Who gets laid off first and who cannot be fired?

Basic information

There are two concepts - the number of subordinates and the staff of the organization. It is necessary to understand what a reduction in the number and staff of employees is, what is their difference:

Number of subordinates – the number of employees in accordance with the list. A reduction in the number of subordinates occurs if a specific position remains on the staffing table of the enterprise, but the number of people who occupy it decreases. For example, in a company out of 10 call center employees, 4 quit.
Staff – all positions of a specific organization (executives, managers, accountants, experts, agents and others). Downsizing involves eliminating some positions at work.

Typically, staff reductions occur if the company has many employees who perform similar tasks. Sometimes this leads to the abolition of entire departments in the organization. For example, if the position of a call center employee is eliminated, then all 10 out of 10 subordinates will be fired.

ATTENTION! Reducing the number of employees is a forced measure that managers have to take. It should not worsen or complicate the company's activities.

Practice shows that staff reductions occur for the following reasons:

difficult economic situation in which the country finds itself, which leads to a lack of profit for the enterprise, and this in turn does not allow the transfer of wages to subordinates in the required amount;
internal optimization in the company - for example, the presence of unnecessary positions on the staff, insufficient performance indicators;
merger of companies , their reorganization or accession to each other.

How employees are compared

The law does not describe specific requirements for the procedure for identifying the preferential rights of employees. Practice shows that courts place more trust in the decisions of commissions when recording the results in writing. Here are the main nuances that should be taken into account when comparing candidates for reduction:

It is recommended that the commission include heads of departments where staff reductions are planned, as well as members of the trade union organization and specialists from other structural divisions (lawyers, personnel officers, those responsible for quality control, etc.).
An order should be issued to organize the commission, defining the competence of each of its members. Personnel officers may be responsible for providing information about penalties and incentives imposed. Department heads should be entrusted with the generation of work reports, compilation of characteristics, etc.
It is advisable to draw up summary tables that reflect the results of comparing the qualifications and labor productivity of workers according to a number of criteria.
The commission's findings should be recorded in the official minutes of the meetings.
The commission must make its conclusions based on the results of comparing the labor productivity of each employee, taking into account the entire set of criteria. The decision that one employee has higher qualifications because the second has less experience is considered illegal by the court.
If candidates for layoff are registered in a trade union and regularly pay membership dues, the employer is obliged to take into account the opinion of this organization on the advisability of dismissing a particular employee. This is the requirement of Part 2 of Art. 82 Labor Code of the Russian Federation.

Watch a video that will tell you about the categories of workers who are prohibited from being laid off

Who gets fired first?

First, the manager makes a list of employees who cannot be laid off , since labor laws protect their rights.
Those subordinates who remain are evaluated on performance, qualifications and other parameters. For comparison, they take subordinates who occupy the same positions in the same structural unit.

Managers who work in the same department can be assessed on qualifications and performance. However, a top manager and a lower-level manager cannot be compared.

In this case, to establish the level of qualifications, supporting documents are used:

certificates of successful completion of advanced training courses;
certificates of certification results;
written characteristics of a subordinate compiled by management;
gratitude, other official recognition of quality work;
orders to provide bonuses to employees.

Also, employees who have excellent command of foreign languages (for example, English + German, English + Italian) have an advantage. Computer knowledge at a high level is also taken into account.

ATTENTION! If the assessment of the same managers showed that their qualifications and productivity are the same, the family circumstances of the employees and other advantages are brought up for consideration.

The following categories of people have preferential rights:

family employees who have 2 or more dependent minor children and other disabled, needy relatives who are fully supported by a subordinate;
employees who are the sole breadwinners in their family (for example, single mothers);
employees who, while working in this organization, were injured, mutilated, or developed an occupational disease;
employees who, at the time of the layoff, are improving their qualifications as directed by the employer.

It is difficult to lay off employees who suffered during military operations in defense of the country.

Also, a special category of people are pensioners, who received certain guarantees as a result of the reforms carried out in 2020. Since the retirement age was raised, the deputies decided to do something to compensate for the blow inflicted on the elderly.

Today it is almost impossible to fire a person of retirement age. If the employer dismisses such a subordinate, then the latter has the right to go to authorized organizations and seek reinstatement, compensation payments due to downtime, etc.

The employer has the right to supplement this list with its own conditions, reflecting them in the collective agreement. For example, the document can indicate that people who are receiving a second higher education and have not reached the age of 30 should not be laid off.

Preferences for downsizing

There are categories of employees to whom the legislator provides certain preferences upon dismissal. According to Art. 179 of the Labor Code of the Russian Federation, workers with a high level of professional knowledge and skills, as well as with the highest indicators of labor productivity, are more likely to retain their jobs.

With the same professional qualities, preference is given to employees:

having two or more dependents;
being the sole breadwinner in the family;
those who have been injured, disabled or have an occupational disease while working for the employer who has initiated the layoff procedure;
disabled people of the Second World War and other military operations aimed at protecting the Fatherland;
improving their professional level at the expense of the employer without interrupting their work.

The collective agreement and other local regulations may define other, additional categories of workers who can hope that the reduction will not affect them. If you are included in at least one of the listed categories, you will not be able to be laid off until the employment contracts with the remaining employees who do not have preferences are terminated. Failure to comply with this rule is a direct violation of labor laws - the employer may be punished for this, for example, a fine.

Who is protected by law from layoffs?

Labor legislation establishes a list of persons who cannot be laid off:

subordinates who are temporarily unable to work;
subordinates who are on leave, including unpaid and student leave;
women who have a small child under 3 years of age in their care;
women carrying a child or on maternity leave;
single parents caring for a child under 14 years of age or a disabled child under 18 years of age;
members of a trade union organization;
disabled war veterans;
employees who have the titles of Hero of Russia and the USSR, awarded the Order of Glory;
employees whose health was damaged due to the Chernobyl disaster or radiation in Semipalatinsk;
authors of inventions (the law on inventions adopted during the USSR period continues to operate today).

At the same time, there are cases when, for example, an employee from this list was laid off, but the law allows this - termination of the entrepreneurial activity of the employer-individual entrepreneur or liquidation of the organization.

In what cases, according to the law, can this be possible?

The labor legislation of the Russian Federation introduced a ban on the reduction of the categories of people described above and gave other categories advantages when reducing the number of workers, however, there are amendments that still make it possible to reduce persons from this list.

These reservations can be found in Article 261, according to which even protected categories of citizens are subject to dismissal if their behavior in the workplace does not comply with the legislation of the Russian Federation and goes against labor discipline.
Reference. Also, dismissal due to reduction is completely legal if the organization completely liquidates its activities.
Read our material about how reductions occur during the liquidation or reorganization of an enterprise.

How the procedure works

The employer must comply with the layoff procedure; otherwise, he may be held liable for violating legal norms and requirements:

If a contract with a subordinate or a collective agreement contains a clause stating that the employee has the right to claim guarantees and additional payments, the subordinate will need to be provided with them.
Dismissal must be for good reason. If subordinates were laid off, but later went to court to protect their rights, then the court will pay attention to whether the manager’s actions are truly justified.
The employer needs to inform the employment service that the staff will be reduced. Often managers ignore this requirement. As a result, they have to pay fines and compensate their subordinates for forced absences.

In general, the dismissal procedure is as follows:

issuing an order 2 months before subordinates are laid off;
offer subordinates a suitable vacancy (the refusal will need to be formalized with the person’s signature on it);
inform the trade union about the upcoming layoff 2 months in (if layoffs are massive - 3 months in advance);
inform the employment service about the upcoming reduction, the terms and conditions of notification are similar;
dismiss an employee due to staff reduction if he refuses other positions offered by the employer;
pay an employee who is registered with the employment service an additional benefit for 2 months.

If the employer did not comply with the layoff procedure, he faces fines. Thus, an individual entrepreneur risks receiving a fine of 5 times the minimum wage, a legal entity - 500 times.

You cannot fire if the employee was not notified of the layoff

All employees subject to layoffs must be notified in advance. Employees must be notified against signature and in person 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 a notice is drawn up 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. Next, 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 inspection or in court.

What to do in case of violation of rights

First of all, the victim draws up a statement and sends it to the trade union of his company. The duration of consideration of the application is 1 week . You can also contact the prosecutor's office or the Federal Labor Inspectorate with a complaint.

IMPORTANT! If pre-trial attempts to resolve the conflict situation do not lead to anything, it is necessary to file a claim in court.

If an illegal dismissal occurs (for example, a pregnant employee is fired), the subordinate will be automatically reinstated.

Employer's liability

As a rule, those who are not laid off in the first place know their rights, so real layoffs do not come to pass. However, the employer may take the first mandatory steps to implement such dismissal.

According to the legislation of the Russian Federation, the employer is obliged to notify the employee in writing about his layoff at least two months before the event itself.

At the same time, if you fall under the protection of the Labor Code of the Russian Federation or enjoy certain benefits, then already at this stage, having attached all the documents giving you benefits, you have the right to go to court.

In the vast majority of cases, the employee wins the case, and the employer not only reinstates him in his position, but also compensates for all material costs of the trial and moral damage.

REFERENCE: How an employer cuts employees: for example, a company of 100 people needs to cut its staff by half. First, those persons who cannot be fired completely are excluded (the first point we described), then the qualifications, experience and value of the employee are studied, and finally, categories that enjoy social advantages are considered.

One of the most controversial points is dismissal based on qualifications. If you have documentary evidence of an employee’s advantage when laying off workers, showing that he is more important to the company than the colleague left in the position, then you can safely go to court and fight for your position.

Additional features

Article 81 of the Labor Code of the Russian Federation contains a list of cases in which it is permissible to lay off an employee at the initiative of the employer:

absenteeism (absence of a subordinate from work without good reason for 4 hours in a row or during the working day);
failure by a subordinate to fulfill labor duties without explaining his behavior, and this situation is repeated more than once;
the appearance of a subordinate at work in a state where he has drunk too much, used narcotic or toxic substances;
the subordinate does not correspond to the position he occupies or the work performed due to an insufficient level of qualifications (usually this state of affairs is revealed during certification);
the subordinate committed guilty actions - for example, he stole money from the cash register, revealed a commercial secret of the enterprise.

In the above cases, the employer must respond promptly to the misconduct. You will need to follow the rules for issuing a dismissed work book, salary and other payments due to him.

Thus, when optimizing the company or for other financial reasons, the manager may carry out a reduction in the workforce, in which positions or divisions are eliminated, and many subordinates find themselves without work.

The manager also has the right to reduce the number of subordinates occupying a specific position. The Labor Code of the Russian Federation does not distinguish between the two types of reductions.

At the same time, the legislation protects the rights of persons who have preferential rights to remain at work. If an employer begins to lay off employees who cannot be fired by law, he will be forced to reinstate his subordinates and pay them all compensation.

You cannot fire if the employee agreed to the transfer

Before dismissal due to redundancy, employees must be offered available vacancies available from 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 available vacancy according to his qualifications, a vacant lower position;
or, if there is no other option, a lower paid one.

All available vacancies must be offered taking into account that the employee will be able to perform the functions due to his/her health condition.

The management of the company is obliged to offer its employees all qualified vacancies that it has. If there are no available vacancies in the employer’s locality, then it is necessary to offer other options for work in another locality, unless this is provided for in local regulations or an employment contract.

If there are no vacant positions, then laid-off employees must also be notified about this.

If not all vacancies are offered to an employee, he cannot be dismissed due to staff reduction.

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

In the event of his refusal or the employer does not have available vacancies suitable for the person being laid off, dismissal is formalized.

Rules for layoffs at work

The question of what to do if you are laid off at work worries everyone who has been affected in one way or another by a reduction in staff at work.

First of all, don't worry too much about this. Perhaps the reduction came as a surprise to you. But on the other hand, maybe this is a chance to find a job that suits you better? In such a situation, you can also find positive aspects - for example, you yourself still did not dare to leave, or you worked rather out of habit, then cutting your job will be the very factor that will change your life for the better.
Secondly, remember that the law defines the rules for layoffs at work. The employer is obliged to properly comply with them and fill out all the paperwork correctly, and if he does not do this, you have a chance to be reinstated at work. In addition, the employer is obliged to pay you all benefits due in connection with the layoff.
Thirdly, there are certain categories of employees who cannot be laid off at work. You can find out more about this in the Labor Code, or by consulting with a professional lawyer.

How to survive layoffs at work

Dismissal from a job due to layoffs can be an unpleasant surprise. If you do not plan to be reinstated at this job (and it is not that uncommon for an employee to be reinstated after a layoff), then you should take care of the following main points.

start looking for a new job early. Look through advertisements in newspapers and on Internet sites. Create a resume that highlights all of your professional strengths. Tell your friends that you are looking for a new job. Go to interviews. You should not only wait for responses from employers, but also be active in your job search.
collect all the necessary documents at your current job. Take a certificate of experience, a 2-NDFL certificate, a salary certificate, copies of orders from the personnel department and other documents that you may need at your new place of work.
lead your normal life. Visit your favorite cafes and restaurants, watch new films in cinemas, meet friends, engage in your favorite hobby. In a word, lead the lifestyle to which you are accustomed. Even if there is a reduction in work, your life remains the same, because work is just a part of life, but not the whole life. Favorite hobbies, as well as sports, help relieve stress and restore peace of mind.
plan a vacation. If, after being laid off, you have not yet found a job, then perhaps you should take a short break? A change of environment has a positive effect on your emotional state. The place of rest depends on your capabilities, but in any case, the main goal is to relieve stress after dismissal and understand that although layoffs are a negative event, life goes on. There may be a job and a position of your dreams waiting for you around the corner, which you would never have been able to get if you had stayed at your old job.

Good luck in your job search!

Published: 07/25/2015

Dismissal due to staff reduction. nuances. how to behave correctly.

This procedure is provided for in paragraph 2 of Article 25 of the Law of April 19, 1991 No. 1032-1 “On Employment in the Russian Federation” and Article 82 of the Labor Code of the Russian Federation. In this case, you need to fill out: - “Information on the mass release of workers”; - “ Information about laid-off workers.” The forms are given in Appendices No. 1 and No. 2 to the Regulations on the organization of work to promote employment in conditions of mass layoffs, approved by Resolution of the Council of Ministers - Government of the Russian Federation of February 5, 1993 No. 99

OFFERING AVAILABLE VACANCIES It is important to remember that dismissal due to staff reduction is considered legal only if the company does not have the opportunity to provide people with other jobs available in the organization

Moreover, vacancies are taken into account both corresponding to the qualifications of the employee being laid off, and lower-ranking (or lower-paid) ones.