Staff reduction procedure. Actions of an employee upon layoff

Sometimes the reason for the dismissal of one or more employees of an enterprise is not the decision of the employer or the employee himself, but objective necessity. The situation may be related to the transition to a new (automated) level of production or to the fact that the organization no longer needs the same number of employees. In such cases, there is a reduction in the number or staff of employees.

For the employer, this becomes a legal tool that allows optimizing the composition of personnel and the structure of the staffing table. However, the use of such a technique is associated with a large number of nuances and requires compliance with many rules.

Basic concepts and terms

In order to understand the intricacies of the topic and understand who, how and under what circumstances can be fired if there is a reduction in staff, you should define the main concepts:

1. The number of employees is the number of all employees of the enterprise, in other words, this is the payroll. If we are talking about dismissing several representatives of the same profession performing similar functions, while maintaining the position on the staff list, then this is a reduction in the number of employees. An example would be the dismissal of three out of five architects.
2. The staff of employees is absolutely all positions represented in the company (managerial, administrative, workers and others). Their list is staffing table, in accordance with which the structure of the organization’s personnel is formed.
3. Reducing the number of staff may be necessary in order to exclude from the list positions that duplicate each other, or those that can be combined into one staff unit. This concept also includes measures aimed at eliminating any division.

This means that staff reduction is accompanied not just by a decrease in the number of employees with the same responsibilities, but also by the dismissal of all employees performing specific job functions. Returning to the example above, a downsizing would result in all five architects being laid off. Perhaps it is more profitable for the company not to keep these employees on staff, but to hire them from time to time to perform a separate task (outsourcing).

Legislation on dismissal due to staff reduction

The legal aspects accompanying the severance of labor relations due to changes in the structure of the staffing table are regulated by the Labor Code of the Russian Federation. A reduction in the number of employees (due to the liquidation of an organization or a change in its owner) is discussed in Article 81. Other common situations related to the termination of contracts with employees at the initiative of the employer are also listed here.

Among other cases, this article provides for the procedure for dismissing employees:

Who can be laid off?

The decision on which the reduction of the number or staff of employees depends is made by the employer, but at the same time he must take into account the rights of employees enjoying certain benefits.

When considering candidates for employees subject to dismissal, the manager is obliged to comply with the rule set out in Art. 179 TK. It states that staff reductions should occur at the expense of the least qualified personnel, who have the lowest labor productivity indicators. The practical implementation of this rule is often associated with an assessment of the experience and length of service of employees. It is assumed that those who have recently worked at the enterprise represent the least value to the team.

To assess the importance of an employee great importance also has the result of the qualifying exam, his education and the level of performance for the previous period. This means that when comparing two workers occupying the same position, preference will be given to the one who has higher education. His colleagues who received secondary specialized education will probably be laid off.

Categories of personnel not affected by dismissal due to staff reduction

The reduction in staff does not affect the following categories:

• Parents of children with disabled status.
• Mothers and fathers raising children on their own (single).
• Parents of large families until youngest child will not be 14 years old.
• Citizens who are the sole breadwinners of their families.
• Employees who have suffered an occupational injury or illness as a result of their work at that company.
• Disabled people affected by wars Chernobyl disaster or the Semipalatinsk trials.
• Employees of the company who have awards (Hero of the USSR, Knight of the Order of Glory) or the title of inventor.
• Workers who combine their work labor functions with training.

Dismissal due to staff reduction does not affect those employees who are members of a trade union or act as elected representatives of the work collective and take part in negotiations with the company's management.

Also, employees of an enterprise who are on sick leave, regular or maternity leave cannot be fired. True, this can be done with their written consent or upon complete liquidation of the company.

How retirees and part-time workers are laid off

The Labor Code of the Russian Federation (Article 3) contains a ban on employer discrimination based on age. Most often this applies to workers who have reached retirement age and continue to fulfill their job responsibilities. If necessary, they will also be affected by staff reductions, but their use social status as grounds for dismissal is illegal.

Taking into account the experience and qualifications of pensioners, they, on the contrary, fall under the definition of employees with preferential rights. Based on the fact that they can be one of the most useful employees of the enterprise, they are the last to be laid off.

When planning the dismissal of an employee who combines two positions, the employer performs almost all standard actions. The only difference is that the law does not establish whether it should accrue payments to such an employee.

In fact, redundancy benefits are necessary for those who lose their source of income. However, while remaining in the company, the part-time worker continues to receive wages. Here the decision on payments and their amount remains with the employer.

Why do employers resort to layoffs?

The state allows enterprise managers to independently decide on the need to reduce staff or the number of personnel. However, in the event of controversial situations, the economic feasibility of these measures can be verified by the judiciary.

This condition places the obligation on the employer to inform its subordinates about why the workforce is being reduced. This information is set out in the relevant order and may be related to the following factors:

• With a low level of profitability. The lack of profit does not allow management to pay at the proper level for the work of the previous number of employees. By reducing labor costs, an organization can save some money to pay off debts or purchase a new batch of materials.
• Ineffective staff structure. If among the organizational positions there are those that duplicate each other or are not valuable for maintaining economic activity, their elimination will be justified.
• Introduction of new technologies or equipment. When production becomes more automated and does not require the same number of employees, staff reduction can significantly reduce costs and increase profitability.

What rules must an employer follow when reducing staff?

The forced dismissal procedure can significantly affect the well-being of those employees who are subject to layoffs. It is not always possible for them to find workplace with the same conditions as at this enterprise. For this reason, the state dictates to leaders certain conditions, compliance with which to a certain extent protects the interests of dismissed workers:

In the event that the company’s management “forgets” to inform the employment service about its intentions, in addition to fines, the court may oblige them to pay wages to employees for forced absences.

How staff reduction occurs: step-by-step instructions

Any head of a company or organization, when planning and implementing staff reduction measures, must know and comply with all legal norms and requirements. Ignoring or unintentionally violating one or more rules can lead to quite serious consequences: a fine or legal proceedings.

Based on this, the employer is interested in carrying out a phased reduction of staff (the Labor Code of the Russian Federation establishes a list of necessary documents and procedures):

In the event that an employee does not agree to the transfer and continuation of cooperation with the company, the last on the list of required documents is an order for his dismissal. It is recognized as usual for this document unified form T-8.

How is dismissal due to staff reduction completed: compensation for vacation, severance pay

The dismissal of an employee who was informed on time and refused the offered vacancies takes place simultaneously with the payment of all necessary funds to him.

Along with the work book, the former employee is given:

• Wages accrued for the last period worked.
• Compensation payments for unused vacation(if there is one).
• Special payments in case of staff reduction (severance pay). Their amount is often equal to the average salary, but can be higher if this is specified in the collective agreement.

The company continues to pay redundancy benefits to the employee for another two months if he is listed on the labor exchange but cannot find a job. Its size is set at the average salary, but it does not take into account the amount that has already been issued.

If an employee wishes to resign earlier than the deadline set by the employer, he must be paid the money accrued for unworked time. That is, in fact, in any case, he will be paid for the two-month period between the announcement of the reduction and the date on which this procedure is planned.

Payments to certain categories of personnel

The procedure for laying off some employees is slightly different from the one outlined above. This is due to the non-standard nature of their work functions or special circumstances:

1. For those employees whose duties are considered seasonal, redundancy payments amount to an amount equal to the average salary for two weeks.
2. Employees of organizations located on Far North, charged one-time severance pay and the average salary for three months (if they are not employed earlier).

What will be indicated in the work book

According to Art. 81 of the Labor Code, staff reduction is indicated as a basis for termination of an employment contract in the employee’s work book. It is issued on the day of dismissal along with the accrued amount of money. Upon receipt of them, the former employee of the enterprise signs several documents (personal card, work record book, insert).

Certification of the record that employment contract is torn, the signature of the HR department employee (who maintains work books) and the employee being dismissed, as well as the seal of the manager.

What should an employee's behavior be like when being made redundant?

When a person receives notice that he is planning to be laid off, he should take the following actions:

1. Make inquiries about the list of persons who do not have the right to dismiss and find out if he is included in this category. In the event that they discover any factor that gives the right to privileges or benefits, this should be stated in a letter and submitted to the manager. The best option It is considered that the letter is drawn up in two copies. One of them is given to management with a request to put a mark of receipt on the second. This will be useful evidence in favor of the employee if the case goes to court.
2. Present demands regarding an alternative place of work at this enterprise. The employee does not have to agree to the offer, but a written refusal by the employer to provide vacancies may also become grounds for canceling the decision to lay off.
3. To receive additional payments, you must register with the employment service within a period of no more than two weeks after the staff reduction was made. The Labor Code of the Russian Federation specifies exactly this period. Then the employee becomes entitled to a two-month allowance (average salary) if he fails to find new job.

Most important aspect concludes that the employee should not write a letter of resignation himself after he becomes aware of the upcoming layoff.

Also, you should not give in to your boss’s persuasion and compromise, because dismissal by agreement of the parties does not provide for the payment of severance pay.

Professions at risk

Given the complex economic situation, reductions may affect a fairly wide range of companies and organizations. Doctors and teachers may not fear for their jobs, but many firms will still undergo reorganization.

Among employees of budgetary enterprises, funding for the following professions may be limited:

• Employees involved in the telecommunications sector.
• Librarians.
• Postal workers.
• Mosgotrans employees.
• Reduction of the staff of the Ministry of Internal Affairs.

In addition, some employees of state and commercial banks will have to look for new jobs.

Experts say that against the backdrop of such a disappointing situation and in the absence of wage increases, many highly qualified personnel will quit on their own initiative. Without waiting for layoffs, they will learn new relevant professions or look for applications for their talents in other countries.

If a business manager is going through difficult times, he may cut the number of employees or positions if he needs to save money. But can he do whatever he wants, or are there any rules for laying off workers? This will be discussed in our article.

Labor Code

First, let's open chapter 13 Labor Code Russian Federation and let's see what the law says about employee reductions.

Dismissal due to reduction is mentioned in paragraph 2 of Article 81 and refers to cases of termination of an employment contract at the initiative of the employer.

Are we reducing staff or employees?

When planning staff reductions, it is necessary to understand the difference between reducing the number of positions and reducing the number of employees.

When job cuts are planned, several jobs are removed from the staffing table. For example, if the company had a manager, a production manager, an engineer and a salesperson, and as a result of the decision to make redundancies, it was decided to remove the position of manager - this is a reduction in positions.

If the enterprise had five engineers, three managers and two salespeople, and when the staff was reduced, they decided to leave only two engineers, two managers and one salesperson, then this is a reduction in the number of employees.

What does the employer have the right to?

It would seem that if the law stipulates that the employer has the right to reduce its staff if necessary, then everything is simple: you need to decide on which positions or people you can save money on, and act. But in reality, there are redundancy rules that must be followed. Let's take a closer look at them.

Reduction procedure

The procedure for terminating an employment relationship due to layoffs is structured as follows:

• the employee receives notice of an upcoming layoff;
• a dismissal order is issued for the enterprise;
• On the last working day, the final payment is made to the dismissed employees.

As you can see, it is similar to the procedure for terminating an employment relationship in any other case.

Deciding to downsize

Although a business owner or employer may be going through difficult times, he cannot part with his employees at any time convenient to him. In order to cut people or positions, there must be a good justification - one that will satisfy the labor commission if a precedent arises. For example, it will be necessary to prove that the industry in which positions are being cut is completely unprofitable, and the owners of the enterprise simply had no other choice - only to close this area and exclude all employees employed there from the staffing table.

Where should you start cutting?

Before you start getting rid of employees, especially in a large enterprise, you should check whether there are so-called “empty” vacancies that can be excluded from the staffing table first. This means that if in an organization, for example, there are positions of five accountants, and only three people actually work in these positions, then you can exclude those two that do not have an actual employee. Then you won’t have to fire anyone, you can avoid paperwork, but if the enterprise really needs to free up free funds, then such a measure, of course, will not save or help anyone.

If it is not possible to simply cross off positions on paper from the list, you need to start cutting people off. In this case, the following should be fired first:

• pensioners,
• those employees who have less experience and seniority;
• those employees who bring less benefit to the company.

But at the same time, it is necessary to understand that such formulations as “brings less benefit” must also have a basis strong foundation, for example, some criteria for comparison - otherwise the employee may try to challenge his dismissal in court.

Who can't be fired?

To understand how to properly lay off workers, you need to know that there are certain categories that cannot be dismissed due to layoffs, since this is illegal. These include:

• minor employees;
• pregnant employees;
• women with children under three years of age;
• employees who alone are raising a child under twelve years of age or a disabled child under eighteen years of age.

The employer can lay off such employees only in the event of complete liquidation of the enterprise - then there is simply no other choice left. In all other cases, if, for example, you need to choose between a very qualified and responsible employee and a pregnant employee who is not so good and not so experienced, the choice, alas, will have to be made in favor of the latter.

Transfer of employees

Even if the employer has outlined a list of employees with whom to part with, the rules for dismissal for staff reductions state that before terminating the employment contract, it is necessary to offer the released employees a transfer to other vacant positions. However, they may be less paid and less prestigious.

For example, a senior manager may be offered all the available vacancies at the enterprise, from just a manager to a watchman, and it is up to him to decide whether to accept the offer or refuse. The employer is not obliged to offer vacancies that require higher qualifications. It is advisable to record all such proposals in writing, as well as the employee’s refusals.

Notification

Most important point when staffing is reduced, employees must be warned about this in writing two months before the upcoming event. Within the same time frame, the employment service and the trade union committee must be notified - if there is one at the enterprise. Moreover, if there is a decrease in the number of employees, for example, by fifteen people at once, it is impossible to issue one warning paper to everyone; each employee must be notified individually, against signature, and an act of refusal to sign will not be suitable in this case.

Order of dismissal

An order in form T-8 is drawn up in the same way as in other cases of termination of employment contracts. If it happens mass reduction, all employees can be included in one order. The wording “to reduce staff” or “to reduce staffing levels” is required.

Calculation

On the last working day, dismissed employees must be given everything Required documents and money.

Documents include:

• work book with the corresponding entry;
• certificate of average salary for the last year;
• any certificates and documents, the issuance of which does not contradict the commercial or other secrets of the enterprise, upon the written request of the employee.

The funds that must be given to the employee must include:

• current salary and bonus;
• compensation for unused vacation days - in this case, compensation is not collected from the employee for those days that he this year took “in advance”;
• severance pay in the amount of the average monthly salary.

If an employee was ill at the time of dismissal, the company pays him sick leave fully. For example, an employee should be fired on the fifth of November, but only closed the sheet on the tenth of November - he is entitled to payment up to the tenth inclusive.

If within a month after the layoff the former employee does not find a new job, the enterprise is obliged to issue another average monthly salary.

If the employee is registered with the employment service within two weeks from the date of dismissal, the rules for laying off an employee state that - by decision of the service - the enterprise can pay for the third month of the employee’s stay without work.

What is a redundant employee entitled to?

As mentioned above, the employee has the right to move to other vacancies available at the enterprise. As a rule, there should be at least three new job offers - if, of course, the company has so many unfilled vacancies.

A resignation letter from an employee who is being laid off is not required, since the initiative to terminate the employment relationship comes from the employer.

An employee can reach an agreement with his boss at any time and leave the company without waiting for the expiration of the two-month period - in this case, he must write a letter of resignation. And it must be remembered that in this case, benefits are not due, but compensation is due for all days before the expiration of the warning period. For example, if an employee was supposed to be fired on the first of October, but quits on the fifteenth of September, he is entitled to payment for the days from the fifteenth to the first.

Given the difficult economic situation in the country, staff reductions are not a rare occurrence. Even highly qualified employees are not immune from it, but some have preferential rights. From this article you will find out who gets laid off first, who is given preference at equal skill levels, and who cannot be fired at all on this basis.

What is an abbreviation

There are 2 concepts - downsizing and downsizing. In Art. 81 of the Labor Code of the Russian Federation does not spell out the differences between them. In practice, the difference is also insignificant. When staffing is reduced, the position remains on the staff list, but the number of people occupying it decreases. When staffing is reduced, the position is eliminated.

The reasons for downsizing at an enterprise are:

1. Difficult economic situation in the country.
2. Merger, reorganization or accession of companies.
3. Internal optimization.

Who gets laid off first and why?

Interesting information

Not only specific positions, but also entire divisions, divisions, and departments may be subject to staff reductions. The employer has every right to do this. However, in both cases, during layoffs, respect for the rights of workers is mandatory, and those who are not allowed to be fired must remain at the enterprise. If entire departments are going to be cut, then employees who have “special” rights should be transferred to other departments.

Let's look at who gets laid off first at work and on what basis. The employer determines preferential rights, and a certain algorithm is provided for this:

1. From all candidates for dismissal, employees who are prohibited by law from being laid off are excluded. According to Art. 261 of the Labor Code of the Russian Federation, these include pregnant workers, mothers of children under 3 years of age, single parents with children under 14 years of age or disabled children under 18 years of age, as well as some others. It is prohibited to dismiss employees on maternity leave due to layoffs (Part 4 of Article 256 of the Labor Code of the Russian Federation and Part 6 of Article 81 of the Labor Code of the Russian Federation).
2. The remaining workers are assessed on their skill levels and productivity. The comparison is made between employees who occupy the same positions created within the same structural unit. Correctly evaluate the qualifications of two leading accountants working in the same department. It is incorrect to compare a leading specialist and a category 2 accountant - this is indicated in the appeal ruling of the Moscow City Court No. 33-27711/2015 dated 08/06/2015. Similar rules apply to the assessment of labor productivity.
3. If the comparison reveals equal levels of qualifications and labor productivity, then the family circumstances and other benefits when an employee is laid off. There is one exception. If a position is abolished or all staff positions in one position are reduced, then preferential rights are not taken into account. This is indicated in the appeal ruling of the Moscow City Court No. 33-1708 dated January 22, 2015.

What are preemptive rights and who has them?

Given equal levels of qualifications and labor productivity of employees, preference is given to those who have advantages in the reduction of staff. According to Art. 179 of the Labor Code of the Russian Federation, the following categories of workers can apply for job retention:

• family people who have two or more dependents (minor children, other disabled family members who are on full content employee or regularly receiving assistance from him, representing their permanent and main source of livelihood);
• the only “breadwinners” in the family are employees whose families do not have other people with a regular income;
• employees with injuries and occupational diseases received while working in this organization;
• employees who are currently improving their qualifications in the direction of the employer.

If you were illegally fired due to layoffs, you need to contact several authorities. First, send a written application to the organization's trade union. The union must consider the complaint within a week. This case may also be considered by the Federal Labor Inspectorate and the prosecutor's office. If the trade union and the labor inspectorate do not reveal any violations, then a lawsuit must be filed.

• military spouses;
• military personnel transferred to the reserve;
• authors of inventions;
• disabled people of the Second World War and combat operations;
• persons affected by radiation;
• and some others.

Preferential rights to remain at work may also be provided for by internal collective agreements in the company.

How employees are compared

Some facts

Upon termination of an employment contract due to the liquidation of an enterprise, or a reduction in the number or staff of a company's employees, the dismissed employee must be paid severance pay in accordance with the average monthly salary. For a dismissed employee, the average monthly salary is recorded for the duration of the job search for 2 months from the date of dismissal.

The law does not describe specific requirements for the procedure for identifying the preferential rights of employees. Practice shows that courts place more trust in the decisions of commissions when recording the results in writing.
Here are the main nuances that should be taken into account when comparing candidates for reduction:

1. It is recommended that the commission include heads of departments where staff reductions are planned, as well as members of the trade union organization and specialists from other structural divisions (lawyers, personnel officers, those responsible for quality control, etc.).
2. An order should be issued to organize the commission, defining the competence of each of its members. Personnel officers may be responsible for providing information about penalties and incentives imposed. Department heads should be entrusted with the generation of work reports, compilation of characteristics, etc.
3. It is advisable to draw up pivot tables, which reflects the results of comparing the qualifications and labor productivity of workers according to a number of criteria.
4. The commission's findings should be recorded in the official minutes of the meetings.
5. The commission must make its conclusions based on the results of comparing the labor productivity of each employee, taking into account the entire set of criteria. The decision that one employee has higher qualifications because the second has less experience is considered illegal by the court.
6. If candidates for layoff are registered in a trade union and regularly pay membership dues, the employer is obliged to take into account the opinion of this organization on the advisability of dismissing a particular employee. This is the requirement of Part 2 of Art. 82 Labor Code of the Russian Federation.

Watch a video that will tell you about the categories of workers who are prohibited from being laid off

List of persons who cannot be dismissed due to reduction

The list of those who cannot be laid off by law includes the following categories of workers:

• temporarily disabled persons;
• employees on leave (including student leave and unpaid leave);
• mothers of small children under 3 years of age;
• women and men raising alone a child under 14 years of age or a minor child with a disability;
• members of the trade union organization.

Those who cannot be laid off from work also include pregnant employees and women on maternity leave. If an employee from the “untouchable” category is nevertheless fired due to staff reduction, he will be reinstated at work automatically by court decision.

We are ready to answer any questions you may have - ask them in the comments

If necessary, the employer may decide to reduce the number or staffing levels. To avoid litigation with dismissed employees, a certain redundancy procedure must be followed.

Maria Blagovolina,
senior associate at Allen & Overy

Certain categories of workers who are subject to social protection and who cannot be laid off: pregnant women; women with children under three years of age; single mothers raising a child under 14 years of age (a disabled child under 18 years of age) (Article 261 of the Labor Code of the Russian Federation). It is also impossible to lay off an employee during the period of his incapacity for work or vacation (Part 6 of Article 81 of the Labor Code of the Russian Federation)

Can temporary vacancies be offered?

A vacancy is a position provided for in the company’s staffing table; no employment contract has been concluded for the performance of work for it. That is, a position is not considered vacant if it is actually occupied by an employee, but he is on maternity leave, child care leave or temporarily transferred to another position. This is due to the fact that during this period the employee retains his workplace (position in the staffing table).
Thus, if you follow the logic, the employer is obliged to offer so-called permanent vacancies. However, there is no direct prohibition in law from offering temporary vacancies to employees who have been laid off. That is, the employer can offer employees temporary vacancies, but they need to conclude a fixed-term employment contract - for the duration of the absence of the previous employee. It should be noted that the court practice on this issue is not clear (rulings of the Moscow City Court dated July 1, 2010 No. 33-19668, St. Petersburg City Court dated August 30, 2010 No. 33-11908).

Dismissal before the expiration of two months

If an employee who has been laid off agrees to early dismissal, the employment contract with him can be terminated before the expiration of the two-month period. This employee must be paid additional compensation, the size of which depends on the time remaining before the expiration of the two-month notice period (Part 3 of Article 180 of the Labor Code of the Russian Federation).
In this case, the employee may resign not due to layoff, but due to at will(Article 80 of the Labor Code of the Russian Federation). In this case, the employer is not obliged to pay the employee compensation related to dismissal due to reduction (Article 178 of the Labor Code of the Russian Federation).

Footnotes:
1 tbsp. 81 Labor Code of the Russian Federation
2 tbsp. 179 Labor Code of the Russian Federation
3 tbsp. 179, 180 Labor Code of the Russian Federation
4 tbsp. 394 Labor Code of the Russian Federation
5 tbsp. 180 Labor Code of the Russian Federation
6 hours 3 tbsp. 80, part 1 art. 180 Labor Code of the Russian Federation
7 paragraph 2 art. 25 of the Federal Law of April 19, 1991 No. 1032-1
8 tbsp. 178 Labor Code of the Russian Federation
9 approved fast. Goskomstat of Russia dated January 05, 2004 No. 1

One of the grounds for termination of an employment contract at the initiative of the employer is a reduction in the number or staff of the company's employees 1. Before downsizing, the HR department and company management need to decide in advance whether there will be a reduction in staff or just numbers.
Downsizing is a reduction in the number of staff for a specific position. For example, instead of seven analysts, four remain on staff. Staff reduction is the complete elimination of certain positions from the staffing table. For example, the position of an analyst is completely excluded from the staffing table.

Which option should the employer choose?

Despite the fact that the Labor Code provides for the same amount of guarantees and compensation for employees subject to dismissal due to a reduction in numbers and staff, in practice the situation looks different.
In the event of a reduction in the number of employees, the question inevitably arises about the preferential right to remain at work 2 . The employer needs to choose from several employees with the same positions those who will have to be fired, and this choice must be justified. Of course, the Labor Code clearly states that the preferential right to remain at work (in the event of a reduction in both the number and staff) is given to employees with more high performance labor and qualifications. However, most practitioners are inclined to believe that in the event of staff reduction, the preemptive right does not apply. After all, all employees with a chosen full-time position are being laid off, that is, the employer does not have to choose which employees to keep and which to fire.
Arbitrage practice also proceeds from the fact that when staffing is reduced, the right of pre-emption is not taken into account when offering vacant positions. In this regard, from the point of view of the risks of litigation with dismissed employees, a more reliable option is the staff reduction procedure.

We follow the dismissal procedure

When laying off employees, it is important to correctly carry out all procedures and complete documents 3. Violation established order may lead to the fact that the dismissed person will have to be reinstated and paid for his forced absence 4 . The court can reinstate an employee dismissed due to redundancy, even if the employer made errors of a purely technical nature when preparing documents. The procedure for reducing the number or staff of employees consists of several stages.

Reduction order
First of all, the head of the company issues an order to reduce the number or staff, which indicates the positions to be reduced. The new staffing table (with the changes that resulted from the reduction) must be approved by the same or a separate order.

In 2011, Aktiv LLC rented a building for an office in which it carried out its activities. In 2012, management decided to reduce rental costs due to unstable financial situation companies. Since February 2012, Aktiv LLC has been renting half of the building, and therefore the manager decided to reduce the number of cleaners (from two to one).
An order was issued to reduce the number (see below).

ORDER No. 2
about reducing the number of employees

Due to the decrease total area rented premises for the office of Aktiv LLC
I ORDER:
1. To exclude from May 2, 2012 from the staffing table of Aktiv LLC the following position:

2. Head of the HR Department A.L. Kalashnikova in the manner established by the current labor legislation: notify employee Mayevskaya O.G. about the upcoming dismissal due to downsizing; inform the employment service authorities about the upcoming dismissal of the employee; prepare a list of vacant positions for proposals from the dismissed employee.

3. Approve the staffing schedule No. 05-ShR dated March 1, 2012 and put it into effect from May 2, 2012.
Director Olkhin I.D. Olkhin
I have read the order:
Head of HR Department Kalashnikova A.L. Kalashnikov

Notification to employees
About the upcoming dismissal due to a reduction in the number or staff of employees, it is necessary to warn in advance - personally and against signature at least two months before the dismissal 5. If an employee refuses to mark the receipt of the notice, it is necessary to draw up a report in front of witnesses (at least two people), which will confirm the fact of the notice of dismissal.

The head of Aktiv LLC decided to eliminate the position of “web application developer” in order to reduce labor costs in the company. Startsev I.P. will be dismissed due to staff reduction on 05/02/2012. The personnel service hands him a notice against signature (see below), which Startsev I.P. must sign, 03/01/2012 (at least two months before the date of dismissal). At the same time, Aktiv LLC has a vacancy for a web designer, and it was offered to I.P. Startsev.

Notification
about the upcoming dismissal due to a reduction in the organization’s workforce

Dear Ivan Petrovich! In connection with the implementation of measures to reduce the number of employees, your position of “web application developer” will be reduced from May 2, 2012.
According to Part 1 of Article 180 of the Labor Code of the Russian Federation, you are invited next job(vacant position) at Aktiv LLC, corresponding to your qualifications: web designer.
In accordance with Part 1 of Article 178 of the Labor Code of the Russian Federation, you will be paid severance pay in the amount of your average monthly earnings, and will also be saved for you average earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay).
Reason: order No. 12 dated March 1, 2012.
Director Olkhin I.D. Olkhin
I have read the notification
Startsev I.P. Startsev 03/01/2012

Job offer
Employees must be offered the vacant positions available to the employer at that time to which they can be transferred 6 . This must be done not once along with the notice of dismissal, but several times. Employees subject to redundancy must be offered every vacancy that appears in the company during the notice period. Based on the practice and position of the courts, we recommend informing employees subject to layoffs about vacancies three times: along with the notice, a month after reading the notice, and on the day before the last working day.
Please note that it is necessary to offer not only a vacant position or a job that corresponds to the employee’s qualifications, but also a vacant lower-level position or lower-paid job. In this case, the employer is obliged to offer the employee all vacancies that meet these requirements that he has in the given area. An employer is obliged to offer vacancies in other localities only if this is directly provided for in a collective or labor agreement.
If an employer is reducing its workforce or workforce, it should not advertise for candidates specifically for such positions. We also recommend that you do not re-enter the position into the staffing table for at least six months after completion of the reduction procedure. Otherwise, employees have a chance to successfully challenge the dismissal and be reinstated by proving that there was no actual reduction in numbers or staff.

Employment service notification
The employer is obliged to report a reduction in the number or staff to the employment service 7. This must be done in writing no later than two months before the dismissal of employees. If the decision to reduce the number or staff of employees may lead to mass layoffs - no later than three months before the start of the relevant activities. The application to the employment service authorities indicates the position, profession, specialty and qualification requirements to them, the conditions of remuneration for each specific employee. Criteria mass layoffs are determined in industry and (or) territorial agreements.
On final stage headcount or staff reduction procedures require compensation to be paid to dismissed employees who did not accept the vacancies and will not continue to work in the company in other positions. Employees must be paid severance pay in the amount of their average monthly earnings and retain their average earnings for the period while the dismissed person is looking for a job (but no longer than two months from the date of dismissal) 8 . You also need to issue orders to terminate employment contracts in Form No. T-8 9 and make entries in the work books of dismissed employees. The entry will look like this: “Dismissed due to a reduction in the number (staff) of the organization’s employees, paragraph 2 of part 1 of Article 81 of the Labor Code of the Russian Federation.”

Preparing documents for the court

Staff reductions must actually take place. This fact is confirmed by the presentation to the court of the staffing table before the reduction procedure and after its completion (after the reduction, the new staffing schedule approved by the order must be in effect). Judicial practice proceeds from the fact that the right to determine the number and staff of employees belongs to the employer. Although the employer is not required to prove the validity of the decision to reduce staff, it is recommended to prepare a feasibility study. The presence of such a document will strengthen the employer’s position in court and refute the employee’s arguments that the layoff was far-fetched. Often, employees bring printed notices to court stating that during the period of staff reduction, the company was looking for employees to fill the positions being reduced. Such evidence may indirectly confirm the unreasonableness of the reduction procedure, so I recommend refraining from publishing vacancies for the positions being reduced before the employee is dismissed and in the next 2-3 months.

Nowadays, you need to be legally savvy in a variety of issues, especially when it comes to labor relations. What is important to know if you decide to quit or are laid off? About this with Head of the legal department of the Center for Social and Labor Rights Sergei Saurin.

If the employer refuses to sign the resignation letter

The manager has no right to interfere. You can decide to quit at any time, and you do not need to coordinate your resignation with your employer. The only limitation is that according to Article 80 of the Labor Code of the Russian Federation, you are required to notify your management about leaving in writing no later than two weeks in advance. A letter of resignation is just a form of warning, and it is important for you to have confirmation that the employer has received it. To do this, you can ask the person authorized to accept documents to sign for receipt of your application on a copy of this application (the copy remains with you). If for some reason they refuse to sign for you to receive the application, you can send the employer a telegram with acknowledgment of receipt - this will also be a notice of resignation in the proper form.

After the two-week warning period has expired, you will have the right not to go to work and demand registration of dismissal. By agreement with the employer, you can terminate the employment contract before the expiration of the two-week period.

How to use the remaining vacation upon dismissal

The current Labor Code in Article 127 provides for two options for using leave upon dismissal:

If you are "asked"

Dismissal at will, according to the current Labor Code, does not imply payment of any compensation to the employee. However, in a situation where you generally do not mind terminating the employment contract, but do not want to write a statement of your own free will, you can offer the employer to formalize the dismissal by agreement of the parties. In essence, this is the same “conflict-free” basis for dismissal, but you can bargain here. The law does not limit you in choosing the possible terms of the dismissal agreement; everything depends only on your negotiating capabilities. You can try to convince the employer to pay you a certain amount of monetary compensation, or ask for “compensation” in another form (for example, good recommendations).

The agreement to terminate the employment contract must be drawn up in writing in two copies. Often it is drawn up in the form of an additional agreement to the terminated employment contract. From the moment it is signed by the parties, it is binding on both the employee and the employer.

You've been laid off, but you don't agree with it

Article 179 of the Labor Code of the Russian Federation stipulates that employees with higher labor productivity and qualifications have a priority right to remain at work during reduction measures. All other possible criteria (including length of service) are applied only in the case of equal labor productivity and qualifications of workers.

If you have reason to believe that your employer chose you unfairly, you should appeal your dismissal to judicial procedure. Unfortunately, you won’t be able to appeal the employer’s actions before the layoff occurred (dismissal or transfer, depending on the availability of vacancies), since the notice of layoff itself does not violate your rights.

In court, you will have to prove that your productivity and qualifications were higher than those of your colleagues in your position (or that you had a preferential right according to other criteria, subject to equality of productivity and qualifications). As evidence, you can use documents, witness statements or any other evidence of your position. It is better to start preparing evidence in advance, even before the reduction occurs.

How redundancy benefits are paid

In accordance with Article 180 of the Labor Code of the Russian Federation, employees are warned by the employer personally and against signature at least two months before dismissal about upcoming dismissal due to a reduction in the number or staff of the organization's employees. During these two months, the employee continues to work and receives wages in the general manner.

After two months, immediately upon dismissal, according to Article 178 of the Labor Code of the Russian Federation, the employer is obliged to pay severance pay in the amount of average monthly earnings. This payment is considered to be the preservation of the employee’s earnings for the first month after dismissal.

If a laid-off employee does not get a job within the first month after dismissal, the employer has an obligation to maintain his average earnings for the second month after dismissal. The average salary for the second month is paid to the employee exactly in the second month (since upon dismissal it is not known when the laid-off employee will be able to get a new job). Moreover, if an employee gets a new job in the middle of the second month after dismissal, then the old employer pays him the average salary only for that part of the second month during which the employee did not work.

If an employee is registered with the employment agency within two weeks after dismissal due to layoff, and despite this was unable to get a new job within two months after dismissal, the old employer retains his average earnings for the third month after dismissal (payment rules the same as for the second month).

Article 180 of the Labor Code of the Russian Federation establishes the possibility of an employer and an employee to agree to terminate an employment contract in connection with a layoff before the expiration of a two-month warning period. In this case, the employer is obliged to pay the employee a lump sum (upon dismissal) monetary compensation in the amount of average earnings for the entire period remaining before the expiration of the two-month period, plus severance pay in the amount of average earnings for one month. In this case, the preservation of earnings for the second and third months after dismissal occurs according to the general rule.

Is it possible to contact the Employment Center with only registration in hand?

According to Article 31 of the Law of the Russian Federation “On Employment of the Population in the Russian Federation”, the decision to assign unemployment benefits is made simultaneously with the decision to recognize a citizen as unemployed. In accordance with paragraph 2 of Article 3 of the Law on Employment, the decision to recognize a citizen registered for the purpose of searching for a suitable job as unemployed is made by the employment service authorities at the citizen’s place of residence.

We are talking specifically about the place of residence, and not about the place of registration (registration), therefore, if you receive a refusal, you have the right to demand that the refusal be formalized in writing and appeal it in court or to a higher authority (the employment department of the constituent entity of the Russian Federation).

Please note that registration at the place of stay and residence is only provided federal law a method of recording citizens within the Russian Federation, which is of a notification nature and reflects the fact that a citizen is at the place of stay or residence, which cannot serve as a basis for restriction or a condition for the implementation of the rights and freedoms of citizens.

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