Reduction of an employee of pre-retirement age. Dismissal one year before retirement

The economic crisis is forcing many large organizations to reduce the number of employees. Many resort to legal methods, and some, trying to save money, break the law. In this article we will figure out whether it is legal to dismiss an employee if there are three years, two years or less left until retirement. We will also discuss the legal reasons for dismissal before retirement several years or months in advance.

Of course, employers want to fire pensioners. After all, according to many bosses: a person pre-retirement age he is no longer as fast and takes longer to complete tasks, learns new things less well, gets sick more often, so keeping him as an employee is not profitable. On the other hand, these are the people who have the most experience in the enterprise and can impart useful skills to young staff.

As we said earlier, employers are divided into two camps: those acting in accordance with the law and those violating it. The first ones either lay off a person, or wait for dismissal due to pension (if the employee wishes), or dismiss only if there are misconduct. The latter force the employee to resign of his own free will or dismiss him under a fictitious article ().

Dismissal of any kind for people of pre-retirement age is a tragedy, because getting a job new job at this age – unlikely. The law protects citizens who find themselves in such trouble and provides for early retirement, which will also be discussed in this article.

The only thing that can help you stay at work is collective agreement, which stipulates the impossibility of dismissing an employee of pre-retirement age for a number of reasons. But, alas, not all employers draw up this collective agreement or the specified clause may not be included there.

Article 81 of the Labor Code of the Russian Federation allows you to dismiss an employee if there are grounds, the main ones of which are:

1. Reductions in numbers or;
2. Change of owner of the organization (applies to dismissals of the head of the organization, his deputies, etc.);
3. Repeated failure by an employee to perform job duties without good reason;
4. Gross violation of labor duties;
5. Commitment of guilty actions by an employee or an immoral offense;
6. Making an unjustified decision that resulted in a violation of the safety of the organization’s property;
7. Submission of false documents by the employee to the employer upon conclusion.

Recently, many employers have been trying to fire employees near retirement age, and there are many reasons for this, ranging from decreased productivity to the desire to employ younger specialists in their place. From the point of view of the law, employees who have little time left before retirement are not so protected, however, their age is not a basis for dismissal.

In Art. 3 of the Labor Code of the Russian Federation states that age, race, gender, nationality, social status and beliefs do not give any advantage in professional activity and should not influence the attitude of the employer, and if he wants to fire his employee citing any of the above, it is considered employment discrimination.

Direct grounds for dismissal at the request of the manager are listed in Art. 81 of the Labor Code of the Russian Federation, and these include the following:

• Termination of registration of individual entrepreneurs, liquidation of the organization.
• Staff reduction.
• Inconsistency with the requirements for the position, confirmed by the certification commission.
• Repeatedly observed non-compliance official duties if there is a disciplinary sanction.
• One-time and gross violation labor discipline.
• Missing an entire shift or working day, as well as absence from the workplace for more than 4 hours in a row without a valid reason.
• Being at work under the influence of alcohol, drugs or toxic substances.
• Disclosure of official or state secrets.
• Intentional embezzlement, theft or theft at the place of work.
• Violation of labor protection requirements, which entailed serious consequences.
• Loss of trust on the part of the employer caused by the commission of guilty actions when servicing commodity or financial assets.
• Providing false information about your financial or property status, or refusing to provide such information, if this entails a conflict of interest or can prevent it.
• Commitment immoral act, if the employee is engaged educational activities and further work in the organization is impossible.
• Providing false documents during employment.

Also, individual cases that are the reason for termination of an employment contract at the initiative of the employer may be indicated in the document itself, but reaching pre-retirement age in any case is not grounds for dismissal.

Another situation often arises: the employer himself asks his subordinate to resign of his own free will, and if he refuses, then all the conditions are created in the team so that he nevertheless writes a letter of resignation. Such actions of the manager are considered unlawful and can be appealed in court, because termination of the employment contract in this case is carried out under pressure.

Despite the fact that, according to the law, it is almost impossible to dismiss a person of pre-retirement age without grounds, there are still circumstances under which an employment contract can be terminated:

• If, by decision of the court or labor inspectorate, the employee who previously performed this work was reinstated to the position, and there are no other vacancies in the organization.
• If the employee committed a criminal act and was convicted.
• If the contract was concluded for a certain period, and not indefinitely, and this period ends.
• If the employee has been found to be completely unfit to work in a given position in accordance with a medical report.
• Expiration or deprivation of licenses required by the employee for professional activities.
• If the employee was reinstated to his position by a court decision or labor inspectorate, but later this decision was canceled.

Thus, dismissal before retirement due to reaching a certain age is unlawful and can be appealed in court.

Can I be fired a year before retirement?

All the reasons for dismissing an employee of pre-retirement age are listed above, but it often happens that an organization plans to reduce staff, and in this case preference is given to employees with the highest productivity. In accordance with Art. 32 of the Federal Law “On Employment of the Population in the Russian Federation”, early pensions can also be assigned to certain categories of citizens working in difficult and stressful conditions, which is an alternative and more acceptable option to dismissal:

• For doctors.
• To teachers.
• Locomotive transport workers.
• For public transport drivers.
• People working in the Far North or involved in underground work.
• Mothers of many children.
• People who are dependent on a disabled person.

• Must be less than two years away from retirement.
• There is a developed work experience (it depends on working conditions).
• If, after dismissal due to staff reduction or liquidation of the enterprise, it was not possible to find suitable job through the Job Center.

To retire early, you need to contact the Employment Center yourself, and then, after an approval and receipt of a certificate, apply to the Pension Fund and write an application for an early pension.

If the company plans to reduce staff, then according to Art. 179 of the Labor Code of the Russian Federation, employees with the highest qualifications and labor productivity, as well as certain categories of employees, have a preferential right to continue their work activity:

• If the qualifications and productivity of all subordinates are equal, then family people raising two or more dependents have an advantage; persons providing for the entire family if its other members are not employed; employees who received injury or illness in connection with their work activities in this organization; disabled combat veterans; employees who improve their skills without interrupting their work duties.
• Other categories of employees specified in the collective agreement.

According to Art. 81 of the Labor Code of the Russian Federation, termination of an employment contract due to staff reduction is possible only if the employee has given a written refusal to be transferred to another position or there are no vacancies in the organization that correspond to his qualifications and state of health.

Is it possible to go to court if an employee does not agree with dismissal before retirement?

Several years ago, one of the deputies introduced a bill to the State Duma, according to which employers would not have the right to fire their employees who had less than two years to work until retirement. This initiative did not find support, and now people of pre-retirement age have the same rights as younger workers. However, increasingly, managers are trying to terminate employment contracts with unwanted employees and employ other people in the places of dismissed subordinates, but it should be remembered that if there is no legislative basis for this, then such actions are unlawful.

To achieve justice, you should first contact labor inspection. Employees of this organization will conduct an inspection and issue an appropriate order to eliminate violations, but in order to be reinstated and receive moral compensation, you will have to file a claim. As a rule, such cases are dealt with by the district courts at the location of the defendant, but before going there, you need to carefully prepare:

• Find an employment contract: it will serve as proof of employment in the company. As a rule, employers do not give them a second copy when hiring employees, and in this case you can ask for a salary certificate for the period of time worked. This document not only proves that the employee worked for the organization, but will also be needed to recover wages and compensate for forced absence during reinstatement.
• Provide with statement of claim and other documents: copies of the work record book and contract, copies of orders for hiring and dismissal, salary certificates.

If the presented documentary evidence is not enough for a full consideration of the case by the court, then, at the initiative of the plaintiff, witnesses may be invited to the hearings who will confirm labor activity in the organization, illegal dismissal or the fact that the termination of the employment contract was carried out at the request of the employee under pressure from the manager.

What rights does the plaintiff have in this case:

• He may change the claims.
• Demand compensation for attorney fees and state fees from the defendant.
• Reduce or increase the amount of required compensation.
• Refuse the claim, change its subject and grounds.

Sometimes a settlement agreement is concluded between plaintiffs and defendants, but it should be remembered that this document deprives the employee of the right to re-apply to court on the same grounds. The settlement agreement must be confirmed by a judicial authority, and from the moment of confirmation it is recognized as valid. To reinstate an employee to his previous position, the manager must do the following:

• Publish new order, canceling the dismissal order. It must indicate the grounds: for example, “in connection with the entry into force of the Court Ruling dated dd.mm.yy. in civil case No. “N” and in accordance with the terms of the settlement agreement between Romashka LLC and P.I. Ivanov. I order: 1. Cancel the order to terminate the employment contract...”
• Notify the employee about his reinstatement and the execution of the corresponding order, then familiarize him with the document under his personal signature.
• Enter the information in the work book: “Record No. “N” is considered invalid,” and also indicate in it the basis - the Order, its number and date of issue.

If the dismissal was declared illegal by the court, then the employee has the right not only to reinstatement in the workplace, but also to change the wording of the dismissal, because employers often terminate labor relations with objectionable subordinates for reasons that discredit them (drunkenness in the workplace, absenteeism, etc.). If this did not actually happen, but the judicial authority recognized the wording as unreasonable and illegal, the manager is obliged to perform the following actions:

• Issue an order and send a notification to the employee.
• Make an entry in the work book recognizing the wording of the reason for dismissal as invalid, and also indicate the basis - an order.
• If an employee has already gotten a job at another company and cannot provide a work record, he can write an application requesting a certified copy of the Order to change the wording of the grounds for dismissal.

What to do if an employee was fired illegally, but at the time of going to court the organization was liquidated? In this case, it is impossible to be restored to the previous place of work, however, the court may well declare the termination of the employment contract illegal, and in some cases, oblige the successor to pay the plaintiff a salary for the entire period of forced absence.

A court decision is considered executed only if the employer has completed all due payments and reinstated the illegally dismissed employee in his previous place, and also complied with all court orders. If he did not do this, then he may be brought to administrative responsibility.

As can be seen from what is written above, the procedure for reinstatement at the previous place of work in connection with illegal dismissal legally very simple, but in reality circumstances may arise in which the legal process will drag on for several months. To avoid such red tape, it is best to prevent it at the dismissal stage by contacting the labor inspectorate with a complaint about the manager’s illegal actions.

Hello, Irina.

Firstly, if in the process of carrying out the “personnel optimization” you called, the position you occupy is reduced, remember that in accordance with Article 179 of the Labor Code of the Russian Federation, which can easily be found in various search engines Internet, with such a reduction, the preferential right to remain at work is given to employees with higher qualifications. Availability great experience work in the specialty is not always, but very often it is a confirmation of such qualifications of the employee.

Secondly, if, when your position is reduced, the employer offers you to resign for other reasons ( own desire, agreement of the parties, etc.), insist on dismissing you precisely because of staff reduction - all other grounds for dismissal will be less beneficial for you.

Thirdly, immediately after your dismissal, you will need to register as unemployed with the employment service. After this, you will be able to apply for early assignment of an old-age pension to you in the presence of the circumstances specified in the following provision of the law:

Article 32 of the Law of the Russian Federation "On Employment of the Population in Russian Federation"Conditions for extending unemployment benefits and early retirement

1. Citizens who have not reached the age of 60 years for men and 55 years for women and have an insurance period of at least 25 and 20 years for men and women, respectively, as well as the necessary length of service in the relevant types of work, giving them the right to early assignment of an insurance pension for old age, provided for by Federal Law of December 28, 2013 N 400-FZ "On Insurance Pensions", the duration of the period for paying unemployment benefits increases beyond the established 12 months by two weeks for each year of work exceeding the insurance period of the specified duration. At the same time, periods of work and other activities are included in the insurance period and other periods established in Articles 11 and 12 of this Federal Law. The procedure for extending the terms of payment of unemployment benefits is established by the federal executive body authorized by the Government of the Russian Federation.

2. At the proposal of the employment service authorities, in the absence of employment opportunities, unemployed citizens from among the persons specified in paragraph 1 of this article who meet the conditions for the appointment of an old-age insurance pension provided for by Federal Law of December 28, 2013 N 400-FZ “On Insurance Pensions” ", those dismissed due to the liquidation of an organization or cessation of activity by an individual entrepreneur, a reduction in the number or staff of employees of an organization, an individual entrepreneur, with their consent, may be assigned a pension for the period until the age entitling them to an old-age insurance pension, including one assigned early, but not earlier than two years before the appropriate age. The amount of this pension is determined according to the standards of the old-age insurance pension established by Federal Law No. 400-FZ of December 28, 2013 “On Insurance Pensions,” including the amount of a fixed payment to the insurance pension.

Upon reaching the age that gives the right to an old-age insurance pension, including one assigned early, the recipient of a pension assigned in accordance with this paragraph has the right to transfer to an old-age insurance pension.

3. When entering work or resuming other activities, which are provided for in Article 11 of Federal Law of December 28, 2013 N 400-FZ "On Insurance Pensions", payment of the pension established for unemployed citizens in accordance with paragraph 2 of this article is terminated in accordance with clause 3 of part 1 of article 25 of the said Federal Law. After the termination of the specified work and (or) activity, the payment of this pension is restored in accordance with paragraph 2 of part 3 and part 4 of article 25 of the specified Federal Law.

A reduction in numbers or staff taking place in an organization may affect other employees of pre-retirement age. The realities of the labor market are such that it is difficult for older people to find a new job, and they still have to live until retirement.

Let’s consider whether the procedure for laying off “pre-retirees” differs in any way, and whether there are benefits for such a doubly unprotected category.

Labor legislation on layoffs

Labor Code The Russian Federation regulates all reduction issues in several articles located in different chapters:

• clause 2, part 1, art. 81 of the Labor Code of the Russian Federation establishes as a basis for the dismissal of an employee at the initiative of the employer a reduction in the number of employees carried out in the organization; Part 3 of the same article talks about the procedure for laying off an employee;
• Art. 82 of the Labor Code of the Russian Federation regulates the procedure for taking into account the opinion of the trade union body on the dismissal of a redundant employee;
• Art. Art. 178 - 180 of the Labor Code of the Russian Federation are devoted to guarantees and compensation for laid-off workers, including issues of establishing advantages for remaining at work during layoffs.

Persons of pre-retirement age are not mentioned as a separate category of workers in the Labor Code of the Russian Federation; The specifics of the procedure for their reduction have not been established.

Pre- and retirement age

Currently according to general rule Old-age pensions are granted to citizens upon reaching 55 years of age for a woman or 60 years for a man. In some cases (work in conditions deviating from normal conditions) it is prescribed earlier.

The legislation itself does not contain the concept of “pre-retirement age”. Traditionally, it is understood as the age several years before retirement and the appointment of a pension.

First stages of reduction

The initial stage of the procedure is the employer making a decision to reduce the number or staff of employees. It may take the form of an order or decision (protocol) of a collegial executive body.

After making a decision to reduce the number of employees, the commission or the responsible person determines the preferential right to keep employees whose staff positions were reduced (according to Article 179 of the Labor Code of the Russian Federation).

To do this, it is first established which of those being laid off has higher labor productivity. If it is the same, then Part 1 of Art. 179 of the Labor Code of the Russian Federation leaves an advantage in the case of layoffs to an employee with higher qualifications.

In cases where both the productivity and qualifications of those being laid off are the same, the rules of Parts 2 and 3 of Art. 179 of the Labor Code of the Russian Federation on preference in keeping employees at work:

• having two or more disabled dependents;
• in whose family there are no other workers with independent income;
• previously received a work injury or occupational disease from this employer;
• who are disabled during combat operations in defense of the Fatherland;
• those improving their qualifications in the direction of the employer without interrupting work;
• belonging to categories whose preferential right to remain at work is secured by the collective agreement of the organization.

Such a benefit during layoffs under a collective agreement is often given, for example, to employees of pre-retirement age working in an organization.

Dismissal due to reduction

If an employee is recognized as not having a preferential right, then the process of dismissal begins to reduce the number or staff of employees.

But first, he is asked in writing to transfer from his to another available in the organization vacant position(Part 3 of Article 81 of the Labor Code of the Russian Federation), which may either correspond to his qualifications or be inferior or lower paid. There is only one condition - the employee must have no medical contraindications for this work.

The law obliges the employer to offer such an employee all available vacancies in the given locality, and in other localities - only if such a provision is enshrined in the local acts organization or employment contract with an employee.

A prerequisite for the legality of layoffs of an employee is his written personal warning by the employer about future dismissal under clause 2, part 1, art. 81 of the Labor Code of the Russian Federation within a period of no later than two months, carried out against signature (except for cases of early dismissal provided for in Part 3 of Article 180 of the Labor Code of the Russian Federation).

When laying off an employee who is a trade union member, it is necessary to take into account the opinion of the trade union committee (Article 82 of the Labor Code of the Russian Federation), for which the employer must apply in writing to the trade union committee.

Further registration of the employee’s dismissal due to reduction is subject to all the rules of Art. 84.1 Labor Code of the Russian Federation.

The redundant employee is paid severance pay in the form of his average monthly earnings. He also retains his average monthly salary for the period of employment, not exceeding two months from the date of dismissal. Severance pay is paid in this amount.

Benefits for pre-retirement layoffs

Legislation in other industries provides for some benefits for laid-off “pre-retirement” employees.

Thus, employment legislation provides for them to increase the period of payment of unemployment benefits to 24 months under certain conditions.

At the proposal of the employment service authorities, if there is no opportunity for employment for these citizens, if they have the necessary work experience, they may be assigned an old-age pension early (but not earlier than two years before retirement age).

In addition, some industry agreements (for example, the Federal Industry Agreement on Communications Organizations and information technology Russian Federation for 2015 - 2017) provide for the early assignment of pensions to laid-off “pre-retirement” workers through non-state pension funds.