Who can't be laid off during a staff reduction?

Who cannot be laid off when reducing staff, and who should be retained at work as a matter of priority - this is discussed in our article. Let's consider the lists of preferential categories, the terms and procedure for applying the norms in practice.

You can’t fire someone due to layoffs or you have a preferential right to stay: what’s the difference?

Who cannot be fired due to staff reduction? Many people know that there is a preferential category of those who cannot be laid off when reducing staff under any circumstances. These are, for example, pregnant women (Article 261 Labor Code). The unit occupied by such an employee cannot be excluded. However, there is another category of employees - those who have a preferential right to remain at work in case of staff reduction (Article 179 of the Labor Code of the Russian Federation).

Differences between them:

1. The advantage is determined only when the number is reduced, and a complete ban applies to any type of reduction. Read more about the types and some design features in the article on the website “Order to reduce the number and staff - sample”.
2. The advantage does not apply in all cases. For example, if all the employees occupying the positions being reduced are family members, they will be laid off by reduction, using different criteria.
3. Immunity from dismissal means the obligation to maintain a position (unit) on the staff; the presence of employees with preferential rights does not oblige the employer to change plans to reduce numbers or staff.

Let's take a closer look at the deadlines, the procedure for determining the preferential right to remain at work and applying the ban on layoffs.

When and how the dismissal ban and redundancy benefits apply

The above norms of the Labor Code of the Russian Federation are applied when preparing an order to amend the staffing table (to reduce staff and/or number) in the following way:

1. Positions that cannot be reduced due to their occupation by preferential categories of workers are determined (Article 261 of the Labor Code of the Russian Federation). These include:

• pregnant woman;
• mother of a child under 3 years of age;
• single parent of a disabled child or a child under 14 years of age;
• the sole breadwinner of a disabled child under 18 years of age or a child under 3 years of age in a family with 3 or more young children, if the other parent does not work.

1. When reducing the number of employees, i.e. reducing the number of staff units for one position, a procedure for determining the preferential right to remain at work is planned (if a position is excluded, this is not necessary, see the appeal ruling of the Supreme Court of the KBR dated April 26, 2017 in case No. 33 -487/2017). As a rule, a commission is formed for this purpose. The composition of the commission can be approved by the same or a separate order.

IMPORTANT! The creation of a commission to determine the preemptive right of the Labor Code of the Russian Federation is not provided for. The determination can be made by the head of the organization or the official designated by him alone. The inclusion of a trade union representative in the commission is also not provided. However, the opinion of the trade union must be taken into account when dismissing its members on the basis of Art. 82 Labor Code of the Russian Federation.

Let's consider the procedure for determining the benefits of downsizing.

The procedure for determining the preemptive right

According to Art. 179 of the Labor Code of the Russian Federation, employees with higher labor productivity (in terms of quantity and quality of results) and qualifications have a preferential right to remain at work. Both parameters are determined on the basis of accounting documents and certification results (you can learn about the procedure for preparing and conducting it and recording the results from the articles in the “Certification” section), an independent assessment of qualifications (Article 196 of the Labor Code of the Russian Federation) or educational documents. Longer work experience is not a similar circumstance (see the appeal ruling of the Bryansk Regional Court dated December 19, 2017 in case No. 33-4999/2017).

If the indicators are equal, the following have an advantage:

• family worker with 2 or more dependents;
• sole breadwinner;
• an employee who received during the period of employment of this employer work injury or occupational disease;
• disabled during military operations to defend the country;
• an employee who improves his qualifications in the direction of the employer without interruption from work;
• representative of another category provided for federal laws(for example, Article 21 of the Law of the Russian Federation “On State Secrets” dated July 21, 1993 No. 5485-I) or a collective agreement (you can learn about this document from the material “Collective agreement - mandatory or not?”).

The results of determining preferential rights are documented in a protocol of the commission or a decision (order) of the head or an official authorized by him.

Thus, it is impossible to reduce staff positions occupied by employees who have complete immunity against dismissal - pregnant women, etc. (Article 261 of the Labor Code of the Russian Federation). When reducing the number of employees, more qualified and productive employees should be retained at work, and if the corresponding indicators are equal, socially significant categories provided for in Art. 179 of the Labor Code of the Russian Federation (family with 2 children, etc.).

In situations where the company's activities are accompanied by a deterioration in its financial position and it is necessary to reduce costs, management may often decide to reduce personnel. Despite the possibility of dismissal provided by law due to an unfavorable economic situation in the organization, there is a certain category of workers whose employment contracts are unlawful to terminate. Let's consider who cannot be fired due to staff reduction.

Who cannot be laid off: Labor Code

When we're talking about about reduction, they operate with two concepts - job reduction and staff reduction.

If a company expects to reduce the number of employees occupying the same positions, it is customary to talk about job reduction.

Situations may arise where entire positions or departments in an organization need to be eliminated. We are talking about staff reduction.

Its position regarding categories of working citizens not subject to reduction labor legislation formed quite clearly.

In order to answer the question of who cannot be laid off according to the law, it is necessary to refer to Art. 261 Labor Code of the Russian Federation. In accordance with this document, the following groups of employees are not subject to reduction:

• single mothers raising disabled minors;
• single mothers raising children under 14 years of age;
• women with children under 3 years of age;
• a parent or representative who is the sole breadwinner of a disabled minor child if the other parent does not work;
• pregnant women;
• a parent or representative who is the sole breadwinner of a child (children) under 3 years of age, as well as those with three or more children, if the second parent does not work;
• employees on sick leave.

Who does not have the right to be laid off: unlawful actions of the employer

There is a certain procedure for the employer, if violated, we can talk about illegal layoffs.

Based on the requirements of Art. 180 of the Labor Code of the Russian Federation, the employer has the obligation to notify staff of the upcoming layoff at least two months in advance. Notify the employee at mandatory should be signed.

The employee may refuse to sign the notice. In this situation, you should read this message in the presence of witnesses and record the refusal to sign on the document.

Labor law provides for another category of employees who are not subject to layoffs - employees who have transferred to alternative positions in the company. If the company has any vacant jobs, they should be offered to employees who have been laid off. At the same time, vacant positions can either correspond to the employee’s qualifications or be lower paid and inferior.

If there are no such jobs in the company, dismissal is formalized in accordance with the procedure established by law.

What does the employer face in the event of unlawful dismissal?

Every employee has the right to challenge dismissal in court. If it is proven that the unlawful reduction of those categories of workers who cannot be reduced in accordance with the requirements of the law is proven, the employer will be obliged to pay compensation wages and moral damage to the injured employee, and in some cases, reinstate the dismissed employee in his position.

Also, in this situation, the company being inspected cannot avoid inspection by the labor inspectorate. Based on the results of the inspection, the organization may be assigned administrative liability in the form of a fine, the amount of which will vary depending on legal status employer.

In a difficult economic situation, sometimes staff reduction is the only option possible way save the enterprise. Often, however, downsizing is a way to save resources. This procedure is spelled out in great detail in the Labor Code and has a well-thought-out sequence.

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Reduction of employees according to the Labor Code

Staff reduction is a procedure that requires the Labor Code to comply with a number of conditions. Failure by the employer to comply with one of them may result in the employee being reinstated in the workplace, with payment of earnings for the entire period of forced absence, which will be considered the period from the date of dismissal to the date of reinstatement. Labor disputes are often resolved in court and the court, as a rule, sides with the employee.

Both employers and employees should know the rules for dismissal in accordance with Labor Law.

Dismissal due to staff reduction falls under Article 71 and must be carried out in two cases:

1. Upon liquidation of the position as a whole.
2. When reducing staffing levels for a given position.

In any enterprise, large or small, there are positions that are occupied by only one employee, for example, the head of the hot laying department. If such a position is reduced, then the employee who occupies it is dismissed.

In large enterprises, there are positions that are occupied by several (sometimes several dozen) people, for example, a commuter bus driver. Here, not all positions can be cut, but only the number of employees can be limited, for example, “reduce the number of employees from 25 to 15.” Then only a part of the persons occupying this position will be laid off; a number of other provisions of the Labor Code will come into force here.

Dismissal of workers is also carried out in case of reorganization of production. For example, when installing new equipment that eliminates jobs.

But in any case, staff reductions are carried out in accordance with Art. 178. And it is necessarily preceded by the approval of a new staffing table, which becomes the basis for the reduction and termination of an employment contract with a specific person.

When an enterprise or individual entrepreneur is liquidated, employees are also dismissed (Part 2 of Article 140). But in this case, all employees are fired, including those categories that are not subject to layoffs, for example, pregnant women caring for a baby, etc.

Who do not have the right to be laid off?

After the approval of the new staffing table, which contains a number of provisions providing for staff reductions, the question of cutting real jobs will arise. Thus, it will be considered which of the employees should be fired and which should be retained. A number of categories have protective guarantees that prohibit their dismissal.

Yes, Art. 261 of the Labor Code of the Russian Federation provides for special rights of the following categories:

1. Pregnant women.
2. Mothers with children under 3 years of age.
3. Single mothers with children under 14 years of age.
4. Mothers raising children with disabilities, under the age of 18.
5. Persons raising children without a mother under 14 years of age.

According to Art. 269, you cannot fire an employee who is under 18 years of age.

You cannot fire an employee who is on temporary sick leave or on vacation.

Important! Dismissal of these categories of workers is possible only with the complete liquidation of the organization. If a position is eliminated, the person must be offered another vacant position. However, it does not necessarily have to be equivalent in terms of qualifications and remuneration.

Some other categories of workers also enjoy the right of advantage in the case of equal performance and qualifications (Article 179):

1. If this employee is the only employee in the family with earnings.
2. Disabled people who received injuries or occupational diseases at this enterprise.
3. Disabled WWII or disabled combatants in defense of the Fatherland.
4. Employees who undergo training (upgrade their qualifications) in the direction of the organization on the job.
5. Employees with two or more dependents.

In what cases will dismissal be unlawful?

From all of the above, it should be concluded that a number of people of several categories cannot be dismissed due to staff reduction; they should be offered another job, they can be dismissed only then by agreement of the parties or by at will. Here, dismissal due to staff reduction would be unlawful.

One more important point is the decision of some managers to propose dismissal by employees not due to staff reduction, but at their own request. This is usually dictated by the desire to save on payments due to the category subject to reduction. But not entitled to persons resigning of their own free will. If you dismiss at your own request, you will not be able to appeal against illegality.

It will be unlawful to dismiss a person who is on sick leave or on vacation. The procedure for dismissing employees due to staff reduction has a clearly defined mechanism that provides for a number of actions.

If at least one of them is violated, dismissal may be considered unlawful. This:

1. Drawing up and approval of a new staffing table.
2. Notifying employees about staff reductions (posting an order) 3–2 months before the expected date of staff reductions.
3. Notification individually to each employee (in writing) at least 2 months before the proposed dismissal.
4. Issuance of a dismissal order.
5. Full payment to the employee on the day of dismissal.

Here, for example, dismissal without written notice individually, each may result in the unlawful dismissal of a particular employee (he was not properly notified).

In practice, the absence of one of the listed management steps may be considered illegal dismissal.

Reasons and grounds for reducing the salary of an employee of an organization

It should be noted that reducing the salary rate of an employee due to the difficult financial situation of the employer is unlawful. Therefore, considering it as one of the alternatives to downsizing is not entirely correct. Moreover, it is legally prohibited to reduce workers’ wages due to the difficult financial situation of the organization (enterprise).

Reductions in tariff rates are carried out in accordance with Art. 74 of the Labor Code of the Russian Federation and this is possible:

1. If there are changes in equipment and/or production technology.
2. In case of improvement of workplaces (based on certification).
3. During structural reorganization.
4. Other reasons put forward by the employer (but they can be challenged in court).

Provided that these changes entailed a decrease in the actual amount of labor required to perform the job function. At the same time, change labor function it is forbidden.

For example, equipment (car) was purchased, which now performs part of the physical work of a loader worker for him. In this regard, his rate was reduced by 30%. Or if, as a result of a structural reorganization, the employee no longer needs to perform one of the actions he performs, for example, when packing goods, there is no need to carry wrapping paper, which is 25% of the amount of work performed.

In this case, such a reduction in the tariff salary must be preceded by a number of actions on the part of the enterprise:

1. Issuance of an order on the need and implementation of changes, with their justification. Carrying out other activities necessary to make changes.
2. Notifications to the primary trade union organization.
3. Notification of the employee about upcoming changes in working conditions 2 months in advance (in writing).
4. Conclusions of the additional labor agreement, which will reflect changes in the tariff rate.

In case of disagreement with a reduction in the tariff rate, the employee may be offered another workplace at the same enterprise, or he may be fired:

1. According to clause 2, part 1, art. 81 for staff reduction. Here he will be paid all due compensation.
2. According to clause 7.ch. 1 tbsp. 77 as someone who refused to work under the new conditions. In this case, payments fall under Part 3 of Art. 178.

If a person was notified of the changes and began work after the expiration of 2 months, but the additional agreement was not signed, then this is interpreted as actual consent to a reduction in the tariff rate.

Procedure and rules for laying off an employee at an enterprise

Reduction of staff concerns a specific person only when he has been informed under his signature that he will be dismissed due to staff reduction. The employee must be notified at least 2 months before the expected date of dismissal. If for any reason he refuses to sign the order for familiarization, then an act is drawn up, which indicates his notification.

After notification of a job reduction, management, if there are vacancies at the enterprise, must offer them to the dismissed person. In addition, if there are vacancies in another area, they may also be offered.

If during the period of these two months a person manages to find another job, he can notify management using a written application and will receive a payment earlier. In this case, he will be paid compensation in the amount of average monthly earnings.

On the day of dismissal, the employee is given employment history with all the entries made in it, as well as a certificate of income for 2 last year, all other certificates required by the person being dismissed.

It is mandatory full payment. In some cases, a dispute arises over payments. If this happens, then only the undisputed amount is paid on the day of dismissal.

Important! The period of 2 months for notice of reduction is established by law for permanent employees. Temporary employees must be notified at least 2 weeks in advance. For those hired for a period of up to 2 months, this time is 3 days.

Procedure for calculating payments

The funds must be accrued and issued to the dismissed person on the day of his dismissal. The day of dismissal is the day of full settlement with the employee.

The only exception is when an employee disputes the amount of payments. Then on the day of dismissal he must be paid the undisputed amount.

The amounts of these payments are usually significant; often the employer asks employees to resign of their own free will or by agreement of the parties. With these formulations, payments for job search and additional benefits are not provided.

The amount of cash payments will depend on several factors:

1. Forms of employment: permanent or temporary.
2. The salary of the person being dismissed. In fact, all states are calculated from the average salary of the dismissed person.
3. Number of unpaid other payments: vacations, sick leave, business trips.

Terms and amount of funds accrual

Upon dismissal, a full settlement is made with the employee, and he will not only be given the requested certificates, a work book and the employment contract will be terminated, but also a full monetary settlement will be made. The amount given to the dismissed person must include all payments due to him. Among them will be:

1. The amount of severance pay is equal to the average salary for 1 month.
2. The amount of average earnings paid during the job search (for 2 months, sometimes 3).
3. The amount of additional compensation (2 more average monthly salaries).
4. Compensation in cash for all unused vacations.
5. Payments for all unpaid sick leave and travel allowances.
6. Wages for hours worked (the day of payment is also paid).

Important! If there were paid but unused items, the money will not be returned.

For temporary workers, amounts are calculated in biweekly amounts.

Rights and guarantees of employees during layoffs

The legislator has provided some rights and guarantees for workers who are subject to redundancy. They are mainly aimed at a more systematic dismissal, in which there is a period that should allow the dismissed person to adapt to new conditions and find work.

A number of rights and guarantees are provided for in Article 81. Here, the employer undertakes to offer the employee who is being laid off another vacant position at the enterprise (if there is one). If the company has branches or divisions, including in other cities, then the employee may be offered a job there.

An employee can take advantage of another right (Article 179) if he managed to find a job before the expiration of the 2-month period. Here, by agreement with the employer and on the basis of a written statement, he can be fired earlier, but he is paid a benefit in the amount of average monthly earnings.

In addition, with this type of dismissal, persons have the right to severance pay in the amount of two average monthly salaries and unemployment assistance from the employment service for 2 months (Article 178).

The rights of the dismissed person also include the employer’s obligation to notify the employment service authorities about planned events 3 months in advance. It is believed that this will allow laid-off persons to find work more quickly.

1. When considering the benefits pursuant to Art. 179, then they act only when considering the position held. If an employee applies for another position, then they may not be taken into account here.
2. Temporary disability is a reason that does not allow dismissing an employee under Art. 178. But dismissal after the end of sick leave cannot be canceled. As a rule, in such cases, you will be able to work a little longer, but not avoid being fired.
3. Sometimes it becomes necessary to obtain a certificate from a previous place of work. According to the law, it can be obtained both upon dismissal and after it. At the same time, there are no deadlines that would limit the receipt of this or that certificate. But the employer must provide it within three days after the application. In this case, the document must contain everything necessary details and be certified.

What to do if you are laid off, what rights you have, what the employer does not have the right to do - you will find this and much more in this article.

To understand what to do when making redundancies, you need to clearly understand your rights and opportunities. Someone, having barely received a payment, immediately starts searching new job, and someone decides not to rush things. First, you should calm down; you shouldn’t immediately rush into a frantic search for a new place. It's not all that scary. If you understand that you are threatened with dismissal, then it is in your interests to achieve the entire procedure for staff reduction. The company is obliged to carry out such operations only within the framework of strict adherence to the law.

Letter of the law

All workers need to know that according to the Labor Code of the Russian Federation, when laying off workers, the employer is obliged to:

• Notify you two months in advance of the date of reduction by notice and obtain your signature confirming awareness of the upcoming reduction (Article 180 of the Labor Code of the Russian Federation);
• During the period of your work, up to your dismissal, offer available vacancies on staff that correspond to your qualifications (Article 81 of the Labor Code of the Russian Federation);
• Pay out monetary compensation. In addition to severance pay, you must be paid compensation for unused vacation. If you have not found a job within a month, then you have the right to ask for an extension of unemployment severance pay (Article 178 of the Labor Code of the Russian Federation);
• Justify the reason for staff reduction. An order to reduce the number or staff of employees must be issued at least 2 months before the expected start of layoffs. It must clearly indicate the reason for the reduction (Part 2, Article 73 of the Labor Code of the Russian Federation, Article 180 of the Labor Code of the Russian Federation).

Attention!
An employer can dismiss an employee with his written consent and without warning 2 months in advance, but with the simultaneous payment of compensation in the amount of two months' average earnings (Articles 178, 180 of the Labor Code of the Russian Federation).

Whom they do not have the right to lay off

The following categories of working citizens cannot be laid off at the initiative of the employer:

• employees during their temporary disability;
• employees while on leave (any: educational, basic, additional, without pay);
• pregnant women (except in cases of liquidation of an enterprise);
• women with children under three years of age; single mothers raising a child under 14 years of age or a disabled child under 18 years of age, and other persons who are raising such children without a mother (except for cases of liquidation of an enterprise and commission of guilty actions);
• members of trade unions - on the basis of paragraphs 2, 3 and 5 of Article 81 of the Labor Code of the Russian Federation;
• representatives of workers conducting collective bargaining;
• participants in the resolution of collective disputes.

Who has the advantage of downsizing?

The Labor Code of the Russian Federation contains regulations regarding who should be the last person to be “sacrificed” upon dismissal. According to the article of the code, if there are two identical positions, then it is recommended to retain employees with higher qualifications and labor productivity (Article 179 of the Labor Code of the Russian Federation). In case of equality of positions, the employer must not reduce:

• people with a family (with two or more dependents);
• persons in whose family there are no other workers with independent income;
• employees who received a work injury or occupational disease while working for this employer;
• workers who improve their skills at the direction of the employer without interruption from work;
• disabled people of the Great Patriotic War and disabled combatants in defense of the Fatherland.

As you can see, being laid off is not as scary as it seems. In any case, thanks to compensation payments for three months, you can actively search for work and not worry.

However, if you are laid off, do not rush to look for another job. Many have a chance to stay in the same company. You just need to know how to use it. It is a mandatory requirement for the employer to offer the employee who is subject to dismissal due to reduction in headcount or staffing another job available at the enterprise. Moreover, they can offer both a vacancy that meets the qualifications and a lower position or lower paid job.

An advantage for you may be that, having performed well in the position being reduced, you may turn out to be an indispensable employee, in which case the manager will try to retain the valuable employee. But even a high status in the eyes of your superiors does not provide a 100% guarantee that you will not be laid off, although you will receive an advantage.

Having learned about upcoming layoffs, you should discuss the situation with a personnel officer or manager and not only find out your future fate, but also offer yourself in a new field of application. Of course, this applies to those who are in good standing with management. There's nothing wrong with going and talking to the decision makers. The main thing is not to push for pity and not to threaten.

Dismissal due to staff reduction and liquidation of the organization

The downsizing procedure, both due to a reduction in the organization's workforce and due to the liquidation of the company, is strictly regulated. All activities must be carried out in compliance with the requirements of the Labor Code of the Russian Federation and other regulations.

Staff reduction means the abolition of in the prescribed manner one or more staff units for relevant positions. The main evidence confirming the fact of staff reduction is the staffing table. If the enterprise does not have a staffing table, then supporting documents may include salary statements before and after layoffs, payrolls, etc.

As noted above, in accordance with the law, the employer, no later than 2 months in advance, warns employees about the upcoming layoff and offers another job in accordance with their qualifications.

An important factor in deciding the issue of dismissal on the stated grounds is the participation of the trade union body. The participation of the trade union is manifested in the following:

• When an employer decides to reduce staff:
  The employer is obliged to notify the elected trade union body in writing no later than 2 months before the start of measures to reduce the number or staff. If a reduction in numbers or staff may lead to mass layoffs of workers, the employer is obliged to notify the elected trade union body about this in writing no later than 3 months before the relevant measures are carried out (Article 82 of the Labor Code of the Russian Federation);
• When deciding on the dismissal of employees who are members of a trade union:
  - Dismissal of employees who are members of a trade union will be carried out taking into account the opinion of the trade union body of this organization (Article 82 of the Labor Code of the Russian Federation). The employer must send the draft order to the relevant trade union body, as well as copies of the documents that form the basis for making this decision.
  - When staffing is reduced due to the liquidation of an organization, the above are retained: the same time of notice of liquidation and the same severance pay. The only difference is that the employee is no longer offered another position.

What to do if, despite all your merits and merits, you are still laid off?
On your last working day, you should receive a work book in which your dismissal will be recorded, and all your other work-related documents. After receiving the calculation, apply for further compensation payments only to the territorial employment service. Timely contacting the employment service can extend the period of payment of average earnings former employer in case of staff reduction or liquidation of the enterprise.

In conclusion, it should be said that sometimes reduction must be taken for granted. This is not the end of everything. In many cases, it even makes it easier for people to make the right choice later on. Having a permanent, but unloved or uninteresting job, you may think for a long time that it would be nice to change it. IN modern world There are countless cases when people after layoffs said that it shook them up, forced them to pull themselves together, and in the end they found a better place. Consider downsizing as a chance to change your life for the better.

Arbitrage practice

Example No. 1. The employee filed a claim against the Joint-Stock Commercial Savings Bank of Russia for reinstatement at work, recovery of wages for the period of forced absence, and compensation for moral damage. In support of his demands, he indicated that he was dismissed from the position of senior engineer of one of the divisions of the Central Office of Sberbank of Russia under clause 2 of Art. 81 of the Labor Code of the Russian Federation due to a reduction in the organization’s staff. The plaintiff considered the employer’s actions illegal, since labor laws were violated during the dismissal, including that he was not offered all the vacancies available in the organization.

Refusing to satisfy the stated demands, the court of first instance came to the conclusion that the employee was dismissed in accordance with the requirements of the law: the dismissal procedure was not violated, there were no vacant positions in the Central Office of Sberbank of Russia that corresponded to the plaintiff’s qualifications. The defendant provided the court with information about vacancies in the branches (branches) of Sberbank of Russia in Moscow at the time of staff reduction and at the time of the plaintiff’s dismissal. However, the court of first instance limited itself to examining the circumstances related to the possibility of employment of the plaintiff only in the Central Office of Sberbank of Russia, thereby making an error, which was subsequently corrected by the Judicial Collegium for civil cases Supreme Court of the Russian Federation.

By virtue of Art. 20 Labor Code of the Russian Federation by parties labor relations are the employee and the employer. Thus, a party to employment contract with the plaintiff is the Savings Bank of Russia; he is, by force of law, entrusted with the obligation to provide vacant positions during the procedure for dismissal of employees due to staff reduction in the same organization, including all its branches and structural units available in the area.

In the situation under consideration, the employer was obliged to offer the employee all the vacancies available to him in the city of Moscow. Taking into account the above, the judicial panel established the fact of the plaintiff’s unlawful dismissal and issued a ruling on the plaintiff’s reinstatement in his previous position (Decision of the Supreme Court of the Russian Federation dated November 3, 2006 No. 5-B06-94).

Example No. 2. The Dudinsky City Court of the Krasnoyarsk Territory satisfied the claims of citizen K. on the following grounds. As established by the court, the plaintiff was dismissed under paragraph 2 of Art. 81 of the Labor Code of the Russian Federation (staff reduction).

However, after comparative analysis staffing schedules before and after the reorganization, the court came to the conclusion that the facts of reduction in numbers, staff, as well as the position itself occupied by the plaintiff, were not proven. This is due to the fact that the number of inspectors after the reorganization remained unchanged and amounted to 115 units, and a comparative analysis job descriptions was not possible due to their loss. In addition, the plaintiff was not offered all vacant positions, including lower ones, which he could occupy taking into account his education and qualifications. In this regard, the defendant’s reference to the plaintiff’s refusal of employment was found to be unfounded. Moreover, the court found that while the plaintiff was on staff, other people were hired for vacant positions, while the administration did not take into account the circumstances that gave K. a preferential right to remain at work.

Based on the above, the court declared the plaintiff’s dismissal illegal and decided to reinstate the employee in his previously held position (Letter of the Personnel Policy Department of the Ministry of Taxation of Russia dated March 19, 2003 No. 15-5-11/41-I577).

Example No. 3. K. filed a lawsuit against JSC “T***” for reinstatement at work. In support of the requirements, she indicated that she worked for the defendant as a salesperson and was dismissed with the wording “of her own free will,” but she had no intention of resigning. The corresponding statement was written under pressure from the administration, which threatened dismissal for shortages of goods before K. left. maternity leave. The presence of pressure on K.'s dismissal from the employer was confirmed by the testimony of two witnesses. In addition, at the time of dismissal, the plaintiff was pregnant, which her immediate supervisor knew about. Evidence that K.’s dismissal due to her own initiative preceded by the fact of committing a misdemeanor or crime, the court did not receive it. In the case there was a certificate of K’s pregnancy. Under such circumstances, there were no legal or factual grounds for dismissing the plaintiff at her own request, since there was no voluntary expression of her will to terminate her employment relationship before going on maternity leave.

The court concluded that the dismissal was illegal and reinstated K. at work (decision of the Oktyabrsky District Court of Samara dated December 21, 2011, appeal ruling of the Samara Regional Court dated March 22, 2012 in case No. 33-2152/2011).

Example No. 4. K. filed a claim for reinstatement at work to the branch of the State Unitary Enterprise of the Yaroslavl Region “O***”. The court found that the plaintiff, as a financially responsible person, was dismissed under clause 7 of part 1 of Art. 81 of the Labor Code of the Russian Federation in connection with loss of trust due to the commission of guilty actions. As follows from the case materials, the reason for the dismissal was the inventory carried out by the defendant on 05/05/2011, during which a shortage of inventory items was identified. However, the procedure for conducting this event, provided for “ Methodical instructions on inventory of property and financial obligations” (approved by Order of the Ministry of Finance of the Russian Federation dated June 13, 1995 No. 49), was violated. Therefore, the court did not recognize the inventory results as reliable evidence of a shortage. Under such circumstances, K.’s dismissal under clause 7, part 1, art. 81 of the Labor Code of the Russian Federation could not be considered legal. The court reinstated the plaintiff in her position (decision of the Pereyaslavsky District Court of the Yaroslavl Region dated September 22, 2011, cassation ruling of the Yaroslavl Regional Court dated November 10, 2011 in case No. 33-6620).

On the one hand, one can understand an employer who is trying by all means and forces to keep his business afloat (including by reducing the number of employees). On the other hand, who will understand the workers themselves? Moreover, in an effort to reduce wage costs, employers often commit the most flagrant violations.

Note for pregnant women
According to the direct instructions of the Labor Code of the Russian Federation, pregnant women are among those workers who cannot be laid off (Part 1 of Article 261 of the Labor Code of the Russian Federation).

Despite the fact that not only according to the Labor Code, but also according to all moral laws, pregnant women have the right to count on the most attentive and careful treatment, a simple verbal statement that you are pregnant is a weak guarantee against layoffs.

We need documents. On early stages pregnancy is confirmed by a certificate from the antenatal clinic or from another medical organization, who registered the woman (clause 22 of the order of the Ministry of Health and Social Development of Russia dated December 23, 2009 No. 1012n).

There is no single form for such a certificate, and, as a rule, antenatal clinics and medical institutions simply issue a written certificate that contains the necessary details - the name of the consultation, full name and position of the doctor who issued it, signatures, seals and stamps.

In later stages of pregnancy (more than 30 weeks, and in case of multiple pregnancy - 28 weeks), the employee’s pregnancy is confirmed by a certificate of incapacity for work (clause 46 of the Procedure for issuing certificates of incapacity for work, approved by order of the Ministry of Health and Social Development of Russia dated June 29, 2011 No. 624n).

A certificate of incapacity for work for pregnancy and childbirth is issued by an obstetrician-gynecologist, in his absence - by a general practitioner (family doctor), and in the absence of a doctor - by a paramedic.

The law does not require a woman to notify her employer that she is pregnant. Moreover, in a short period of time a woman may not know about it at all. Nevertheless, if on the day of dismissal the woman was pregnant (and this fact is confirmed by relevant documents), then the court will declare the dismissal illegal.

Judicial practice does not attach importance to the fact that the employer is aware or unaware of the pregnancy of a woman who is being laid off: Part 1 of Article 261 of the Labor Code of the Russian Federation contains an unconditional ban on the dismissal of a pregnant employee.

By the way, competent employers (and there are an overwhelming minority of them) include a clause in the notice of layoff stating that if the employee provides documentation of pregnancy, she will not be fired.

If the employee is a single mother
The Labor Code of the Russian Federation prohibits layoffs for single mothers raising children under the age of 14 (Part 4, Article 261 of the Labor Code of the Russian Federation). Therefore, the mother must at least have a document about the child’s age - a copy of the birth certificate. However, this will not be enough for the child’s mother to be considered a single mother.

The problem is that “single mother” and “single mother” are everyday concepts, and they are not included in the legislation.

The clarifications of the Supreme Court of the Russian Federation fill this gap. The Review of Legislation and Judicial Practice of the Supreme Court of the Russian Federation for the first quarter of 2010 (approved by the resolution of the Presidium of the Supreme Court of the Russian Federation dated June 16, 2010) states that:
To recognize a mother as single, it is necessary that the column “Father” in the birth certificate is not filled in (or information about the child’s father was entered according to the mother’s words - in this case, a certificate from the registry office is submitted on the grounds for making an entry in the birth certificate);
The child's mother must not be married. This is confirmed by a copy of the passport.

A divorced woman cannot be considered a single mother, provided that the child’s father is alive, takes part in his maintenance (pays alimony) and is not deprived of parental rights (Decision of the Supreme Court of the Russian Federation dated 07/09/10 No. 81-B10-6).

If a single mother is raising a disabled child, she cannot be laid off until the child reaches 18 years of age (a certificate from a medical and social examination is required).

Availability of dependents
If labor productivity and qualifications are equal, preference in remaining at work is given to:
family - if there are two or more dependents (disabled family members who are on full content employee or receiving assistance from him, which is their permanent and main source of livelihood);
persons in whose family there are no other independent workers;
employees who received a work injury or occupational disease while working for this employer;
disabled people of the Great Patriotic War and disabled people fighting in defense of the Fatherland;
employees who improve their qualifications in the direction of the employer without interruption from work (Article 179 of the Labor Code of the Russian Federation).

A dependent is a disabled family member who is fully supported by the employee or receives assistance from him, which is his constant and main source of livelihood (Part 2 of Article 179 of the Labor Code of the Russian Federation).

A dependent may be the employee’s spouse, parents, as well as other relatives (Article 2 of the RF IC).

An employee who has children may also benefit from preferential employment rights, since children are dependents by law.

However, employees who have at least two dependent children have a preferential right to remain at work (Article 179 of the Labor Code of the Russian Federation). If at the time of layoff at least one of the employee’s children is already 18 years old, then he cannot be considered a dependent.

In this case, certified copies of the children's birth certificates will be required.

If, for example, the dependent is the employee's spouse, then you may need to:
ITU certificate of disability;
spouse's work record;
certificate from employment authorities.

Single father
Workers raising a child without a mother have some immunity from layoffs. According to the clarifications of the Supreme Court of the Russian Federation (Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the first quarter of 2010, approved by the resolution of the Presidium of the Supreme Court of the Russian Federation dated June 16, 2010), an employee can be recognized as such, regardless of the specific case, as a result of which the child’s mother stopped caring for him care.

In practice, it is considered that an employee is raising a child alone if the child’s mother:
died (declared dead);
deprived of parental rights;
limited parental rights (for the period of restriction);
declared missing;
recognized as completely incompetent or partially incompetent;
is serving a sentence of imprisonment;
is in custody;
is suspected of committing a crime;
avoids raising a child or protecting his rights;
refuses to take his child from an educational or medical institution;
The mother does not have the opportunity to personally raise and support the child due to her health condition.

Employees raising disabled children without the participation of their mother are not subject to dismissal until these children reach the age of 18.

Finally
So, before you go into conflict with management, you need to clearly find out whether you really belong to the “protected” category. You can try to avoid decisive action for a while by declaring your “immunity” verbally, but you should understand that the employer has the right to demand supporting documents. This is not only a right - it is also an employer’s obligation, since unjustified provision of benefits to one employee may result in a violation of the rights of another employee who is entitled to them.

IMPORTANT:

Ideally, before downsizing, the employer should find out which of its employees cannot be dismissed on its initiative. And here there is an important point: unfounded statements that you have certain social privileges will suit few people. Maybe we can hold out for a while honestly, but in the event of a dispute, which, quite possibly, will be considered in court, you will not be able to prove the illegality of your layoff.

According to the author, a single mother remains such after marriage - until the new spouse adopts a child. According to the RF IC, spouses are obliged to take care of each other and financially support each other (Article 89), as well as support their minor children (Article 80 of the RF IC). Therefore, the new spouse is not obliged to support a child whose father he is not. Find judicial practice On this issue, unfortunately, it was not possible.

Employees raising young children are not subject to dismissal until the child turns 14 years old.

Marina ASTAPENKO, Lawyer