Dismissal of a disabled person of group 3 at the initiative of the employer: is it possible to dismiss such an employee without his consent, does the employer have the right to remove him from work for health reasons, and also whether

Dismissal due to disability is caused by a person’s inability to work due to health reasons. We will discuss further on what special grounds a person with disabilities can be dismissed and how dismissal is properly formalized.

Disability is the presence of a disease or a combination of ailments in an employee that prevents him from fully performing his labor function along with other employees. Depending on the severity of a person’s physical or mental limitations, there are 3 groups of disabilities. The criteria for their establishment are enshrined in the order of the Ministry of Labor of Russia “On classifications and criteria...” dated December 17, 2015 No. 1024n.

Based on the provisions of this order, in case of disability of the 3rd group, an employee is able to independently or with partial assistance of other persons (or special means):

serve yourself;
move;
navigate the environment that surrounds him;
communicate with other employees;
evaluate your behavior and correct it;
study and receive appropriate education;
work in conditions that were specially created for him.

Like any other employee of the organization, a disabled person can be fired:

at your own request - in this case, termination of the employment contract has no special features;
at the initiative of the employer - in addition to the general grounds (reduction of staff or liquidation of the organization), there is a special ground - dismissal for medical reasons.

Disabled people of the 3rd group, as a rule, are able to carry out labor activities, that is, this group is working.
But disabled people of groups 1 and 2 cannot always continue their employment relationship. Read more about the grounds and procedure for terminating an employment contract with a disabled person for various reasons.

Legal support for people with disabilities

Protecting the interests of working disabled people, the state has defined their rights and guarantees. The employer is obliged to take them into account when organizing the activities of such employees. They are guaranteed:

special production conditions that meet the requirements of the rehabilitation program;
exclusion of drawing up an employment contract where the rights of a disabled person will be constrained;
annual leave for up to 30 days;
the organization where he works enjoys preferential taxation;
additional without content;
full working time (like all employees).

If it is necessary to change something in rights and guarantees, consent must come from both parties. The aspects are included in the employment contract.

Dismissal of an employee

The dismissal procedure does not differ from the standard one. The only difference is that he does not need to submit an application to the director 14 days before the settlement with a request to dismiss him and indicating the reason. For medical reasons, it is possible to dismiss a disabled person of group 3 at his own request and without working off.

After registering the application with the secretary, it is endorsed and an order is issued. The employee reads it and signs it.

On the day preceding dismissal, a proper calculation of wages and other payments to an employee of the 3rd disability group is made. The entry into the labor record upon dismissal is made by the enterprise's human resources department.

If the disease was acquired at the same enterprise, then a special additional payment is assigned to compensate for the costs of treatment and recovery. If the organization refuses such payments, the employee has the right to go to court, where all actions and violations will be considered. Typically, a court decision is made in favor of the party injured during dismissal.

Termination of an employment contract due to changes in the employee’s health status

Assigning a disability group to a person is not a pretext for his dismissal. This can only happen when he is recognized by a medical and social examination as incapacitated. Only its conclusion has legal force.

Otherwise, the employee’s working conditions are changed: a place is provided that would meet the rules of individual rehabilitation (IPR). A valid reason for the impossibility of further holding this position will be the conclusion of the certification commission (Article 81 of the Labor Code of the Russian Federation, clause 3).

For your information! In such cases, the commission must make a decision in the presence of a labor inspector. Several people submit for certification at once.

The certification sheet indicates whether an employee with disabilities can continue to work in the same place or a new position offered by the employer. Here you should remember the following: the employer may not have a workplace that would meet the conditions of the IPR .

The employment contract is then terminated, since the working conditions do not satisfy one of the parties (the employee). His dismissal is possible according to the wording indicated in paragraph 8 of Article 77 of the Labor Code of the Russian Federation.

The entire procedure for negotiations with a disabled employee must be completed only in writing. Especially his refusal of the offered vacancies. This document will serve as evidence of his voluntary refusal of the offered positions.

It will be difficult to convict an employer of not wanting to find suitable working conditions for a disabled employee. Most often he is offered a low-paid job. He retains the right to file a complaint in court.

What guarantees are available to a disabled employee?

The hiring, labor activity, and dismissal of disabled people have some features compared to other categories of workers. In particular, they are provided with a number of guarantees. At the same time, some are entitled to all disabled people, others - only to some of them. We will clearly look at what guarantees an employer is required to provide to an employee with a disability in the table.

Table

Guarantee	Legal regulation	To whom is it provided?
Prohibition on establishing a preliminary test	P. 4 h. 5 tbsp. 28, part 1 art. 287 TK	To all disabled people
Reduced working hours : no more than 35 hours per week, no more than 7 hours per day (shift). Remuneration is made in the same amount as for employees with full working hours <1>	Part 3 art. 114, paragraph 3, part 2, art. 115, part 4 art. 287 TK	Disabled people of groups I and II
Prohibition on establishing irregular working hours <2>	Paragraph 2 clause 1 of the resolution of December 10, 2007 N 1695	Disabled people of groups I and II
Attraction to overtime work, work at night, on public holidays, holidays and weekends only on the following conditions: — with consent employee; — if such work is not prohibited by IPRI	Part 5 art. 117, part 3 art. 120, part 5 art. 287 TK	To all disabled people
Sending on a business trip only with the consent of the employee	Part 6 art. 287 TK	To all disabled people
The duration of the main labor leave is 30 calendar days.	Clause 2 of appendix 2 to the resolution of January 24, 2008 N 100	To all disabled people
Addition of additional leave for work with harmful and (or) dangerous working conditions and for the special nature of the work, additional incentive leave for work under a contract to the main leave , the duration of which is 30 calendar days <3>	Clause 2 of resolution No. 73 of January 19, 2008, part 2 of Art. 162 TK	To all disabled people
Prohibition on replacing labor leave with monetary compensation	Part 3 art. 161 TK	To all disabled people
, social leave without pay for a year	Clause 4, part 1, part 2, art. 189, paragraph 2, part 2, art. 326 TK, sub. 8.1 clause 8 art. 18 of the Law of January 6, 2009 N 9-Z	1. Disabled people working in factories, workshops and areas specially designed for their work (vacation up to 14 calendar days). 2. Disabled persons whose disability occurred in connection with the disaster at the Chernobyl nuclear power plant (vacation 14 calendar days)
Using labor leave in the summer or other convenient time <4>	Clause 5 para. 2 hours 4 tbsp. 168, paragraph 2, part 1, art. 326 TK, sub. 8.1 clause 8 art. 18 of the Law of January 6, 2009 N 9-Z	Disabled persons whose disability occurred in connection with the disaster at the Chernobyl nuclear power plant
Preemptive right to conclude an employment contract to perform work from home	Clause 2 Art. 305 TK	To all disabled people
The employer's obligation to create a workplace to employ a disabled person	Art. 285 TK	Disabled persons who have become disabled as a result of a work injury or occupational disease in this industry
Preferential right to remain at work in the event of a reduction in the number or staff of employees with equal labor productivity and qualifications of the employee	Item 3, part 2, art. 45, part 8 art. 287 TK	To all disabled people
Preferential right to remain at work in the event of a reduction in the number or staff of employees, regardless of labor productivity and qualifications of the employee	Part 3 art. 45, part 9 art. 287 TK	Disabled people working in organizations whose property is owned by public associations of disabled people, as well as in workshops and areas employing the work of disabled people, in other organizations
Prohibition on dismissal at the initiative of the employer of a disabled person undergoing medical, professional, labor and social rehabilitation in relevant organizations, regardless of the length of stay in them <5>	Part 3 art. 283 TK	To all disabled people
The right to demand early termination of a fixed-term employment contract if disability interferes with the performance of work functions	Part 1 art. 41 TK	To all disabled people
Retention of the right to medical care, housing, vouchers to health and preventive institutions, as well as other social services and guarantees provided for by collective agreements and agreements	Part 1 art. 288 TK	Disabled people who worked for the employer before retiring
<1> If the IPRI of a disabled person (including group III) specifies the requirement to establish a part-time working day (partial work week) for the employee, then the employer is obliged to establish such a length of working time for the disabled person (part 2 of article 287, clause 2 of part 2 Article 289 of the Labor Code, Part 3 of Article 34 of the Law of June 18, 1993 N 2435-XII, letter of the Ministry of Health dated June 28, 2016 N 9-2-6/848-219).<2> The employer can establish an irregular working day for a disabled person III groups, only if it is not prohibited by IPRI.<3> The same guarantee is provided to workers under 18 years of age and working in areas of radioactive contamination as a result of the disaster at the Chernobyl nuclear power plant. Please note that for other employees, additional leave is added to 24 calendar days. If the total amount turns out to be less than the duration of the main vacation, then the employer will have to provide the employee with the main vacation.<4> When drawing up a vacation schedule, the employer is obliged to schedule vacation in the summer or other convenient time at the employee’s request.<5> With the exception of dismissal of a disabled person for discreditable reasons grounds for dismissal.

Read this material in ilex >>* *follow the link you will be taken to the paid content of the ilex service

Legal grounds

The Labor Code of the Russian Federation provides for situations when a disabled person can be fired. These include dismissal for:

at will;
agreement between the parties;
downsizing.

Wanting to improve his health, a group 3 disabled person often writes a letter of resignation of his own free will.

A similar procedure is carried out in accordance with Article 80 of the Labor Code of the Russian Federation. And there are no obstacles to this.

Often, employers force an employee with a disability to write a letter of resignation, supposedly of his own free will. Such acts are unlawful.

Dismissal of an employee with limited functions can be made by agreement of the parties: employee - employer. The organization pays the employee a certain amount determined by agreement.

Dismissal due to staff reduction is another option for legal dismissal. Article 179 of the Labor Code of the Russian Federation determines priorities for optimization. Highly skilled workers have an advantage (where a disabled person is unlikely to enter).

Note! Retrenchment of a disabled employee (due to a general illness) occurs on standard grounds. An exception are persons who became disabled during military operations, defending the Fatherland, or working to eliminate the consequences of the Chernobyl disaster.

It happens that management recommends writing a statement of your own free will. Under no circumstances should this be done, since he will lose severance pay and payment of the average monthly salary while looking for a new job (for up to two months).

If the disability was the result of work in production, then the employee takes advantage of redundancy.

At your own request

To resign at your own request, a disabled person only needs to submit a written application to the employer. There is no need to provide reasons for making such a decision. To avoid disputes about the date of the upcoming dismissal, the application must be submitted against signature to the personnel department or the secretary of the organization, or sent by mail. From the moment the management of the enterprise receives the application, the following consequences occur:

for two weeks, the employee must perform his work duties as before, unless a different period of work has been agreed upon with the employer;
You can avoid working time if there are good reasons (for example, when a disabled person retires, when entering school, etc.);
no later than the date of dismissal, the employer must make an entry in the work book and issue it to the employee, accrue and issue mandatory payments.

If you resign at your own request, the fact of disability does not affect the procedure for processing documents or the composition of payments. In this case, the disabled person will not receive any additional benefits, however, the management of the enterprise can pay financial assistance or other compensation at its own decision.

The administration of the enterprise cannot detain an employee at work for more than 2 weeks, unless a different period is indicated in the application. During the work period, the transfer of cases and positions must be ensured, and upon completion, the employee can stop working unilaterally. On the last day of work, a work book, a payslip for accruals and deductions, as well as other documents are issued.

In the same way, dismissal occurs by agreement of the parties. The date of termination of the employment relationship will be determined by mutual agreement. Although there is no requirement to submit an application, this document will be required to issue an order and complete other formalities.

Dismissal of a disabled person of group 3 at the initiative of the employer

The final payment of a disabled employee can be made at the insistence of the employer. He has the opportunity to dismiss a disabled person on general grounds:

incompatibility of the employee with the position held or the work performed. Only dismissal should take place after the employee is certified. The conclusion of the certification commission will have legal force.
Repeated violation of labor discipline by an employee. To dismiss on this basis, several factors must be met:
- the employee’s action must be real;

The condition for dismissal must be the drawing up of a disciplinary act accompanied by an explanatory note from the employee.

A single gross violation of one's duties: this is truancy. Absenteeism is considered to be the absence of an employee from the workplace for up to 4 hours or more.
Appearing at the workplace in a state of alcohol, drug or toxic intoxication . The employer must draw up a report and conduct a medical examination.
Disclosure of company secrets (if any), and the employee was warned about this in writing.

The listed grounds serve as a reason for termination of the contract at the insistence of the employer.

Dismissal for disciplinary offenses

Group 3 disability does not exempt an employee from properly performing job duties and observing labor discipline. In the event of any violation, the administration of the enterprise is obliged to conduct an internal investigation, take the employee’s explanations, and decide on disciplinary measures. The law allows you to dismiss a disabled person of group 3 if the following violations are confirmed:

for gross offenses committed once (if a disabled person was absent from work without good reason for more than 4 hours in a row, if he showed up at work drunk or drank alcohol, etc.);
if during the period of disciplinary punishment (1 year) a repeated offense was committed;
if, when applying for a job, a disabled person submitted deliberately false documents, including information about education;
if administrative or criminal restrictive measures were applied to a disabled person - disqualification, ban on holding certain positions;
for other culpable reasons.

If the employee’s guilt in committing an offense is confirmed, the manager will make the final decision on the basis of the commission act. Even in case of a serious violation, you can limit yourself to a warning and reprimand, or make an oral reprimand to the perpetrator. However, the employee cannot demand the choice of one of the milder disciplinary sanctions, since the head of the enterprise must make such a decision himself. Disability is not a mitigating circumstance when choosing the type of sanction.

When a disabled person is dismissed for guilty actions, he is guaranteed standard payments - earnings for the time actually worked, payment for vacation pay and sick leave, etc. The violator will not be able to claim severance pay or other compensation payments. If the disability was initially caused by a violation of labor protection rules, the employer will remain obligated to make payments to compensate for harm.

Unlawful removal from work

Dismissal of a disabled employee is carried out in accordance with the Labor Code of the Russian Federation. This is difficult to do. He cannot be fired just because he is disabled. There must be serious reasons for this. The only unconditional basis is complete loss of ability to work. In other cases you need to be careful. Before dismissal, you need to study the Labor Code of the Russian Federation. The boss usually dismisses a disabled employee under Article 192 of the Labor Code of the Russian Federation.

Reference! Dismissal under the article is allowed only when the employee does not comply with job descriptions. This will result in disciplinary action.

With this development of the case, it is necessary to illustrate each step in writing:

act of committing a misdemeanor;
explanatory note from the employee;
act of refusal to write an explanatory note;
warnings, reprimands (with the obligatory signature of the disabled person).

Other reasons for dismissal are considered illegal. When this happens, the employer faces litigation, an inspection by the labor inspectorate that threatens to reveal other violations, and financial costs.

Disability is not an excuse for dismissal

For any category of disability, the legislation stipulates working conditions and respect for the rights of such people. An employee of an enterprise who has received group 3 disability is partially able to work. He will not be able to perform his usual work if it is associated with complex functional features. But he may well be engaged in other activities and earn the status of an invaluable employee in another position . Therefore, for citizens of disability group 3, dismissal for health reasons is not provided for in the law, thereby protecting this category of people.

The state draws the attention of entrepreneurs to give a disabled person a chance to feel needed by someone. In our country there are a large number of unemployed people with disabilities. Not every boss is eager to hire such a person on his staff. However, according to statistics, it was noted that an employed disabled person is never late for work and has high responsibility, as he values his place.

Vacation at your own expense

Unlike other employees, a disabled employee has the right not to ask, but to demand leave without pay; it is impossible to refuse to provide it. Moreover, based on a written application, a disabled employee can apply for unpaid leave of up to 60 calendar days a year (Article 128 of the Labor Code of the Russian Federation).

Let us note that the issue of the specific time for granting a disabled person leave at his own expense is still decided by agreement of the parties. After all, the Labor Code does not establish the employer’s obligation to provide such an employee with unpaid leave at the exact time he insists.

Checking the certificate and IPR

First, you need to check the disability certificate and individual rehabilitation program (hereinafter referred to as IPR) of the disabled person for the presence of signatures and seals. These documents must be signed by the head of the ITU bureau where the employee underwent the examination, and certified with the seal of this bureau. After checking the documents, copies of them should be kept in the personal file of the disabled employee.

The IPR is of a recommendatory nature for a disabled person. He has the right to refuse one or another type, form and volume of rehabilitation measures, as well as the implementation of the program as a whole (Article 11 of Law No. 181-FZ). Therefore, an employee can only bring a disability certificate to work in order to receive general disability benefits provided for by the Labor Code.

The IRP of a disabled person includes certain types, forms, volumes, terms and procedures for the implementation of medical, professional and other rehabilitation measures. Their goal is restoration, compensation for impaired or lost body functions, restoration, compensation for the abilities of a disabled person to perform certain types of activities (Article 11 of Law No. 181-FZ).

Attention

Refusal of a disabled person from the IRP as a whole or from the implementation of its individual parts relieves the employer of responsibility for the implementation of such a program. At the same time, a disabled person does not have the right to expect to receive compensation in the amount of the cost of rehabilitation measures provided free of charge (Article 11 of Law No. 181-FZ).

IPR of a disabled person must be implemented regardless of the organizational and legal forms and forms of ownership of the employer. This means that everything will need to be done to create the working conditions for the employee that are prescribed in his IPR.

You will also need to make a note about the completion (or non-compliance) of specific rehabilitation measures. The mark must be certified by the signature of the responsible person, for example, the head of the company, personnel officer, accountant, and the seal of the organization.

Payments upon settlement

On the eve of dismissal, the employee must be paid the necessary settlement funds. All accruals are carried out by the company’s accountant, and payment must be made without delay:

Wages for days worked.
Compensation for unused vacation.
Payment for two months, in case of layoff, using indexation.
Benefit due to loss of ability to work in the amount of two weeks' average earnings.
Personal compensation, at the discretion of the company.

The manager does not have the right to deprive a person of his job because he has become disabled. To fire a disabled employee, you should approach this issue with dignity and care, thoroughly study all the details and facts relating to the dismissal. Compliance with all points of the labor code will save the employer from unnecessary fines and punishments. The main thing is to act not only according to the norms of the labor code, but also according to human laws.

Transfer to another job

An employee recognized as disabled can continue to work, but only under the working conditions recommended for him in the IPR. In this case, two options can be provided for the IPR. The first is a change in working conditions without changing the terms of the employment contract. The second is a change in the terms of the employment contract, including transfer to another job.

Changes to the terms of the employment contract must be formalized by agreement.

If it is not possible to create for a disabled person the conditions specified in the IPR, the employee must be transferred to another job.

If such a possibility exists and the employee has given his consent, a transfer agreement should be concluded with him. It will also be necessary to issue a transfer order in Form No. T-5. These unified forms were approved by Decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1.

The transfer of an employee to another job is reflected in section III of his personal card in form No. T-2*.

Requirements and preferences when there are persons with disabilities on staff

The imposition of restrictions on work ability cannot be a reason for dismissal, except in cases where ITU issues a conclusion stating complete disability.

Typically, this category includes persons with 1st group of disability. If there are 2 or 3 groups, the employer can make working conditions easier or re-equip the workplace so that the employee remains a full-time specialist.

If there are persons with disabilities on staff, the organization has the right to apply for preferences from the state:

Full or partial tax exemption;
Reduced rates for paying contributions to the social insurance system;
Subsidies for the organization of specific jobs.

To receive the full set of benefits, an enterprise must meet the following criteria:

If it is a public organization, then at least 80% of its roster must be represented by persons with disabilities;
If this is a commercial enterprise, then the list of requirements is wider:

The staff employs 50% disabled people;
25% of the salary fund goes to pay for their labor;
A public organization of persons with disabilities has a share in the authorized capital, or property belonging to such an organization is used for statutory purposes.

Calculation

First, let's look in more detail at ways to dismiss a disabled person from an organization. If the initiative comes from the employer legally, then all negotiations are conducted in writing. But, as a rule, it is not possible to forcibly dismiss a disabled person. We'll have to wait until he wants it himself. In any case, termination of the employment relationship implies settlement. What should an employer pay a subordinate?

You can count on:

compensation provided for in the employment contract;
payments for time worked;
money for vacation that was not used.

There are no additional funds in this case. And only when the enterprise is liquidated can you count on benefits.

Procedure algorithm

If it is necessary to terminate the employment relationship with an employee recognized as incapable of work in accordance with the established procedure, the following algorithm of actions is followed:

1. If work is contraindicated for an employee in general, or it is impossible due to the health requirements established in this structure (Ministry of Emergency Situations, law enforcement agencies, etc.), then the contract is terminated due to circumstances beyond the control of the parties:

The employee presents the ITU conclusion;
The employer issues a corresponding order;
The accounting department makes the final calculation;
HR department employees issue a work book;

How is disability limited?

To confirm that the employee has been assigned a disability group, after a medical examination, he is issued the following documents:

a certificate establishing the disability group and the degree of disability in the form approved by order of the Ministry of Health and Social Development of the Russian Federation dated November 24, 2010 No. 1031n;
certificate of the degree of loss of professional ability to work in the form established by order of the Ministry of Health and Social Development of the Russian Federation dated October 20, 2005 No. 643. The gradation of this indicator ranges from 10 to 100% and depends on the reduction in qualifications, the psychophysiological state of the employee and the general intensity of the labor process;
individual rehabilitation program for a disabled person (IRP), drawn up in accordance with Order of the Ministry of Labor No. 528n dated July 31, 2015. Its implementation is mandatory for both government agencies and organizations, regardless of their form of ownership.