Dismissal by agreement of the parties in 2021 with payment of compensation: pros and cons

Leading headhunters recommend changing jobs every 2-3 years. A change of environment helps in the career growth of any employee and allows you to find new horizons for professional and personal development. But before you leave for another organization, you need to officially end your relationship with your current employer under the Labor Code of the Russian Federation. Let's talk about this option for terminating the contract, such as dismissal by agreement of the parties. What are the pros and cons of the clause: “dismissed on the basis of Art. 78 Labor Code of the Russian Federation"? What pitfalls are fraught with the procedure for terminating an agreement?

What does dismissal by agreement of the parties mean?

An agreement between the parties (employee and employer) is a separate basis for the dismissal of an employee, established by an article of the Labor Code of the Russian Federation.
As the name suggests, this is possible if the parties have agreed on all the essential points of termination of the employment relationship - the date of dismissal, additional compensation payments, etc. If such agreement is not reached, then the employee has the right to resign of his own free will, having notified the employer at least two weeks in advance (Article of the Labor Code of the Russian Federation). The employer may also be the initiator of the separation. To do this, it is necessary to have the conditions defined in the article of the Russian Federation (for example, Payments in case of layoff of an employee in 2021, reduction in headcount or staff, etc.).

Compose HR documents using ready-made templates for free

In what cases is it more profitable to terminate a TD by agreement of the parties?

Termination of TD under Art. 78 of the Labor Code of the Russian Federation is appropriate for:

the employee commits a disciplinary offense;
the person’s failure to undergo certification and regular testing to determine the person’s suitability for the position he or she occupies;
forced reduction of the organization's staff.

This may subsequently help the employer avoid disputes with the employee.

The employee who signed the agreement voluntarily expressed his will to leave the company, but who initiated the dismissal, he himself or his employer, will remain a mystery to potential employers.

Due to the fact that the parties have the right to choose any date of dismissal, LLCs and individual entrepreneurs can dismiss a person not after 14 days, as is the case with his “own desire,” but, for example, after a couple of months. During this time, the entrepreneur will be able to find a replacement for him. In addition, by agreement, it is possible to terminate cooperation before the expiration of the previously agreed date.

Pros and cons for the employee

If dismissed by agreement of the parties, the employee is not required to notify the employer two weeks in advance. Consequently, such a “resignation” is possible at any time, including “one day”. In certain situations, this can be considered a plus for both the employee and the employer.

Another advantage for the employee is the opportunity to receive additional monetary compensation upon dismissal “by agreement”. If an employee leaves of his own free will, such payments are not provided.

Among the disadvantages for the employee is the fact that the agreement of the parties is one of the most “strong” grounds for terminating an employment contract. It will be more difficult to challenge a properly executed agreement in court and be reinstated than if you were dismissed for other reasons. Especially if the employee received additional payments provided for in such an agreement.

Draw up and print an employment contract

Why does an employer benefit from an agreement between the parties?

An employer often recommends this form of grounds to a dismissed person because it is beneficial: the agreement does not provide for the payment of additional severance pay unless this is specified in the collective agreement. There is no need to consult with the trade union organization for such dismissals. Another important point is that by agreement of the parties, a pregnant woman, a minor employee, an employee on maternity leave, and other preferential categories can be dismissed. This makes it convenient to terminate student contracts. And finally, the most important thing is insurance against litigation.

Question: Is it possible to dismiss an employee at his own request or by agreement of the parties on his day off during a shift work schedule? View answer

Benefits and risks for the employer

First of all, we note that there is no conflict with the outgoing employee, who receives an absolutely neutral entry in the work book, as well as additional cash payments. Consequently, the chances of future complaints and litigation are reduced (especially if the “compensation” is paid on time and in full).

If a conflict does arise, then the fact of the stability of the agreement, mentioned as a “minus” for the employee, as a basis for dismissal, turns into a “plus” for the employer. If this document is properly executed, the employee’s chances of being reinstated at work (and therefore receiving payment for forced absence and moral damages) are not great.

However, we cannot say there is a complete absence of risks in the event of termination of the employment relationship by agreement of the parties. Thus, if an employer delays payment of the amounts specified in the agreement, he faces a fine under Part 6 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation (for legal entities - up to 50 thousand rubles, for individual entrepreneurs - up to 5 thousand rubles).

Also, the fact that dismissal occurs “by agreement” does not mean that the employer will not be responsible for violations committed when preparing the relevant personnel documents (dismissal order, work book, etc.). In this situation, a fine can be assessed under Part 1 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation (for legal entities - up to 50 thousand rubles, for individual entrepreneurs - up to 5 thousand rubles).

Create a staffing table using a ready-made template Try for free

How to correctly calculate this value?

Upon dismissal by agreement of the parties, the average daily earnings may be required to calculate the following amounts:

Compensation for vacation that the employee was entitled to, but was not actually used during his work.
Read also: How to take leave before maternity leave? Who is entitled to vacation and how to calculate it?
“Compensation” if the parties agreed on them. Usually in this case we are talking about monthly earnings, which, however, are again calculated on the basis of the daily average.

The average earnings themselves are calculated according to the rules described in and in. According to these standards, the calculation is tied to the billing period of the 12 previous calendar months. They also indicate that the employer has the right to establish his own forms of calculation at the enterprise , but only on the condition that the result turns out to be more profitable for the employee than the standard one.

If we are talking about compensation upon dismissal by agreement of the parties, usually we should talk about calculating average earnings per month. It is calculated using the following formula:

SMZ = SMD x D where:

SMZ – average monthly salary;
SMD – average daily earnings;
D – number of working days in a month.

Calculation example. Let’s say that employee Ivanov received a total salary of 264 thousand rubles for the year. At the end of the year, according to the employment contract, he received a bonus that amounted to 40 thousand rubles. In total, according to working time records, he was present (minus sick leave, business trips and days off) for 210 days. In this case, the average daily payment will be:

264,000 + 40,000 / 210 = 1,447 rubles

Next, you need to multiply it by the number of days. Here you can use the average number of either calendar days (this technique is used when calculating compensation for vacations, and then the coefficient 29.3 is used) or workers (in this case, data from the production calendar for the corresponding year is used).

Dismissal of pregnant women

The Labor Code does not contain restrictions on the circle of persons who can be dismissed “by agreement”. This means that a similar method of terminating an employment contract is also permissible in relation to a pregnant woman, regardless of the stage of her pregnancy. Including, the conclusion of an agreement is possible even after the employee goes on maternity leave.

But there is one caveat. If a woman found out about her pregnancy shortly after signing the agreement and, therefore, changed her mind about quitting, it is better to reinstate the employment contract. Otherwise, the court can do this (rulings of the Supreme Court of the Russian Federation dated 06.20.16 No. 18-KG16-45 and dated 09.05.14 No. 37-KG14-4). Therefore, before concluding an agreement to dismiss an employee, you need to make sure that she has previously submitted documents about her pregnancy. This could be a certificate of registration in the early stages of pregnancy, or an application for leave or time off due to pregnancy, etc. If there are no such papers, and the employer is not ready for the subsequent reinstatement of an employee who has changed her mind about leaving, then it is better not to formalize the dismissal “by agreement” with her.

ATTENTION. There is no need to indicate the fact of pregnancy in the agreement. This may be regarded as dismissal for this reason. And such an action is a crime, liability for which is provided for in Article 145 of the Criminal Code of the Russian Federation (clause 16 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 25, 2018 No. 46). Similar criminal liability will arise if the court finds that a pregnant woman was forced to sign such an agreement. Evidence may include facts of physical impact or psychological pressure; creation of unfavorable working conditions; illegal imposition of disciplinary sanctions; threats of using methods of influence that could lead to adverse consequences not only for the employee, but also for his relatives (appeal rulings of the Supreme Court of the Republic of Dagestan dated 08.16.16 No. 33-2669/2016, Astrakhan Regional Court dated 05.30.12 in case No. 33-1592 /2012).

What is “resign by agreement”

Domestic legislation does not explain this concept in any way and does not establish any rules for dismissal by agreement of the parties, but companies with foreign management approach this issue with caution. The reason is that Western partners use the wording “termination of an employment contract by mutual consent” in cases where it is impossible to part with a person on good terms.

Sometimes the employee’s position is strong, and there is no reason to fire him. It also happens that it’s no longer possible to work together, but no one wants to leave. And sometimes it happens that an employee has something to fire for, but he knows so much that his departure will cause more harm than if he remains. In such situations, we have to negotiate. But the dismissal procedure by agreement of the parties is usually confidential, since neither the employee nor the employer is interested in disclosing the true reasons for the breakdown of relations.

Dismissal of pensioners and pre-retirees

Working pensioners and pre-retirees also have the right to resign by agreement of the parties to the employment contract. But there are nuances here too.

ATTENTION. Article 144.1 of the Criminal Code of the Russian Federation establishes criminal liability for the dismissal of pre-retirement employees. It occurs if the reason (motive) for dismissal is the employee’s age. This means that the dismissal agreement should not contain provisions from which it can be concluded that it was concluded in connection with the employee acquiring pre-retirement status. In particular, there is no need to indicate the fact that a person has reached the appropriate age, or whether he has benefits provided to pre-retirees.

As in other cases, the conclusion of the agreement must be voluntary. Otherwise, the pre-retirement person will be reinstated at work, the company will be fined (Part 1 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation), and its manager may be brought to criminal liability (Article 144.1 of the Criminal Code of the Russian Federation).

Grounds for invalidating an agreement

An agreement to terminate a contract is most often challenged due to the employee being forced to enter into it.

The obligation to prove the fact and circumstances of exerting pressure Art. 56 of the Civil Code of the Russian Federation imposes on the employee whose rights have been infringed. The court takes into account all direct and indirect circumstances of the case. In particular, they take into account whether a person has a legal entity. education.

In court, it is necessary to prove the fact of coercion (pressure) to sign an agreement to terminate the trade agreement by a legal representative. faces. If the employee succeeds, then the head of the organization will have to reinstate the person in his previous position and compensate him for forced absence due to Part 2 of Art. 394 Labor Code of the Russian Federation. If the evidence base is insufficient, the order to terminate the TD will remain in force.

Have a question regarding the Labor Code of the Russian Federation? For advice, please contact the lawyers at 7 (499) 444-00-00 or leave a request at rosco.su.

Dismissal of part-time workers

It is possible to conclude an agreement to terminate an employment contract by agreement of the parties with an employee who is registered under Part-time and part-time work: what is the difference between part-time work. The Labor Code does not contain any exceptions in this part.

The only peculiarity is that you do not need to enter information about the dismissal of an external part-time worker in his paper work book. If necessary, this will be done by his main employer on the basis of the agreement presented by the dismissed part-time worker (Article of the Labor Code of the Russian Federation). However, this does not exclude the need to submit a SZV-TD. This form must be submitted upon dismissal of both external and internal part-time employees. For more details, see “Part-time work: how to properly formalize the hiring of an employee.”

Legal basis for dismissal by mutual consent

Dismissal by agreement of the parties with or without payment of compensation usually occurs according to the provisions of Article 77 of the Labor Code of the Russian Federation. The law states that an employment contract under such an agreement between the employer and employee can be terminated at any time within a period determined by them. This conclusion can be drawn from the provisions of Article 78 of the Labor Code of the Russian Federation and the legal position of the Plenum of the Armed Forces of the Russian Federation, expressed in paragraph 20 of Resolution No. 2 of March 17, 2004. On this basis, both the organization and the employee himself can initiate a severance of labor relations.

A distinctive feature of the procedure is the achievement of an agreement between the employee and the employer on the grounds and period of termination of the employment contract. As the Ministry of Labor of Russia explained in letter dated April 10, 2014 N 14-2/OOG-1347, such an agreement must be recorded in writing.

Procedure and procedure for dismissal by agreement of the parties in 2021

The types and forms of documents on the basis of which dismissal is carried out by agreement of the parties are not defined by law. Likewise, there is no established procedure for such dismissal.

In practice, employees often take the initiative to terminate the contract by agreement of the parties, submitting a corresponding application to the HR department. However, such a statement is not mandatory - dismissal “by agreement” will be legal without it.

The main document when parting with an employee under an article of the Labor Code of the Russian Federation is the agreement of the parties to the employment contract. However, the law also did not establish any requirements for the form of this agreement.

Prepare a termination agreement for free using a ready-made template

Key points when applying

There are also no special requirements for the design of the document, as well as for its content. The application can be written on an ordinary sheet of A4, A5 format or on company letterhead, by hand (only with a ballpoint pen of any dark color, but not with a pencil) or on a computer.

Only one condition must be strictly observed: the application must have a “living” signature (i.e., when filling out the form, the use of facsimile autographs printed in any way is unacceptable).

The document should be prepared in two copies - one of them should be kept with you, having previously been endorsed by the secretary, the second should be handed over to the management of the enterprise for resolution.

Agreement between the parties

Usually it is drawn up on the same principle as an employment contract - in the form of a separate document, drawn up in duplicate, and signed by both parties. The agreement must indicate:

information about the employee (full name, date and place of birth, passport details, position);
information about the employment contract (date of conclusion and number, if available);
reason for dismissal (agreement of the parties) and a link to the relevant article of the Labor Code of the Russian Federation;

IMPORTANT. According to the Instructions for filling out work books (approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 No. 69), an entry on the termination of an employment contract by agreement of the parties is entered into the work book with reference to paragraph 1 of part 1 of the article of the Labor Code of the Russian Federation. This means that this is the norm that needs to be included in the text of the agreement. Additionally, there is no need to provide a link to the article of the Labor Code of the Russian Federation.

date of dismissal (letter of the Ministry of Labor dated April 10, 2014 No. 14-2/OOG-1347). The date is entered without any pretext (i.e. you need to write “December 01” and not “from December 01”). It should be taken into account that the specified date is the employee’s last working day (Article 84.1 of the Labor Code of the Russian Federation). This means that on this day he must appear at his workplace.

All other conditions (including the procedure and deadline for transferring cases; return of the employer’s property held by the employee; as well as severance pay and additional compensation) are optional. Dismissal will be legal without this data. However, if they are included in the text of the document, they become binding on both parties.

ATTENTION. If the dismissal agreement provides for the payment of severance pay or other “compensation” that is not directly provided for by the Labor Code of the Russian Federation, then it is better to draw up the corresponding document as an additional agreement to the terminated employment contract. Simply put, in the “header” you should indicate not “Agreement on termination of the employment contract dated No. _”, but “Additional agreement to the employment contract dated No. _”. And all amounts paid are called “severance pay”.

This approach will significantly reduce the risk of claims from tax authorities regarding the accounting of relevant payments for tax purposes. Indeed, according to the rules of the Labor Code (Part 14 of Article 178 of the Labor Code of the Russian Federation) and the Tax Code (Clause 9 of Article 255 and Clause 21 of Article 270 of the Tax Code of the Russian Federation), the payment of severance pay must be provided for precisely by the employment contract.

Calculate all payments taking into account personal income tax for the dismissed employee

The document terminating the employment contract is signed by both parties to the agreement. One copy is given to the employee, and the other remains with the employer. In this case, a mark must be made on the employer’s copy stating that the employee received his copy (the mark must be certified by the employee’s signature). This is especially true if the document is drawn up as an additional agreement to an employment contract (Article of the Labor Code of the Russian Federation).

The dismissal agreement can be dated to any date prior to the date from which the employment contract will be terminated. Including, it is possible to dismiss “one day”, when the day of conclusion of the agreement coincides with the last day of work, that is, the day of dismissal.

Dismissal by agreement of the parties: advice from lawyers and personnel officers

Astrik Rashoyan, partner of the legal agency "EKVI"

Dismissal by agreement of the parties is suitable for the company in almost all cases, even when the initiative for dismissal comes from the employee.
In the agreement, you can specify all the conditions of dismissal: the period of dismissal, the amount of amounts to be paid to the employee in connection with the dismissal, the procedure for transferring the work record book, the amount and procedure for compensation for material damage caused by the employee. There is always a risk of lawsuits, but in this case it is less likely than with dismissal on the initiative of the employee, and even more so on the initiative of the employer. There is a possibility that an employee will go to court to challenge an agreement to terminate an employment contract if the terms of such an agreement are clearly illegal, violate or infringe on the rights of employees.

An agreement on termination of the employment contract is concluded with the employee, in which it is recommended to stipulate: the term of termination of the contract, the terms of payment and the amount of compensation paid upon dismissal, the conditions for compensation for material damage, the procedure for issuing a work book to the employee, the condition that the employee has no claims against the employer, including including the amount of compensation to be paid.

In order to receive the average earnings retained for the second month, the employee submits to the employer a corresponding application and a work record book, which does not contain a record of employment at the end of the second month from the date of dismissal.

In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the employment service body, provided that within two weeks after the dismissal the employee applied to this body and was not employed by it. An employee may initiate dismissal by agreement of the parties under any circumstances. In practice, the initiative in most cases comes from the employer.

To minimize the demotivational effect on the remaining employees, you need to show loyalty to them, encourage them, hold events that support the corporate spirit in the company, and generally behave like human beings.

Anton Tolmachev, General Director of Legal

According to Art. 78 of the Labor Code of the Russian Federation, an employment contract can be terminated at any time by agreement of the parties. Thus, both the employee and the employer can initiate dismissal on this basis. Such dismissal is formalized either by an employee’s statement with the employer’s resolution, or by a separate document - an agreement to terminate the employment contract. Each party must have the original or a certified copy of this agreement in hand. In addition, the employer is obliged to issue a dismissal order and familiarize the employee with it against signature.

When terminating an employment contract by agreement of the parties, the most important thing is that the fact of dismissal and its conditions suit both the employee and the employer. The agreement of the parties, as a rule, contains the employer’s obligations to pay severance pay, provide vacation, and assistance in further employment. In addition, this document may stipulate the employee’s obligation to conduct an inventory, submit financial statements, transfer certain documents, or vacate the workplace. I believe that the more detailed the agreement is drawn up, the easier the dismissal itself will be.

From a procedural point of view, dismissal by agreement of the parties is the easiest and fastest way to “say goodbye” to an employee: in this case, there is no need to send advance notice of dismissal, offer to transfer to another job, or exercise the preemptive right to remain at work. In addition, it is possible to terminate an employment contract by agreement of the parties with a minor, with a pregnant woman, and with an employee on vacation or sick leave. Therefore, employers often “disguise” other methods of dismissal under the agreement of the parties.

For example, you don’t like this or that employee, but there is no reason to fire him “under the article.” Inform him of your desire to terminate the employment contract by agreement of the parties, offer good recommendations, a free schedule while looking for a new job, or a small monetary compensation - and the problem can be solved. If your company is planning a staff reduction that partners and competitors should not know about, agree with the candidates for dismissal to terminate the contract by agreement of the parties. The main thing is to ensure that the agreement includes conditions that are beneficial to both you and the employee. This can only be done through negotiations.

Sometimes the employee himself is happy to initiate the termination of the employment contract by agreement of the parties. It is especially “beneficial” for an employee to terminate the employment relationship in this way if he has committed an offense for which he faces dismissal: he was absent without good reason for the entire working day, appeared in a state of intoxication, or committed theft at the place of work. So you shouldn’t think that if a person was fired by agreement of the parties, his former employer is necessarily hiding something or pursuing bad goals.

Ultimately, the parties may decide to terminate the employment contract by agreement and without any reason. So this wording is no worse than the entry “dismissed at his own request.” And some employers even believe that the dismissal of an employee from his previous job by agreement of the parties indicates his loyalty, non-conflict behavior and willingness to compromise, which is very much valued in difficult times of crisis.

Calculate your salary, contributions and personal income tax in a few clicks

To learn more

Alexander Yuzhalin, leading lawyer of the Department of Labor Law of the Institute of Professional Personnel

The initiator of termination of an employment contract on this basis can be either the employee or the employer. At the same time, the key feature of this basis for terminating an employment contract is the expression of the will of the two parties. Accordingly, if one of the parties objects to the conclusion of such an agreement, termination of the employment contract on this basis cannot be applied.

A distinctive feature of this procedure is that the employment contract in the case under consideration can be terminated at any time. The legislation of the Russian Federation does not define the procedure for drawing up and concluding an additional agreement. In practice, a proposal to terminate an employment contract on this basis can be drawn up by a party in writing, indicating the conditions under which the employment contract will be terminated. If the second party agrees, an additional agreement is subsequently drawn up and signed in writing, indicating the terms being negotiated.

It is necessary to pay attention to two conditions for terminating an employment contract: the date of termination of the employment contract and the payments that the employer undertakes to make upon dismissal. These conditions are not regulated by law, so the parties must agree on this themselves. As practice shows, the conditions for payment to the employee of a certain amount of money upon dismissal are key when deciding whether to agree to terminate the employment contract or refuse. In this case, the employee and the employer must decide on the appropriateness of such payments and make a decision for themselves - to agree or refuse the conditions proposed by the other party.

If the employer needs to terminate the employment contract with the employee on this basis, and the employee is against such termination, the only way to achieve the desired result is to offer the employee more favorable conditions under which he will agree to terminate the employment contract. It is quite problematic to name the average amount that is usually paid in such cases. This is due to the fact that each case of termination of an employment contract on this basis is individual. The size of the payment may depend on the financial condition of the employer; on the amount of wages the employee receives; from the position held by the employee; on the reason that served to put forward the initiative to terminate the employment contract.

Svetlana Lenkova, HR Director at

It is most suitable for a company to dismiss employees by agreement of the parties, when the employer wants to get rid of the employee, but cannot or does not want to use any “unfriendly” articles of the Labor Code to dismiss the employee.

Dismissal by agreement of the parties does not provide for any control on the part of trade union organizations. The employer is not obliged to coordinate his decision with anyone, even if we are talking about minor workers. Therefore, such a decision on the part of the employee must be as balanced and responsible as possible: he must take care of his own interests.

Dismissal by agreement of the parties does not in itself provide any compensation or guarantees to the employee (unless this is expressly stated in the employment or collective agreement). That is, all compensation to an employee is regulated only by his agreement with the employer - there is no need to rely on “automatic” payments. Everything depends on the results of negotiations between the employee and the employer.

The employee will not be able to unilaterally withdraw his consent and “cancel” his dismissal - the agreement between the employee and the employer to terminate the employment contract comes into force immediately after it is signed by both parties.

The procedure for terminating an employment contract upon dismissal by agreement of the parties:

The employee is asked to sign the document “Proposal to terminate the employment contract”, on which the employee writes by hand “I have read the proposal”.
The employee writes by hand the consent to dismiss by agreement of the parties and the date of termination of the contract.
The dismissal agreement is signed.
A dismissal order is issued.
The employee signs the dismissal order and receives a work book and a paycheck.

If dismissal by agreement of the parties occurs on the part of the employee, then the procedure is the same, only the employee brings the proposal, and the employer writes the consent.

An employee can initiate dismissal by agreement of the parties when he urgently needs to quit without working for two weeks. Dismissal by agreement of the parties gives him just such an opportunity: this wording does not provide for the need to work off; it is possible to agree on a specific date for dismissal.

The following situation is also possible: an employee has decided to quit and wants to notify the employer about this in advance in order to be able to attend interviews more freely, but would not like to leave until he finds a new position. For example, an employee is sure that within a month he will definitely find a new job. And dismissal by agreement of the parties gives him the opportunity to agree on any date of dismissal - even after a few months.

The employee is asked to sign the document “Proposal to terminate the employment contract”, on which the employee writes by hand “I have read the proposal”. If the dismissal occurs in order not to dismiss the employee under the article, then compensation is not provided. If the dismissal is due to other reasons, the compensation, as a rule, is two to three salaries.

Order to dismiss an employee

Based on the agreement, a dismissal order is issued (you can use the unified form No. T-8, approved by Resolution of the State Statistics Committee dated 01/05/04 No. 1). In this case, in the line (column) “Grounds for termination (termination) of the employment contract (dismissal)” you must indicate: “Agreement of the parties, paragraph 1 of part one of article of the Labor Code of the Russian Federation.” And in the line (column) “Base (document, number, date)” you should write: “Agreement dated_ No. on termination of the employment contract dated_ No_”, or “Additional agreement dated_ No_ to the employment contract dated_ No_”, depending on how the agreement was concluded.

The employee must be familiarized with the dismissal order against his signature.

Compose and print an order for free using form No. T‑8

Taxes and insurance premiums in connection with the payment of compensation upon dismissal

Upon dismissal from compensation amounts (except for payments for unused vacation), personal income tax is not calculated up to a certain limit. In accordance with the provisions of Art. 217 of the Tax Code of the Russian Federation, as soon as the amount of compensation exceeds 3 times the average monthly earnings, obligations to calculate this tax come into force. For persons who worked in the Far North, this threshold is set at 6 times monthly earnings (letter of the Ministry of Finance of Russia dated October 25, 2019 No. 03-04-06/82289, determination of the Armed Forces of the Russian Federation dated June 16, 2017 No. 307-KG16-19781) .

When issuing a 2-NDFL certificate:

the amount of compensation is not included in the document if it is not subject to personal income tax;
if the amount of compensation exceeds the amounts specified in Art. 217 of the Tax Code of the Russian Federation, then in terms of excess it is given with income code 4800.

Read more about the procedure for filling out a certificate in form 2-NDFL in the section “Certificate 2-NDFL in 2021 - 2020 (form and sample)” .

As for income tax, amounts paid as part of dismissal by mutual agreement are classified as labor costs (clause 9 of Article 255 of the Tax Code of the Russian Federation). At the same time, the letter of the Ministry of Finance of the Russian Federation dated April 23, 2019 No. 03-04-05/29191 draws attention to the following conditions for recognizing these payments as expenses:

payments are determined in the employment or collective agreement, an additional agreement to the employment contract or directly in the agreement on termination of the contract;
the criteria of Art. 252 of the Tax Code of the Russian Federation.

IMPORTANT! One of the main criteria for recognizing expenses for profit tax purposes, set out in Art. 252 of the Tax Code of the Russian Federation, is economic feasibility.

Therefore, in order to avoid the risk of additional income tax charges, it is worth taking care of a reliable economic justification for payments. First, set payments in reasonable amounts. Secondly, try to justify the dismissal of the employee on this basis. For example, the need to hire a more highly qualified specialist due to the increasing complexity of tasks.

How much dismissal pay can be safely written off as expenses can be found here.

When an employee is dismissed by mutual consent, compensation payments are not subject to insurance contributions within the same limits as established for personal income tax (3 times and 6 times average earnings). And also, by analogy with personal income tax, the exception is compensation paid for unused vacation; this amount is included in the base for calculating insurance premiums. The non-taxable limit is established in paragraph. 6 subp. 2 p. 1 art. 422 Tax Code of the Russian Federation, art. 20.2 of the Law “On compulsory social insurance against accidents at work and occupational diseases” dated July 24, 1998 No. 125-FZ.

How to dismiss by agreement of the parties: entry in the work book

In a paper work book, an entry about the dismissal of an employee “by agreement” is made according to the same rules as other entries about dismissal. In particular, the serial number of the record, the date and reason for dismissal, as well as the details of the dismissal order are indicated.

As the basis for dismissal, in column 3 you need to write: “The employment contract is terminated by agreement of the parties, paragraph 1 of part one of article of the Labor Code of the Russian Federation.” For more details, see the article “Filling out a work book: rules and sample.”

Results

Dismissal by agreement of the parties today is perhaps the most popular basis for terminating an employment relationship. What should you remember when dismissing an employee on this basis?

In case of disputes with employees, it is important to have evidence that both parties acted by mutual consent.
When drawing up an agreement to terminate a contract, it makes sense to determine the amount of compensation and fix the procedure for transferring cases. When setting the amount of compensation, take care of the economic justification for the costs in order to avoid disputes with the tax authorities.

Sources

https://naim.guru/shtat/uvolnenie-personala/po-soglasheniu-storon/viplata-po-sogl/rasschitat-srednij-zarabotok.html
https://uvolneniye.ru/raschet-pri-uvolnenii-po-soglasheniyu-storon.html
https://ozakone.com/trudovoe-pravo/trudovoj-dogovor/vyihodnoe-posobie-pri-uvolnenii-po-soglasheniyu-storon.html
https://www.klerk.ru/buh/articles/452804/
https://nalog-nalog.ru/uvolnenie/kompensaciya-za-uvolnenie-po-soglasheniyu-storon/

Drawing up a note-calculation in form T-61

A settlement note in the unified form No. T-61 is not a document that must be drawn up and given to an employee upon dismissal by agreement of the parties. However, if a corresponding written statement has been received from the dismissed person, the employer must prepare a note-calculation and give it to the employee. Also, this document will have to be issued to the employee if this is provided for in the dismissal agreement itself.

Let us remind you that form No. T-61 contains information about vacations used and unused during work, as well as the calculation of payments upon dismissal.

What is this concept - average monthly salary?

First of all, you need to determine what average earnings are. This is a value that shows how much an employer should pay on average to its employee for a certain period. Depending on the purpose of the accrual, the following may be taken into account:

Average daily - it is needed when it comes to payment or compensation for a working day (for example, during a business trip), a day of paid rest (accrual of vacation pay or compensation for them if the employee did not use vacation), sickness benefits (“sick leave”).
Average monthly - it is calculated, as a rule, when paying severance and other benefits for periods calculated in months.

In this case, the usual method for calculating the monthly average is that upon dismissal, by agreement of the parties, the daily earnings are first calculated, and then the result is multiplied by the required number of days.
For dismissal that occurs by agreement, the law does not provide for mandatory payment of compensation . The Labor Code of the Russian Federation requires the employer to accrue and pay the employee only two basic amounts:

Unpaid salary for the month in which the contract is terminated.
Vacation pay compensation if the employee did not want to take vacation in kind and quit after it ended.

However, these are just the basic rules. speaks only of an agreement between the parties - which means that the specific conditions of dismissal can be determined by the employee and his management independently .

In practice, quite often we talk about “compensation” - payments from the employer provided for by the employment contract, other regulations of the enterprise, or the terms of a specific agreement with a specific employee.

There is an explanation from the Ministry of Finance of the Russian Federation regarding these payments. The ministry indicated that in the absence of norms in local acts, the employee and management have the right to conclude an additional agreement to the employment contract, indicating in it the amount and procedure for payment of compensation due upon termination of the contract with the general consent of the parties.

It is then that the amount of “compensation” is often calculated using average earnings per month or per day of work.

Full settlement with the employee

With regard to the amounts that are transferred to all dismissed employees (wages for time worked, compensation for unused vacation, bonuses), the general rules of Article 140 of the Labor Code of the Russian Federation apply. Such amounts must be transferred on the last day of work.

But additional amounts provided for in the dismissal agreement (including severance pay) can be paid at other times, if this is expressly provided for in this document. Such conclusions are contained in the report approved by Rostrud.

IMPORTANT. Do not forget to give the employee a pay slip (the employer must develop and approve the form of this document himself). If payments are made in several stages, then in each case a new payslip is issued.

Compose HR documents using ready-made templates for free

Taxation and payment of insurance premiums when settling with a resigning person

When thinking about how to calculate the amount that a resigning employee will receive, it is necessary to take into account personal income tax and insurance premiums. According to the Tax Code of the Russian Federation, the employer pays a tax at a rate of 13 percent to the state treasury on wages not previously transferred and compensation payments for unused vacation. They are also subject to insurance premiums. Severance pay is exempt from deduction of income tax if its amount does not exceed the average three salaries, and for the regions of the Far North and equivalent - 6 average salaries. Insurance contributions are not deducted from severance pay if it does not exceed this limit. The amount of compensation above this threshold is subject to taxation, and an insurance fee is also paid from it.

The Ministry of Finance of the Russian Federation and the Federal Tax Service explained that an enterprise’s expenses for paying severance pay can be used to reduce the profit tax base. This is possible if such compensation transfers are provided for in an employment contract, an additional agreement to it or a collective contract. The additional agreement must contain a note indicating that it is part of the main agreement. Otherwise, the Federal Tax Service may challenge the reduction of the tax base due to the costs of severance pay.

Delivery of documents

All work-related documents (work book or information in the STD-R form, extracts from SZV-M, RSV and SZV-STAZH, salary certificate, etc.) are issued to the employee directly on the day of dismissal, that is, on the last working day. For more details, see “Documents when dismissing an employee.”

If the provision for the issuance of such documents is included in the text of the dismissal agreement, it is advisable to obtain a signature from the employee on the copy of the agreement that remains with the employer. This will confirm the timely transfer of the relevant papers to the dismissed employee.

What factors should be taken into account when making calculations?

If an employment or collective agreement or agreement provides for payments related to the amount of average earnings, you need to keep in mind what is specifically taken into account when calculating this amount. For calculations you need to know :

The employee's salary.
The amount of regular bonuses provided for in the employment contract or local regulations of the enterprise.
Salary increments for length of service or experience, part-time work, management of a site or team, etc.
Additional payments for special working conditions (night work, difficult conditions, etc.).
The amount of time actually worked, excluding sick time, days of rest or vacation, other absence from work for any reason, downtime, etc.

In general, this issue is regulated by the Government of the Russian Federation approved in 2007. The provision also indicates that when calculating average earnings, any kind of social payments, material assistance and other amounts received not for work and not provided for cannot be taken into account.

For average earnings, the billing period is also important. This term refers to the period of time for which calculations are made.

Over time, an employee’s salary may change, he may improve his qualifications, learn a new profession, earn additional bonuses - and therefore the average salary is calculated based on the most current data , that is, for the last period before the employment contract was terminated.

Severance pay upon dismissal by agreement of the parties

The dismissal agreement may stipulate the employer’s obligation to pay the dismissed employee severance pay. For commercial organizations, the amount of such benefits is not limited by law (Article 349.3 of the Labor Code of the Russian Federation). In other words, the employer and employee can agree on absolutely any amount of compensation (severance pay).

But it is still better not to set too large amounts of “compensation”. Such behavior may be regarded as an abuse of law, which will undoubtedly give the tax authorities grounds for excluding the corresponding amounts from expenses (see the appeal ruling of the St. Petersburg City Court dated March 27, 2018 No. 33-6196/2018).

Reduction

The Labor Code of the Russian Federation provides for 2 types of abbreviations:

staff reduction;
reduction in the number of employees.

In both cases, layoffs occur! If the staff is reduced, then a certain position is removed from the staffing table, and the employee occupying it is subject to dismissal.

Important

The layoff procedure is quite complicated; the employer needs to prepare a lot of documentation and carry out some mandatory activities. Deviation from the rules may lead to litigation and reinstatement of the previously dismissed person in his workplace.

The reduction procedure is as follows:

timely written notification of all employees who are subject to layoffs;
a written offer to them of vacancies that suit their level of education, work experience and health status;
preparation of relevant personnel documents;
timely calculation and payment of all necessary funds.

Termination of an employment contract at the initiative of the employer, in accordance with clause 2 of Art. 81 of the Labor Code of the Russian Federation provides for payment:

wages;
compensation for vacation that an employee did not have time to take off;
severance pay in the amount of average monthly earnings (its payment is maintained for the period of employment, but no more than 2 months from the date of dismissal, more details).

Any employee can be laid off, with the exception of:

female workers who have children under 3 years of age;
employees who are on maternity leave - for pregnancy and childbirth or to care for their child;
workers who have the official status of single mothers raising children under 14 years of age;
employees on their annual leave or on sick leave;
minor workers;
employees who are members of a trade union and who are able to negotiate and resolve collective disputes;
pregnant workers.