Who can't be cut. Who cannot be laid off at work (Labor Code)? What to do if an employer violates your rights

On the one hand, one can understand an employer who is trying by all means and strength to keep his business afloat (including reducing the number of employees). On the other hand, who will understand the workers themselves? Moreover, in an effort to reduce wage costs, employers often commit the most flagrant violations.

Note to pregnant women
By direct order of the Labor Code of the Russian Federation, pregnant women are among those workers who cannot be reduced (part 1 of article 261 of the Labor Code of the Russian Federation).

Despite the fact that not only according to the Labor Code, but also according to all moral laws, pregnant women have the right to count on the most attentive and careful attitude, a simple verbal statement that you are pregnant is a weak guarantee against reduction.

Need documents. In the early stages, pregnancy is confirmed by a certificate from the antenatal clinic or from another medical organization who registered the woman (clause 22 of the order of the Ministry of Health and Social Development of Russia dated December 23, 2009 No. 1012n).

A single form of such a certificate has not been established, and, as a rule, antenatal clinics and medical institutions issue simply a written certificate, which contains the necessary details - the name of the consultation, full name and position of the doctor who issued it, signatures, seals and stamps.

At later stages of pregnancy (more than 30 weeks, and in case of multiple pregnancy - 28 weeks), the employee's pregnancy is confirmed by a certificate of incapacity for work (clause 46 of the Procedure for issuing certificates of incapacity for work, approved by order of the Ministry of Health and Social Development of Russia dated June 29, 2011 No. 624n).

A sick leave certificate for pregnancy and childbirth is issued by an obstetrician-gynecologist, in his absence - by a general practitioner (family doctor), and in the absence of a doctor - by a paramedic.

The law does not require a woman to notify her employer that she is pregnant. Moreover, for a short period of time, a woman may not know about it at all. Nevertheless, if the woman was pregnant on the day of dismissal (and this fact is confirmed by the relevant documents), then the court recognizes the dismissal as illegal.

Judicial practice does not attach any importance to the fact that the employer is aware or ignorant of the pregnancy of a woman who is subject to redundancy: Part 1 of Article 261 of the Labor Code of the Russian Federation contains an unconditional ban on the dismissal of a pregnant employee.

By the way, competent employers (and such an overwhelming minority) include a clause in the notice of reduction that if an employee submits a document on pregnancy, then she will not be fired.

If the employee is a single mother
The Labor Code of the Russian Federation prohibits layoffs for single mothers raising children under the age of 14 (Part 4, Article 261 of the Labor Code of the Russian Federation). Therefore, the mother must at least have a document on the age of the child - a copy of the birth certificate. However, for the mother of the child to be considered a single mother, this will not be enough.

The problem is that "single mother" and "single mother" are everyday concepts, and they are absent in the legislation.

The clarifications of the Supreme Court of the Russian Federation fill this gap. The Review of Legislation and Judicial Practice of the Supreme Court of the Russian Federation for the first quarter of 2010 (approved by the decision of the Presidium of the Supreme Court of the Russian Federation of 16.06.10) states that:
in order to recognize the mother as single, it is necessary that the column “Father” in the birth certificate is not filled in (or information about the father of the child is entered according to the mother - at the same time, a certificate from the registry office is submitted on the grounds for making an entry in the birth certificate);
the mother of the child must not be married. This is confirmed by a copy of the passport.

A divorced woman cannot be considered a single mother, provided that the father of the child is alive, takes part in his maintenance (pays alimony) and is not deprived of parental rights (ruling of the Supreme Court of the Russian Federation dated 09.07.10 No. 81-B10-6).

If a single mother is raising a disabled child, then it cannot be reduced until the child reaches the age of 18 (a certificate from a medical and social examination is required).

Availability of dependents
With equal labor productivity and qualifications, preference in 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 for them a permanent and main source of livelihood);
persons in whose family there are no other self-employed workers;
employees who received an industrial injury or occupational disease during the period of work with this employer;
disabled people of the Great Patriotic War and invalids of military operations for the defense of the Fatherland;
employees who improve their skills in the direction of the employer on the job (Article 179 of the Labor Code of the Russian Federation).

A dependent is a disabled family member who is fully supported by an employee or receives assistance from him, which is a permanent and main source of livelihood for him (part 2 of article 179 of the Labor Code of the Russian Federation).

A dependent may be the spouse of an employee, parents, as well as other relatives (Article 2 of the RF IC).

A worker who has children can also take advantage of the priority right to remain at work, since children are dependents by virtue of the law.

However, employees who have at least two dependent children have the preferential right to stay at work (Article 179 of the Labor Code of the Russian Federation). If at the time of the reduction at least one of the employee's children is already 18 years old, then he cannot be considered a dependent.

In this case, certified copies of the children's birth certificates will be required.

If, for example, the worker's spouse is the dependent, the following may be required:
ITU certificate of disability;
spouse's work book;
certificate from the employment authorities.

single father
Workers who raise a child without a mother have some immunity from layoffs. According to the clarifications of the Supreme Court of the Russian Federation (Review of the legislation and judicial practice of the Supreme Court of the Russian Federation for the 1st quarter of 2010, approved by the decision of the Presidium of the Supreme Court of the Russian Federation of June 16, 2010), an employee can be recognized as such, regardless of the specific case, as a result of which the mother of the child ceased care.

In practice, an employee is considered to be raising a child alone if the mother of the child:
died (declared deceased);
deprived of parental rights;
limited in parental rights (for the period of restriction);
recognized as missing;
recognized as fully incapacitated or partially incapacitated;
is serving a sentence of imprisonment;
is in custody;
suspected of committing a crime;
evades the upbringing of the child or the protection of his rights;
refuses to take her child out of foster care, medical institution;
the mother does not have the opportunity to personally raise and support the child due to her state of health.

Employees raising disabled children without the participation of a mother are not subject to dismissal until these children reach the age of 18.

Finally
So, before you go into conflict with the management, you need to clearly find out whether you really belong to the "protected" category. You can try to avoid decisive action for some time by declaring your “immunity” orally, but it should be understood that the employer has the right to demand supporting documents. This is not only a right - it is also the obligation of the employer, since the unjustified provision of benefits to one employee may result in a violation of the rights of another employee who is entitled to them.

IMPORTANT:

Ideally, before laying off staff, the employer should find out which of his employees cannot be fired on his initiative. And here there is an important point: unsubstantiated statements that you have some social privileges will not suit many people. Maybe for some time you can hold out on parole, but in the event of a dispute, which, quite possibly, will be considered in court, you will not be able to prove the illegality of your reduction.

According to the author, a single mother remains so even after marriage - until the new spouse adopts a child. According to the RF IC, spouses are obliged to take care of each other and financially support each other (Article 89), as well as to support their minor children (Article 80 of the RF IC). Therefore, the new spouse is not obliged to support a child whose father he is not. Find judicial practice on this issue, unfortunately, it was not possible.

Employees raising young children are not subject to dismissal until the child is 14 years old.

Marina ASTAPENKO, Lawyer

Who can't be cut?

Reduction entails an inevitable series of layoffs. But not all workers can be laid off. Who can't be cut?

About reduction

If the number of employees replacing the same positions decreases, we are talking about a reduction in the number of employees. If from staffing positions or entire divisions are excluded - about staff reduction. In any case, the employer must comply with a number of mandatory measures provided for by the Labor Code.

Who can't be fired due to redundancy?

Persons who cannot be dismissed on this basis are listed in Art. 261 of the Labor Code of the Russian Federation. These include:

• single parents raising a child who is disabled and under the age of eighteen;
• single parents raising a child under the age of fourteen;
• women with children under three years of age;
• a parent (or other legal representative) is the sole breadwinner of a disabled person under eighteen years of age, provided that the other parent is not employed;
• parent (legal representative) - the only breadwinner of a child under three years of age in a family raising young children (three or more), if the other parent does not work;
• pregnant women.

Cannot be fired if the employee was not notified of the reduction

All workers subject to layoffs must be notified in advance. Employees must be warned against signature and personally at least two months before dismissal (part 2 of article 180 of the Labor Code of the Russian Federation).

For seasonal workers, the notice period is much shorter. It is seven calendar days. And employees with whom an employment contract has been concluded for a period of less than two months must be notified at least three calendar days in advance.

Such notification is made in free form. The employee will need to sign this document. If he refuses to sign, then the text of the document should be read aloud to him in front of witnesses. Further, the fact of notification and refusal to sign must be recorded in the act.

If an employee is fired without notice, such an action will be declared illegal during an audit or in court.

Cannot be fired if the employee agreed to the transfer

Before dismissal for reduction, employees must be offered free vacancies available to the employer.

The employer is obliged to offer the dismissed employee to transfer to another vacant position:

• corresponding to his qualifications;
• or, if there is no vacancy for his qualifications, a vacant lower position;
• or, if not otherwise, a lower paid one.

All vacancies must be offered taking into account the fact that the employee will be able to perform the functions due to his state of health.

The management of the company is obliged to offer its employees all the vacancies that meet the requirements that it has. If there are no vacancies in the locality of the employer, then other options for working in another locality should be offered, unless this is provided for in local acts or an employment contract.

If there are no vacancies, then the laid-off employees must also be notified of this.

If not all vacancies are offered to an employee, it is impossible to dismiss him due to staff reduction.

If the employee agrees to the vacancy offered to him, a transfer should be made.

In the event of his refusal or the absence of free vacancies from the employer, suitable for the reduced one, a dismissal is issued.

Preemptive right

Who is not subject to reduction if the number of employees of the same positions is reduced? The one who has the pre-emptive right. Persons with higher labor productivity and qualifications have this right (Article 179 of the Labor Code of the Russian Federation).

With equal qualifications and labor productivity, preference in leaving work is given to:

• persons in whose families there are no other employees with independent income;
• family - if they have two or more dependents;
• employees who have received an occupational disease or work injury while working in this company;
• invalids of military operations for the defense of the Fatherland and invalids of the Great Patriotic War;
• employees who were sent by the employer to improve their skills on the job.

The employer has the right to provide by the collective agreement for other categories of employees with the preferential right to keep their jobs with the same professional qualities.

An employer who reduces the staff takes such an unpopular and economically unprofitable step for objective reasons. The main goal of any economic entity is the most optimal organization of the production process. This requires increasing the efficiency of the organization and minimizing costs. Realizing its main goal, the enterprise can make changes in the organization of labor and production. Thus, the reduction in the staff of the enterprise is caused by the impossibility of maintaining the terms of employment contracts with employees due to the objective nature of intra-organizational changes.

These changes may be internal cause: cost reduction and intensification of production - and external: a change in the price environment, devaluation of the national currency, a decline in demand for manufactured goods or services. The relevance of the topic of reducing employees is increasing at the present time, which is characterized by the whole complex of the above negative factors of the external environment of the enterprise.

An employee of any organization is relatively protected from the arbitrary actions of the employer by legally established procedures that the employer must follow in the event of a reduction in staff. Deciding on the reduction procedure, the employer incurs financial losses and receives numerous organizational problems.

Setting a part-time day or week

In cases where manufacturing process requires changing conditions employment contract with an employee that could lead to a reduction in staffing, a possible alternative to laying off employees is to establish a part-time or weekly work. Thus, the legislator gives guarantees to employees who may be potentially fired due to layoffs to continue working at their enterprise.

The employee must write an appropriate statement if he agrees to:

• incomplete working time.
• Wage cut.

Staff reduction

The actual reduction of people at the enterprise should be without fail precede staff cuts. The decision to reduce should be justified by the fundamental impossibility of carrying out the production process in accordance with the existing staffing table.

The employer is obliged to think carefully about the structure of the new staffing table, since he will not be able to restore the deleted staff units.

The expediency of the decision to reduce the staffing table should outweigh all other benefits that the employer receives from the released jobs.

Reduction Notice

If the decision to reduce the staffing is made, then:

• The administration of the enterprise forms lists of positions and the corresponding persons who are subject to dismissal.
• The head of the organization issues an order to dismiss employees due to staff reduction.
• Each employee must be notified of his dismissal in writing.

On the notification, the employee must put a mark on reading with the date and signature. Notification of an employee can occur at any time, but not less than two months before the actual dismissal. For seasonal workers, as well as those working under an employment contract concluded for a period of up to two months, this period is reduced to 7 and 3 days, respectively.

The employer is also obliged to notify the employment service of the dismissed employees.

Offer to transfer to another job

The employer is obliged to use all possible means to prevent the dismissal of the employee. One such means is to offer an employee whose position has been reduced to move to another job in the same organization or in other organizations owned by the same employer. Proposed vacant position must correspond to the qualifications of the employee, his health and capabilities, but may be lower paid.

The employee has the right to agree with the offer or refuse it by writing a statement about it.

Preemptive rights in case of reduction

When deciding on specific employees to be made redundant, the employer is limited by statutory directives distinguishing between employees who cannot be made redundant in principle and those who have the right not to be made redundant.

It is forbidden to dismiss the following categories of employees due to staff reduction:

• Pregnant women.
• Women with children under 3 years old, as well as any person raising a child under 3 years old in the absence of a mother.
• Single mothers raising children under the age of 14, as well as any person raising this category of children in the absence of a mother.
• Single mothers with a disabled child under the age of 18, as well as any person raising this category of children in the absence of a mother.
• A parent (legal representative of a child) in whose family three or more children are brought up, while one child is under the age of 3 or is a disabled child under the age of 18 if the other parent is not employed.

The following categories of employees have the preferential right not to be dismissed in case of staff reduction:

• Employees with higher qualifications and productivity.
• Employees with two or more dependents in the family.
• Employees who are the only breadwinners in families.
• Employees who have received an occupational disease, injury or disability.
• Employees who received a disability in combat.
• Employees who improve their qualifications in the direction of the employer.

The listed categories of employees are enshrined in the Labor Code. In addition to them, in local regulations, the employment contract may stipulate other categories of employees who have the pre-emptive right not to be dismissed when the staff is reduced.

Severance pay is compensation to an employee for the early termination of an employment contract. The terms and amount of the severance pay may be reflected in the employment contract. Otherwise, the general rules enshrined in the articles of the Labor Code apply.

Severance pay is intended to provide financial support to the dismissed employee in the first month after the dismissal, as well as in the month following it, if the employee is not employed. In the first case severance pay obtained on the last working day of the employee. In the second case, in place former job The dismissed employee is required to present work book, confirming that a person does not have a job at the moment.

If it is impossible to find a job, benefits are paid for the third month after dismissal if there is a certificate of registration with the employment authorities and a certificate confirming the fact of non-employment at the time of applying for benefits.

There are categories of workers who can count on the payment of employers' benefits within a 3-month period upon presentation of a work book confirming the absence of employment:

• Dismissed on staff reduction from the enterprises of the Far North or areas equated to them.
• Dismissed due to staff reduction from enterprises in the territories in which there are additional district coefficients to wages.
• Dismissed on staff reduction from enterprises of closed administrative-territorial formations.

In addition, the Labor Code provides for a reduction in severance pay in the event of dismissal due to staff reduction to two weeks average earnings for the following categories of workers:

• Seasonal workers.
• An employee who refused to be transferred to work in another area.
• An employee who refuses to continue working due to changes in the terms of an employment contract.

The calculation of severance pay and benefits for the period of employment is as follows. First, the average daily earnings of an employee are determined for Last year: the total amount of payments, including bonuses and other payroll payments, divided by the number of working days in the billing year. Further, the resulting number is multiplied by the number of working days in the period for which the allowance is paid.

If you get laid off, don't panic! You can always find the best solution and not become a victim of the "cunning" bosses, who really don't want to pay you severance pay when you leave. All employees need to know that according to the Labor Code, when making a redundancy, the employer is obliged to:

1. Notify you of the date at least two months in advance cut notice. By signing it, you continue to work until the specified date.

2. During the period of your work, up to dismissal, offer available vacancies in the state , appropriate for your qualifications.

3. Pay monetary compensation . In addition to severance pay, you must be paid compensation for unused vacation.

4. State the reason staff reductions. An order to reduce the number or staff of employees must be issued at least 2 months before the expected start of layoffs. It should clearly indicate the reason for the ongoing reduction (part 2 of article 73 of the Labor Code of the Russian Federation, article 180 of the Labor Code of the Russian Federation). The employer is obliged to familiarize employees with the order against signature. If the authorities do not give an explanation for the dismissal, the court may recognize the dismissal as illegal.
The employer may dismiss an employee with his written consent and without notice 2 months in advance, but with the simultaneous payment of compensation in the amount of two months of average earnings.

Who is not eligible to be laid off?

The employer does not have the right to dismiss an employee who is on sick leave, regular or maternity leave.

By law, the following cannot be fired:

Pregnant women (except in cases of liquidation of the organization);
-women with children under the age of 3;
- single mothers raising a child under the age of 14 (or a disabled child under 18);
- other persons raising children of this age without a mother (Article 261 of the Labor Code of the Russian Federation).

Who has the priority right to keep the job during the reduction?

The priority right to retain the job is enjoyed by: persons with higher labor productivity and qualifications (documented). With equal labor productivity and qualifications, preference is given to:
- family employees (if there are 2 or more dependents);
- persons in whose family there are no other workers with independent earnings;
- employees who have received an industrial injury or occupational disease in this organization;
- invalids of the Great Patriotic War;
- invalids of military operations for the defense of the Fatherland;
- employees who improve their skills in the direction of the employer on the job.

A legal dependent is:
1. Children, brothers, sisters and grandchildren: - under 18 years of age; — full-time students in educational institutions all types and types, except for institutions additional education, but not older than 23 years; - those who have become disabled before the age of 18 and have a limited ability to labor activity; - recognized as disabled in the absence of able-bodied parents.
2. One of the parents, spouse, grandfather or grandmother, regardless of age, brother, sister, child who has reached the age of 18, if they do not work, but are busy caring for children, brothers, sisters, grandchildren who have not reached the age of 14.
3. Parents and spouse, if they have reached the age of 55 (for women) or 60 (for men) or are disabled with limited ability to work.
4. Grandparents who have reached retirement age or are disabled with limited ability to work and the absence of persons legally required to support them (Article 9 of the Law. "On labor pensions in the Russian Federation").

What is a laid-off worker supposed to do?

The company owes a laid-off employee
1. Hand out a severance pay in the amount of the average monthly salary;
2. Keep the average monthly salary for the employee for the next period of employment (but not longer than 2 months and including severance pay);
3. If the employment service was unable to find a job within 2 weeks after the dismissal of the employee from the enterprise, keep the average monthly salary for another month. Note: Upon termination of the employment contract, payment of all amounts is made on the day of dismissal. If the employee did not work on the day of dismissal, he must receive the money the next day. In the event of a dispute over the amount of payments, the employer is obliged to pay the employee the undisputed amount.
4. The work book with the relevant entries must be handed over on the day of dismissal. The maximum legal delay is no more than three business days. It is possible that, at the request of the dismissed employee, the work book is sent by registered mail with notification to the address indicated in the employee's application.
Note: At the written request of the employee, the employer is obliged to issue duly certified copies of documents to the dismissed person.

It is advisable that you register at the city (district) employment center at the place of permanent residence within two weeks from the date of dismissal, then you will be able to receive the maximum unemployment benefit at the labor exchange - 3080 rubles.

To register, you must have:

- the passport;

- work book or documents replacing it;

- a document on education or another certifying your professional qualifications; - certificate of average earnings for the last three months at the last place of work.
Specify in advance - sometimes the labor exchange requires data not only in the usual form of personal income tax-2!

Who cannot be fired by law and who enjoys special rights in case of layoffs? People should know their rights, but each case of dismissal must be considered individually. Indeed, sometimes it is easier to quit and receive appropriate compensation from the state and find a new job.

Who are they, workers who cannot be fired?

Employees who are on any type of leave, whether it is basic or unpaid leave, as well as women who are on maternity leave. This is regulated by article 256 part 4 of the Labor Code of the Russian Federation.

Women who are pregnant, except when the enterprise is subject to complete liquidation. Based on article 261 of the Labor Code of the Russian Federation.

Guardians, adoptive parents, single mothers (men who raise a child without a mother) who are raising children under 14 or disabled children under 18. As well as mothers who raise a child until he reaches the age of three. The basis is article 261 of the Labor Code of the Russian Federation. An exception to this law is the commission of a crime proven by a court or the complete liquidation of an enterprise.

Trade union workers. The basis is Article 81 of the Labor Code of the Russian Federation, according to paragraphs: 2,3,5.

Employees who are authorized by the collective to conduct collective bargaining.

Persons directly involved in collective disputes.

If these categories of people were fired, anyway, a positive court decision on their reinstatement in the workplace with full compensation forced downtime and legal costs, occurs almost instantly and automatically.

Workers with legal benefits

This is clearly stated in article 179 of the Labor Code of the Russian Federation. With the reduction of one employee out of two, an employee with lower labor productivity and with lower qualifications is fired.

However, if two employees occupy the same position and have the same qualifications, then the benefits will not be lost. workplace have the following citizens:

1. Employees with two or more dependents.
2. An employee who is the only breadwinner in the family.
3. A worker who has earned an occupational disease or has been injured in this enterprise.
4. Persons who improve their qualifications at this enterprise, on the job, in the direction of the employer.
5. Citizens belonging to the category of disabled people who received a disability in combat operations to defend the Fatherland.

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