at the enterprise. The order (instruction) indicates the reason for the reduction, establishes the persons responsible for the measures taken in connection with the reduction in the number and staff of employees, the timing of these events.

Following remember that the dismissal of an employee can only be made after the exclusion of his position from the staff list, and in no case in connection with the planning of such an exception in the future. Therefore, a new staffing table must first be approved (or changes are made to the current staffing table), and only after that the number and staff of employees can be reduced. The new staffing table (as well as changes to it) is approved by order (order). The order sets the date for the entry into force of the new staffing table.

2. An order (instruction) to reduce the number / staff, an order (instruction) to approve the staffing table are registered in the manner prescribed by the employer, for example, in the appropriate register of orders (instructions). The order is communicated to employees.

3. Written notification of the employment service authorities about the upcoming release of workers.

According to part 2 of Art. 25 of the Law of the Russian Federation of April 19, 1991 N 1032-1 "On Employment in the Russian Federation" when deciding to reduce the number or staff of employees of an organization, an individual entrepreneur and the possible termination of employment contracts employer-organization no later than two months, and an employer - an individual entrepreneur - no later than two weeks before the start of the relevant activities are obliged to notify the employment service authorities in writing about this.

In such a message, you must indicate the position, profession, specialty and qualification requirements to them, the conditions of remuneration of each individual employee.

The deadline for reporting to the employment service authorities will be even longer if the decision to reduce the number or staff of the organization's employees can lead to mass layoffs of employees. In these cases, it is necessary to notify the employment service authorities of the mass reduction no later than three months before the start of the relevant activities.

The message sent to the employment service authorities is registered in the manner prescribed by the employer, for example, in the register of outgoing documents.

4. We determine which specific employees cannot be fired by law, and which have the right to preferential retention at work.

There are workers who cannot be fired by law, and workers who have a preferential right to stay at work. According to Art. 261 of the Labor Code of the Russian Federation, termination of an employment contract at the initiative of an employer with pregnant women is not allowed, except in cases of liquidation of an organization or termination of activity by an individual entrepreneur. According to part 4 of Art. 261 of the Labor Code of the Russian Federation “termination of an employment contract with a woman who has a child under the age of three, with a single mother raising a disabled child under the age of eighteen or a young child - a child under the age of fourteen, with another person raising these children without mother, with a parent (other legal representative of the child) who is the sole breadwinner of a disabled child under the age of eighteen or the sole breadwinner of a child under the age of three in a family raising three or more young children, if the other parent (other legal representative of the child) is not a member labor relations, at the initiative of the employer is not allowed (with the exception of dismissal on the grounds provided for in paragraphs 1, 5–8, 10 or 11 of the first part of Article 81 or paragraph 2 of Article 336 of this Code)”.

17. Issuance of a certificate/certificates on the amount of earnings(Clause 3, Part 2, Article 4.1 federal law dated December 29, 2006 N 255-FZ “On mandatory social insurance in case of temporary disability and in connection with motherhood”).

Note.

AT step-by-step procedure for downsizing and staffing additional steps are possible in the presence of trade union bodies.

According to Article 373 of the Labor Code of the Russian Federation, when deciding on the possible termination of an employment contract in accordance with paragraph 2 of part one of Article 81 of the Labor Code of the Russian Federation with an employee who is a member trade union, the employer sends to the elected body the relevant primary trade union organization draft order, as well as copies of the documents that are the basis for making the said decision.

The elected body of the primary trade union organization, within seven working days from the date of receipt of the draft order and copies of documents, considers this issue and sends its reasoned opinion to the employer in writing. This opinion is usually drawn up in the form of minutes of the meeting of the elected body of the primary trade union organization.

An opinion not submitted within seven days is not taken into account by the employer.

If the elected body of the primary trade union organization expressed disagreement with the alleged decision of the employer, then it shall, within three working days, hold additional consultations with the employer or his representative, the results of which are drawn up in a protocol. If there is no general agreement on the results of consultations, the employer, after ten working days from the date of sending the draft order and copies of documents to the elected body of the primary trade union organization, has the right to make a final decision, which can be appealed to the relevant State Labor Inspectorate.

The State Labor Inspectorate, within ten days from the date of receipt of the complaint (application), considers the issue of dismissal and, if it is recognized as illegal, issues an obligatory order to the employer to reinstate the employee at work with payment for forced absenteeism.

Compliance with the above procedure does not deprive the employee or the elected body of the primary trade union organization representing his interests of the right to appeal the dismissal directly to the court, and the employer does not deprive the employer of the right to appeal to the court the order of the State Labor Inspectorate.

Please note: the article also establishes the terms of dismissal: the employer has the right to terminate the employment contract no later than one month from the date of receipt of the reasoned opinion of the elected body of the primary trade union organization (we will discuss the difficulties of meeting this deadline below). In the specified period, periods of temporary disability of the employee, his stay on vacation and other periods of absence of the employee when he retains his place of work (position) are not counted.

The collective agreement may establish a different procedure for the mandatory participation of the elected body of the primary trade union organization in the consideration of issues related to the termination of the employment contract at the initiative of the employer. Therefore, before involving the trade union body in the procedures, carefully read the provisions collective agreement.

Article 374 of the Labor Code of the Russian Federation defines Additional features dismissals of employees who are members of the elected collegial bodies of trade union organizations and are not released from their main work.

If the employee refuses to receive the offer, read it, put his signature, it is recommended to draw up an appropriate act, which is certified by the signatures of the originator and the employees who were present at the refusal, and send the offer to the employee’s home address by letter with notification and description of the attachment. The act is registered in the manner prescribed by the employer in the appropriate registration log.

If the employee refuses to receive the notification, read it, put his signature, it is recommended to draw up an appropriate act, which is certified by the signatures of the compiler and the employees who were present at the refusal, and send the notification to the employee's home address by letter with the notification and description of the attachment. The act is registered in the manner prescribed by the employer in the appropriate registration log.

If the employee refuses to familiarize himself with the order (instruction) to terminate the employment contract, it is also advisable to draw up an act on the employee’s refusal to familiarize himself with the order (instruction), which is signed by the originator and the employees who were present at the refusal (the law in this case does not require the drawing up of an act, but in the event of a court dispute, the act may be useful as additional evidence of the correctness of the employer). The act is registered in the manner prescribed by the employer in the appropriate registration log.

If the employee refuses to receive a work book, it is advisable to draw up an appropriate act. The act is signed by the compiler and employees who were present at the refusal. The law does not require the drawing up of such an act, but it can be useful as evidence of the innocence of the employer if a dispute arises upon dismissal and the case goes to court. The act is registered in the manner prescribed by the employer in the appropriate registration log.

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One of the grounds for termination of an employment contract at the initiative of the employer is a 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 order for the dismissal on this basis to be lawful, the employer must prove the following:

a) the actual reduction in the number or staff of the organization's employees. Otherwise, an employee dismissed under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation, without sufficient grounds, is subject to reinstatement at work.

b) observance of the preferential right to leave at work (Article 179 of the Labor Code of the Russian Federation), first of all, employees with higher qualifications, and those who are prohibited from being fired (for example, pregnant women). If the level of qualifications or business qualities is the same, preference is given to persons specified in Part 2 of Art. 179 of the Labor Code of the Russian Federation. Separate federal laws also provide for categories of workers who have the preferential right to remain at work. According to paragraph 6 of Art. 10 of the Federal Law of May 27, 1998 N 76-FZ "On the Status of Military Personnel", the spouses of military personnel have the preferential right to remain at work in government organizations and military units with a reduction in the number or staff of employees. The priority right is also given to servicemen who first entered the job after being discharged from military service (paragraph 5, clause 5, article 23 of the Federal Law of 05.27.1998 N 76-FZ).

c) fulfillment of the obligation at the suggestion of the employee, taking into account his state of health, another available job (vacant position or job corresponding to qualifications, or lower-paid job). The employee is offered all the vacancies that meet the specified requirements that the employer has in the given locality, as well as vacancies in other localities, if this is provided for by the collective or employment contract, by agreement. Failure by the employer to fulfill this obligation entails the reinstatement of the employee at work.

d) a written notice to the employee about dismissal no later than two months. The proof of this is the employee's handwritten signature in the notice of termination of the employment contract. Failure by the employer to fulfill this obligation entails the reinstatement of the employee at work.

With the written consent of the employee, the employer has the right to dismiss him before the expiration of the warning period with the payment of compensation in the amount calculated in proportion to the remaining time (part 3 of article 180 of the Labor Code of the Russian Federation). If the employee does not give written consent to this, dismissal before the end of the notice period will be illegal;

e) preliminary request:

Consent of a superior elector trade union body on the dismissal of the head (his deputy) of the elective collegial body of the primary trade union organization, the elective collegial body of the trade union organization of the structural unit of the organization (not lower than the workshop and equated to it), not released from the main work (hereinafter - the head (his deputy) of the elective collegial body of the trade union organization ) (part 1 of article 374 of the Labor Code of the Russian Federation).

Reasoned opinion of the elected body of the primary trade union organization on the decision of the employer to dismiss the employee - a member of the trade union or the head (his deputy) of the elected collegial body of the trade union organization (in the absence of a higher elected trade union body) (parts 1, 2 of article 373, part 13 of article 374 TC RF).

Termination of an employment contract with these employees without complying with the requirements for a preliminary request for the consent of a higher elected trade union body or a reasoned opinion of the elected body of the primary trade union organization is recognized by the courts as illegal, while the employee is subject to reinstatement (

To avoid mistakes and not get lawsuits from employees, you need to follow mandatory conditions. Explore step by step instructions and download 8 required documents.

In the article:

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Reduction of staff: features of the procedure

Staff cuts are a necessary measure. It is resorted to when reorganizing or re-profiling an enterprise, automating production processes, a decrease in production volumes or the wage bill. An employer can make an unpopular but vital decision for the company and part with part of the staff at any time, and without giving reasons (Resolution of the Plenum Supreme Court RF No. 2 dated March 17, 2004). Labor Code The Russian Federation is the main law on the reduction of employees, which should be referred to in such cases.

Norm of the Labor Code of the Russian Federation
Art. 81 of the Labor Code of the Russian Federation	Provides the opportunity to reduce the number or staff of the organization's staff by dismissing some of the employees
Art. 179 Labor Code of the Russian Federation
Article 180 of the Labor Code of the Russian Federation	Establishes guarantees and compensations for laid-off employees
Art. 178, 318 of the Labor Code of the Russian Federation	Provides laid-off employees with a range of government guarantees
Art. 82 of the Labor Code of the Russian Federation	Requires the union to be notified of upcoming layoffs, individual or mass

Labor legislation provides for two similar but different procedures:

staff reduction;
staff reduction.

New staffing

Develop a new “staff” and approve the list of employees you plan to fire. There is no unified form of the list. When compiling a document, carefully copy the job titles from the staff list and refer to the reduction order:

List of employees dismissed due to headcount reduction

How do you know who to include on the list? If a position is completely excluded from the staff list, all employees occupying it are released. When only the number of staff units is reduced, the list is formed taking into account legislative requirements, conditions collective agreement, local regulations and other documents establishing the pre-emptive right to be left at work (Article 179 of the Labor Code of the Russian Federation).

By general rule preference is given to more qualified specialists who show high results, confirmed by the results of attestation, certificates and diplomas, memos and reports. Consequently, the list includes workers with lower qualifications and lower labor productivity.

With equal qualifications and labor productivity, keep the work for employees:

who fully support two or more young children or disabled relatives;
are the only breadwinners in families where no one else has sources of income;
dismissed from military service, subject to the first employment;
who have received an injury or occupational disease while working in the organization;
improving qualifications in the direction of the company on the job;
victims of radiation as a result of the Chernobyl accident or nuclear tests at the Semipalatinsk test site;
having the status of a disabled combatant for the defense of the Fatherland, Hero Soviet Union or RF, full cavalier of the Order of Glory.

To justify the choice of employer, supplement the list with specific criteria that determine the preferential right to remain at work.

★ Please note that some categories of personnel, such as seasonal workers, are released on a special basis. How cut the "seasonal" without breaking the law, the expert of the System Kadra will tell. But there is also general rules to be observed under all circumstances.

Neither a seasonal, nor a temporary, nor a permanent employee can be reduced during a vacation or illness (Article 81 of the Labor Code of the Russian Federation). In this case, the dismissal due to staff reduction is considered illegal, which is fraught with fines for the employer and the reinstatement of the employee in his position with payment for forced absenteeism.

How to issue a notice of reduction for the union and the employment service

If a layoff is unavoidable, notify the employment office and the union. The notice of staff reduction must be in writing and sent in advance: no later than two months before the start of the procedure, and in the case of mass layoffs of staff, at least three months. The mass character criteria are established by paragraph 1 of the regulation approved by the Decree of the Government of the Russian Federation No. 99 of 02/05/1993.

Mass layoffs are considered:

50 or more employees within 30 days;
200 or more employees within 60 days;
500 or more employees within 90 days;
1% or more of total employees for 30 days in a region with a population of less than 5,000.

Use these criteria only if the enterprise is not subject to territorial or sectoral agreements that define the concept of mass layoffs in certain regions or sectors of the economy (Article 82 of the Labor Code of the Russian Federation).

Attention!Individual entrepreneurs must send at least two weeks notice to the employment service about the reduction in the number of employees ().

In the case of mass layoffs, only unified notification forms are used, approved by Decree of the Government of the Russian Federation No. 99 dated February 5, 1993. Draw up a notice of a reduction in a small number of employees in free form or on a standard form approved by local authorities or self-government bodies (contact the territorial office of the employment service for clarification).

Notification to the employment service

When submitting a document, be sure to indicate:

information about the company;
the total number of employees to be made redundant;
details of the order on the basis of which the activities are carried out;
data on each dismissed person: full name, level of education, position and qualifications, salary.

When several employees fall under the reduction at once, information about them can be arranged in the form of a table. Please note that the employment office at the location of the employer may request additional data - for example, information about the age of employees.

Attention! An employer who fails to notify the employment service of a planned reduction or who misses the deadline for submitting a notification faces an administrative fine under Article 19.7 of the Code of Administrative Offenses of the Russian Federation.

How to fire a redundant employee: step by step instructions

So that the reduction is not recognized as illegal, adhere to the established procedure and be attentive to the little things.

Step 1. Make sure there is no ban on dismissal

The law prohibits the dismissal of pregnant employees and women with children under three years of age, even if they are in maternity leave(see the ruling of the Supreme Court of the Russian Federation No. 21-KG14-14 dated 30.03.2015).

A similar prohibition applies to other persons with family responsibilities: single mothers, fathers and guardians raising a minor child (under 14 years old) or a disabled child (under 18 years old), sole breadwinners of a disabled child under 18 years old or a child under 3 years old in a family with three or more young children (Article 261 of the Labor Code of the Russian Federation). Persons under the age of 18 are fired only with the consent of the GIT and the Commission on Juvenile Affairs (Article 269 of the Labor Code of the Russian Federation). The expert of the magazine "Personnel Business" will tell you!

Step 2: Determine if the employee has a preferential right to stay at work

Evaluate his qualifications and labor productivity, specify his family and social status. Prepare documents to confirm the higher qualifications of the specialist who remained in the state if the employee who fell under the reduction starts a lawsuit (Article 391 of the Labor Code of the Russian Federation).

Step 3. Give the employee written notice on the reduction of the position or staff unit that he occupies, and the upcoming dismissal

There is no standard form: draw up the document in free form, in compliance with the standards of GOST R 7.0.97-2016. Be sure to indicate that during the entire notice period you will offer the employee other vacancies!

Sample letter of resignation in order of abbreviation

Hand over the employee's layoff notice at least two months before the termination of the employment contract and ask to sign for receipt. In case of refusal, draw up a written act in the presence of two witnesses:

An act on the refusal of an employee to sign a notice of reduction

Step 4. Make sure the date of dismissal is correct!

Even one controversial day in the calculation of the warning period can turn against the employer. The fact is that there are two approaches to determining the two-month period: the first requires excluding the day of delivery of the notification from it ( ). The second approach, on the contrary, takes this day into account when calculating ( ). Arbitrage practice is contradictory and does not bring any clarity to the issue, therefore it is better to play it safe and count two months from the day following the day the notice was delivered so that the employee is guaranteed not to be reinstated by a court decision.

Attention! In order not to delay the dismissal of an employee who is not in the workplace, send a notice by courier or by mail. Waiting for the exit annual leave, decree or sick leave is not necessary at all!

Step 5: Offer vacancies as they become available

Each vacancy that suits an employee should be offered at least once, preferably in writing (Articles 180, 81 of the Labor Code of the Russian Federation). If the employee agreed to another job, make a transfer. If there are no suitable vacancies in the organization or the employee refuses to transfer, proceed to the next step.

Step 6. Issue an order to terminate the employment contract

Assure the order from the director of the company, if necessary, coordinate it with the trade union, and then pass it on to the employee for review under the signature.

Step 7. Make an entry about the dismissal in the work book and personal card

The wording should indicate the reason for the termination of the employment contract and coincide with the content of the order, the details of which are indicated in column 4:

Record of reduction in the work book

Step 8. Pay the employee on the last business day

Issue a work book and the necessary certificates, pay severance pay and all due compensation.

As a general rule, the laid-off employee receives:

salary for hours worked;
compensation for unused vacation;
severance pay in the amount of average monthly earnings;
average earnings for the period of employment (for a maximum of two months from the date of dismissal, taking into account the paid severance pay, in exceptional cases - for three months by decision of the employment service).

If it was possible to agree on early termination of the contract, ask the employee to sign a written consent and pay him additional compensation. Calculate the amount of payment in proportion to the number of days remaining before the expiration of the two-month warning period, based on average earnings (Article 180 of the Labor Code of the Russian Federation).

Attention! Individual entrepreneurs are not required to pay severance pay and keep average earnings for the dismissed employee for the period of employment, unless this is provided for by the employment contract (Article 307 of the Labor Code of the Russian Federation).

Arbitrage practice

Reduction of staff, especially massive, often leads to conflicts, litigation, ruinous fines and compensation for the employer. Explore a selection of court decisions and case studies, prepared by the experts of the Kadra System, in order to know what mistakes when reducing the number or staff result in a loss in court and the reinstatement of an employee at work.

An employee who has been laid off will not be able to challenge the legality of the procedure if the employer notified him of the upcoming dismissal in time, correctly executed all the documents, and paid the salary and severance pay.

To ensure that the GIT does not have complaints about issuing single or mass layoffs, prepare notifications for the trade union and the employment service in advance, draw up a list of candidates for dismissal and set clear criteria for determining which employees will keep their jobs and who will not.

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