Reduction of workers of pre-retirement age according to the Labor Code of the Russian Federation

• Who is recognized as such an employee in the Russian Federation?
• Legal mechanisms for terminating an employment contract

Prerequisites

• Possible reasons

At your own request By reduction Other grounds

• How to protect rights in case of illegal termination of an employment contract?

Responsibilities for Employers

• What payments, benefits and guarantees exist?

Additional guarantees

• Frequently asked question: I am 53 years old, can I be laid off at work?
• Useful video

How the law will work

According to Deputy Prime Minister Tatyana Golikova, the law on dismissal of pre-retirement age will work similarly to the norms prescribed in Article 145 of the Criminal Code of the Russian Federation (“Unreasonable refusal to hire or unjustified dismissal of a pregnant woman or a woman with children under three years of age”).

Violators of labor laws will be punished. The new article of the Criminal Code of the Russian Federation provides for punishment in the form of a fine in the amount of up to 200 thousand rubles or in the amount of the income of the convicted person for a period of up to 18 months or compulsory work for a period of up to 360 hours. Criminal liability, according to Golikova, will be considered as an “extreme case.”

A citizen of pre-retirement age can be denied an employment contract only on the basis of business qualities or due to the discrepancy between his skills and professional requirements. Reaching the specified age cannot be grounds for refusal. The employer also cannot, on its own initiative, terminate or renew a fixed-term contract in connection with the employee reaching retirement age. The probationary period when hiring citizens of pre-retirement age should be established on a general basis. If any citizen's rights have been violated, he can file a complaint against the employer.

Let's goodbye. Does the likelihood of being fired increase on the eve of retirement? More details

What is the real situation with the dismissal of people of pre-retirement age?

According to reports provided by the Ministry of Labor , there are no cases of illegal dismissal of workers near retirement age . But does this mean that employers have respect for the Criminal Code of the Russian Federation or that they are circumventing the law? Suffice it to recall situations involving people of retirement age or pregnant women: no one formulates the reason as “He’s too old” or “She’s expecting a baby.” People are simply forced to write a statement of their own free will or find legal means. After all, it is hardly possible to work without the slightest mistakes: even qualified personnel make minor mistakes, especially in an atmosphere of psychological pressure. As a result, management finds reasons for penalties, and later partes with employees on the grounds specified in the Labor Code.

For what reasons do they have the right to dismiss before retirement?

In general, the Labor Code does not provide any restrictions on the dismissal of employees of pre-retirement age. Therefore, an employer can fire an employee, but only if there are legal grounds for this.

This is also important to know:
Is it possible to fire a pregnant woman during a probationary period?

The list of legal grounds for dismissing an employee at the initiative of the employer is located in the Labor Code of the Russian Federation, Article 81 “Termination of an employment contract at the initiative of the employer.”

The only thing that can help you stay at work is a collective agreement, which stipulates the impossibility of dismissing an employee of pre-retirement age for a number of reasons. But this collective agreement, alas, is not drawn up by all employers or the specified clause may not be included there. Article 81 of the Labor Code of the Russian Federation allows you to dismiss an employee if there are grounds, the main of which are:

1. Liquidation of the organization;
2. Reduction in the number or staff of employees;
3. Employee inconsistencies;
4. Change of owner of the organization (applies to dismissals of the head of the organization, his deputies and the chief accountant);
5. Repeated failure by an employee to perform job duties without good reason;
6. Gross violation of labor duties;
7. Commitment of guilty actions by an employee or an immoral offense;
8. Making an unjustified decision that resulted in a violation of the safety of the organization’s property;
9. Submission of false documents by the employee to the employer when concluding a TD.

Reduction of employees of pre-retirement age in 2020

The dismissal of an employee of pre-retirement age in connection with staff optimization involves a procedure established by law that applies to all employees.

In particular, at the initial stage, the employee should be offered vacant positions that he could occupy, taking into account his existing qualifications and health status. Then the employee must be notified of the upcoming dismissal 2 months in advance, after which an order will be issued.

Also, when carrying out the procedure for laying off an employee of pre-retirement age, the institution must notify the Employment Service, taking into account that it is the specified body that will be involved in the search for work and processing benefits in the absence of a suitable vacancy, not to mention the referral for early retirement.

What you need to know

Not every citizen of pre-retirement age can count on receiving benefits for 36 months from the date of dismissal, because in accordance with Part 1 of Article 32 of Federal Law No. 1032-1, the period for receiving benefits in excess of the norm directly depends on the total length of service.

That is, a worker of pre-retirement age at the time of registration with the Employment Service can only count on annual financial support for 12 months, but further accrual of benefits depends on work experience exceeding the norm of 25 and 20 years.

Thus, in accordance with Article 32 of Federal Law No. 1032-1, for each year of work in excess of the specified norm, a future pensioner can count on payment of benefits for 2 weeks.

For example, if you have 26 years of experience, the benefit will be paid for 12 months and 2 weeks, and if you have 40 years of experience, an additional 7 months and 2 weeks will be added to 12 months.

Free legal consultation We will answer your question in 5 minutes!

Ask a Question

Free legal consultation

We will answer your question in 5 minutes!

Ask a Question

Therefore, in the absence of 25 years of experience, a laid-off employee should initially consider the issue of granting an early pension, because the length of service to receive benefits for 3 years may not be enough.

Also, the future pensioner should know that early pension provision can only be granted if several conditions are met, namely:

This is also important to know:
How dismissal occurs during the probationary period

How they try to fire employees of pre-retirement age: know your rights

Employers, wanting to fire a person near retirement age , find excuses that have nothing to do with his age. Consider common cases where bosses make controversial arguments and then offer to leave on their own as an alternative.

Inconsistency with the position held

To determine whether an employee is suitable for a position, management's opinion is not enough. According to the Labor Code of the Russian Federation, the authorities are obliged to send him for certification, which is stipulated in Art. 81. The procedure is not provided for all positions, although office workers who deal with computers fall into the required category. But certification is carried out not only by your superiors: the procedure is carried out in special educational institutions, courses or plants; An alternative would be to convene a commission at the enterprise. In the latter case, the composition should include not only the immediate supervisor of the pre-retirement person and the deputy director of the company, but also 1 person from the trade union. As a result, it will be more difficult for management to influence the result, although bias cannot be ruled out.

What should a pre-retirement person do if he has not passed the certification? They cannot hire you right away: according to the law, the manager will offer a vacant position from those that correspond to your level. If you refuse in writing, then they have the right to fire you; for your part, you can apply to the court with a request to declare the certification results illegal.

To avoid difficult situations, improve your skills in time to match the demand in the labor market. The government plans to launch programs to train pre-retirees, so you will master computer literacy and master the principles of working with professional programs. A valuable employee who understands the field and updates his knowledge will be protected from arbitrariness.

Inappropriate education

You have reached old age, but your employer forces you to write a statement of your own free will? If he justifies his demands by saying that you do not have a diploma from the desired university, do not be afraid to refuse. Let's say you are fired because your education is not suitable for the desired position: you go to court and draw attention to the facts. The fact that the diploma has satisfied the employer for many years will work in your favor. You will prove that you were fired due to reaching pre-retirement age, and the management will be punished under the article of the Criminal Code.

Violations of job description

Is it possible to fire an employee of pre-retirement age for violating a job description? First of all, you need to find out whether it exists at your enterprise: without established job duties, you cannot fire a person for failure to fulfill them. When the company has a job description, find out what specific requirements the employer is going to make.

Insufficient qualifications remain a controversial argument for dismissal, but in any case it is confirmed by the result of certification. The situation is further complicated by the fact that the commercial sector lacks sufficient regulation at the legislative level. But in general, when it comes to litigation, there is a chance to win.

Work more for less money

Since an article of the Criminal Code of the Russian Federation prohibits dismissing workers of pre-retirement age , management may offer the option “work for yourself and for a colleague, and your salary will decrease.” The Labor Code defines the situation as a unilateral change in the employment contract and clarifies that in such a case your written consent will be required. The employer must provide arguments demanding an increase in workload; but the main thing is that he does not have the right to change working conditions. What does this mean? Roughly speaking, you cannot force a nurse to also perform the duties of a nurse. However, if you do not agree with the conditions, the employer will offer to write a statement of your own free will. In such cases, contact a qualified lawyer who can help you navigate the situation.

A trade union will also protect your interests, but only when it comes to an independent organization. Often, bosses create “pocket” unions that help get rid of unwanted people and sign profitable contracts. If you want to resort to the help of a trade union organization, inquire about its reputation in advance.

Criminal liability for dismissal of people of pre-retirement age

In order for criminal liability to arise, it is necessary to prove that the employer had intent. In the context of the issue of dismissal of employees of pre-retirement age, it is proposed that intent be understood as self-interest, the interest of the head of the company. The difficulty lies in the fact that in labor relations intent is difficult to prove, or it is completely absent. For this reason, in labor disputes, as a rule, the concept of administrative rather than criminal liability appears.

For example, the Criminal Code of the Russian Federation provides for criminal liability for late payment of wages to employees if it is possible to prove the presence of intent (Article 145 of the Criminal Code of the Russian Federation). But in practice, it is impossible to prove that the employer’s actions were intentional; it is always possible to justify the delay in payments by difficulties that arose at the enterprise.

Free legal consultation

We will answer your question in 5 minutes!

Free legal consultation We will answer your question in 5 minutes!

Call: 8 800 511-39-66

Ask a Question

What should a pre-retirement worker do in case of illegal dismissal?

You were fired allegedly due to staff reduction, but are you sure that the real reason was the proximity of retirement? Please submit your applications to the following authorities:

• submit the paper to the labor inspectorate, which will conduct an inspection and identify violations;
• contact the Investigative Committee of the Russian Federation, since it is authorized to deal with this category of cases;
• write a statement to the prosecutor's office, because it monitors compliance with laws by companies;
• If necessary, go to court with a statement of claim and demand that you be reinstated in your position.

Success is unlikely to be guaranteed, since it depends on the details of a particular case. Even employees of the Investigative Committee admit that it will be difficult to prove the intention to dismiss due to age. You will need to collect everything that is relevant to the case: testimony of witnesses, papers in the form of orders from departments regarding the unwanted employee, correspondence between management and the dismissed citizen. In fact, management is careful and never voices their intentions directly. But often the problem can be resolved without formal complaints: it is enough for the employer to understand your willingness to defend your rights.

To prove the attacker's intentions, you have the right to record it on a voice recorder. Don't fall for a common misconception: citizens mistakenly think that the court will not accept such evidence. In fact, it will serve as an argument in your favor, provided that the management voices its intention to part with you because of your age. You can also use a phone, but be prepared for the fact that the investigator will later take it away for examination. If she confirms that there is no editing, the recording will be accepted as evidence.

Will older people be able to find work after raising the retirement age?

According to calculations by the Institute for Social Policy of the National Research University Higher School of Economics, after the pension reform, about 200 thousand older employees will remain in the labor market annually, who would have previously retired and started receiving a pension. Enterprises easily fire older workers and refuse to hire people of pre-retirement age - for this reason, some older workers will be left without work and without a pension.

To cope with the flow of unemployed older people, the Government intends to instruct employment centers to take on the responsibility of training older people in new professions at the expense of the state budget. The Ministry of Labor of the Russian Federation has not yet reported such measures to the Employment Service. According to the directors of regional central centers, older people laid off before retirement are learning the profession of driver, pastry chef, mechanic, and cook. They often get jobs as security guards in supermarkets. However, people over 50 years old find it difficult to get a job - according to statistics, every fifth elderly person finds a job within the first 3 months, being aged 51-54 years. Even if a person of pre-retirement age manages to find a job, his salary will be lower than that of young professionals.

Important! According to Alexander Safonov, vice-rector of the Academy of Labor and Social Relations, short retraining courses offered by Employment Centers will not help older people who are left without work. To obtain a new profession, it is necessary to take at least one-year courses in secondary and higher educational institutions, and the state will not pay for such education. Moreover, new work experience will be required, and there is nowhere to get it.

Early retirement in case of layoff. How to achieve it?

If a citizen of pre-retirement age has been laid off and registered with the employment department, which cannot find a job for him, then he has the right to early retirement.

This is also important to know:
How dismissal is carried out under an article for failure to fulfill official duties: detailed instructions

Only if all the listed conditions (in the law) are met is there a chance that a person will be sent to retire ahead of schedule.

But usually the employment center tries to provide an unemployed citizen with a suitable job, and only if such an opportunity is not available can the question of granting a pension be raised.

To receive a referral for early retirement from the employment center, you must provide the following documents:

• Statement;
• Passport;
• Employment history;
• Military ID;
• SNILS;
• Officially certified documents confirming the amounts and period of contributions to the Pension Fund;
• A certificate from work, certified by the seal of the enterprise, about the average salary received in any period of five consecutive years of work - until the beginning of 2002.

In some cases, additional documents may be required.

Finding a job before retirement age serves as a basis for terminating payments of a pension received early. Sometimes the Pension Fund refuses to provide an early pension citing:

• refusal (2 times) of proposed work by the employment service;
• dismissal from work for other reasons;
• There is an error in the documents provided.

Assignment of early pension payments and premature layoffs

Within the framework of the legislation, in accordance with Article 32 of the Law of the Labor Code of April 19, 1991, citizens of the Russian Federation receive the right to early retirement if they are laid off from their jobs for reasons that do not depend on them. Registration of early retirement will be completely legal.

But what should a citizen who has been laid off early do? After all, if you find yourself unemployed at this age, it is very difficult to get a new job, since employers often do not want to hire older people. This explains why legislative norms provide for early retirement when an employee of pre-retirement age is laid off.