Age-related employees: what employers and they themselves need to know about the new rules

Pre-retirees today find themselves in a rather difficult situation. On the one hand, they cannot retire due to the increase in the retirement age, on the other hand, at pre-retirement age it is quite difficult to find a job and, therefore, accumulate the necessary points for retirement.

When discussing issues of changes in the status of pensioners, it should be noted that, naturally, any process has its pros and cons. Let's start with the positives.

Direct benefits include increased payments to pensioners.

In terms of increasing the amount of pension benefits:

• pensions for non-working citizens will increase at a rate faster than inflation (by an average of 1,000 rubles, in fact by 7.05% in 2021);
• Indexation will be carried out annually from January 1.

The amount of the increase in rubles for each pensioner will be individual.
To get the actual amount of your pension in 2019, you need to multiply the size of your insurance part of the pension by a factor of 1.0705 (which corresponds to an increase of 7.05%). On average for 1000 rubles. will increase annually and in future years. Pensions are planned to be increased at a rate exceeding the rate of inflation at least in 2019–2024. Thus, pension reform is a long-term project that will only begin to be implemented in 2021.

But the disadvantages include the fact that you will have to wait longer for pensions, while the mortality rate in working age cannot be called low. According to Rosstat, 157,407 men and 40,906 women die per year of working age. By simple multiplication we learn that over 10 years the mortality rate of the working-age population amounted to 1,983,130 people. This means that two million-plus cities will not live to see retirement in 10 years. At the same time, the amendments provide that the number of people who will not live to see retirement will only increase, but the statistical percentage of such an increase cannot now be calculated, since such studies have not been conducted. Of course, the previously established standards for retirement were established a long time ago and should be revised, but you can see health problems, man-made problems and road accidents that do not allow part of the population to retire.

If you look at the percentage of different age categories of the population, then 42,729,000 pensioners officially live in our country. Taking into account the fact that the total population in the Russian Federation is 141,927,000 inhabitants, a rather impressive figure is obtained: in fact, 30% of the population of women and men in Russia are retired.

The number of pensioners is distributed as follows by region of the country:

1. Moscow region – 1.8 million people.
2. Krasnodar region – 1.4 million
3. Novosibirsk - 800 thousand.
4. Rostov region – 1.1 million.
5. Kazan – 1.1 million and so on.

That is, on average, today the entire Moscow region does not live to see retirement in 10 years.
The second negative amendment concerns adolescence. In terms of changing the conditions of old-age pension:

• the generally established retirement age will increase for men and women by six months (6 months) - to 60.5 and 55.5 years, respectively;
• the age for receiving a social old-age pension will increase accordingly;
• Some conditions for the appointment of preferential pensions will be adjusted.

Earlier, as in the past, security forces and people working in hazardous industries, serving in difficult conditions, and the like will be able to retire.
Also, public sector employees will be able to retire earlier, but only if they have enough accumulated experience for a well-deserved rest. Planned retirement age

But raising the retirement age raises quite a lot of questions for employers and employees. An employer often does not need personnel who do not master modern technologies, cannot quickly solve management problems and do not master modern marketing technologies. Such personnel seem outdated to the employer. But for the employee, the problem of employment arises.

Features of dismissal of pre-retirees

A pre-retirement employee is considered to be an employee who has five years or less to work before retirement. In 2021, pre-retirement people include men born in 1965 and older, and women born in 1970.

An employee of pre-retirement age has the right to resign at any time of his own free will by submitting a corresponding application to the employer. The Labor Code provides for other grounds for termination of a contract:

• at the initiative of the employer;
• by agreement of the parties.

They can also dismiss due to circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation). For example, if another employee is reinstated to a pre-retirement position by a court decision, or the employee himself is declared incapable of working for medical reasons.

You cannot fire a pre-retirement employee just because of age. Art. 3 of the Labor Code of the Russian Federation prohibits discrimination, and the employer can be held accountable for violating the provisions of this article.

What points are important to consider for an employee of pre-retirement age:

1. There are no special privileges upon dismissal. The employment contract is terminated on a general basis.
2. For employees of municipal and state institutions; Military personnel and police officers have different criteria for retirement age than for people working under employment contracts.
3. In some cases, you have the right to receive a pension early.

If an employee of pre-retirement age is disabled, he cannot be fired for this reason alone. But the employer, having received certificates of disability from him, is obliged to offer him positions suitable for health reasons. If there are no such positions or the employee refuses them, the contract is terminated according to clause 8, part 1. Art. 77 Labor Code of the Russian Federation.

Is it possible to quit without working?

According to Art. 80 of the Labor Code of the Russian Federation, an employee of pre-retirement age has the right to resign at his own request by submitting an application two weeks in advance. This period is called service, during which you need to go to work.

You can quit without working if the employer does not mind or when the employee leaves due to retirement. In the latter case, the manager is obliged to terminate the contract on the date specified in the application.

During a pandemic

During the coronavirus pandemic, an employee of pre-retirement age also has the right to resign on his own initiative. If the enterprise is in quarantine, the application can be sent by registered mail with acknowledgment of receipt, immediately giving written consent to send documents by mail.

You can also send your application by email, signing it with an enhanced qualified electronic signature.

Refusal to hire

Just above, we outlined two important arguments that an employer can use if he does not want to hire an applicant of pre-retirement age.

The first is business qualities. Like a person of any other age, a pre-retirement employee will have to prove to you that he is able to perform the work specified in the job description. If you understand that the applicant “doesn’t measure up,” clearly and clearly explain what specific competencies he lacks.

Professional standards that are disliked by many can serve well. If there is a desire or need to implement this system (now it is mandatory only for budgetary institutions), you can start with those people who are just coming to you to get a job. Fix your decision in the job description and other LNAs.

The Resolution of the Plenum of the Armed Forces of the Russian Federation states that in addition to the qualification requirements that are in official documents (qualification reference books and professional standards), the employer can put forward additional requirements, for example, the designer must be able to work in ZWCad and AutoCAD programs, and the administrator must know English and Chinese languages. If this is justified by the specifics of your activity, consolidate these requirements in the LNA so that the labor inspectorate does not have questions for you.

The second argument is health status. If the position places increased demands on the applicant’s well-being and stamina, you have the right to send him for a medical examination. It will be very difficult to challenge the doctors’ verdict in court.

The Kontur.Personnel program will allow you to correctly register the hiring or dismissal of an employee.

To learn more

Guarantees for pre-retirees upon termination of the contract

What can an employee of pre-retirement age expect upon dismissal and after:

1. If the contract is terminated due to layoffs or in connection with the liquidation of the enterprise, and there are less than two years left before the retirement age, by decision of the employment center, an insurance pension may be assigned early. This is possible if a person has no chance of finding a job (Article 32 of the Federal Law of April 19, 1991 No. 1032-1 “On employment of the population...”). Men need to have 25 years, and women – 20 years of experience.
2. If you register for unemployment, a pre-retirement pensioner can receive an increased benefit - up to 12,130 rubles.
3. When you contact the employment center, you can get retraining for free.
4. If the dismissal is related to disability, some regions of the Russian Federation provide regional payments and tax discounts.

If a reduction is coming in an organization, an employee of pre-retirement age can take advantage of the preferential right to remain, provided that he has higher qualifications and labor productivity (Article 179 of the Labor Code of the Russian Federation). Also, benefits are given to employees who have been injured or have an occupational disease at their employer; disabled people from combat or WWII; sole breadwinners with at least two dependents.

Dismissal of an employee on the same day - grounds and step-by-step procedure

What is better: dismissal by agreement of the parties or at your own request?

General information on the Labor Code of the Russian Federation

Staff reduction is one of the grounds on which an employer can “remove” a particular person. An employee is dismissed if it is not possible to transfer him to another place or he does not agree to a new job.

General rules that an employer must follow when reducing staff (Article 180):

1. Persons who have been laid off are notified in advance.
2. The employer must offer other available positions.
3. An employment contract can be terminated early with the written consent of the employee.

Additionally, it should be noted that when choosing candidates for care, management must take into account their level of professionalism (Part 1 of Article 179 of the Labor Code of the Russian Federation).

What age is considered pre-retirement?

In paragraph 1 of Art. 7 of the Law “On Labor Pensions in the Russian Federation” states that retirement age begins:

• For men - from 60 years of age;
• For women - from 55 years old.

Today, the current legislation does not contain any interpretations regarding what age is considered pre-retirement. However, in the general understanding, this period begins when there are several years left before retirement.

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Is it possible to lay off such an employee?

Labor law does not prohibit layoffs of pre-retirement workers. The most important thing is that this procedure is carried out without violating the law.

A special material has been prepared on the topic of who cannot be laid off when reducing staff; we recommend reading it.

However, there is one important nuance. The employer must take into account the productivity and qualifications of employees being laid off. Preferential rights to continue working are given to those persons who have achieved the highest results. In case of the same professional level, preference is given to :

• Citizens who have a family with two or more dependents;
• To someone who is the only working person among his close relatives;
• Employees who acquired a disease or were injured at work at this enterprise;
• Disabled people who participated in the Second World War, as well as other military operations;
• Persons who improve their qualifications in the area in which the organization operates. At the same time, without interrupting work.

Thus, if a pre-retirement citizen belongs to one of these categories, then they will not be able to lay off him.

Employer's liability for illegal dismissal of a pre-retirement employee

The employer's liability arises only if an employee of pre-retirement age is fired unreasonably. For example, they were forced to write a letter of resignation of their own free will, the contract was terminated under Art. 81 of the Labor Code of the Russian Federation, when this could not be done.

For the unjustified dismissal of a pre-retirement employee, the employer may be charged under Art. 144.1 of the Criminal Code of the Russian Federation. If guilt is established, he faces one of the following penalties:

• fine up to 200,000 rubles. or in the amount of earnings for 18 months;
• compulsory work for up to 360 hours.

To bring a former manager to criminal liability, you must contact the labor inspectorate or prosecutor's office with a statement. The punishment is imposed by a court verdict after a detailed consideration of the case.

What is the risk of dismissal of a pensioner?

The main danger when dismissing a pensioner is being accused of discrimination. You cannot fire employees based on age. If a person is over 60 or 65, this does not mean that he is a bad worker and is not fulfilling his professional role. He has the right to work until he wants to quit or there is a good reason.

In case of unfair dismissal, an employee can appeal to the labor inspectorate and court. The inspection will cancel the dismissal order, and the court will agree with the requirement to pay wages during the dispute and compensate for moral damage.