An employee can be dismissed on his own initiative or by decision of the enterprise administration. In the second case, this may happen due to reduction. However, there are two options for this procedure - staff or headcount reduction. What is the difference, what consequences might there be for its participants?

The downsizing means that all full-time positions remain, but will now be filled by fewer people. For example, if there were three people in the “Accountant” position, then after this procedure there will be two or only one of them. However, the position itself in the company remains.

If we are talking about staff reduction, then some positions will be removed from the schedule. Accordingly, they will have to fire those employees who worked for them.

The only difference is that, perhaps, when reducing staff, it will not be necessary to determine the preferential right to leave the employee in his place, but when reducing the number of employees, this procedure cannot be avoided.

For employers

If the company is only reducing its workforce, then it is necessary to create a commission that will determine which employees to keep at work. The point is that you will have to choose candidates for dismissal from several people. Since they all work in the same positions, the requirements are the same.

Therefore, it is necessary to take into account labor productivity, level of education, qualifications, experience, length of service (including in a given organization), etc. In the event of staff reduction, the issue is resolved by itself: all those who work in these positions are subject to dismissal .

For employees

By and large, it makes no difference to the employee, because he has already been notified of the upcoming dismissal. WITH material point In both cases, the amount of severance pay and the terms of its payment will be the same.

But if, when the number is reduced, the employee still has the opportunity to compete for his place, then in the event of the liquidation of his position, the maximum that he can claim is to receive another place in the same organization. Of course, the position will be different.

What is more beneficial for the parties to legal relations?

For the employer

Reducing staff will be easier - in this case you won’t have to decide who to keep in position and who to fire. Accordingly, employees will not have to justify their decision.

For employees

This option is also more favorable. They can continue to work in this organization: management is obliged to offer other positions. When reducing the number of employees, the employer must choose those who will remain working in the position.

For example, the position of economist requires two employees. One is an experienced person with higher education, has been working in the company for more than 10 years, he has adult children, no dependents. The second is a young woman with a 2-year-old child in her care. According to labor legislation, the choice will be in favor of the woman.

Legislative framework

• Art. 3 of the Labor Code of the Russian Federation - contains a ban on age discrimination;
• Art. 81 of the Labor Code of the Russian Federation - contains provisions defining the procedure for dismissing an employee due to a reduction in numbers or staff;
• Art. 82 of the Labor Code of the Russian Federation - indicates the organization’s obligation to notify members of the workforce subject to dismissal;
• Art. 178 of the Labor Code of the Russian Federation - lists the benefits and compensation to be paid during this process;
• Art. 179 of the Labor Code of the Russian Federation - determines the conditions under which the preemptive right to retain a job for an employee is revealed;
• Art. 180 of the Labor Code of the Russian Federation - describes the procedure for carrying out reductions;

In case of mass dismissal, the norms of the Government of the Russian Federation No. 99 of 02/05/1993 are applied.

Big difference: what is downsizing and how do they differ?

Dismissal due to reduction is an unpleasant procedure for both parties to labor cooperation. Having learned about the upcoming loss of a job, a person wonders whether there is a difference between reducing the number of employees and reducing the number of employees .

What is it?

First, let's look at the concepts that characterize labor resources organizations:

• number of personnel– this is the total number of everyone who works in the company;
• staff– this is a list of all positions provided for by the structure of the enterprise;
• staffing table– local normative document, containing complete information about departments, composition and number of workers, indicating positions, specialties and other information.

Forming the personnel structure of an organization at its own discretion is the legal right of management.

How are they different?

To prevent the occurrence controversial situations, it is necessary to have a correct understanding of the difference between downsizing and staff reduction. These activities can be carried out simultaneously.

When the number of employees is reduced, there is a decrease in the total number of workers within one or more positions. Let's say the director believes that in the current economic situation the company will need five sales managers instead of six.

Reduction of personnel of an enterprise involves the removal of certain job positions from staffing table. For example, the manager realized that the organization no longer needed evening operators, since the day shift could cope with the current volume of tasks. In these ways, management regularly changes the structure of the enterprise in order to use labor resources more efficiently.

Loss of employment due to a reduction in the number or staff of employees - what is the difference for personnel? In general, there is no significant difference. If liquidated full-time position, the subordinate will not be saved even by the preferential right to retain his job, since everyone who occupies this position will be removed.

A citizen who has lost his job should independently check whether his rights are being violated; for this he needs to:

• clarify your affiliation with the circle of persons with preferential rights;
• demand that management offer another job;
• register with the labor exchange within two weeks;
• under no circumstances write a letter of resignation by agreement of the parties or at your own request;
• control the entry by personnel officers of the correct entry corresponding to the reason for dismissal, in work book.

The total number of subordinates may remain unchanged or increase if a position is eliminated if management decides to introduce new positions.

Are there any differences in the procedure for dismissing employees?

To reduce the number and staff of employees, clause 2 of Art. 81 of the Labor Code of the Russian Federation provides for the same procedure. It provides certain guarantees to laid-off workers.

The manager’s step-by-step algorithm includes:

1. creation of an order for carrying out personnel activities. The document must contain information about upcoming changes in the structure of the enterprise with confirmation of their necessity. The new staffing table is approved by the same order or an additional one;
2. accounting of employees with preferential rights. It is possessed by specialists with high qualifications and labor productivity. With equal indicators, management will give preference to: family employees with two or more dependent children, those who were injured or disabled at work, employees whom management sent to improve their skills without stopping their work;
3. notification of staff about dismissal two months before the start of the transformation. The exception will be mercenaries hired under a contract for a period of up to two months. They must be notified three days before dismissal. Those hired for the season are given seven days' notice of such events;
4. offer available vacant positions in this locality. It is permissible to offer a vacancy in another territory if this is provided for in the collective agreement;
5. informing the regional employment center about upcoming personnel events;
6. termination of employment relations with employees implies the presence of a dismissal order, full payment, and issuance of documents.

A redundant employee is also entitled to severance pay, representing the average monthly earnings. This benefit is maintained while the citizen is looking for a new job. This process should not last more than two months.

According to the decision of the employment service, a citizen who was unable to find a job receives benefits in the third month after dismissal, if registration was made no later than two weeks after losing his job.

What is the difference between downsizing and downsizing and which is better for the organization's employees?

During the difficult economic situation in the country, many enterprises are experiencing difficulties in financial sector, and the question of reducing the number or staff of employees often arises.

This procedure is often painful and causes a lot of inconvenience for both the employee, who will have to look for a new job, and the employer, who will have to spend a lot of time to carry out this procedure correctly and legally, since the dismissal procedure itself is quite controversial and often ends in lawsuits .

Let us consider in detail what it is and what are the fundamental differences between the two concepts.

Dear readers! Our articles talk about typical solutions legal issues, but each case is unique.

Definition of concepts

Reducing the number of employees or eliminating positions for employees of an enterprise is one of the grounds for terminating an employment contract and is enshrined in Part 1 of Article 81 of the Labor Code of the Russian Federation.

What is the difference between them?

Despite the similarity in sound, these concepts are different and carry different meanings. Relevant examples of differences can be given:

Features and nuances

The peculiarity of dismissal of employees due to staff reduction is that the employee is deprived of the opportunity provided by law to remain at work, since all employees of this position are dismissed, and the employer cannot choose who to keep and who not.

One of the nuances when abolishing a position is legislatively vested right certain categories of employees to remain in office. Thus, Articles 61, 65 of the Labor Code of the Russian Federation provide for the preservation of work in the event of staff reduction for persons of certain categories, such as disabled people, single mothers, etc. Such employees are usually retrained or given another job. What categories cannot be dismissed due to layoffs is discussed here, and from this article you will learn about the nuances of transferring an employee to another position.

You can find out about the preferential right to work in case of layoffs here, and about who gets laid off first is discussed in a separate article.

The law guarantees even highly qualified retirees to retain their right to work. But if job loss is inevitable, they claim appropriate benefits. Read about the specifics of pensioner reduction in our material.

What's best for workers?

Since there is a difference between these concepts, in some cases the employee may have advantages. For an employee of an organization, the downsizing procedure is more promising, since he has the right to prove to the employer his need for his current job.

If the employer violates the law, a dismissed person can defend his rights in court, and not only get your job back, but also receive compensation for moral damages.

For the administration of the enterprise, it is more profitable to completely remove the position, since it eliminates the need to choose who exactly to fire, and it will be more difficult for the employee to challenge the employer’s decision in court.

Despite all the unpleasant picture that arises when dismissal due to reduction in staff or numbers, citizens are protected by law and can undergo this painful procedure with minimal damage to themselves.

If you find an error, please highlight a piece of text and click Ctrl+Enter.

Didn't find the answer to your question? Find out how to solve exactly your problem - call right now:

/ All about reducing the number or staff of employees - what is the difference between the procedures?

All about reducing the number or staff of employees - what is the difference between the procedures?

In times of financial instability, many employers are forced to resort to measures such as reducing the number of their subordinates. This procedure has a number of features, failure to comply with which may lead to problems with supervisory authorities and litigation with subordinates.

This article will help you understand the difference between staff reduction and headcount. Let's consider all the pros and cons of this procedure. All presented materials will be supported by an analysis of judicial practice.

Regulatory definitions, according to the Labor Code of the Russian Federation

Dismissing subordinates when reducing the number of employees is a rather complicated procedure. Employers take this step for several reasons:

• Automation of the production process (the company no longer needs a position);
• Difficult financial situation;
• Ineffectiveness of staffing.

In labor law the issue of dismissal is regulated by Article 81 of the Labor Code of the Russian Federation. In it, terms such as reduction in numbers and staff are combined into one concept. A clear answer to the question “reducing the number or staff of employees: what is the difference?” is not found either in the Labor Code or in related legislative acts.

Despite the fact that the terms are combined in the law, judges assign different meanings to these 2 concepts (data can be taken from the analysis of judicial practice).

The differences must be carefully studied, since in practice, when employees are dismissed due to a reduction in staff or numbers, not only the algorithm of actions will differ, but also the list of guarantees provided to employees (Article 180, Article 179 of the Labor Code of the Russian Federation). In case of non-compliance with the dismissal procedure, the manager may fall under Article 5.27 of the Code of Administrative Offenses, as well as under the sanctions provided for by labor legislation.

How do these concepts differ in practice?

On the issue of differences between staff reduction and headcount reduction, a stable position has been formed in judicial practice:

1. A reduction in headcount is regarded as a partial reduction of work units in a certain position. For example, if the company has 7 positions for electricians, then after reduction, there may be 3 of them left.
2. Reduction of staff means complete cancellation specific position, without taking into account how many people worked on it. That is, after the reduction, the position of electrician at the above-mentioned enterprise would be completely abolished.

If we talk about benefits and compensation payments upon dismissal under clause 2 of Article 81 of the Labor Code of the Russian Federation, then in both cases they will be the same. But the guarantees due to employees when reducing, in practice they are observed differently. And in case labor disputes in violation of the rights to these guarantees, the decisive role will be played by the wording in the dismissal order.

Let's take into account some nuances

When reducing the number or staff of employees (we have already figured out what the difference between these concepts is), it is necessary to follow a certain algorithm of actions:

1. Create a reduction order.
2. Offer available positions.
3. Notify the employment service.

When implementing these points, you need to take into account some nuances, compliance with which will help you subsequently avoid problems with the courts. As for notifying employees, the deadlines are clearly stated here: the manager is obliged to warn subordinates at least 60 days before dismissal. Regarding the offer of vacant vacancies, due to different interpretations of the concepts of reduction of “staff” and “numbers”, with non-compliance with the rights of workers and subsequent litigation, judges make different decisions.

Let's look at the issue in more detail: when the number of employees decreases, some employees remain to work, while the management needs to choose who exactly it will be. Dismissed employees can sue that they were released from their positions illegally, did not exercise their right to the advantage of remaining in their positions (more qualified employees and certain categories of citizens have this right: participants in hostilities, WWII, etc.), did not offer another vacancy. And in this case, the courts often side with the plaintiffs, reinstating them at work.

If the court finds that a person was fired illegally, the manager will have to pay a penalty, and in some cases, moral damages and lost profits.

When staffing is reduced, the situation looks somewhat different: since it is not the number of units that is canceled, but the entire position, the management does not have a question about which employees to fire and which to keep. In addition, people working in a certain specialty are often simply not suitable for another vacancy. And if it means staff reduction, in the case of labor disputes the court generally sides with the employer.

Benefits for employee and employer

If an employer decides to reduce the number of subordinates, he may try to persuade employees to write a statement of their own. It is not advisable to do this dismissal due to reduction will be much more profitable for a specialist: in addition to , he will also receive compensation payments, the amount of which can reach up to 3 average monthly earnings.

As for the benefits of the employer, it would be more appropriate to write in the order “staff reduction” rather than “reduction in headcount.” When worded “staff reduction,” labor disputes regarding compliance with Article 179 of the Labor Code of the Russian Federation are most often resolved in favor of the employer; also, the manager does not have to think about who to keep in the position and who to fire.

Analysis of court cases

Regarding practical experience, the judges clearly distinguish between the terms “staff” and “numbers.” To fully clarify the picture of the delimitation of concepts, let's look at some court cases related to this topic.

One of the firms was undergoing staff reductions, during which the public relations manager was fired. According to the staffing table, the position of manager was not differentiated by duties performed, that is, the rates of sales managers and advertising managers remained (for which there were free vacancies). The employee was not offered an alternative; he went to court. The court reinstated him because it considered that the company had not made a reduction in staff, but a reduction in headcount, and the public relations officer should have been offered the position of sales or advertising manager.

If one specialty in an enterprise involves different responsibilities, this must be indicated in the staffing table and different job descriptions for employees. This approach will help the employer win the case in labor disputes.

Another situation. When dismissing the employer, he indicated the reason: “downsizing,” although an entire division with the positions it had was disbanded. The employee sued because he, as a specialist who contracted an occupational disease at the enterprise, was not given the right of priority retention in his position (Article 179 of the Labor Code). The court sided with the employer, finding that there was a reduction in staff, not headcount, and with this procedure, the exercise of this right is not mandatory.

Useful video

Conclusion

Before carrying out the procedure for laying off employees, the manager should study all the intricacies of this process and analyze judicial practice. The law does not provide for a distinction between concepts such as “staff” and “numbers,” but in practice everything looks somewhat different. The outcome of legal proceedings with employees may depend on the wording of the reason for dismissal in the order.

Strict adherence to the procedure for dismissing an employee due to staff or headcount reduction is the main condition for its legality. Any deviation from it can lead to unpleasant consequences for the employer - reinstatement of the employee at work, costs of paying for his forced absence and damage caused moral damage, administrative fines, etc.

What does labor legislation say about reducing the number or staff of employees?

The Labor Code of the Russian Federation regulates layoff issues in several articles relating to issues of dismissal, guarantees and compensation. However, sometimes being guided only by them is not enough.

Important for resolving disputes that arise are judicial practice and explanations of the highest judicial bodies, for example, Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2.

If an employee is recognized as not having this right, then the process of dismissal begins to reduce the number or staff of employees.

But first, he is asked in writing to transfer from his to another vacant position in the organization (Part 3 of Article 81 of the Labor Code of the Russian Federation), which may either correspond to his qualifications or be lower-ranking or lower-paid. There is only one condition - the employee must have no medical contraindications for this work.

The law obliges the employer to offer such an employee all available vacancies in the given locality, and in other localities - only if such a provision is enshrined in the local acts organization or employment contract with an employee.

Warning to an employee about dismissal due to reduction

Required condition the legality of laying off an employee is his written personal warning by the employer about future dismissal under clause 2, part 1, art. 81 of the Labor Code of the Russian Federation within a period of no later than two months, carried out against signature.

The two-month period before dismissal can be reduced only in one case - if, in accordance with Part 3 of Art. 180 of the Labor Code of the Russian Federation, the employer offered the employee in writing to terminate the relationship early and the employee agreed. At the same time, he retains the right to all guarantees and payments due upon reduction, and is paid additional compensation in proportion to the time remaining before the expiration of the two-month notice period for dismissal.

Opinion of the trade union body

The redundant employee is paid severance pay in the form of his average monthly earnings. He also retains his average monthly salary for the period of employment, not exceeding two months from the date of dismissal. Severance pay is paid in this amount.

What is the difference between downsizing and staff reduction?

Staff reduction often found in government institutions and in private companies.

Some people think that reducing staff, positions, units is the same thing.

Staff reduction refers to a procedure in which one or more positions are eliminated from the staffing table. Let's look at an example.

In the financial department of the institution there is a cashier's rate. It was decided to transfer employee salaries to bank cards, the need for a cashier position disappears.

A change is being made to the staffing table and the cashier position is being reduced. If an institution employs three cashiers, all of them will be fired.

What is the difference between downsizing and staff reduction? Reduction in numbers involves a quantitative change in the staffing levels of one of the positions. For example, in social institution 20 teachers.

Some children have been transferred to foster families, and the number of groups has decreased. 12 teachers are enough to serve them. In this case, the position of the teacher remains, but their number is reduced. 8 teachers will be fired.

Which is better?

Is there a difference for the employer and the laid-off employee in these concepts, what is better for them - downsizing or downsizing? At first glance it seems not. Reduction in both cases implies loss of work. And yet there is a difference.

The procedure for reducing staff is simpler for the employer. When reducing a position as a whole, the employer does not have to choose; he fires one or all employees working in the position being reduced.

When reducing one or more units, it is necessary to reasonably explain to the dismissed employees why the choice fell on them.

The employer has the right to retain the most promising, qualified specialists.

For employees, staff reductions are more acceptable: they have the opportunity to prove their advantage over others and not lose their position.

Some employees who have been laid off may continue to work in the institution if they agree to change positions. The proposed replacement may be lower in status or less paid. The head of an enterprise should not transfer an employee from one position to another without his voluntary consent.

Who shouldn't be fired?

We figured out what the difference is between downsizing and downsizing. What if there are those who cannot be fired in both cases?

Russian legislation (Articles 61, 65 of the Labor Code of the Russian Federation) provides for a category of employees whose social and family status does not allow them to be dismissed upon layoff.

The law prohibits the dismissal of women if they:

• pregnant women;
• have children who have not reached the age of three;
• took parental leave for up to three years;
• single mothers, with children under 14 years old, with a disabled child under 18 years old.

Dismissal is considered a violation:

• an absent employee if he is undergoing treatment or on regular leave;
• a child who has not reached the age of majority, without the permission of the labor inspectorate and the commission for minors;
• men who alone raise children under 14 years of age and children with disabilities (under 18 years of age).

Also provides pre-emptive right to retain employment during layoffs. The advantages are:

• highly qualified employees who constantly improve their level;
• having higher specialized education;
• specialists with extensive experience in this enterprise;
• employees with two or more minor dependents;
• the only breadwinners in the family who have no other income;
• people who have acquired occupational diseases and were injured in this production;
• disabled people, participants in military operations;
• specialists receiving additional education or retraining through correspondence courses with the direction of the enterprise;
• Some institutions have approved and included in the Collective Agreement their own list of persons who have an advantage over others.

Attention! Labor Code The Russian Federation provides retirees with an advantage in maintaining a position if the employee is a highly qualified specialist with good productivity and many years of experience. In case of inevitable dismissal, the Law guarantees pensioners all payments due.

Preparation process and procedure

Are there any differences between staff reduction and workforce reduction in terms of legislative implementation of these actions?

How, without violating the Law, can you carry out the reduction procedure so that there are no further appeals to the judicial authorities? Reduction of staff and number of units provides for the same dismissal procedures and the same compensation payments.

What do they pay when laying off?

Is there a difference between redundancy and redundancy in terms of post-employment benefits? Those dismissed receive severance pay and compensation payments for the period of employment.

Attention! If your rights are violated, please contact labor inspection or write a statement to the court. After examining the documents and listening to testimony, the judge will decide to reinstate you in your previous position and pay you cash for forced absenteeism or will confirm the legality of your layoff.

The administration always coordinates staff reductions with the trade union committee. When carrying out the reduction procedure, the manager studies all available documents on education and completion of advanced training courses.

The characteristics of department heads and certification results are taken into account. Special attention paid to labor productivity, rewards for success in labor activity, absence of comments and violations of discipline.

If you meet all these requirements, every manager will be interested in keeping you at the enterprise. If a reduction is inevitable, carefully study your rights and responsibilities of the administration. This will help avoid mistakes when dismissing.

We hope you understand the difference between staff reduction and headcount reduction, the differences between these concepts. This will help you choose best option if necessary.

Reducing the number or staff of employees is a rather painful procedure both for employees and for the employer himself. The employee faces the need to search new job, and the employer often has to confirm the legality of dismissal in court. We will tell you how a reduction in the number of employees differs from a reduction in staff, what documents need to be drawn up when carrying out the procedure for reducing the number of employees, and why it is necessary to evaluate the pre-emptive right to remain at work only when reducing the number of employees.

From this article you will learn:

• how does a reduction in the number of employees differ from a reduction in staff;
• what documents need to be drawn up when carrying out the procedure for laying off workers;
• why is it necessary to evaluate the preferential right to remain at work only when reducing the number of employees?

The decision on the legality of dismissing an employee due to a reduction often depends on how complete, correct and timely the documents are drawn up.

Note that dismissal due to reduction is one of the most conflicting ways to terminate an employment relationship. The likelihood of an employee filing a claim for reinstatement is quite high. And any omission in the paperwork may result in the need to reinstate him at work.

When carrying out the reduction procedure, management must comply with the sequence of actions, as well as the deadlines established by law.

We combined the employer's actions into step-by-step algorithm, which can be guided by taking into account the nuances available to a particular manager.

Step 1. We decide to lay off workers

First of all, the employer makes a decision on layoffs. Moreover, at this stage it is necessary to determine what kind of reduction is planned - number or staff. There may be a simultaneous reduction in numbers and staff.

The difference is as follows: when staffing is reduced, certain positions are excluded from the staffing table. If a reduction in numbers is made, then the number of staff units for a certain position is reduced.

The decision made is formalized by an order to exclude staff units, positions from the staffing table or to approve a new staffing table. In this case, the order must indicate the date of entry into force of the new staffing table (changes to the staffing table).

Comments from experts from electronic journal"Personnel Affairs"

Alina GORELIK, legal consultant at MORGAN & STOUT LLC (Moscow)
An agreement on early dismissal of an employee can be canceled if the employer refuses to lay off the job
When reducing staff, the employee and the employer have the right to enter into an agreement on early termination labor relations (part three of article 180 of the Labor Code of the Russian Federation). There is a competition between the rules on dismissal by agreement of the parties with the rules on reduction (Article 78, paragraph 2 of the first part of Article 81 of the Labor Code of the Russian Federation). The agreement of the parties on dismissal is canceled only with the mutual consent of the parties; it cannot be canceled by order of management (clause 20 of the Resolution of the Plenum Supreme Court RF No. 2). But to cancel the reduction, the will of the management is enough. If the agreement states that the contract is terminated due to redundancy and there is a reference to part three of Article 180 of the Labor Code, the termination of the employment relationship occurs on the initiative of management, and not by agreement of the parties. Therefore, it is possible to cancel the early dismissal agreement by order of the employer. Notify the employee about this. To eliminate legal risks, enter into an agreement with him to cancel the previously reached agreement on breaking the TD. This way you will record the employee’s will, which will allow you to prove the employer’s position in the event of controversial situations.

Irina AKSHONOVA, lawyer law firm"Bureau labor law" (Moscow)
The employer has the right to offer the person being laid off a position, the work of which is performed on a part-time basis.
A separate TD is not concluded with employees holding a part-time position. The employer has the right to early cancel the order to carry out extra work, warning the employee about this in writing no later than three working days (Article 60.2 of the Labor Code of the Russian Federation). From this we can conclude that he occupies only one position, determined by the TD, and the combined position is vacant, which means it can be offered to the redundant employee. But it must be taken into account that this issue is not clearly regulated by law, therefore the opposite point of view is also found in court decisions. It is based on the fact that early cancellation of an order to execute additional function is the right of management, not its responsibility.

Nikolay YAKOVLEV, senior legal consultant of Russian Telephone Company CJSC (Moscow)
How to reinstate an employeeand by court decision, if his position has already been reduced
According to a court decision, the employee must be reinstated at work, even if his position has already been reduced. Moreover, such a decision is subject to immediate execution (Article 396 of the Labor Code of the Russian Federation). Therefore, the employer should: add to the staffing table a position in which the employee should be reinstated by issuing an appropriate order; issue an order to cancel the order of dismissal and reinstate the employee in the position he occupied, and familiarize the employee with it against signature; make changes to the work book, which should indicate that the dismissal record is invalid and the employee has been reinstated; actually allow the employee to return to work in his previous position and note the time of forced absence on the report card. After this, management has the right to re-fire the employee by warning him about this two months in advance (clause 2 of part one of Article 81 of the Labor Code of the Russian Federation). At the same time, he is obliged to comply with the established procedure and provide all rights and guarantees established by law (Articles 179, 180 of the Labor Code of the Russian Federation).

When determining this date, it is necessary to take into account the two-month notice period for the upcoming dismissal. Therefore, a new staffing table (or changes to the staffing table) can be put into effect no earlier than two months after the relevant order is issued.

Sample order

Limited Liability Company "Polyot"

(Polet LLC)

ORDER

In connection with organizational and staffing events

I ORDER:

1. From January 15, 2016, reduce the number and positions and make changes to the staffing table:

– exclude the position of accountant-cashier from the staffing table ( finance department);

– exclude the position of marketer (advertising department) from the staffing table;

– exclude from the staffing table three staff positions for the position manager of work with wholesale clients(sales department);

– exclude from the staffing table five staff positions for the position of call center specialist (customer service department).

2. Before October 23, 2015, create a commission to determine the preferential right to retain employees subject to dismissal.

3. Before October 29, 2015, determine the list of employees who have a preferential right to remain at work.

4. By October 30, 2015, send a notice of reduction in number and staff to the employment service.

5. Before October 30, 2015, inform each employee personally against signature of dismissal on the basis of paragraph 2 of part one of Article 81 of the Labor Code.

6. Offer, in writing and signed by each employee subject to dismissal, available vacancies in the organization, in accordance with his qualifications, as well as lower positions.

9. Entrust control over the execution of the order to the head of the personnel administration department, K. P. Bolshakova.

General manager Ivanov V. T. Ivanov

I have read the order

Head of Department Bolshakova K. P. Bolshakova

personnel administration

It is no secret that employers use downsizing procedures to get rid of unwanted employees. In this situation, managers act as follows: first, they exclude the position from the staffing table and soon introduce into it a position that is slightly different in name from the previous one, but with completely similar functionality. In such a situation, there is a high probability that the dismissed employee will be reinstated at work through legal action.

Example

The employee held the position of chief of staff of the administration. The employer reduced the position and fired the employee. At the same time, the staffing table was introduced new position- administrative affairs manager.

Read about redundancy payments

According to the dismissed employee, the new position repeats the job functions of her previous position. On this basis, she filed a lawsuit for reinstatement, recovery of wages for the period of forced absence, and compensation for moral damage.

The court, considering the case, studied the job descriptions for the abolished and newly introduced positions and came to the conclusion that labor function for these positions is the same.

Accordingly, the court concluded that there was no actual elimination of the chief of staff position. In this situation, the position was retained with a changed name, subordination and the imposition of additional responsibilities.

Therefore, the termination of the employment relationship was declared illegal and her claims were satisfied with a reduction in the amount of moral damage (Appeal ruling of the Omsk Regional Court dated May 7, 2014 in case No. 33-2490/2014).

Step 2. Determine the list of employees who cannot be fired

After making a decision to make redundancies, management needs to decide which employees it wants to part with. At this stage, it is important to remember that certain categories of personnel are prohibited from being laid off, and some personnel have a preferential right to remain at work.

So, first of all, you need to find out which personnel cannot be fired. This task can be performed by a personnel officer.

Labor legislation directly names the categories of employees who are prohibited from being laid off. Such frames include:

• pregnant employees;
• women with a child under three years of age;
• single mothers (other persons raising a child without a mother) raising a disabled child under the age of 18;
• single mothers (other persons raising a child without a mother) raising a child under 14 years of age;
• a parent (other legal representative) is the sole breadwinner of a disabled child under the age of 18;
• parent (other legal representative) is the sole breadwinner of a child under three years of age in a family raising three or more young children, if the other parent does not work.

Most often, questions arise regarding which mothers are classified as single. The answer to this is offered by the Plenum of the Supreme Court of the Russian Federation. Thus, a single mother is considered a woman who raises her children (natural or adopted) independently without a father, in particular if he:

• died or was declared missing;
• deprived of parental rights or limited in parental rights;
• declared incompetent (partially capable) or due to health reasons cannot personally raise and support a child;
• is serving his sentence in institutions that carry out imprisonment;
• evades raising children or protecting their rights and interests (clause 28).

Let us note that the Plenum of the RF Armed Forces does not include divorced mothers in the single category. However, this does not clearly indicate that such mothers can be safely excluded from this category.

For example, the Moscow City Court declared the dismissal of a divorced woman with a young child illegal. The court took into account that the employee receives child benefits from the management social protection population, and there is no information about the child’s father paying alimony (Appeal ruling of the Moscow City Court dated September 4, 2014 in case No. 33-30170).

Care should be taken when compiling a list of “untouchables”, since if they are fired, such employees will be reinstated by a court decision.

Attention!

When recognizing an employee as “untouchable,” the age of the child is important. In this case, it is necessary to take into account his age at the date of termination of the employment relationship.

Employers often have a question: what to do if they intend to reduce a position in the staff list, and this position is occupied by an employee who is prohibited from dismissal. Let us say right away that it will not be possible to reduce the position. As an option, it can be recommended to offer him a transfer to another position. However, if the employee refuses the transfer, he has the right to work in his previous place. And management can only wait for the employee to lose his “untouchable” status.

Read about the procedure for dismissing employees due to staff reduction

Step 3. Assess the priority right to remain at work

Article 179 of the Labor Code establishes that in the event of a reduction in the number or staff, the priority right to remain at work is given to personnel with higher labor productivity and qualifications.

Let us note that in fact, employees can only take advantage of the preemptive right if there is a reduction in the number of employees. In a situation where there is a reduction in staff (that is, certain positions are excluded from the staffing table), the rule of pre-emptive right does not work, since the degree of labor productivity and qualifications of personnel can only be compared by assessing the performance of identical functions.

Thus, the Moscow City Court indicated that the preferential right to remain at work is examined by the employer if one of the identical positions of a certain structural unit, that is, between employees occupying the same positions, some of which are subject to reduction (appeal rulings of the Moscow City Court dated January 22, 2015 in case No. 33-1708, dated June 20, 2014 in case No. 33-22277).

So, personnel with higher labor productivity and qualifications have a preferential right to remain at work.

If labor productivity and qualifications are equal, preference in leaving is given to:

• family - in the presence of two or more dependents (disabled family members who are fully supported by a working family member or receive assistance from him, which is their permanent and main source of livelihood);
• persons in whose family there are no other members with independent earnings;
• employees who received a work injury while working for this employer or occupational disease;
• disabled people of the Great Patriotic War and disabled combatants in defense of the Fatherland;
• personnel who improve their qualifications in the direction of management on the job.

Labor legislation does not establish a procedure for assessing the priority right to remain at work. To avoid possible problems, we recommend creating special commission (working group). To do this, you need to issue an appropriate order.

Sample order on the creation of a commission to reduce the number of employees

Based on the examination of personal data, the commission determines the preferential right to leave. The result of the commission’s work can be documented in a protocol.

Sample protocol

Based on an analysis of information about the preemptive right to remain at work, the employer makes a decision to terminate the employment relationship with certain staff members due to layoffs.

Step 4. Warn employees about the upcoming dismissal

The employer must warn the employee personally about the upcoming dismissal, against signature, no less than two months before the upcoming event (part two of Article 180 of the Labor Code of the Russian Federation). Please note that there is no special warning form, so management has the right to independently develop a notification form. The notice should indicate the upcoming dismissal, its reason and date.

It is important for the employer to obtain the employee’s signature stating that he has been notified of the upcoming termination of the employment relationship within the period established by law. It is this signature that will indicate that management has properly fulfilled the notification obligation.

Step 5. Offer the employee available vacancies

The employer must offer the laid-off employee the vacant positions he has (Part One, Article 180 of the Labor Code of the Russian Federation). It is necessary to offer both a vacant position or task that corresponds to the employee’s qualifications, and a vacant lower position or lower paid job that the employee can perform taking into account his state of health.

The legislation does not determine in what form the manager must offer vacant positions. Meanwhile, if a dispute arises, the employer must confirm the fact of fulfilling the obligation to offer vacant positions. Therefore, it is advisable to draw up a proposal with a list of proposed vacancies in writing in duplicate. One copy is given to the employee, on the second - he puts a signature confirming receipt of the offer (this copy remains with the employer).

To optimize document flow, you can combine notification of upcoming dismissal and job offer into one document.

Please note that if, after the information about available vacancies is transmitted to the employee, new positions suitable for a particular employee appear, the employer must offer them to him. In other words, management is obliged to offer another available job (vacant position) during the entire period of these activities - from the date of notification to the date of dismissal (Appeal ruling of the Irkutsk Regional Court dated July 15, 2015 in case No. 33-6147/15).

The legislation does not provide for a maximum notice period for upcoming dismissal, so the employer can warn about the termination of the employment relationship at an earlier date: three or four months before the upcoming event.

At the same time, the legislation establishes shortened notice periods for dismissal for the following categories:

• for personnel working on fixed-term contract for a period of less than two months, the notice period is no less than three calendar days (part two of Article 292 of the Labor Code of the Russian Federation);
• for personnel engaged in seasonal work, the notice period is no less than seven calendar days (part two of Article 296 of the Labor Code of the Russian Federation).

Step 6. Warn the employment service about the upcoming dismissal

After making a decision to reduce the number or staff, the employer must notify the employment service about this. This obligation is established by paragraph 2 of Article 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 “On employment of the population in Russian Federation" Let us note that since this obligation is provided not by the Labor Code, but by the Employment Law, many managers simply do not know about this requirement.

The employment service must be notified no later than two months before dismissal. And if it is widespread, notification must be sent no later than three months in advance.

The notification form “Information about laid-off employees” has been approved. At the same time, regional employment centers have the right to develop their own notification forms. Therefore, we recommend contacting the territorial employment service to clarify the question regarding the form for submitting information about laid-off personnel.

Attention!

The employer is obliged to notify the employment service about the upcoming procedure, regardless of the number of units being laid off. Therefore, if a decision is made to lay off, for example, only one employee, a notification to the employment service must be submitted according to the general rules.

Let us note: judicial practice follows the path that if, during this procedure, the employer did not notify the employment service and this is the only violation, this is not recognized as a violation of the procedure for terminating employment relations and does not entail restoration (see, for example, the Appeal ruling of the Smolensk Regional Court dated March 12, 2014 in case No. 33-804).

However, if there is a complex of violations, then the failure to notify the employment service is taken into account by the court when making a decision on reinstatement of the employee.

Step 7. Warn the union

If the organization has a trade union, it must be notified of the upcoming dismissal no later than two months before the start of the relevant activities (part one of Article 82 of the Labor Code of the Russian Federation). If the dismissal is widespread, its duration is no later than three months. The union must be notified in writing.

In practice, a question often arises related to the formulation of the norm of part one of Article 82 of the Labor Code of the Russian Federation: what exactly can be considered the beginning of the relevant measures - the beginning of the procedure (issuance of an order) or the dismissal itself? The answer to this question was given by the Constitutional Court of the Russian Federation back in 2008. The trade union must be notified no later than two months before the start of the procedure (Decision of the Constitutional Court of the Russian Federation of January 15, 2008 No. 201-O-P). Thus, the relevant information can be sent to the union at the same time as the staff is notified.

It should be noted that the legislation establishes special rules for terminating labor relations with union members.

Step 8. We issue an order to terminate the TD

We have already said that laid-off employees should be offered suitable vacant positions. If he agrees to take one of the proposed vacancies, the employee’s transfer to a new position is formalized.

We recommend that refusals of offered vacancies be made in writing. For example, on a notice offering vacant positions, he can write “I refuse the proposed positions,” put a date and signature.

If an employee refuses the offered vacancies, there are no vacancies in the organization at all, or there are no vacancies that suit the employee’s qualifications and state of health, the TD is terminated. For this purpose, the employer issues an order to terminate the TD. An order can be created using unified form No. T-8. At the same time, management has the right to use independently developed and approved forms of documents. In the “Bases” column, the details of the order approving the new staffing table and notice of reduction are indicated.

Expert opinion

On the day of dismissal, the employee called and said that her child was sick and she took sick leave. When can I fire this employee?

The employee must be fired on the first working day after sick leave. The fact is that, on the initiative of the employer, it is impossible to terminate the employment relationship with an employee during the period of his temporary incapacity for work. This applies to reductions in numbers or staff and other grounds for breaking the TD, with the exception of liquidation of the organization or termination of activities individual entrepreneur. The ban on dismissal even applies to cases when the employee is on sick leave to care for a family member (part six of Article 81 of the Labor Code of the Russian Federation).

Semikova Ksenia, lawyer, expert of the magazine “Personnel Business”

Step 9. Pay the employee

Upon dismissal due to reduction, he must be paid wages, compensation for unused vacation, as well as severance pay.

The amount of severance pay is the average monthly earnings for one month. At the same time, the employee retains his average earnings for the period of employment, but not more than two months, taking into account severance pay (part one of Article 178 of the Labor Code of the Russian Federation).

Note that the employer must pay the average salary for the second month, provided that the laid-off worker did not get a job. However, the legislation does not determine the procedure for this payment. Meanwhile, management needs to receive a written application requesting payment, as well as a work record book, which will not contain a record confirming the employee’s employment in a new job.

The average earnings for the third month are retained only if the employee contacted the employment center within two weeks after the termination of the employment relationship and was not employed. Accordingly, in order to receive payment for the third month, the employee, in addition to the application and work record book, must provide a certificate from the employment service.

For certain categories, special rules for payment of benefits have been established. Thus, an employee who has entered into a labor contract for a period of up to two months is not paid severance pay, unless otherwise established federal laws, collective agreement or TD (part three of article 292 of the Labor Code of the Russian Federation). Upon termination of a labor contract, an employee engaged in seasonal work must be paid severance pay in the amount of two weeks' average earnings (Article 296 of the Labor Code of the Russian Federation).

Workers in the Far North are paid severance pay in the amount of average monthly earnings. In addition, they retain their average monthly earnings for the period of employment, but not more than three months from the date of leaving their place of work (including severance pay) (Article 318 of the Labor Code of the Russian Federation). In exceptional cases, the average monthly salary is retained for the specified personnel during the fourth, fifth and sixth months from the date of termination of employment relations by decision of the employment service body, provided that within a month after dismissal he applied to this body and was not employed by it.

Step 10. We make an entry in the work book and hand it over to you

The rules for registering and issuing a work book during layoffs do not differ from general order. An entry about dismissal must be made in the work book with reference to paragraph 2 of part one of Article 81 of the Labor Code. The employee must certify this entry with his signature.

On the day the TD is terminated, the work book must be handed over. Upon receipt, he must sign a personal card and a book for recording the movement of work books.