Dismissal of a pensioner due to staff reduction in 2021

During this year, several laws were adopted that protect the labor rights of pensioners and citizens of pre-retirement age. In this regard, the requirements for employers have become more stringent, including criminal liability. In particular, the adopted Federal Law of October 3, 2018 No. 352-FZ introduced Art. 144.1, which provides for strict sanctions for employers for dismissing pre-retirement workers, as well as unjustified refusal to hire a person on the grounds that he has reached pre-retirement age. Violation may result in a fine of up to RUB 200,000. or in the amount of wages or other income of the convicted person for a period of up to 18 months or compulsory work for a period of up to 360 hours.

In addition, bill No. 269898-7 is currently being considered, which amends Art. 356-357 Labor Code of the Russian Federation. Officials want to expand the powers of the labor inspectorate in the field of protecting the labor rights of workers, that is, to give this body the right to go to court on behalf of the employee and represent his interests in court. Accordingly, if the law is adopted, then retired workers can also take advantage of new opportunities to protect their rights.

Another innovation: Rostrud has involved labor inspectorates in organizing quarterly monitoring of information about employers and the number of pre-retirement workers (Rostrud Letter No. 858-PR dated July 25, 2018). The form must be submitted starting October 1, 2021, by the 15th day of the month following the reporting month. We wrote in more detail about legislative innovations and initiatives earlier.

It is obvious that the state is making attempts to legislatively protect older employees. Realizing this, the business that works with this category of employees, in response to the new laws, put forward demands on its part: it asked for preferences - a reduction in contributions, the introduction of tax benefits in cases where the employer invests money in the retraining and advanced training of pre-retirees, etc. .d. However, their appeal was not satisfied.

Therefore, taking into account the new requirements starting in 2021, employers should be especially careful in relation to retired and pre-retired employees and try not to violate labor legislation.

Is it possible to lay off a pensioner due to staff reduction?

Reaching retirement age and obtaining the right to stop working does not mean that the pensioner loses the opportunity to work and receive money for it. An elderly person has the right to retire, but he is not obliged to do so. In general, in Russia all citizens have the right to employment except representatives of some special categories of disabled people and minors.

Since pensioners are subject to the same rules as other subordinate companies, staff reductions may affect them too - the law allows the dismissal of a pensioner due to the exclusion of a position from the staffing table or due to the need to reduce the number of employees. However, the reasons for which the dismissal of an elderly person is formalized should not be imaginary - the desire to simply get rid of an elderly employee is not encouraged by law. The reason for dismissal may be:

• optimization of labor resources by the manager in order to increase labor productivity;
• change in the scope of the company's activities;
• staff reduction to reduce production volumes;
• reorganization at the enterprise.

Pensioners who continue to work have the following privileges:

• the law prohibits age discrimination against retired workers;
• the right to work even upon reaching retirement age;
• preferential right to remain at work in case of staff reduction if the pensioner is highly qualified, has sufficient knowledge and work experience, takes an active part in increasing production indicators and continues to successfully cope with his responsibilities;
• additional leave at your own expense at any time of the year without taking into account the vacation schedule lasting 14 calendar days;
• no need to work the 2 weeks required for other employees upon dismissal on their own initiative on the basis of the right to retire.

Against pension – appeal procedure

Many elderly people do not want to live on their pension, so dismissal is perceived very painfully. In this case, a completely logical question arises: is it possible to somehow appeal the management’s decision?

There is such a possibility, but you need to have sufficient grounds, which can be:

• Carrying out the procedure with violations (for example, notification was sent late);
• Concealment of vacancies by the employer;
• The staff reduction is discriminatory in nature, that is, mainly people of retirement age are laid off, etc.

When faced with one of these violations, an employee can act as follows :

1. Write a complaint to the labor inspectorate.
2. File a claim in court.

You may find the following information interesting: features of writing a complaint to the labor inspectorate.

If it is determined that the pensioner’s claims are legitimate, he will be reinstated to his previous place of work.

Conditions under which a pensioner is laid off due to staff reduction

As you know, employees who learn about their imminent dismissal due to staff reduction have the right to ask for early dismissal - 2 months before the expected settlement date. And pensioners may resign even earlier, since it may be more profitable for them to formalize leaving work under clause 2, part 1, art. 81 Labor Code of the Russian Federation.

When being dismissed due to staff reduction, a pensioner who wishes to resign early must draw up a statement in such a way that the resignation is not regarded as dismissal on his own initiative.

The only difference between a pensioner and an employee who has not reached retirement age when dismissed due to a reduction in position or staff size is the impossibility of assigning the status of unemployed. A pensioner cannot be recognized as unemployed, since he has the right not to get a job anymore, but simply to receive a pension.

There may also be a difference in the list of required labor benefits upon dismissal due to staff reduction - depending on the social status and work experience, a pensioner may be entitled to an expanded range of preferences.

Grounds for challenging dismissal

A retired pensioner who has been made redundant can challenge the decisions of the enterprise administration in the courts, making reference to the following situations:

• belonging to the number of persons entitled to any benefits;
• inability to exercise the priority right to issue a vacancy in the company;
• violation of deadlines for notification of subsequent dismissal;
• violations of the rules and regulations for filling out the work sheet;
• presence of a written refusal to make severance payments.

Elena Smirnova

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Often the reason for filing a claim is the right of a person of retirement age to obtain a free workplace at the same enterprise. Such norms are regulated by Art. 179 of the Labor Code of Russia.

How to lay off a pensioner due to staff reduction

The reduction of a citizen of retirement age is carried out exactly according to the same scheme as in the general case.

The procedure for dismissing an elderly person involves the employer, HR employee and accountant going through the following steps:

1. The employer announces a meeting of a commission consisting of department heads in order to organize a meeting regarding the reduction of positions and staff numbers. Confirmation of the convening of the commission is an order. The law does not oblige managers to hold a meeting, so the first stage is carried out at the discretion of the company owner.
2. Based on the results of the commission, the employer issues an order on the planned staff reduction . It should contain a list of employees, positions and departments that have been laid off. The date of expected execution of the order is also stated.
3. 2 months before the actual day of dismissal, employees who have been laid off must be notified by issuing a written notice of dismissal. It informs about the date of dismissal and the possibility of continuing work in another position (including lower ones) if there are open vacancies.
4. 2-3 months before carrying out staff reduction measures, the employer informs the trade union organization and the employment service .
5. Dismissed employees are given a dismissal order for signature.
6. If the employee does not want to familiarize himself with the order, the employer draws up a separate act , which must be signed by witnesses.
7. On the last working day, the employer invites laid-off employees to write a letter of resignation indicating the reason for termination of the employment relationship - “termination of the employment contract due to staff reduction.”
8. An HR department employee familiarizes the employee with the personnel order (form T-8 and T-8a - when dismissing several subordinates). The employee signs it.
9. The personnel department issues a work book . The accountant calculates the employee. If payment or issuance of a work book occurred later than the day of dismissal, the employee has the right to demand payment of compensation for the delay.

How to calculate average earnings?

The average earnings of a specific employee = total annual salary / number of days that the employee actually worked over the past year before dismissal.

Total income includes all “labor” payments:

• salary;
• bonuses for various results;
• bonuses, including those paid for work in the Far North, incentive payments.

The following are not included in the total “labor” income of a particular employee:

• social benefits;
• material aid;
• compensation for food, housing, travel;
• all benefits that are calculated based on average earnings.

The number of days actually worked also needs to be calculated correctly. That is, only those periods when the employee actually performed his immediate duties are taken into account.

Common mistakes

Error: The employer did not pay a pensioner who was laid off due to staff reduction, severance pay on the grounds that it was time for the employee to retire and he would not look for a new job.

Comment: Severance pay is paid to all employees dismissed due to staff reduction, including retirees, regardless of whether they are looking for a new job or not.

Error: A pensioner who does not want to get a job after being laid off due to staff reduction applies for severance pay for the second month after dismissal.

Comment: Average monthly earnings are maintained in the first 2 months after dismissal only if the dismissed employee begins to look for a new job and registers with the Employment Center.

Rights and benefits of this category of workers

• Retirement age should not be a reason for harassment. Those. it should not be a reason for dismissal.
• A pensioner can count on two weeks of extraordinary leave, but without pay.
• Qualifications and experience will allow the pensioner to take a more advantageous position when the commission analyzes his candidacy.
• Just like other employees, a pensioner has the right to early notice of layoffs, to payment of severance pay and to the offer of other vacancies that correspond to his qualifications and state of health.

We talked in detail about what an employee who wants to be laid off at work should do and what his rights are here.

Answers to common questions about pensioner layoffs due to staff reduction

Question No. 1: Is it necessary to pay a pensioner dismissed due to staff reduction severance pay in the amount of average monthly earnings in the first 2 months after dismissal, if the pensioner does not intend to look for a new job?

Answer: Yes, these payments are mandatory both for pensioners laid off due to staff reduction and for young employees, but only if the pensioner registers with the Employment Center. If not, then he will receive severance pay only once, upon dismissal.

Question No. 2: Why are pensioners not given unemployed status after dismissal due to staff reduction, and how does this affect the possibility of receiving severance pay?

Answer: The status of unemployed can be assigned to able-bodied citizens, which pensioners are not from the moment they are assigned a pension benefit. The absence of unemployed status means that the employer will not pay the pensioner a third severance pay if the dismissed employee does not find a job, and the Employment Center does not provide him with unemployment benefits, but will only help him find vacancies.

Let's sum it up

Legislation protects workers laid off due to layoffs. The amount of all due payments and compensation during layoffs can be quite significant. In addition, these payments are spread out over time. In fact, a person who no longer works for an employer needs to pay wages for another 2 months.

We recommend that employers who want to reduce personnel costs through layoffs and thereby improve their financial situation, first calculate how much the entire procedure will cost.

Let us remind you that failure to pay all due amounts is a violation of labor laws, including allowing employees to challenge dismissal as a violation of procedure.

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