Reducing the number or staff of employees is a rather painful procedure both for employees and for the employer himself. The employee is faced with the need to look for a new job, and the employer often has to confirm the legality of the 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 have combined the employer’s actions into a step-by-step algorithm that can be followed, taking into account the nuances of 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).

Expert comments from the electronic magazine “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 staffing is reduced, the employee and the employer have the right to enter into an agreement on the early termination of employment 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). An agreement between the parties on dismissal is canceled only with the mutual consent of the parties; it cannot be canceled by an order from management (clause 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation 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 at the law firm Bureau of 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 cancel an order to perform additional work ahead of schedule by warning the employee in writing no later than three working days in advance (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 perform an additional function is the right of management, and 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 (finance department) from the staffing table;

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

– exclude from the staffing table three positions for the position of manager for working 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.

CEO Ivanov V. T. Ivanov

I have read the order

Department head 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, a new position was introduced into the staffing table - 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, examined the job descriptions for the abolished and newly introduced positions and came to the conclusion that the labor functions for these positions are 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;
• serves his sentence in institutions executing sentences of 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 social welfare department, 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 numbers. 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 is subject to reduction, 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 or occupational disease while working for this employer;
• disabled people of the Great Patriotic War and disabled people fighting in defense of the Fatherland;
• personnel who improve their qualifications in the direction of management without interruption from work.

Labor legislation does not establish a procedure for assessing the priority right to remain at work. To avoid possible problems, we recommend creating a 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 it has (part one of 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 under a 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 in the 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 that you contact 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 set 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. The order can be drawn up using the 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 terminating the TD, with the exception of liquidation of an organization or termination of activities by an 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 by federal laws, a collective agreement or a labor contract (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 the general procedure. 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.

In modern conditions of financial instability, many organizations, for one reason or another, have a forced need to optimize costs, as a result of which one of the solutions often becomes a reduction in the number or staff of employees. Errors in the layoff procedure regulated by the legislation of the Russian Federation can lead to very negative consequences for employers, for example, to labor disputes with employees and additional financial costs for the organization. Let's analyze the most controversial issues.

The difference between downsizing and staff reduction

Termination of an employment contract at the initiative of the employer as a basis for termination of employment relations is a rather problematic procedure that causes disagreements with employees. And reducing the number or staff of employees is also very difficult in terms of compliance with all formal legal requirements that exclude violations of employee rights.

Initially, at the first stage of implementing the procedure for carrying out reduction measures, it is necessary to understand the difference between reducing the number and staff of employees. This is important for documenting and justifying the need for reduction.

Termination of an employment contract at the initiative of the employer in the event of a reduction in the number or staff of employees of an organization or individual entrepreneur is provided for in clause 2, part 1, art. 81 Labor Code of the Russian Federation. The legislation uses both the concept of “reduction in headcount” and the concept of “staff reduction”, which have different meanings. Unfortunately, the legislator did not provide for the need to give an official definition to these concepts, which led to the emergence of two different points of view in the interpretation of these terms. And since an incorrect understanding of the semantic content of the wording of the grounds for dismissal entails making mistakes when drawing up the procedure, we believe that this problem should be sorted out.

The points of view of experts on this issue are divided. The first is this: when the number of employees is reduced, there is a reduction by a certain number of staff positions in one of the positions (profession, specialty), and when the staff is reduced, the position itself is eliminated.

The second says: when the number of employees is reduced, the total number of employees is reduced, and when staff is reduced, the number of staff units per position is reduced or the position itself is eliminated.

To confirm the correctness of this or that opinion, we will try to turn to judicial practice. Obviously, the opinions of the courts in this situation also differ.

Arbitrage practice.“The dismissal of an employee due to a reduction in the number of employees implies a reduction in the number of units in the corresponding specialty (position, profession); when the number is reduced, the vacant units in this specialty are first reduced, and then, if necessary, those occupied by employees. In turn, the dismissal of an employee due to staff reduction involves the liquidation of the position he holds" (cassation ruling of the Judicial Collegium for Civil Cases of the Khabarovsk Regional Court dated May 18, 2011 in case No. 33-3229/2011).

“A reduction in the staffing table means the exclusion of a position from it. This is different from a reduction in the number of employees, in which the position remains, but the number of staff positions for it is reduced” (decision of the Uzhursky District Court of the Krasnoyarsk Territory dated April 28, 2011 in case No. 2- 136/2011).

Arbitrage practice. “In accordance with the current legislation, the release of workers due to staff reduction implies the exclusion from the staffing table of positions, work units in specific specialties, professions. At the same time, the wage fund and the total number of employees may not decrease” (decision of the Oktyabrsky District Court of Orsk, Orenburg Region dated 05/26/2011 in case No. 2-823/2011).

“The court notes that workforce reduction is a reduction in the number of employees in certain positions, and staff reduction is the exclusion of individual staff units from the staffing table...” (decision of the Pervomaisky District Court of Izhevsk, Udmurt Republic dated June 20, 2011 in case No. 2-1688 /eleven).

“A workforce reduction consists of reducing the number of employees in certain positions (specialties) in an organization without adjusting the staffing table. A staff reduction is an exception to the staffing table of individual staffing units” (decision of the Vinogradovsky District Court of the Arkhangelsk Region dated July 25, 2011 in case No. 2-219 /2011).

“A reduction in personnel should be understood as a reduction in the number of employees in certain positions, and a reduction in staff means the exclusion of individual staff units from the staffing table” (decision of the Gorno-Altai City Court of the Altai Republic in case No. 2-1910/2010).

In this case, it is quite difficult to assert the correctness of any opinion, so let’s try to turn to an explanatory dictionary. The meaning of the word “number” is as follows: number is the quantity, the numerical composition of something (according to the dictionary of T.F. Efremova); strength - numerical composition (according to S.I. Ozhegov’s dictionary); number - quantitative size, numerical composition (according to D.N. Ushakov’s dictionary). The meaning of the word “staff”: permanent staff of any institution (according to the dictionaries of T.F. Efremova and D.N. Ushakov); regulations on the number of employees and positions of the institution, their functions and salaries, the permanent composition of the institution’s employees (according to S.I. Ozhegov’s dictionary).

From all this we can conclude that the number of employees is a constant value, regulated by the staffing table for a certain period of time until the new staffing table comes into force. Note that the unified form N T-3 "Staffing list" (which was approved by Decree of the State Statistics Committee of Russia dated January 5, 2004 N 1 and was mandatory until 2013) provides not only a list of positions (specialties, professions indicating qualifications), but also the number staffing units for each of them.

In addition, the staffing table implies a staff of a certain number of units, approved by order of the manager (the unified form N T-3 provides the corresponding line). Please note: no posts.

Thus, the staff of an organization is measured in staff units, and not in positions.

On the other hand, the size of the organization may be less than or greater than the number of staff units provided for in the staffing table, because positions may be vacant or several people may be employed on one staff unit.

Example 1

The structure of the organization provides for four accountants, according to which the staffing table includes the position of an accountant in the amount of four staff positions. In fact, only three staff positions in this position are occupied by workers, and the fourth is temporarily vacant. Thus, the number of accountants on the payroll is less than the regular number.

Example 2

There are no vacant staff positions, and one of the units has two employees (since one employee is on maternity leave for up to one and a half years, and a new one has been hired in her place under a fixed-term employment contract). In this case, the number of employees on the payroll for accountant positions exceeds the regular number.

Therefore, obviously, it makes sense to separate concepts such as staffing levels and payroll numbers, which gives reason to lean towards the point of view according to which a reduction in the number of employees is a decrease in the total number of employees of the organization, and a reduction in the number of employees is a decrease in staffing levels for a certain position or the elimination of the position itself.

An example given in clause 5.1 of the Instructions for filling out work books (approved by Decree of the Ministry of Labor of the Russian Federation dated October 10, 2003 N 69), when making a record of dismissal due to reduction in the work book, it is prescribed to make an entry delimiting these concepts (in case of a reduction in the number of employees - “Dismissed to reduce the staff of an organization, paragraph 2 of Article 81 of the Labor Code of the Russian Federation").

However, applying the norm of clause 14 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers (approved by Decree of the Government of the Russian Federation of April 16, 2003 N 225) that entries in the work book about the reasons for termination of the employment contract are made in exact accordance with the wording of the Labor Code of the Russian Federation or another federal law, employers often do not distinguish between these concepts due to fear of making a mistake, especially since regulatory authorities and courts have questions when using the general wording of the grounds for dismissal due to reduction, provided for in clause 2, part 1, art. 81 of the Labor Code of the Russian Federation does not arise.

Justification for the decision to reduce the number of employees

As a general rule, the employer has the right to independently determine the structure, staff and number of the organization, subject to mandatory confirmation of changes with a new staffing table or an order to amend the current staffing table, as well as terminate the employment contract with the employee due to a reduction in the number or staff of the organization's employees. Naturally, subject to compliance with the dismissal procedure and guarantees established by the Labor Code of the Russian Federation. The obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer.

According to Art. 394 of the Labor Code of the Russian Federation, if the dismissal is declared illegal, the employee must be reinstated in his previous job by the body considering the individual labor dispute. The body considering an individual labor dispute makes a decision to pay the employee the average salary for the entire period of forced absence or the difference in earnings for the entire period of performing lower-paid work.

Arbitrage practice. Based on the employee’s claim against the individual entrepreneur, the court concluded that the dismissal was illegal and the procedure was not followed, because the fact of reduction of staff or number of employees through the adoption of relevant orders or staffing schedules has not been proven by the defendant.

The court considered that the termination of the employment contract with the plaintiff under clause 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation contradicts the requirements of the law, therefore the employee should be reinstated in his previous profession - an assistant framer at a sawmill of an individual entrepreneur.

By the decision of the Vinogradovsky District Court of the Arkhangelsk Region in case No. 2-219/2011, the plaintiff was reinstated at work as an individual entrepreneur; from the latter, in favor of the plaintiff, the average salary for the days of forced absence, the amount of compensation for moral damage, and the costs associated with the consideration of the case were recovered.

There is also an opinion that when resolving disputes about dismissal due to reduction in headcount or staffing, the court does not have the right to be included in the discussion of the validity of the decision. The employer only needs to prove the fact of staff reduction (by means of a comparative analysis of the staffing table before the reduction procedure and after its completion, or the number of employees), and not the validity of the management decision, because the court has no right to delve into the reasons for such a reduction.

Apparently, this position comes from para. 2 clause 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as the Resolution of the Plenum No. 2). It says that the employer, for the purpose of effective economic activity and rational property management, independently, under his own responsibility, makes the necessary personnel decisions (selection, placement, dismissal of personnel).

However, this point of view is refuted by judicial practice.

Arbitrage practice. In the supervisory complaint, the employee indicated that during the consideration of the case by the lower court, significant violations of the norms of substantive and procedural law were committed. According to the employee, the court did not fully check whether there was a real reduction in staff and, in particular, a reduction in the position of legal adviser.

Resolving the dispute, the court of first instance found that the fact of the reduction of the defendant’s staff and changes in the staffing table were confirmed by the case materials, therefore the court does not have the right to enter into a discussion of the advisability of staff reduction and redistribution of responsibilities between employees, and the plaintiff did not prove that she was fired in connection with persecution by her employer as an unwanted employee. Since the dismissal procedure was followed, the court concluded that there were no grounds to satisfy the claims.

Having considered the materials of the case, the Supreme Court of the Russian Federation came to the conclusion that the court’s argument was erroneous, according to which the court should not check the validity of the employer’s decision to reduce the number of employees, and sent the case, along with a supervisory complaint and a ruling, for consideration on the merits to the supervisory court (the Supreme Court ruling). Court of the Russian Federation dated December 3, 2007 N 19-B07-34).

The position of the Supreme Court of the Russian Federation is based on the norms of the current edition of the Labor Code of the Russian Federation that the employer is deprived of the right to unilaterally change the terms of the employment contract determined by the parties.

The employer is obliged to provide evidence with references to the influence of economic, technical, organizational and other factors on the production process when considering cases on claims of employees dismissed under clause 2, part 1 of art. 81 of the Labor Code of the Russian Federation, because a reduction in the number of employees is nothing more than a unilateral change by the employer of the terms of the employment contract in its most acute form, violating the employee’s constitutional right to work, and therefore it must be justified by the employer.

Doubts regarding the employer’s decision to reduce the number of employees, taken arbitrarily, not in the interests of production, but in order to get rid of an unwanted employee, are subject to verification in court as having significant legal significance.

Preferential right to remain at work

First of all, it is necessary to identify the categories of persons provided for in Art. 261 of the Labor Code of the Russian Federation, who cannot be dismissed at the initiative of the employer. This:

- pregnant women;

- women with a child under three years of age;

- single mothers raising a disabled child under the age of eighteen or a young child - a child under the age of fourteen;

- other persons raising these children without a mother.

In addition, part 6 of Art. 81 of the Labor Code of the Russian Federation does not allow the dismissal of an employee at the initiative of the employer during the period of his temporary disability and while on vacation. Therefore, knowing in advance about the possibility of the absence of employees replacing staff units or positions excluded from the staffing table on the day of reduction for the provided reasons, it is recommended to revise the date of reduction. Keep in mind that the basis for dismissal due to reduction must be confirmed by a change in the staffing table or a new staffing table for a certain date, therefore, the preferential right to remain at work should be determined between employees whose job units are being reduced at the same time, and not at different times.

Attention should be paid to the fact that the preferential right to remain at work is applicable only to employees replacing staff units of one position that are being reduced. If we are talking about removing all units for one position from the staffing table, then the question of preemptive rights is not raised.

Example 3

In the process of optimizing the number of employees, the position of legal adviser (without category) is completely removed from the staffing table; three staff positions of this position include two employees. In this case, the vacant unit is eliminated first, and there is no point in determining the preferential right between two employees, because the position is excluded from the staffing table completely.

But if, if there were three legal advisor positions in the staffing table, it was necessary to remove two, then, having first eliminated the vacant unit, we would have to find out which of the two employees has higher labor productivity and qualifications, because in accordance with Part 1 of Art. 179 of the Labor Code of the Russian Federation, when the number or staff of employees is reduced, the priority right to remain at work is given to employees with higher labor productivity and qualifications.

If, in addition to the position of a legal adviser, in the same department of the organization the question of excluding from the staffing table the position of a claims specialist was raised, then the need to clarify the preemptive right between employees holding different positions would definitely not arise.

Thus, determining the preemptive right to remain in the same position and under the same conditions is possible between employees filling the same positions with the same job responsibilities in a situation where not all staff positions in one position are being reduced, but one or more of them.

As a rule, employers, avoiding unnecessary paperwork, draw up one general job description for all employees with the same position, which in most cases is simply prepared according to some general template and does not reflect the real functional responsibilities of this category of employees.

However, in practice situations often arise when employees filling the same positions have different functional responsibilities. Therefore, from a legal point of view, it is recommended to draw up job descriptions for the same position in the context of real functional responsibilities. Such a measure, in the event of disputes with employees during layoffs, will allow the employer to easily justify his choice in favor of one or another employee, because there will be no need to determine the priority right in relation to them.

Example 4

In the course of organizational changes, there was no longer a need for employees of the economics department to perform a certain area of ​​work. There are six full-time positions of economists in the economics department; all employees filling this position have the same qualification category, but different functional responsibilities. The following situations may occur:

- the employer has provided for the division of functional responsibilities and prepared for each economist a separate job description with the responsibilities that these employees actually perform. As a result, when carrying out a reduction procedure, justified by the lack of need to perform a certain job, the employer painlessly excludes from the staffing table the job unit that is replaced by the employee performing this same functionality;

- the employer has one job description for the position of economist, according to which all employees filling this position have the same list of job responsibilities. In this case, it is no longer possible to prove that any individual employee performed specific duties. Therefore, the employer is forced to identify candidates for layoffs by identifying preferential rights. At the same time, it is not a fact that the employee who was actually responsible for the now unnecessary area of ​​work will be less qualified or have lower labor productivity.

Unfortunately, what exactly is meant by the phrase “higher labor productivity and qualifications” is not explained by the Labor Code of the Russian Federation. But, as established practice shows, including judicial practice, as evidence of higher qualifications (note: only the qualifications that are necessary for an employee to perform job duties in a given position are assessed), great importance is attached to the level of professional education, work experience, knowledge the specifics of the production process, the employee’s improvement of his qualifications, in addition, the personal and business qualities of the employee play an important role.

Supporting documents in this case may be documents on professional education; certificates, certificates and advanced training certificates; protocols and orders based on the results of the certification assessment; employment history; written recommendations, characteristics, memos from the manager, etc.

Evidence of higher labor productivity is the effectiveness of work, the absence of defects, comments on work, performing a larger volume of work or reducing the time required for completing work, exceeding production standards, and the presence of incentives and awards.

The employer has the right to independently determine evaluation criteria and evaluate employees, subject to documentary confirmation of the decisions made (in some cases, the court also takes into account the testimony of witnesses as indirect evidence). The correct application of these criteria when determining the preemptive right at the request of an employee can be verified in court. Therefore, employees dismissed due to staff reduction often turn to court to protect their rights, where they refer to the preemptive right to remain at work. Therefore, this issue must be taken seriously in order to avoid mistakes that could lead to the employee being reinstated in his previous position. It is worth paying attention to one more point: although the staffing table provides for positions in conjunction with a category or rank, the employees replacing them, accordingly, have different skill levels. So, an employee holding the position of, say, a 6th grade mason has an advantage over a 4th grade mason. And, of course, when reducing staff, it is necessary first of all to eliminate positions without categories or ranks, as well as with ranks and categories that are lower than others.

Here, employers often make mistakes when deciding to exclude positions from the staffing table without reference to the employees who replace them. The consequence of such an error is the completed staffing form, where the column “Position (specialty, profession), rank, class (category) of qualifications,” as we see, implies an indication of qualifications. Therefore, the names of positions (specialties, professions) look something like this: “2nd class car driver.” It is not surprising that such a name is perceived as a single whole.

Example 5

The organization plans to reduce three staff positions in the profession of car repair mechanic, and the total staffing level of car repair mechanics in the motor transport workshop is six people, of which two units are car repair mechanics of the 6th category; three units - a 5th category car repair mechanic and one unit - a 4th category car repair mechanic.

The employer excludes from the staffing table 3 units of the profession of car repair mechanic of the 5th category, regarding these positions as a separate profession and considering that the definition of a preemptive right is not required here. But please note: the profession of a 4th category car repair mechanic remains in the staffing table, although the presence of different qualification categories is a direct confirmation of the level of qualifications of the workers. In this case, if one of the laid-off workers of the 5th category goes to court, the employer will have to justify his decision.

If the reason for removal from the staffing table is that there is no need to perform the list of work specifically by car repair mechanics of the 5th category, then the employer can confirm this fact by providing the court with work instructions for employees broken down by category. Otherwise, there is a violation of the requirements of Part 1 of Art. 179 Labor Code of the Russian Federation.

So that when checking by regulatory authorities or in court, the employer can easily justify the fact of compliance with the requirements provided for in Art. 179 of the Labor Code of the Russian Federation, it is recommended by order of the organization to create a commission to determine the preferential right to remain at work (Example 6). Its composition usually includes an employee of the personnel department, an employee of the legal department, the head of the department in which the reduction is being made, and a representative of the primary trade union organization.

Example 6. Order to create a commission to determine the preferential right to keep employees at work in connection with a reduction in numbers or staff

Order

05.03.2014

Moscow

On the creation of a commission to determine the preemptive right

to keep employees at work due to staff reductions

at Rassvet LLC

In connection with the reduction of staff on the basis of the order of LLC "Rassvet" dated 03/05/2014 N 11 "On the reduction of the staff of LLC "Rassvet"

I order:

1. Create a commission to determine the preferential right to keep employees at work in connection with a reduction in the number or staff of Rassvet LLC, consisting of:

2. Head of the HR Department I.M. Shestakova submit for consideration of the commission to determine the preferential right to keep employees at work in connection with the reduction of the staff of Rassvet LLC, information about candidates for dismissal by profession as a mechanic for repairing cars in a motor transport workshop.

3. Commission to determine the preferential right to keep employees at work in connection with the reduction of staff of Rassvet LLC:

3.1. consider information about candidates for dismissal and make a decision on employees subject to dismissal on May 13, 2014 due to staff reduction, taking into account the preferential right to remain at work;

3.2. document the decision in a protocol.

Director Sidorov A.A. Sidorov

The results of the commission meeting are recorded in a protocol (Example 7), which reflects the criteria for determining the preferential right to remain at work, indicates the employees to be retained at work and the employees to be dismissed. This protocol must be signed by all members of the commission.

Example 7. Minutes of the meeting of the commission to determine the preferential right to keep employees at work in connection with a reduction in numbers or staff

Protocol
meeting of the commission to determine the preferential right to keep employees at work in connection with staff reduction at Rassvet LLC

Agenda:

Consideration of the issue of determining the preferential right to keep employees at work in connection with staff reduction in the motor transport workshop of Rassvet LLC.

Chairman of the commission Shestakova I.M. — the head of the HR department presented the following documents:

1. Order of Rassvet LLC dated March 5, 2014 N 11 “On reducing the staff of Rassvet LLC employees.”

2. Personal files and work instructions of the following employees of Rassvet LLC:

- Viktor Fedorovich Petrov - car repair mechanic, 4th category;

- Ivanov Sergei Mikhailovich - car repair mechanic of the 5th category;

- Mikhalev Ivan Petrovich - car repair mechanic of the 5th category;

Speakers:

1. The chairman of the commission, Shestakova I.M., head of the personnel department, announced the need to remove from the staffing table two units of the profession of car repair mechanic on the basis of the order of Rassvet LLC dated 03/05/2014 N 11 “On reducing the staff of Rassvet LLC employees and expressed her opinion on the preferential right to retain candidates for dismissal at work.

2. S.V. Krutov, head of the motor transport workshop, explained to the commission the validity of the decision to reduce the number of employees caused by the reduction in the number of vehicles of Rassvet LLC, and announced the characteristics of candidates for dismissal.

3. Vasiliev M.K., chairman of the trade union organization of employees of Rassvet LLC, expressed his opinion on the preferential right to remain at work for candidates for dismissal and announced the criteria for determining the preferential right to remain at work.

Decided:

1. Recognize Sergei Mikhailovich Ivanov, Ivan Petrovich Mikhalev, Alexey Ivanovich Sidorov as possessing higher qualifications, confirmed by a higher qualification category and the presence of specialized professional education.

2. Take into account (with equal labor productivity and qualifications) the presence of dependent minor children among 5th category car repair mechanics Sergei Mikhailovich Ivanov, Ivan Petrovich Mikhalev.

3. Approve the candidacies of employees subject to dismissal on May 13, 2014 under paragraph 2 of part one of Article 81 of the Labor Code of the Russian Federation (reduction in number or staff):

- Petrov Viktor Fedorovich - car repair mechanic 4th category,

- Sidorov Alexey Ivanovich - car repair mechanic of the 5th category.

Chairman of the commission Shestakova I.M. Shestakova

Members of the commission: Krutov S.V. Krutov

Gavrilova S.V. Gavrilova

Vasiliev M.K. Vasiliev

For example, the necessary information and criteria for determining the priority right to remain at work for each employee may look like this:

1. Full name employee.

2. Position/profession.

4. Date of birth.

5. Education (type/specialty/year of graduation from educational institution).

6. Family composition (married status/dependants, year of birth of dependents).

7. Advanced training (as directed by the employer) (type/completion date).

8. Work experience in the specialty.

9. Work experience in this organization (days, months, years).

10. The presence of a work injury or occupational disease due to the fault of the organization.

11. Presence of disability.

12. Additional conditions in accordance with the collective agreement.

Please note that initially, preferential rights are granted only to employees with higher labor productivity and qualifications. And only if the level of qualifications and productivity of the workers in respect of whom the preemptive right was determined are the same, then the norms of Part 2 of Art. 179 Labor Code of the Russian Federation. Then preference for remaining at work is given to:

- family - in the presence of two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is their constant and main source of livelihood);

- persons in whose family there are no other workers with independent earnings;

- employees who received a work injury or occupational disease while working for this employer;

— disabled people of the Great Patriotic War and disabled people fighting in defense of the Fatherland;

- employees who improve their qualifications at the direction of the employer without interruption from work.

Also, additional conditions may be provided for by the collective agreement.

In this matter, there is often misunderstanding on both the part of employers and the part of employees, which leads to legal disputes.

It should be noted: in order to be able to be guided by the protocol of the commission for determining the preemptive right when proving the legality of the decision made in relation to laid-off employees, it is advisable to make a reference to the relevant protocol in the dismissal order on the basis for the dismissal of the employee. Judicial practice is of a similar opinion (see, for example, the decision of the Pervomaisky District Court of Izhevsk, Udmurt Republic in case No. 2-1688/11).

It is also important to know that the principle of determining the preferential right applies only when leaving an employee in his current position and should not be taken into account when offering vacant positions, because the issue of personnel reshuffling falls within the competence of the employer, and only he has the right to decide which of the laid-off employees will be offered a certain vacant position. This is stated in paragraph 10 of Plenum Resolution No. 2. At the same time, the employer is not obliged to offer one position to several employees at the same time.

* * *

In conclusion, I would like to note that the current labor legislation regulating the reduction of the number or staff of employees, as the analysis showed, does not disclose the definition of some of the concepts used. As a result, incorrect interpretation of terms leads to misunderstanding of legal requirements and the formation of different opinions of specialists and courts regarding the same issues, which is clearly reflected in judicial practice. Therefore, each layoff situation should be approached responsibly, with a thorough analysis of all circumstances and timely preparation of the necessary supporting documents.

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, expenses for paying for his forced absence and moral damage caused, 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.

Judicial practice and clarifications of higher judicial bodies are important for resolving emerging disputes, 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 of the organization or the employment contract with the employee.

Warning to an employee about dismissal due to reduction

A prerequisite for the legality of an employee's layoff 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 dismissal, and additional compensation is paid 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.

Let's begin with reduction in numbers workers and staff reduction - not the same thing. At the same time, termination of an employment contract due to a reduction in the number or staff of employees is one of the most complex and time-consuming processes, which increases the risk of labor disputes. Let's consider aspects that will help carry out the reduction procedure in accordance with legal requirements.

As one of the grounds for termination of an employment contract at the initiative of the employer, the Labor Code of the Russian Federation provides for a reduction in the number or staff of employees (Clause 2, Part 1, Article 81 of the Labor Code of the Russian Federation). The legislator separated the terms “downsizing” and “staff reduction”, but did not directly define the differences between them.

Downsizing and downsizing: the relationship between concepts

What is the staff of an organization? Its signs are contained in paragraph 2 of Part 2 of Art. 57 of the Labor Code of the Russian Federation and Instructions for the use and completion of forms of primary accounting documentation for recording labor and its payment, approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1. The staffing table (unified form T-3) regulates:

organization structure (list of structural divisions)

staffing (names of positions, specialties, professions indicating qualifications);

staffing level (number of staff units).

In paragraph 2 of Part 2 of Art. 57 of the Labor Code of the Russian Federation, the labor function of an employee is defined as “work according to the position in accordance with the staffing table, profession, specialty, indicating qualifications.” Thus, staff reduction is the exclusion of any position or job function from the staffing table. Reduction in the number of employees - reduction in the number of employees in the organization. For example, an organization employs ten accountants, but five are required. In this case, five staff positions are reduced, although the position of “accountant” itself remains in the staff list.

Preemptive right

The employer's desire to retain the most qualified employees in the company is quite understandable. Nevertheless, it is necessary to strictly observe the rights of employees who have advantages upon dismissal (Article 179 of the Labor Code of the Russian Federation). Before making a decision to make redundancies, it is necessary to compare employees. It must be justified and documented.

An extract is issued for each candidate for redundancy. It reflects the information by which employees will be compared. For each position, a comparative table of criteria by which employees are evaluated is compiled. To take into account the preferential right to remain at work, a staff reduction commission is created by order of the manager. It includes at least three people. If there is a trade union in the organization, then a trade union member must be included in the commission. The commission reviews the information submitted for each candidate for dismissal and makes a decision on the preferential right to remain at work, which is drawn up in the form of a protocol.

Conventionally, the procedure for compiling a list of laid-off workers can be divided into four stages.

Stage 1. We determine the list of persons who are provided with guarantees upon termination of an employment contract at the initiative of the employer.

The Labor Code lists categories of workers who have guarantees in the event of a reduction in the number or staff of employees. Dismissal is not allowed (Article 261 of the Labor Code of the Russian Federation):

pregnant women;

women with children under three years of age;

single mothers raising a child under 14 years of age (disabled child under 18 years of age);

other persons raising these children without a mother.

Stage 2. Compare labor productivity and skill level of workers.

In accordance with Art. 179 of the Labor Code of the Russian Federation, employees with higher labor productivity and qualifications have the right to preferential retention at work. Labor productivity is the employee’s fulfillment of production standards, plans, and specific tasks. When assessing labor productivity, it is necessary to take into account:

fulfillment and overfulfillment by the employee of labor standards and plans established for him;

ensuring uninterrupted operation of equipment;

economical use of resources;

the number of defects, customer complaints, unsuccessfully completed tasks, violations of the law;

compliance with or reduction of work deadlines;

incentives;

disciplinary sanctions related to poor performance of official duties.

Please note: when assessing labor productivity, you should not use an assessment of an employee’s personal qualities, such as communication skills, persuasion skills, organization, determination, etc. Assessing personal qualities allows a human resource management specialist to predict the future behavior of an employee. The requirements of the Labor Code are aimed at studying and analyzing the employee’s work activity, that is, assessing his past.

An assessment of an employee's labor productivity, the results of which have quantitative indicators, can be based on data on the fulfillment of labor standards. How can productivity be assessed if labor cannot be accurately rationed? In such a situation, key performance indicators can be used.

To assess labor productivity you should use:

data on compliance with labor standards (piece work orders);

orders imposing disciplinary sanctions, instructions from regulatory authorities;

certificates, promotion records in the work book;

submissions for the award.

The employee's qualification level is the degree and type of professional training of the employee, the presence of knowledge, skills and abilities necessary to perform a specific job. Higher qualifications of an employee are indicated by:

level of education (primary, secondary, higher professional, second);

academic degree, academic title, etc. (if relevant for the position);

additional education;

level of knowledge of a foreign language (if required to perform official duties);

practical work experience (tenure in position).

Stage 3. We establish a list of workers who have a preferential right to remain at work with equal labor productivity.

With equal labor productivity and qualifications, preference is given to workers:

family - if there are two or more dependents;

persons in whose family there are no other independent workers;

employees who received a work injury or occupational disease while working in this organization;

disabled people of the Great Patriotic War and disabled people fighting in defense of the Fatherland;

employees who improve their qualifications in the direction of the employer without interrupting their work.

The legislation also establishes other categories of persons who are guaranteed the right of priority to remain at work in the event of a reduction in numbers or staff. This right can be exercised by:

citizens who received or suffered radiation sickness and other diseases associated with radiation exposure as a result of the Chernobyl disaster or with work to eliminate the consequences of the disaster at the Chernobyl nuclear power plant, disabled people as a result of the Chernobyl disaster (clause 7 of article 14 of the Law of the Russian Federation of May 15, 1991 No. 1244-1 “On the social protection of citizens exposed to radiation as a result of the disaster at the Chernobyl nuclear power plant”);

Heroes of the Soviet Union, Heroes of the Russian Federation and full holders of the Order of Glory (Part 1 of Article 8 of the Law of the Russian Federation of January 15, 1993 No. 4301-1 “On the status of Heroes of the Soviet Union, Heroes of the Russian Federation and full holders of the Order of Glory”);

citizens who lived in 1949-1963. in populated areas of the Altai Territory and the former Kazakh SSR, included in the lists of populated areas that were exposed to radiation as a result of nuclear tests at the Semipalatinsk test site, and which received a total (accumulated) effective radiation dose of more than 5 cSv (rem) (clause 10 of article 2 of the Federal Law of January 10, 2002 No. 2-FZ “On social guarantees for citizens exposed to radiation as a result of nuclear tests at the Semipalatinsk test site”);

officials and citizens admitted to state secrets on an ongoing basis (Part 6 of Article 21 of the Law of the Russian Federation of July 21, 1993 No. 5485-1 “On State Secrets”);

inventors (Part 5 of Article 35 of the USSR Law of May 31, 1991 No. 2213-1 “On inventions in the USSR”).

In addition, spouses of military personnel have the right to preferential employment in government organizations and military units; citizens discharged from military service and members of their families have a preferential right to remain in the job they first entered; single mothers of military personnel (clause 6 of article 10, part 5 of article 23 of the Federal Law of May 27, 1998 No. 76-FZ “On the status of military personnel”).

Stage 4. We make a list of employees to be laid off.

After identifying employees who have been provided with guarantees and the right of preferential retention at work, a list of those who are subject to dismissal is compiled. They are sent notices of layoffs and offers of other work. When carrying out the reduction procedure, it is important to follow the dismissal procedure established by the Labor Code of the Russian Federation. However, when laying off certain categories of workers, special legal requirements must be taken into account.

Reduction of workers under the age of 18, in addition to compliance with the general dismissal procedure, is allowed only with the consent of the relevant state labor inspectorate and the commission for the affairs of minors and the protection of their rights (Article 269 of the Labor Code of the Russian Federation). Employee representatives participating in collective bargaining cannot be laid off during such negotiations without the prior consent of the body that authorized the representation, except in cases established by the Labor Code of the Russian Federation (Part 3 of Article 39 of the Labor Code of the Russian Federation).

Representatives of workers participating in the resolution of a collective labor dispute cannot be laid off without the prior consent of the authorized body (Part 2 of Article 405 of the Labor Code of the Russian Federation). Reduction of trade union leaders and their deputies who are not released from their main jobs is allowed, in addition to the general dismissal procedure, only with the prior consent of the trade union (Articles 373 and 374 of the Labor Code of the Russian Federation).

It is prohibited to lay off workers (Part 6 of Article 81 of the Labor Code of the Russian Federation):

during a period of temporary disability;

during vacation.

Let us note that termination of a layoff contract takes place only if it is not possible to transfer the employee with his written consent to another job available to the employer (Part 3 of Article 81 of the Labor Code of the Russian Federation). In this case, the laid off employee cannot apply for any vacant position. The proposed vacancy must correspond to the qualifications of the employee. If such work is not available in the organization, the employer is obliged to offer a lower or lower paid position that corresponds to the employee’s health condition. The employer is not obliged to offer a vacant vacancy that requires qualifications that the person being laid off does not possess (higher or different qualifications). Qualification level requirements are determined by the job description.

If an employee appeals dismissal in court

A former employee has the right to file a claim in court to declare the dismissal illegal. Then the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer (clause 23 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”).

If a labor dispute arises regarding reinstatement at work, the court will consider evidence confirming:

compliance with the reduction order;

taking into account the preferential right to remain at work;

meeting deadlines for notifying employees and trade unions;

compliance with written notification of employees and trade unions;

a written offer of another job.

Reduction in headcount or staff (i.e., dismissal under paragraph 2 of Article 81 of the Labor Code of the Russian Federation) is perhaps the most troublesome way to dismiss workers at the initiative of the employer. It requires close attention to all formalities. The slightest disregard for the legally established procedure can become a reason for legal proceedings and reinstatement of the dismissed person.

But first, I propose to define the concepts.

Reduction in the number of employees is a decrease in the total number of employees of the organization.

Reduction of staff- reduction of staffing levels for a certain position or elimination of the position itself.

A reduction in the number of employees, as a rule, leads to a reduction in the number of employees. And only then when other positions (new positions) are introduced to replace the reduced positions, a reduction in the number of employees does not occur.

The elimination of vacant staff units and positions does not constitute a reduction in the number of employees.

Since the procedure for dismissing workers during a reduction in numbers and when reducing staff is the same, identifying the characteristics by which these categories differ, in general, has no practical significance.

Procedure for reduction (step-by-step procedure)

One of the most important documents, which, of course, will definitely be required for carrying out measures to reduce the number or staff of employees, is staffing table. The staffing table (unified form T-3, approved by Decree of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1) is necessary to carry out measures to reduce the number or staff of the organization’s employees.

Labor legislation does not link the possibility of reducing the number or staff of an organization’s employees with any specific reasons. The employer independently decides on the advisability of reducing the number or staff of the organization's employees. The reduction can be carried out, for example, in connection with the liquidation of a structural unit of the organization (branch, representative office), a decrease in demand for manufactured products, the occurrence of losses, downtime, etc.

The order (sequence) of the employer's actions during layoffs should be as follows:

1. Approval of a new staffing table (form T-3, approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004).

   Dismissal of an employee under clause 2 of Art. 81 of the Labor Code is possible only after his staffing unit or position is excluded (reduced) from the staffing table. Such a schedule must be new - after all, in the “old” one his position (staffing unit) existed.

2. At least 2 months before the expected start of layoffs, the employer issues a layoff order (Article 180 of the Labor Code).

   Such an order will be the basis for starting the procedure for notifying each employee of the upcoming dismissal due to reduction and taking measures for their employment.

3. Notification to the state employment authority about the upcoming release of workers, regardless of the number of workers being laid off.

   Such an obligation is directly established by Article 25 of the Law of the Russian Federation “On Employment of the Population in the Russian Federation”.

4. Notification of the trade union (if any).

   This step is necessary only in cases where the organization has a trade union.

5. Selection of employees to be laid off and written personal warning about the upcoming dismissal of each employee.

   First of all, this is the choice of workers who have a preferential right to remain at work in accordance with Art. 179 TK.

   Also at this stage, the employer needs to take measures to employ redundant workers - i.e. Each employee must be offered all vacancies available to the employer at the time of notification.

   Note: an employee can be notified of a layoff by email if the PVTR and the employee’s job description provide for the possibility of electronic correspondence (Appeal ruling of the Nizhny Novgorod Regional Court dated 06/04/2019 in case No. 33-5728/2019; Appeal ruling of the Sverdlovsk Regional Court dated 02/14/2018 case No. 33-1935/2018)

6. Taking measures to employ laid-off workers (offering all available vacancies).

   Since the legislation does not regulate this issue in any way, practice has developed an approach according to which the laid-off employee must be offered vacant positions (if any) several times (at least 2-3 times within 2 months).

   Although in judicial practice there is an approach according to which, when laying off a job, it is not necessary to offer an employee a job for which his education, qualifications, and experience are insufficient (for example, the Appeal ruling of the Moscow City Court dated May 24, 2016 in case No. 33-19810/2016), we We recommend that you still offer all available vacancies.

   Based on the results of the interview for a vacant position, the employer has the right to refuse the employee due to his lack of necessary professional competencies. The legality of the employer’s activities aimed at assessing the business qualities of a laid-off employee in order to determine the possibility of his transfer to a vacant position (for example, interviews, testing) is confirmed by examples from judicial practice (see the rulings of the Moscow City Court dated March 18, 2019 in case No. 33-7750/2019, Chelyabinsk Regional Court dated February 28, 2017 No. 11-2044/2017, Moscow City Court dated June 4, 2014 No. 33-16050/14, dated May 26, 2014 No. 33-16869/14 , dated May 22, 2013 No. 11-13616/13, dated March 18, 2014 No. 33-7843/14, Supreme Court of the Republic of Mari El dated October 11, 2012 No. 33-1592/2012, Nizhny Novgorod Regional Court dated 30 August 2011 No. 33-8849/2011).

7. Coordination of the draft of each order to lay off each employee with the trade union (if there is one).

   At the same time, it must be borne in mind that all orders must be coordinated, i.e. both dismissed workers who are members of a trade union and workers who are not members of a trade union. Employees who are members of a trade union can only be fired in accordance with the opinion of the trade union.

8. Issuance of a dismissal order by abbreviation (form T-8 or T-8a, approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004).

   This is a necessary condition for terminating an employment contract. It is also necessary to familiarize each employee with the order against signature.

   The employer, with the written consent of the employee, has the right to terminate the employment contract with him before the expiration of the two-month notice period by paying him additional compensation in the amount of the employee's average earnings, calculated in proportion to the time remaining before the expiration of the notice period for dismissal.

9. Payment of wages, all compensation and benefits on the day of dismissal.

   This requirement is provided for in Article 140 of the Labor Code. Payments consist of:

   compensation for unused vacation;

   severance pay in the amount of average monthly earnings in accordance with Art. 178 TK.

10. Issuance on the day of dismissal of a work book, certificate 2 - personal income tax, certificate of average earnings in the form of the employment service.

To receive benefits for the 3rd month, the employee must register with the employment service within 2 weeks from the date of dismissal.

If at least one point is missed or the specified procedure is violated, then it is considered that the reduction procedure has been violated, and the employee (at his request) is subject to reinstatement at work with payment for the entire time of forced absence.

Checking the correctness of the staff reduction procedure

Violation of the order of reduction of numbers and (or) staff may result.