What's the difference between downsizing and downsizing? Downsizing: typical mistakes of employers Difference between downsizing and downsizing

An employee can be dismissed on his initiative or by decision of the administration of the enterprise. In the second case, this can happen due to the reduction. However, there are two options for this procedure - staff reduction or headcount reduction. What is the difference, what are the consequences for its participants?

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 on the position of "Accountant", then after this procedure there will be two of them or only one. However, the very position in the company remains.

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

The only difference is that, perhaps, when the staff is reduced, it will not be necessary to determine the priority right to leave the employee in his place, and when the number of staff is reduced, this procedure cannot be avoided.

For employers

If the company is reducing only the number of employees, then it is necessary to create a commission that will determine which of the employees to leave at work. The point is that from several people you will have to choose candidates for dismissal. Since they all work in the same positions, the requirements are the same.

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

For staff

By and large, it makes no difference to the employee, 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, when the number of employees is reduced, 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 apply for is getting another place in the same organization. Of course, the position will be different.

What is more beneficial for the parties to the legal relationship

For the employer

Downsizing will be easier - in this case, you will not have to decide who to keep 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: the management is obliged to offer other positions. When downsizing, the employer must select those who will remain in the position.

For example, the position of an economist has two employees. One is an experienced person with a higher education, has been working in the company for more than 10 years, he has grown-up children, and has no dependents. The second is a young woman with a 2-year-old child in the care of her. According to labor law, 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 dismissing 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 to be dismissed;
art. 178 of the Labor Code of the Russian Federation - lists the benefits and compensations to be paid during this process;
art. 179 of the Labor Code of the Russian Federation - determines the conditions under which the pre-emptive right to retain the workplace for the employee is revealed;
art. 180 of the Labor Code of the Russian Federation - describes the procedure for reducing;

In the event of mass dismissal, the norms of the Decree of the Government of the Russian Federation No. 99 of 05.02.1993 are applied.

The big difference: what is a reduction in the number and staff of workers, and how are they different?

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

What it is?

To begin with, let's figure out the concepts that characterize the human resources of the organization:

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

The formation of the personnel structure of the organization at its own discretion is the legal right of the management.

What is the difference?

To avoid controversy, it is necessary to have a correct understanding of the difference between downsizing and downsizing. These activities can be performed simultaneously.

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 be enough five sales managers instead of six.

Reduction of personnel of the enterprise involves the removal of certain job positions from the staffing table. For example, the manager realized that the organization's evening operators are no longer needed, since the day shift copes with the current volume of tasks. In these ways, 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 a full-time position is liquidated, the subordinate will not be saved even by the pre-emptive right to keep his job, since everyone who holds this position will be removed.

A citizen who has lost his job should independently check whether his rights are not being violated, for this he needs:

to clarify their belonging to the circle of persons with priority rights;
require management to 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;
control the entry by personnel officers of the correct entry, corresponding to the reason for dismissal, in the 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 design of the procedure for dismissing employees?

To reduce the number and staff of workers, 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 manager's actions includes:

creation of an order for conducting personnel activities. The document must contain information about the upcoming changes in the structure of the enterprise with confirmation of their need. The new staffing table is approved by the same order or by an additional one;
registration of employees with preemptive rights. It is possessed by specialists with high qualifications and labor productivity. With equal indicators, the management will give preference to: family employees with two or more dependent children, those who are injured or disabled at work, employees who are sent by the management to improve their qualifications without interrupting their work;
notice of dismissal to staff two months before the start of the transformation. The exception will be mercenaries hired under a contract for up to two months. They must be warned three days before 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 labor relations with employees implies the presence of a dismissal order, full settlement, issuance of documents.

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

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

What is the difference between downsizing and staffing, and what is best for the organization's employees?

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

This procedure is often painful and gets a lot of inconvenience both for the employee who will have to look for a new job and for the employer, who will have to spend a lot of time in order to carry out this procedure correctly and legally, since the dismissal procedure itself is rather conflictual 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 ways of solving legal issues, but each case is unique.

Definition of concepts

A decrease in the number of employees or the reduction of 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 carry different meanings. Examples of differences can be given:

Features and nuances

The peculiarity of the dismissal of employees in connection with the reduction of staff is that the employee is deprived of the opportunity provided by the law to remain 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 post is the legally enshrined right of certain categories of employees to remain in office. So, Articles 61, 65 of the Labor Code of the Russian Federation provides for the preservation of work while reducing the staff for certain categories of persons, such as the disabled, single mothers, etc. Such workers are usually retrained or given another job. It is said here which categories cannot be dismissed on reduction, and from this article you will learn about the nuances of transferring an employee to another position.

You can find out about the preemptive right to work in case of redundancy here, and who is laid off in the first place is discussed in a separate article.

The law guarantees even highly qualified retirees to retain their right to work. But if job loss is imminent, they qualify for the appropriate payments. Read about the features of the reduction of pensioners in our material.

What's best for workers?

Since there is a difference between these concepts, in some cases the employee may have advantages. For an employee of the 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 the place of work.

If the employer violates the law, the dismissed person can defend his rights in court, and not only get your job back, but also receive compensation for moral damage.

For the administration of the enterprise, it is more profitable to completely remove the position, since it eliminates the need to choose who to fire, and it will be more difficult for the employee to challenge the employer's decision in court.

Despite all the unpleasant picture that develops upon dismissal due to reduction of staff or number, citizens are protected by law, and can endure this painful procedure with minimal harm to themselves.

If you find an error, please select a piece of text and press Ctrl + Enter.

Didn't find the answer to your question? Find out, how to solve exactly your problem - call right now:

Reducing the number or staff of employees is a rather painful procedure for both employees and the employer himself. The employee is faced with the need to find a new job, 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 of the staff, what documents must be drawn up when carrying out the procedure for the reduction of employees, why it is necessary to assess the pre-emptive right to remain at work only when reducing the number of employees.

In this article, you will learn:

how the reduction in the number of employees differs from the reduction in the staff;
what documents must be drawn up when carrying out the procedure for reducing workers;
why it is necessary to assess the pre-emptive right to remain at work only when downsizing.

The decision on the legality of the dismissal of an employee in connection with the layoff often depends on how fully, correctly and timely the documents are drawn up.

Note that layoffs for redundancy are one of the most controversial ways to terminate labor relations. The likelihood of an employee applying for reinstatement at work is quite high. And any defect in the paperwork may entail the need to restore him to work.

When carrying out the reduction procedure, the management must comply with the sequence of actions, as well as the deadlines established by law.

We have combined the employer's actions into a step-by-step algorithm that can be followed, taking into account the nuances that a particular manager has.

Step 1. Make a decision to lay off workers

First of all, the employer decides to lay off. Moreover, at this stage it is necessary to determine what kind of reduction is planned to be carried out - the number or the state. Downsizing and downsizing may occur simultaneously.

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

The decision made 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 the introduction of the new staffing table (changes to the staffing table).

Comments of experts from the electronic journal "Personnel business"

Alina GORELIK, Legal Adviser, MORGAN AND STOUT LLC (Moscow)
An agreement on early dismissal of 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 reductions (Article 78, Clause 2, Part 1, Article 81 of the Labor Code of the Russian Federation). The agreement of the parties on dismissal is canceled only with mutual consent of the parties, it cannot be canceled by order of the management (clause 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 termination agreement by order of the employer. Notify the employee about this. To eliminate legal risks, conclude an agreement with him to cancel the previously reached agreement to terminate the TD. So you will record the will of the employee, which will allow you to prove the employer's position in case of disputable situations.

Irina AKSHONOVA, lawyer of the law firm "Bureau of Labor Law" (Moscow)
The employer has the right to offer the downsized position, the work on which is performed on the basis of combining
A separate TD is not concluded with employees holding a position on a combination basis. The employer has the right to early cancel the order to perform additional work, notifying the employee about this in 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 downsized employee. But it must be taken into account that this issue is not clearly regulated by law, therefore, the opposite point of view is encountered in court decisions. It is based on the fact that early cancellation of an assignment to perform an additional function is the right of management, and not its responsibility.

Nikolay YAKOVLEV, Senior Legal Counsel, Russian Telephone Company CJSC (Moscow)
How to restore an employeeand by a court decision, if his position has already been reduced
By a court decision, the 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 staffing table the position in which the employee should be reinstated by issuing an appropriate order; issue an order to cancel the order for dismissal and reinstatement of 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 dismissal record is invalid and the employee has been reinstated; actually allow the employee to work in the previous position and mark the time of the forced absence on the report card. After that, the management has the right to re-lay off the employee, warning him about this two months in advance (clause 2 of part one of 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).

In determining this date, it is necessary to take into account the two-month notice period for the upcoming dismissal. Therefore, the 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

Limited Liability Company "Polet"

(LLC "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 the position of an accountant-cashier (financial department) from the staffing table;

- exclude the position of a marketer (advertising department) from the staffing table;

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

- to exclude from the staffing list five positions of the call center specialist (customer service department).

2. By October 23, 2015, create a commission to determine the pre-emptive right to retain employees subject to dismissal.

3. By October 29, 2015, determine the list of employees who have the pre-emptive right to remain at work.

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

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

6. Offer, in writing, against signature to each employee subject to dismissal, the vacancies available in the organization, in accordance with his qualifications, as well as lower positions.

9. Control over the execution of the order shall be entrusted to the head of the personnel administration department, KP Bolshakova.

General director Ivanov V. T. Ivanov

Acquainted with the order

Head of Department Bolshakova K. P. Bolshakova

personnel administration

It's no secret that employers use downsizing or staff reduction to get rid of unwanted employees. In this situation, managers act as follows: first, they exclude the position from the staffing table and soon introduce into it a position that slightly differs in name from the previous one, but with completely similar functionality. In such a situation, it is highly likely that a dismissed employee will be reinstated at work in court.

Example

The employee served as the head of the administration staff. The employer cut the position and fired the employee. At the same time, a new position was introduced into the staffing table - the head of the administration.

Read about reduction payments

According to the statement of the dismissed worker, the new position repeats the labor functions of her previous position. On this basis, she applied to the court with a claim for restoration, collection of wages for the time of forced absence, compensation for moral damage.

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

Accordingly, the court concluded that the actual liquidation of the position of the chief of staff did not take place. In this situation, there was a retention of the position with a changed name, subordination and imputation of additional duties.

Therefore, the termination of labor relations was declared illegal and her claims were satisfied with a decrease in the amount of moral damage (Appeal ruling of the Omsk Regional Court of May 7, 2014 in case No. 33-2490 / 2014).

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

After making a decision on the reduction, the 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 forbidden to lay off, and some personnel have the preferential right to remain at work.

So, first of all, you need to find out which staff can not be fired. This task can be performed by a personnel officer.

Labor legislation explicitly names the categories of employees who are prohibited from layoff. Such 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;
parent (other legal representative) is the only breadwinner of a disabled child under the age of 18;
parent (other legal representative) is the only breadwinner for 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 concerning which mothers are classified as single. The answer is offered by the Plenum of the Supreme Court of the Russian Federation. So, a single mother is a woman who brings up her children (relatives or adopted) independently without a father, in particular, if he:

died or was declared missing;
deprived of parental rights or limited in parental rights;
recognized as incapacitated (partially capable) or for health reasons cannot personally raise and support a child;
is serving a sentence in institutions executing a sentence of imprisonment;
avoids raising children or protecting their rights and interests (p. 28).

Note that the Plenum of the RF Armed Forces does not include divorced mothers in the single category. However, this does not unequivocally indicate that such mothers can be safely deleted from this category.

So, for example, the Moscow City Court declared illegal the dismissal of a divorced woman with a young child. The court took into account the fact that the employee receives child support from the department of social protection of the population, and there is no information about the payment of alimony by the father of the child (Appellate ruling of the Moscow City Court of September 4, 2014 in case No. 33-30170).

Care should be taken to draw up 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 the employment relationship.

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

Read about the procedure for dismissing workers to reduce staff

Step 3. Assessing the preemptive right to stay at work

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

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

Thus, the Moscow City Court indicated that the pre-emptive right to remain at work is investigated by the employer if one of the same positions of a certain structural unit is to be reduced, that is, between employees occupying the same positions, some of which are to be reduced (appeal rulings of the Moscow City Court dated January 22, 2015 in case No. 33-1708, dated June 20, 2014 in case No. 33-22277).

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

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

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 occupational injury or an occupational disease during their employment with this employer;
invalids of the Great Patriotic War and invalids of military operations to defend the Fatherland;
personnel who improve their qualifications in the direction of leadership on the job.

Labor legislation does not establish a procedure for assessing the pre-emptive right to remain at work. In order to avoid possible problems, we recommend creating a special commission (working group). For this, an appropriate order must be issued.

Sample order for the creation of a downsizing commission

The commission, based on the examination of personal data, determines the priority right to abandonment. The result of the commission's work can be formalized in a protocol.

Sample protocol

Based on the analysis of information on the pre-emptive right to remain at work, the employer decides to terminate labor relations with certain staff units due to redundancy.

Step 4. Warn employees about the upcoming layoff

The employer must notify the employee about the upcoming dismissal personally, under 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 warning form, so the management has the right to independently develop a notification form. The notice should indicate the upcoming dismissal, its reason and date.

It is important for the employer to obtain the employee's signature that he has been notified of the upcoming termination of employment within the time limit established by law. It is this signature that will testify to the proper fulfillment of the notification obligation by the management.

Step 5. Offer the employee available vacancies

The employer must offer the downsized employee the vacant positions he has (part one of 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 job that the employee can perform, taking into account his health condition.

The form in which the manager should offer vacancies is not determined by the legislation. Meanwhile, if a dispute arises, the employer must confirm the fact of fulfilling the obligation to offer vacant positions. Therefore, it is advisable to draw up a proposal with a list of proposed vacancies in writing in two copies. One copy is handed over to the employee, on the second, he signs the receipt of the offer (this copy remains with the employer).

To optimize workflow, you can combine a notice of an upcoming dismissal and a job offer into one document.

Note that if, after the employee receives information about available vacancies, 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 existing 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 of July 15, 2015 in case No. 33-6147 / 15).

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

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

for personnel working under a fixed-term contract for a period of less than two months, the notification 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 notification 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. 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 of the population in the Russian Federation." Note that, since this obligation is provided not by the Labor Code, but by the Employment Law, many managers simply do not know about this requirement.

The employment service must be notified no later than two months before dismissal. And if it is massive, the notification must be sent no later than three months.

The notification form "Information on the released workers" has been 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 question regarding the form of submitting information about the downsized personnel.

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 lay off, for example, only one employee, the notification to the employment service must be submitted according to 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 labor relations and does not entail restoration (see, for example, the Appellate 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 an 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 of article 82 of the Labor Code of the Russian Federation). If the dismissal will be massive, its term - no later than three months. The union must be notified in writing.

In practice, a question often arises related to the formulation 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 the dismissal itself? The answer to this question was given by the Constitutional Court of the Russian Federation back in 2008. The trade union must be notified 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-О-П). Thus, it is possible to send relevant information to the union at the same time as notifying staff.

Note that the legislation establishes special rules for the termination of labor relations with union members.

Step 8. Issue an order to terminate the TD

We have already talked about the fact that the laid-off employees should be offered suitable vacant positions. If he agreed to take one of the offered vacancies, the employee is transferred to a new position.

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

If an employee refused the offered vacancies, there are no vacancies at all in the organization or there are no vacancies that are suitable for the employee in terms of qualifications and health conditions, 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, the management has the right to use independently developed and approved forms of documents. The column "Grounds" indicates the details of the order on the approval of 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 on the initiative of the employer, it is impossible to terminate the employment relationship with the employee during the period of his temporary disability. This applies to the reduction of the number or staff and other grounds for breaking the TD, with the exception of the liquidation of the 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 magazine "Personnel business"

Step 9. We make payments with the employee

Upon dismissal in connection with the layoff, he must pay wages, compensation for unused vacation, as well as severance pay.

The size of the 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 of article 178 of the Labor Code of the Russian Federation).

Note that the employer must pay the average earnings for the second month, provided that the redundant did not get a job. At the same time, the legislation does not determine the procedure for this payment. Meanwhile, the management must receive a written application with a request for payment, as well as a work book, which will not contain an entry confirming the employee's employment for a new job.

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

For certain categories, there are special rules for the payment of benefits. So, an employee who has entered into a TD for a period of up to two months is not paid severance pay, unless otherwise established 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-week average earnings (Article 296 of the Labor Code of the Russian Federation).

Workers in 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 day they leave their place of work (including severance pay) (Article 318 of the Labor Code of the Russian Federation). In exceptional cases, the average monthly earnings are retained for the specified 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. We make an entry in the work book and hand it out

The rules for drawing up and issuing a work book during reduction do not differ from the general procedure. A record of dismissal must be made in the work book with reference to paragraph 2 of the first part of Article 81 of the Labor Code. The employee must certify the record with his signature.

On the day of termination of the TD, the work book must be handed over. Upon receipt, he must sign a personal card and a book for registering the movement of work books.

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

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

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

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

Followingremember that the dismissal of an employee can be made only after the exclusion of his position from the staffing table, and in no case in connection with the planning of such an exclusion in the future. Therefore, a new staffing table must first be approved (or changes 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) are approved by order (decree). The order sets the date for the introduction of the new staffing table.

2. The order (order) on the reduction of the number / staff, the order (order) on the approval of the staffing table are registered in the manner established by the employer, for example, in the corresponding register of orders (orders). The order is communicated to the 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 of the population in the Russian Federation" when making a decision to reduce the number or staff of employees of an organization, an individual entrepreneur and the possible termination of employment contracts, the employer-organization no later than two months, and an employer - an individual entrepreneur - must notify the employment services in writing at least two weeks before the start of the relevant events.

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

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

The message sent to the employment service bodies is registered in accordance with the procedure established by the employer, for example, in the register of outgoing documents.

4. Determine which specific employees cannot be dismissed by law, and which have the right to preferential stay at work.

There are workers who cannot be dismissed by law, and workers who have a pre-emptive right to remain at work. According to Art. 261 of the Labor Code of the Russian Federation, termination of an employment contract on the initiative of an employer with pregnant women is not allowed, except in cases of liquidation of an organization or termination of activities 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 minor 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 only breadwinner of a child under three years of age in a family raising three or more young children, if the other parent (another legal representative of the child) is not in an employment relationship, on the initiative of the employer is not allowed (except for 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 of the Federal Law of December 29, 2006 N 255-FZ "On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Maternity").

Note.

IN step by step downsizing and staff reduction procedure additional steps are possible if union bodies are in place.

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 of a trade union, the employer sends a draft order to the elected body of the relevant primary trade union organization, as well as copies of documents that are the basis for making this 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 the employer its reasoned opinion in writing. This opinion is usually drawn up in the form of the minutes of the meeting of the elected body of the primary trade union organization.

An opinion not submitted within seven days is not considered by the employer.

If the elected body of the primary trade union organization has expressed disagreement with the proposed decision of the employer, then within three working days it conducts additional consultations with the employer or his representative, the results of which are recorded in a protocol. If a general agreement is not reached based 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 the employer a binding order 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 the order of the State Labor Inspectorate in court.

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 a reasoned opinion of the elected body of the primary trade union organization (we will discuss the difficulties of meeting this deadline below). This period does not include 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).

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 on the initiative of the employer. Therefore, carefully read the provisions of the collective agreement before involving the union body in the procedures.

Article 374 of the Labor Code of the Russian Federation defines additional features of the dismissal of workers who are part of the elected collegial bodies of trade union organizations and are not exempt from their main job.

If the employee refuses to receive the offer, get acquainted with 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 offer to the employee's home address by letter with a notification and a list of attachments. The act is registered in accordance with the procedure established by the employer in the relevant registration journal.

If the employee refuses to receive a 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 employees who were present at the refusal, and send a notification to the employee's home address by letter with a notification and a list of attachments. The act is registered in accordance with the procedure established by the employer in the relevant registration journal.

If the employee refuses to familiarize himself with the order (order) 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 (order), which is signed by the compiler 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 judicial dispute act can be useful as additional evidence of the employer's rightness). The act is registered in accordance with the procedure established by the employer in the relevant registration journal.

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 the employees who were present at the refusal. The law does not require the drafting of such an act, but it can be useful as proof of the employer's innocence if a dispute arises over the dismissal and the case goes to court. The act is registered in accordance with the procedure established by the employer in the relevant registration journal.

Book "The practice of layoffs" \u003e\u003e
Base 140 step-by-step procedures in the IKS online reference database (base for subscribers of the journal "Kadrovik-Practitioner") \u003e\u003e
Discussion of various step-by-step procedures for HR operations on the HR forum \u003e\u003e
Download othersmaterials on personnel from the database of the journal "Kadrovik-Practitioner" and "Pack of Kadrovik": samples and forms of documents, books, consultations, legislation, letters of Rostrud, etc. \u003e\u003e

Reprinting of this material on other sites and in other media without the written permission of our editorial office is not allowed.

One of the grounds for terminating an employment contract on the initiative of the employer is to reduce 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 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 reason, is subject to reinstatement at work.

b) observance of the preemptive right to remain at work (Article 179 of the Labor Code of the Russian Federation), first of all, workers with higher qualifications, and those who are prohibited from dismissing (for example, pregnant women). If the level of qualifications or business qualities is the same, preference is given to the 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 27.05.1998 N 76-FZ "On the status of military personnel", the spouses of military personnel have the preferential right to remain at work in state organizations and military units when the number or staff of employees is reduced. The preferential right is also given to servicemen who first came to work after being dismissed from military service (paragraph 5, clause 5, article 23 of the Federal Law of May 27, 1998 N 76-FZ).

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

d) written warning of the employee about dismissal not later than two months. The proof of this is the handwritten signature of the employee 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 payment of compensation in an 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 warning period will be illegal;

e) preliminary request:

The consent of a higher elected trade union body to dismiss the head (his deputy) of an elected collegial body of a primary trade union organization, an elected collegial body of a trade union organization of a structural unit of the organization (not lower than a shop unit and equivalent to it), not released from his main job (hereinafter - the head (his deputy) an elected collegial body of a trade union organization) (part 1 of article 374 of the Labor Code of the Russian Federation).

The motivated opinion of the elected body of the primary trade union organization on the decision of the employer to dismiss the employee who is 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 superior elected trade union body) (parts 1, 2 of article 373, part 13 of article 374 Labor Code of the Russian Federation).

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, and the employee must be reinstated at work (

To avoid mistakes and not get lawsuits from employees, you must comply with the mandatory conditions. Study step-by-step instructions and download 8 required documents.

In the article:

Look for 8 irreplaceable documents on the topic in the article ⬇

Reduction of staff: features of the procedure

Staff reduction is a necessary measure. It is used when reorganizing or re-profiling an enterprise, automating production processes, reducing production volumes or the wage bill. The employer can make an unpopular, but vital for the company decision and part with part of the personnel at any time, and without giving reasons (Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of 17.03.2004). The Labor Code of the Russian Federation is the main law on the reduction of employees, which should be addressed in such cases.

The 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 personnel by dismissing some of the employees
art. 179 of the 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 Labor Code of the Russian Federation	Provides redundant employees with a range of government guarantees
art. 82 of the Labor Code of the Russian Federation	Requires notifying the trade union of the upcoming staff cuts, single or massive

Labor legislation provides for two similar, but different procedures:

staff reduction;
reduction in the number of personnel.

New staffing table

Develop a new "staff" and approve the list of employees you plan to fire. There is no unified list form. When drafting the document, carefully copy the job titles from the staffing table and refer to the order to reduce:

List of employees dismissed in case of downsizing

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

As a general rule, preference is given to more qualified specialists who show good results, confirmed by the results of attestation, certificates and diplomas, service notes and reports. Consequently, the list includes workers with lower qualifications and 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 a source of income;
dismissed from military service on condition of the first job;
who have received an injury or occupational disease while working in the organization;
raising their 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 person in military operations to defend the Fatherland, Hero of the Soviet Union or the Russian Federation, full holder of the Order of Glory.

To justify your choice of employer, supplement the list with specific criteria defining the right of priority to remain at work.

★ Please note that certain categories of personnel, such as seasonal workers, are released on a special basis. how to reduce the "season" without breaking the law, the expert of "Systems of Personnel" will tell. But there are general rules that should be followed under all circumstances.

Neither seasonal, nor temporary, nor permanent employee can be made redundant during vacation or illness (Article 81 of the Labor Code of the Russian Federation). In this case, 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 the payment of forced absenteeism.

How to issue a layoff notice for the union and employment service

If a layoff is imminent, notify the employment service and the union. Notification of staff reductions must be in writing and must be sent in advance: no later than two months before the start of the procedure, and if it comes to mass layoffs, at least three months. The criteria for mass character are established by clause 1 of the regulation approved by the RF Government Decree No. 99 of 5.02.1993.

Dismissals are considered massive:

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 the total number of employees for 30 days in a region with a population of less than 5,000 people.

Use these criteria only on the condition that the enterprise does not fall under the 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!Sole proprietors must send at least two weeks' notice of layoff to the employment service ().

In the event of mass layoffs, only unified notification forms are used, approved by Decree of the Government of the Russian Federation No. 99 of February 5, 1993. Prepare a notice on the reduction of 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).

Employment notice

When preparing a document, be sure to indicate:

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

When several employees fall under the reduction at once, information about them can be drawn up in the form of a table. Please note that the employment office at the location of the employer may request additional information, such as information on the age of employees.

Attention!An employer who has not notified the employment service of the planned reduction or missed the deadline for filing a notification faces an administrative fine under Article 19.7 of the Administrative Code of the Russian Federation.

How to fire a staff reduction employee: step by step instructions

To prevent a reduction from being illegal, stick to the established procedure and be attentive to the little things.

Step 1. Make sure there is no prohibition on dismissal

The law prohibits the dismissal of pregnant employees and women with children under three years of age, even if they are on maternity leave (see the ruling of the Supreme Court of the Russian Federation No. 21-KG14-14 of 03/30/2015).

A similar prohibition applies to other persons with family responsibilities: single mothers, fathers and guardians raising a young child (under 14 years old) or a disabled child (under 18 years old), the only 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 who are not yet 18 years old are dismissed only with the consent of the State Inspectorate and the Commission on Minors' Affairs (Article 269 of the Labor Code of the Russian Federation). The expert of the journal "Personnel business" will tell you!

Step 2. Determine if the employee has a pre-emptive right to remain at work

Evaluate his qualifications and labor productivity, clarify 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 layoff starts a legal battle (Article 391 of the Labor Code of the Russian Federation).

Step 3. Provide the employee with written notice of the reduction of the position or staff unit, which 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 warning period you will offer the employee other vacancies!

Sample termination notice

Serve a notice of layoff at least two months before the termination of the employment contract and ask to sign the receipt. In case of refusal, issue a written act in the presence of two witnesses:

An employee's refusal to sign a reduction notice

Step 4. Make sure your termination date 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 ( ). Judicial 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 of delivery of the notification, so that the employee is guaranteed not to be reinstated at work by a court decision.

Attention! In order not to delay the layoff of an employee who is not at work, send a notification by courier or by mail. You don't have to wait until you get out of annual leave, maternity leave or sick leave!

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 has agreed to another job, complete the transfer. If there are no suitable vacant positions in the organization or the employee refuses to transfer, proceed to the next stage.

Step 6. Issue an order to terminate the employment contract

Verify the order with the director of the company, if necessary, agree with the trade union, and then hand it over to the employee for review under signature.

Step 7. Enter a record of dismissal in the work book and personal card

The wording must 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:

Reduction record in the work book

Step 8. Pay off the employee on the last working day

Issue a work book and the necessary certificates, pay severance pay and all required 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 you manage to agree on the 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 the average earnings (Article 180 of the Labor Code of the Russian Federation).

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

Arbitrage practice

Staff layoffs, especially massive ones, often lead to conflicts, litigation, and ruinous fines and compensations for the employer. Explore a selection of court decisions and examples from practiceprepared by the experts of the "System of Personnel" in order to know what mistakes in reducing the number or staff end in a loss in court and the restoration 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 completed all the documents, paid his salary and severance pay.

So that the GIT has no complaints about the execution of single or massive layoffs, prepare in advance notices for the trade union and the employment service, draw up a list of candidates for dismissal and establish clear criteria that determine which employees will keep their jobs and who will not.

It might be useful to read: