Benefits of layoffs due to staff reductions. Dependent preemptive right. Issue a work book and personal card

Dismissal of employees in connection with a reduction in the number or staff (clause 2 of part 1 of article 81 of the Labor Code of the Russian Federation) is an initiative of the employer. At the same time, in some cases and with certain categories of employees, termination of an employment contract at the initiative of the employer is not allowed.

So, according to Part 6 of Art. 81 of the Labor Code of the Russian Federation, it is impossible to dismiss an employee at the initiative of the employer:

During the period of his temporary incapacity for work (regardless of the reason for which a certificate of incapacity for work was issued: illness, child care, other reasons);

During the period of being on vacation (regardless of the type of vacation).

In addition, according to Part 4 of Art. 261 of the Labor Code of the Russian Federation, the employer has no right to terminate labor contract due to the reduction in the number and staff of employees:

With a pregnant woman;

A woman with children under the age of three;

Single mother with a child under the age of 14 (disabled child under 18);

A person raising a child under 14 years old (disabled child under 18 years old) without a mother;

A parent (other legal representative of the child) who is the sole breadwinner of a disabled child under 18;

Parent - the sole breadwinner of a child under the age of three;

A parent raising three or more young children, if the other parent (other legal representative) is not in an employment relationship.

These prohibitions do not apply to cases of liquidation of an organization, liquidation of a separate structural unit, when dismissal is made according to the rules for liquidation of an organization, or the termination of activities by an individual entrepreneur.

WHICH EMPLOYEE SHOULD BE LEFT AT WORK?

In what cases it is necessary to consider preemptive right employee to stay at work? How to determine which employee has an advantage?

The preemptive right to keep an employee at work is taken into account when it comes to reducing the number of employees, as well as when deciding which of the employees to offer vacancies in the first place when the number of employees is reduced.

According to Art. 179 of the Labor Code of the Russian Federation, the preemptive right to remain at work is granted to employees with higher labor productivity and qualifications.

Labor productivity can not be determined in all cases. For example, in most cases it is extremely difficult to determine the productivity of a lawyer, accountant, etc.

In this case, the preemptive right is determined by comparing the qualifications of employees. To do this, you can form a commission, which includes employees of personnel and legal services, heads of structural divisions. The decision of the commission is drawn up in a protocol, which reflects the recommendations (proposals) for the employer on the retention of certain employees who enjoy the pre-emptive right at work (with detailed reasoning for the decision).

According to Art. 179 of the Labor Code of the Russian Federation with equal labor productivity and qualifications, preference in leaving work is given to:

Family workers - if there are two or more dependents. Dependents mean disabled family members who are fully supported by the employee or receive assistance from him, which is for them a permanent and main source of livelihood;

Persons in whose family there are no other workers with independent earnings;

Employees who received a work injury or an occupational disease while working for this employer;

Invalids of the Great Patriotic War;

Disabled combatants to defend the Fatherland;

Employees who improve their qualifications in the direction of the employer on the job.

In addition, in accordance with paragraph 6 of Art. 10, paragraph 5 of Art. 23 Federal law of May 27, 1998 No. 76-FZ "On the status of military personnel" (as amended on July 1, 2017), the priority right to remain at work when the number or staff of employees is reduced are:

Spouses of military personnel working in government bodies, military units;

Citizens and their family members, if this place work first after leaving military service;

Single mothers of military personnel passing military service upon appeal (clause 5 of article 23 of this Federal Law).

Also, the preferential right to remain at work when the number and staff are reduced, regardless of the time of work at this enterprise, in an institution, organizations use:

Citizens who have been exposed to radiation as a result of the Chernobyl disaster (who have received or have suffered radiation sickness and other diseases associated with radiation exposure, disabled as a result of the Chernobyl disaster and other categories), as well as family members who have lost a breadwinner from among citizens who died as a result of this disaster (p 7 part 1, part 2 of article 14 of the Federal Law of 15.05.1991 No. 1244-1 "On social protection of citizens exposed to radiation due to the disaster at the Chernobyl nuclear power plant", as amended on 28.12.2016);

Citizens exposed to radiation as a result of nuclear tests at the Semipalatinsk test site (clause 10 of article 2 of the Federal Law of January 10, 2002 No. 2-FZ "On social guarantees to citizens exposed to radiation as a result of nuclear tests at the Semipalatinsk test site", as amended on December 19 .2016);

Officials and citizens admitted to state secrets on a permanent basis (Art. 21 of the Law of the Russian Federation of July 21, 1993 No. 5485-1 "On state secrets", as amended on 03/08/2015);

Heroes Soviet Union, Heroes Russian Federation and full holders of the Order of Glory (clause 1 of article 8 of the Law of the Russian Federation of January 15, 1993 No. 4301-1 "On the status of Heroes of the Soviet Union, Heroes of the Russian Federation and full holders of the Order of Glory", as revised from 01.07.2017);

Inventors (clause 5 of article 35 of the USSR Law of May 31, 1991 No. 2213-1 "On inventions in the USSR").

Collective contracts and agreements may provide for other categories of workers enjoying the preferential right to remain at work with equal labor productivity and qualifications.

Only after a clear definition of the list of employees with whom an employment contract can be terminated due to a reduction in the number or staff, the employer can begin the procedure for notifying employees.

WHAT IS THE PAYMENT OF THE EMPLOYEE IN THE DECLINE?

What payments are due to an employee upon dismissal due to a reduction in staff or number of employees?

The final settlement upon dismissal due to a reduction in the number or staff of employees has some peculiarities: on the day of dismissal, the employee is paid wages for the current period, compensation for unused vacation and additionally a severance pay in the amount of average earnings.

Also, for two months after dismissal, the employee retains the average earnings.

If an employee registered with the employment agency within two weeks and was not employed by him, then, by decision of this employment agency, the employee can be paid the average earnings for the third month (in the Far North and equivalent areas - up to six months).

You can pay average earnings after dismissal on payment days wages.

Upon termination of an employment contract with a seasonal worker due to a reduction in the number or staff of the organization's employees, severance pay is paid in the amount of two weeks' average earnings.

Severance pay is not paid to employees with an employment contract for up to two months.

An employment contract can be terminated before the due date of dismissal, but this requires the written consent of the employee. In this case, the employer pays the employee additional compensation in the amount of the employee's average earnings, calculated in proportion to the time remaining before the termination of the dismissal period.

It should be borne in mind that workers may abuse their rights in relation to a particular benefit. For example, do not report its presence until the termination of the employment contract. So, an employee can secretly open a sick leave shortly before dismissal, or an employee can report her pregnancy after dismissal. In this case, workers go to court demanding to reinstate them at work, pay for the days of forced absence, pay compensation for moral damage, etc.

To minimize the occurrence of such risks, you can send employees a request in writing about the availability of any benefits. The request must indicate the entire list of employees who have the advantage of leaving work, as well as the categories of employees with whom this basis the employment contract cannot be terminated.

Judicial practice in relation to pregnant workers is developing in such a way that they are increasingly reinstated at work, even if at the time of termination of the employment contract the worker herself did not know about her pregnancy.

Introduction of new technologies, centralization of functions in large companies, decreased income or bad financial condition - in such situations, the employer may decide to reduce the number of employees. In order to comply with the law when deciding to lay off staff, you need to know which of the employees has the pre-emptive right when leaving.

Surplus staff reduction procedure

After the owner or head of the company decides to change the structure or number of employees, it is necessary to competently carry out the reduction procedure itself.

A special role in it is played by the definition of the categories of workers who cannot be laid off due to redundancy, and those who have the preferential right to remain in the state when the number is reduced.

If it is planned to remove the subdivision or staff units of the position completely, then the preemptive right does not apply.

For example, the owner of the company thought that it would be cheaper to outsource the maintenance of the building to a specialized company. Accordingly, the company no longer has the need to keep on staff employees who were involved in cleaning, maintenance of the building, etc. In this case, the preemptive right does not apply, since all employees of the technical department fall under the layoff.

The reduction procedure is carried out in several stages:

creation of an internal document on changes in the personnel structure and job cuts;
determination of those employees who have the preferential right to stay at work;
notification of employees, the trade union and the regional office of the employment service;
offer of vacant positions in the company, if the employee is suitable for such a vacancy in terms of skills or qualifications;
termination of employment itself and payment of compensation.

Violation by the employer of at least one of the stages may become a pretext for legal proceedings with the payment of fines and the reinstatement of an incorrectly dismissed employee at work.

Categories of workers who cannot be cut

The labor legislation provides for additional guarantees for certain categories of workers (Labor Code of the Russian Federation, Article 261). The most protected part of employees in any organization are pregnant women.

With the exception of the liquidation of the enterprise, the employer can dismiss such an employee on his own initiative only if the place he occupies is temporary and the main employee leaves. At the same time, a pregnant woman must refuse all vacancies offered by her employer.

women with children under 3 years old;
single parent (legal representative) of a child under 14 or a disabled child under 18;
the only working parent, provided that the family has more than 3 children and at least one of them is less than 3 years old.

Such employees can be dismissed on the initiative of the employer, only if they commit disciplinary actions.

Such workers are not subject to layoffs, however, the employer may terminate with them labor Relations in case of repeated delays, truancy or committing actions that have damaged the company.

Pre-emptive right when reducing the number of employees

After identifying employees who cannot be fired, from the rest of the candidates, people are selected who have any preferential basis for leaving the team. These are employees whose priority is regulated by the Labor Code of the Russian Federation (Article 179) and.

First of all, employees are left with higher work efficiency and qualifications. If these indicators are approximately the same, the employer considers additional grounds that may give a pre-emptive right in reducing the number. These include:

people who have several dependents;
those who are the only breadwinner in the family;
a person who was injured or ill while working for this employer;
disabled people whose disability was the result of their participation in various hostilities;
those who improve their qualifications on the job and in the direction of the employer.

The collective agreement may also list other categories of workers who have the preferential right to stay at work. Most often, such guarantees are provided for people before retirement age.

An employee may also have preferential grounds after it became known about the layoff.

For example, a person graduated from a university in a specialty that suits the profile of work and, accordingly, improves his qualifications.

In order to take into account all the nuances of the reduction procedure, a company can create a commission that will assess the pre-emptive grounds of a particular candidate for reduction.

Downsizing Commission

When an employer plans to lay off several employees, then for an objective assessment of their effectiveness and determination of the preferential right when reducing staff, you can create a commission of representatives of several departments.

Such a collegial body is created by order of the head of the company. Its powers and composition can be included in the order on the reduction of personnel.

The composition of the commission must necessarily include the immediate head of the division in which they plan to remove positions, representatives of the trade union committee, personnel and legal services.

The head of the department prepares a characteristic of the employee's efficiency. HR service provides information on qualifications and other grounds for pre-emption in case of redundancy. Lawyers assess the objectivity and legality of the application of certain grounds for the reduction or retention of an employee in the state.

The decisions of the commission must be drawn up in a protocol, signed by its head, and endorsed by all those present at the meeting.

In the protocol itself or in its annexes, it is necessary to thoroughly describe all the criteria by which the candidates for redundancy were evaluated, separately for each of them.

Such a collegial and comprehensive assessment of each of the employees who may be laid off will solve most of the problems in the future, for example, it can protect the position of the employer if the dismissed employee sues and challenges his layoff.

Assessing employee performance

The first criterion that the manager pays attention to is how effectively the employee works. In working specialties on piecework wages, an employee's productivity is assessed by meeting production standards, the number of scrap, etc. Everything is simple here - he fulfills and overfulfills the plan, the minimum of products rejected by inspectors means that the employee is working well.

Difficulty is measuring performance office workers... Some performance criteria can be assumed for employees whose actions have a direct impact on the financial result of the enterprise.

For example, for suppliers - it can be cost savings in the purchase of raw materials and semi-finished products for production, organization of uninterrupted supply of components, etc. For employees of marketing and sales services - the number of contracts concluded, attracting new customers, effective advertising company etc.

Downsizing benefits

It is more difficult to assess the effect of the work of employees who are not directly involved in generating profits. Therefore, qualifications become the second criterion for assessing the advantages of one employee over another.

It is easiest to compare the qualifications of employees. This concept includes:

availability and degree of specialized education;
post category;
classiness;
discharge.

In case of a reduction, specialties and positions with a lower category are removed from the staffing table.

For example, if there is a specialist with the 1st and the highest category in the downsizing unit, the qualification advantage will be with the position of the employee of the highest category.

So it is with working specialties. A locksmith or turner with a higher discharge is left at the enterprise.

The next criterion for qualification assessment is the presence and degree of education. An employee can only have general, specialized secondary, higher and postgraduate education. Having a higher degree of specialized education is an advantage.

For example, several employees work in the same positions with the same efficiency. One unit needs to be reduced. One specialist has a specialized higher education... The second also has a university diploma, but in a specialty far from the sphere of work. In addition, there is a retraining diploma in the field of work. The second employee gets laid off.

An additional advantage will be for the employee who is constantly improving, without sacrificing his productivity, work skills, passes various courses for advanced training, has a degree in the field of professional activity.

Other benefits when reducing

Where performance and qualifications are the same, legislation and the collective bargaining agreement provide additional criteria to help an employer select a candidate for redundancy. They are listed in Art. 179 of the Labor Code of the Russian Federation.

Additionally, the collective agreement may indicate the benefits for:

people who have several years left before retirement;
employees with extensive experience in the company;
young professionals;
people with disabilities;
employees with minor children.

Difficulty can be caused by the situation when potential applicants for redundancy have the grounds listed in the code or collective agreement. Then it is advisable to choose the employee whose pre-emptive right is listed first in the legislation.

For example, one of the employees was injured at work, and the other was near retirement age. The first employee receives the advantage, since this basis is specified in the legislation, and for the second employee it comes from collective agreement.

Reducing the cost of cutting employees

Dismissal of an employee to reduce staff is accompanied by mandatory payments. The employer must pay such an employee several monthly salaries. There are several options for action when you can comply with all legal requirements and reduce the cost of reduction.

First, the offer of all available vacancies in the company that may suit the downsized employee in terms of his qualifications or health conditions. This is not only a way out of the situation, but also the duty of the employer.

IN big company with offices throughout the country, the employee can be offered a transfer to another locality.

In addition, it is possible to remove staff positions at the expense of existing vacancies.

You cannot remove only those places that are intended to be filled under the quota for the disabled.

Secondly, consider the possibility of terminating the employment relationship on other grounds. It is possible to offer employees who have reached retirement age to go on a well-deserved rest, not to extend their labor relations with employees whose fixed-term employment contract ends.

Third, apply informal methods. For example, offer to go on maternity leave to women who went to work ahead of schedule. Thus, a temporary position will appear in the company and an employee who is being laid off can be transferred to it.

When carrying out measures to reduce personnel, it is necessary to strictly comply with all legal requirements. This is especially true of the choice of the employee who has to leave. It is best to consider all the grounds that may give priority in the reduction of staff collectively, by creating a commission. This will protect the company from possible lawsuits, dissatisfied with the dismissal, employees, as well as from financial spending on fines, additional payments former employee and reimbursement of legal costs.

Then colleagues begin to whisper in the corners and spread the most unthinkable rumors throughout the office. Why is everyone so afraid of downsizing, after all to reduceeven gives some advantages when applying for another job. Moreover, to reducedoes not happen without a reason, and the manager warns the employee two months before him, and personally on receipt. In order not to fall under the wave of reductions, you can prepare and present yourself to your boss in a favorable light. It will not be superfluous to know some laws and rights.

Don't rush to leave

You should not rush to pack your things if the rumor spread that the new management has decided to cut the position. to reduce may not affect the employee, since another position has already been prepared for him, similar to the previous one, but simply with a more advanced title. An employment contract can be terminated if the state is now redundant. A layoff can also occur if an employee refuses to take new positionslightly different from the previous occupied space. But do not rush to the conclusion that the new position proposed by the management is more difficult and cannot be dealt with. Judging by the name is not worth it.

You have to pay for downtime

to reducestates involves the payment of severance pay, which is the size of the employee's average earnings for 2 months. From the day, in addition to this payment, the laid-off employee is supposed to pay his previous full salary within 2 months. The payments of the former employer may affect the third month in the event that the employee immediately went to the labor exchange afterwards, but did not find a job. And if the employee has not yet had time to take his vacation due for this year, then he has every right to demand monetary compensation for it. So, there is nothing to worry about when you fall under the planned downsizing. The reason for such a reduction can be a change in leadership, a revision of the responsibilities of everyone, as well as a reduction in the organization's budget.

Who is impossible to cut

Pregnant women need not be afraid of being touched to reduce.It is not at all easy to lay off a person, because you cannot break the law and fire a temporarily disabled, sick employee, as well as those who are on vacation and pregnant women. The category of those who cannot be fired also includes single mothers and women who are raising up to 3 years. There is no need to fear layoffs for those who have high labor productivity and appropriate qualifications. Proof of good work and knowledge of their business are frequent incentives, bonuses, which are reflected in the employee's work book. If the reduction is forced, then the employer, most likely, will carefully evaluate and weigh everything. And young, inexperienced specialists can get hit.

Contraction is stress

Forced resignation from work, as psychologists believe, is a great stress for a person. If a woman gets laid off, she needs the support of her husband, children, relatives. You should not aggravate an already difficult situation by saying that this is how it should have happened. The main thing is not to get upset and panic, maybe these changes that have occurred will change life in the better side, and finally, it will be possible to relax a little and devote all the time to yourself. You should not settle for the first job that comes across, which will all the more be analogous to the previous one, because the same routine will begin, only in a different place. You need to try your hand at something else, since any woman has more than one hidden talent that just takes time to develop.

Pre-emptive right upon reduction the number or staff of employees should be taken into account by the employer. When determining which of the employees enjoys the preferential right for redundancy, the employer must take into account not only the qualifications of employees and their professional qualities, but also family and other circumstances. However, with the reduction of the only position, there is no one to compare with.

IN law enforcement practice questions arise:
1. In what cases the employer is not obliged to determine the priority right to remain at work;
2. Whether higher education gives an advantage to staying at work;
3. Whether it is necessary to take into account the penalties imposed during the assessment;

For a correct assessment of the qualifications of employees, the employer must assess his professional qualities complex. The employer can set his own assessment criteria. The employer should not ignore any of the signs by which one can understand whether the employee has a pre-emptive right in case of redundancy or not.
When reducing the number or staff, the employer must take into account all the factors that can influence the decision: work experience, level of education, personal characteristics.
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If the position is downsized, there is no need to assess the preemptive right
With a reduction in staff or number, some employees have a preferential right to remain at work (Article 179 of the Labor Code of the Russian Federation). The employer must find out this before approving a new staffing table (without excluding positions or positions) or making appropriate changes to it. Otherwise, dismiss the employee under paragraph 2 of Part 1 of Art. 81 of the Labor Code of the Russian Federation is impossible.

Sometimes the employer does not need to compare workers. This is permissible in the following cases. For example, when all positions of an entire department or other structural unit will be cut. In such a situation, the employer simply has no one to compare the dismissed workers with; the company does not have employees with similar qualification requirements by position.

The employer does not need to identify who has a pre-emptive right upon dismissal on redundancy if redundancy is subject to
all staff units for one position;
the only position in a structural unit;
a position for which one staff unit is provided and has no analogues in staffing table.

If the employer reduces the number of employees for the position of the same name in some structural unit, then the account of the preemptive right is mandatory.

Dismissal after holding comparative analysis for all employees holding similar positions, the courts are recognized as legitimate. The absence of such verification in most cases leads to the reinstatement of the employee in office, since non-compliance with the procedure established by Article 179 of the Criminal Code of the Russian Federation is considered a significant violation.

Sickness or vacation does not prevent the employer from assessing the employee's business qualities.
During these periods, he cannot only be dismissed (part 6 of article 81 of the Labor Code of the Russian Federation). If the employee does not have a preemptive right to remain at work, then he can be fired immediately after he appears at work.

Therefore, when reducing the number of employees, it is imperative to assess whether or not each of the employees, whose staffing unit is to be reduced, has the preferential right to remain at work.
So, when the position is reduced (with all staff units), then this is not necessary. There are no similar (identical) positions in the organization that could be compared between.

To determine the pre-emptive right when reducing the number of employees, it is necessary to create a special commission for this.
The commission must first of all compare the labor productivity and qualifications of workers (part 1 of article 179 of the Labor Code of the Russian Federation). The higher the employee's performance, the more chances he has to stay at work.

It is important for the employer to carry out this procedure as thoroughly as possible. Indeed, with its help, the most qualified and efficiently performing labor duties employees. It will be possible to part with the rest.

Since the Labor Code of the Russian Federation does not establish a special procedure for accounting for preemptive rights, the employer has the right to independently determine the method for establishing the professional level of employees.

The courts have the greatest confidence in the presence of special commissions with the participation of heads of departments, lawyers, cadres and union representatives (if any).
On the creation of a commission, an order must be issued indicating the competence of each of its members.
It will be more convenient for a subordinate to draw up a complete description, taking into account the personal qualities of a subordinate. A personnel officer, on the basis of a personal file, will be able to prepare a detailed certificate of the employee's marital status, the level of his education, as well as the existing penalties or awards and incentives. It will not be difficult for a company lawyer to summarize the submitted documents and draw up a competent opinion for the head of the organization. In turn, the union representative will ensure the protection of the labor rights of its members.
Each meeting of the commission must be drawn up with a protocol ... It reflects the following information:
information about the members of the commission who attended the meeting;
issues submitted to the commission;
the number of existing and planned staffing positions;
surnames, first names, patronymics and positions of employees, whose positions are planned to be reduced;
information about employees (work experience, educational level, presence of children and their age, etc.);
the decision of the commission on whether or not each employee has a pre-emptive right to remain at work.

A convincing argument for the court will be a comparative table compiled by the commission, which will reflect all indicators for each employee. If the enterprise has a trade union body, the decision on the reduction must be agreed with this body. The commission's conclusions will gain additional weight.

An employee can be assessed by work experience and level of knowledge
The pre-emptive right is revealed by assessing the productivity and qualifications of employees.
In the first comparison, it is worth being guided by such indicators as the fulfillment of production standards, a plan, and specific tasks.

Qualifications are indicated in Art. 195.1 of the Labor Code of the Russian Federation. These include the level of knowledge, skills, professional skills and work experience of each employee.

All data characterizing business qualities employee: his professional education, work experience, the presence of additional qualification characteristics, the volume of work performed and the quality of labor. At the same time, it is necessary to take into account the previous assessment of his work (the presence or absence of penalties and incentives), as well as take into account other circumstances that could affect the employer's decision. This approach will provide the employer with a reliable position in the event of a legal dispute.
It is more convenient to start comparing employees by establishing the duration of work in the position held (work experience) and the level of education (level of knowledge). This information is the easiest to obtain.

Accounting for the length of service of an employee when reducing

The employee's work experience is confirmed by his seniority, which is reflected in his work book ... If it contains incomplete information or the employee is external part-time and the employer does not have a work book, then it is possible to confirm work experience in other organizations in another way. For this, employment contracts, certificates, certified copies of a work book, orders for admission, transfer and dismissal are suitable.
From these documents you can find out both about the general work experience and about the length of service in a particular field. The latter indicator, along with other factors, can significantly affect the conclusion about the presence or absence of a preemptive right.

However, the employer is not obliged to accept the length of service as a decisive reason for keeping an employee at work. The courts consider that a greater length of service in itself is not a basis for concluding that there is a pre-emptive right. This indicator should be considered not separately, but in conjunction with other signs that will confirm the professionalism of the employee.

Taking into account the level of knowledge when reducing

The employer can determine the level of education of the employee and his qualifications from the documents listed in Art. 60 FZ dated December 29, 2012 No. 273FZ. The employee had to present a diploma, certificate, certificate or certificate upon hiring.
But if he brought the documents already during the measures to identify the preemptive right, then they still need to be accepted. Refusal will play into the hands of the employee, who, in the event of a dispute, will prove that the employer did not conduct a comprehensive analysis of his professional qualities.
Having a second education or a higher qualification category makes it possible to keep an employee at work. Otherwise, the employer has the right to conclude that there is no preemptive right.

At the same time, the presence of several higher or secondary professional educations is not always the determining factor. If education is not required for a specific position, then the employee will not have advantages over other employees.

Accounting for the employee's labor productivity in case of reduction

If you do not compare labor productivity, the court may consider such actions a violation of the requirements of Part 1 of Art. 179 of the Labor Code of the Russian Federation, which means non-compliance with the order of dismissal, and, as a result, will restore the employee in office.

In order to identify and, if necessary, confirm in court the difference in the performance of different employees, you will need documents proving that the employee has performed more than high Quality, important responsible tasks or more work compared to other employees. The latter indicator is easy to prove by an agreement and an order to instruct the employee in accordance with Art. 60.2 of the Labor Code of the Russian Federation of additional work.

The most effective comparison technique is to develop a special form or form. It can be used to enter data on the number of operations performed by compared workers over a certain period of time. For example, for sales managers, performance is determined by taking into account the number of meetings, negotiations, presentations, and contracts awarded.

Accounting for the existence of disciplinary sanctions at the employee

The employer has the right to encourage employees and apply to them disciplinary action... These events are formalized by orders that can help the employer make a final decision on whether or not the employee has a preemptive right.

Employees enjoying dismissal immunity

A number of workers are immune from layoffs even with low productivity.
Before starting to compare the qualifications of workers and their labor productivity, it is necessary to identify those employees who, by virtue of parts 1, 4 of Art. 261 of the Labor Code of the Russian Federation cannot be dismissed due to staff reduction.
Pregnant women, single mothers with children under 14 years old, or mothers from a complete family with a child under 3 years old have immunity. Such workers should be immediately excluded from the list of persons subject to comparison and reduction.

If earlier the question arose about which women are single mothers, then this year Supreme Court The Russian Federation specified who falls under this category (paragraph 2, clause 28 of the Plenum resolution of January 28, 2014 No. 1). Women are recognized as such who are raising a child without a father due to his death, deprivation of parental rights, being in prison or evading child raising.

And only after the persons whose dismissal is unacceptable are identified, can one proceed to further steps: assessing the productivity and qualifications of the remaining employees.

Who should be left to work with equal labor productivity:

1. Employees who constantly support two or more disabled family members
2. The only breadwinners in the family
3. Employees who have received an employment injury or occupational disease in the company
4. Disabled combatants to defend the Fatherland and disabled WWII
5. Employees who improve their qualifications in the direction of the employer without interrupting work
It is impractical to do this, otherwise the comparison of the professional qualities of workers will occur on the basis of the fact which, by virtue of Art. 194 of the Labor Code of the Russian Federation no longer has legal significance. If the foreclosure is extinguished, then it is better to focus on the analysis of other indicators of the current labor activity employee.

A situation is possible when labor productivity and qualifications of workers whose positions are to be reduced turn out to be equal. In this case, the employer should consider additional comparison criteria. The list of persons who need to be given preference is given in Part 2 of Art. 179 of the Labor Code of the Russian Federation. These, in particular, include workers who are the only ones from the whole family who have earnings.

The special status of the employee is confirmed by various documents. For example, the receipt of a professional injury is certified by an industrial accident certificate, and the establishment of disability is certified by a certificate and an individual rehabilitation program. Participation in hostilities - documents from the military registration and enlistment office. The presence of dependent family members is confirmed by a child's birth certificate, a marriage certificate, a certificate from the spouse's place of work about being on parental leave or a work book with a note of dismissal from the previous place of work.

Also, the employer should request a copy of the spouse's passport with a mark on the place of registration. She may become one (but not the only) piece of evidence to support living together.

Typical mistakes employers make when downsizing

Compliance by the employer with the provisions of Part 2 of Art. 179 of the Labor Code of the Russian Federation is always examined in detail in court. Typical omissions that can lead to reinstatement include the following:
lack of evidence of lower labor indicators the dismissed employee and at the same time the presence of his dependents.
the norms of the collective agreement establishing the preferential right to remain at work for persons of pre-retirement age have not been taken into account.
the norms of Part 2 of Art. 179 of the Labor Code of the Russian Federation, if it is impossible to establish objective criteria for labor productivity and compare the qualifications of workers.

At the same time, it is important to remember that additional criteria from the specified norm are taken into account only if labor productivity and qualifications of employees are equal. In other words, even if an employee has dependent family members, but his professional indicators are lower than other employees, then the latter have an advantage.

A collective agreement cannot change the list of persons who have a preemptive right and the order in which this right is granted. Its provisions are only allowed to supplement the content of Part 2 of Art. 179 of the Labor Code of the Russian Federation.

It may be difficult for an employer in a situation where two employees with the same qualifications are among the persons listed in Part 2 of Art. 179 of the Labor Code of the Russian Federation. For example, the choice is between the father of a family in which the mother and child are dependent on him, and a disabled person who is fighting to defend the Fatherland.
In such a situation, it is advisable to be guided by the sequence that is enshrined in this rule. In this example, the family worker must be left at work.

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The staff reduction is carried out by an enterprise or organization in accordance with the established procedure by reducing the number of employees. The fact of the reduction is confirmed by the publication of the Order on the new staffing table for the enterprise and the introduction of appropriate changes into it. The dismissal procedure is carried out only after the approval of the Order.

In order for the layoff to become legal, the management of the enterprise must comply with all requirements Labor Code:

Downsizing should indeed take place.
The management of the enterprise personally (signed) in writing must warn each individual employee about the upcoming dismissal.
Dismissal of an employee in connection with a layoff must be carried out in accordance with the requirement of the law on categories of persons with preferential rights to remain at work.
It is necessary, if possible, to transfer the employee to another position or job.
No later than three months prior to the dismissal of the employee, the local employment center should be notified.
Obtain consent to downsize the trade union body.
Make payments of compensation and severance pay.

According to the law, in the new staffing table it is necessary to indicate the real reduction of employees. You cannot hire a new employee for a downsized position.

All dismissed employees are notified of the upcoming dismissal personally (against receipt) at least two months before the start of the layoff procedure.

The warning time is documented. On the general Order on staff reduction (or on a separate order issued for an employee) there must be a personal signature of each employee who is dismissed.

The following categories of workers can benefit from layoffs due to staff reductions:

Persons, except for whom there are no other members with an independent income in the family.
Employees who received the last job occupational diseases or work injury.
Disabled combatants, injured while performing their duty to defend the Fatherland.
Employees who improve their skills on the job in the direction of the enterprise.
Family, supporting two or more disabled family members.

Reduction is not allowed:

Workers on vacation.
Temporarily disabled employees on the basis of a certificate from a medical institution.
Women whose children have not reached the age of three.
Mothers who alone are raising a disabled child under the age of 18.
Mothers raising children under 14 on their own.
An employee whose age is less than 18 years old is dismissed only in agreement with the relevant state authorities.

Information about the upcoming layoffs must be submitted to the trade union body and the state employment center no later than three months before the start of the layoff procedure.

Transfer to another place of work

Dismissal of an employee on staff reduction is possible in the event that the enterprise does not have the opportunity to transfer him to another position or job. Labor law obliges the employer in writing to offer the employee a vacancy in the same enterprise that corresponds to his qualifications. If there is no such job, offer a less paid job or a lower position. If the employee refuses the available offers, the employment contract is terminated with him. Refusal of the proposed job must be accepted in writing and with the personal signature of the employee being laid off.

Payment of severance pay in case of redundancy

An employee's dismissal benefit is calculated in the amount of one average monthly salary. Also, for the period of employment, the employee retains his average monthly earnings for a period of up to two months from the day of reduction (taking into account the severance pay). If during this time the employee is not employed (in this case, the employment service agency issues a certificate, which is a supporting document), the average monthly salary is paid to the dismissed employee also for the third month that has passed after the layoff. This provision does not apply to an employee who applied to the state employment service after two weeks after the layoff.

The employer can terminate the employment contract with the written consent of the employee without warning about the reduction two months in advance. In this case, additional compensation funds are paid in the amount of two months' salary of the dismissed employee.

Additional payments do not include due labor law severance pay upon dismissal.

The basis for termination of the contract is a written statement of the laid-off employee with a request for dismissal. The presence in the document of the date and personal signature of the dismissed employee is required.

What to do if your rights have been violated

Unscrupulous employers, when downsizing, in order to save money, in order not to pay severance pay, try to fire an employee under any other article of the Labor Code. Such a dismissal with legal point view is illegal, so very often people turn to legal advice or lawyers to protect their legal rights in a court. You can contact the prosecutor's office or labor inspection... To do this, you should draw up a statement of claim, which can be filed only within one month from the date of dismissal.