Dismissal of an employee of pre-retirement age in 2020: in what cases is it legal? Liability for illegal dismissal

Is it possible or impossible to fire a pre-retirement employee and how to do it correctly?

Workers of pre-retirement age are persons who have less than 5 years left before the start of payment of an old-age insurance pension (Part 3 of Article 1 of Federal Law No. 350 of October 3, 2020). Taking into account the increase in the previous retirement age from 2020, to clarify such information, the employer should contact the Pension Fund. They will tell you the exact status of the employee.

An employer is prohibited from dismissing a pre-retirement employee without reason, that is, simply due to his age. Responsibility for this is established in accordance with Federal Law No. 352 of October 3, 2020. This law introduced Article 144.1 of the Criminal Code of the Russian Federation, which defines the corresponding criminal liability of the head of an organization for the illegal dismissal of a pre-retirement employee. The norm came into legal force on October 14, 2020.

In accordance with the current labor legislation of the Russian Federation, the employer has the right to officially dismiss a pre-retirement employee in the following situations: at the employee’s own request, by agreement of the parties or on his own initiative, if there are legal grounds for this - disciplinary violations, staff reduction, etc.

Dismissal will be legal if circumstances arise that do not depend on anyone’s wishes, or the employee’s employment contract has expired (see Article 77 of the Labor Code of the Russian Federation).

At the initiative of the employer

Dismissal of a pre-retirement employee at the initiative of the employer is possible only on the following legal grounds specified in Art. 81 Labor Code of the Russian Federation:

• reduction in the number (staff) of employees;
• upon liquidation of a company (enterprise);
• the employee’s inadequacy for a certain position due to insufficient qualifications;
• repeated failure to perform various official duties without good reason;
• single violation of labor internal regulations (absenteeism, disclosure of official secrets, performance of official duties in a state of drug or other intoxication, etc.);
• submitting false documentation to the employer when applying for employment in an organization (company).

The insufficient qualifications of a pre-retirement person must be officially confirmed by the corresponding conclusion of the certification commission.

An employer has the right to early dismiss a pre-retirement employee for theft of the organization's property only on the basis of an appropriate court decision or a resolution on the application of administrative punishment.

Violations of established labor safety rules should be considered by a separate commission , which is obliged to determine whether the employee was familiar with the safety rules when receiving instructions, etc.

That is, when dismissing a pre-retirement employee at the initiative of the employer, it is important to comply with all the requirements of labor legislation. You cannot fire an employee with the words: “He can’t do his job anymore.” There must be results of certification carried out in the manner prescribed by law. Otherwise, the employer faces criminal liability.

At your own request

An employer has the right to cancel an employment contract (agreement) with a pre-retirement employee based on an application from an employee to leave work of his own free will. However, in such a case, the head of the organization (company) should be careful.

If the pre-retirement age of the dismissed person is indicated in the relevant order as the basis for the official dismissal of a pre-retirement person, the employer may thereby give rise to criminal liability under Art. 144.1 of the Criminal Code of the Russian Federation.

An employer should not put pressure on an employee and persistently persuade him to write a letter of resignation from work of his own free will.

If the court is presented with documentary evidence that the pre-retirement employee submitted his resignation under the influence of threats (pressure), then the defendant, represented by the employer, will be held criminally liable under Art. 144.1 of the Criminal Code of the Russian Federation (resolution of the Plenum of the Armed Forces of the Russian Federation No. 46 of December 25, 2020).

By agreement of the parties

The employer has the right to cancel an employment contract (agreement) with a pre-retirement employee by agreement of both parties (Article 78 of the Labor Code of the Russian Federation). However, the head of the organization should not force the employee to sign such a document. Otherwise, the employer may also be brought to the appropriate criminal liability established in Art. 144.1 of the Criminal Code of the Russian Federation.

At your own request and by agreement of the parties

No one prohibits an employee from resigning before retirement:

• at your own request under the conditions prescribed in Art. 80 TK;
• by agreement of the parties in accordance with Art. 78 TK.

It must be taken into account that upon personal initiative, the employee may change his mind and withdraw the application during 2 weeks of service. If an agreement is reached, the pre-retirement worker alone does not have the right to cancel it.

Rice. 2. Cases of changing careers before retirement cannot be ruled out.

Another question is if management forces an elderly person to write a statement. In this case, liability under Art. 144.1 of the Criminal Code does not apply. But if the employee is confident that his job duties are being fulfilled in full, he has the right to legally refuse such an offer from the employer.

Of course, you can prove pressure from management by contacting the labor inspectorate or court, but you will have to provide evidence of violations of rights:

• call recordings;
• screenshots of correspondence;
• witness statements, if any;
• photos;
• memos, orders.

If there is evidence, the labor inspectorate takes the side of the employee. He is not only reinstated in his position, but also paid wages for forced downtime.

But whether the pre-retirement worker will be able to continue working in this team is a moot point. In addition, management can always find reasons for dismissal on their own initiative.

When does management not have the right to do this?

As a result, taking into account Art. 144.1 of the Criminal Code of the Russian Federation and the general provisions of labor legislation, a pre-retirement person cannot be dismissed from his current place of work only on the grounds that he has reached the current pre-retirement age.

An employer needs to learn how to accurately determine an employee's pre-retirement age. In doing so, he should use the data given in the third column of the table on the right.

These age indicators apply only to those workers who are entitled to a pension on general legal grounds.

For residents of the Far North and equivalent territories, pre-retirement age begins 5 years earlier. There are other categories of citizens who have the right to early retirement (see Chapter 6 of the Federal Law “On Insurance Pensions”).

Also, in the event of dismissal of a pre-retirement employee, the employer must take into account the legality of the grounds for this. In such a situation, you can use the reference information from the following table:

When dismissing a pre-retirement employee due to a reduction in the number of employees (staff), reference to the current age of the employee will be considered unlawful, and the dismissal will be illegal.

A chronic illness of a pre-retirement employee is not a reason to fire him. If an employee becomes ill and there are medical recommendations for transfer to another position, the employer is obliged to provide the pre-retirement employee with appropriate open vacancies. Only if such an employee refuses the offered job, the employer has the right to dismiss him.

Pros and cons of this punishment

Such an initiative has been considered comprehensively and not everyone believes that it will bring positive changes in the world of work. The following advantages of innovations are noted:

• employers now have a deterrent that does not allow them to refuse a job applicant due to old age. The situation with dismissal is similar;
• the number of citizens of pre-retirement age registering with Employment Centers and receiving benefits from the state will decrease. On the contrary, they will continue to fill the funds and budget through payroll deductions.

Experts call the negative aspects:

• employers will anticipate the situation and try to sever the employment relationship with the employee before reaching retirement age. At the same time, when hiring older people, restrictions can be set when working conditions become a constraint. All these factors will cause an increase in unemployment among mature people;
• There will be a problem with the employment of young specialists due to the lack of vacancies. Organizations will be forced to let future retirees work;
• The number of lawsuits related to clarifying the reasons for the refusal to hire or dismiss people of pre-retirement age will likely increase. Unfoundedness must be proven.

We are also talking about the fact that the adopted law can negatively affect the efficiency of organizations. It will be difficult to update the staff, since the retirement age is rising and it will become impossible to fire a person in adulthood. Experience is a good thing, but age often wins here. The other side is that it is impossible to leave a citizen of pre-retirement age without a means of subsistence.

Criminal liability for illegal layoffs

For the illegal dismissal of a pre-retirement employee, the head of the organization (enterprise) is subject to appropriate criminal liability. The amount of the fine and other criminal penalties for such a crime are established in Art. 144.1 of the Criminal Code of the Russian Federation.

What fine can be imposed?

For unjustified termination of employment relations with a pre-retirement person, the head of an organization (enterprise) may be subject to the following criminal liability established in Art. 144.1 of the Criminal Code of the Russian Federation:

• a fine of up to 200,000 rubles;
• imposing penalties in the amount of the employer's monthly income for a maximum of 18 months;
• assignment to various compulsory work for up to 15 days.

According to Art. 19 of the Criminal Code of the Russian Federation only individuals over 16 years of age are subject to criminal liability. That is, the director of the organization or individual entrepreneur will bear responsibility for the unjustified dismissal of a pre-retirement employee.

Application practice

Currently, a small judicial practice has been formed in cases concerning the dismissal of pre-retirement workers. This is due to the fact that Art. 144.1 of the Criminal Code of the Russian Federation was recently introduced. However, at the moment, the courts are making decisions not in favor of pre-retirees. Below are two illustrative examples from judicial practice.

Example No. 1 : Decision of the Stavropol District Court of March 27, 2020 in case No. 2-787/2019 (the plaintiff’s last name has been changed).

According to the materials of this case, pre-retirement Mamaev filed a claim with the Stavropol District Court against his employer, MP Stavropol Resource Service, to declare his dismissal illegal and reinstate him in his previous job as a legal adviser. Mamaev was fired due to staff reduction.

Mamaev did not agree with the dismissal, pointing out that pre-retirement workers cannot be fired. Moreover, this employee considered that the fact of dismissal when he reached pre-retirement age could be considered the hiring of a new lawyer with no work experience in the legal department.

However, the court in its decision refused to satisfy the plaintiff's claims. The judge rejected Mamaev's argument that the employer violated Art. 144.1 of the Criminal Code of the Russian Federation, since such an article establishes criminal liability for unjustified cancellation of an employment contract with a pre-retirement person. At the same time, Mamaev was fired due to staff reduction, which is a legal basis for his dismissal.

Example No. 2: Decision of the Sudzhansky District Court of the Kursk Region dated February 13, 2020 in case No. 2-48/2019 (the plaintiff’s last name has been changed).

According to the case materials, pre-retirement Samsonov filed a claim with the Sudzhansky district court against his employer, represented by the Sudzhanskie Vesti AUKO, for reinstatement at work.

Plaintiff Samsonov, in his statement of claim, argued that his dismissal was carried out illegally due to the lack of economic justification for staff reduction. In addition, Samsonov considered that the staff reduction was carried out by the employer in order to evade criminal liability under Art. 144.1 of the Criminal Code of the Russian Federation.

However, after considering all the materials of the case, the court came to the conclusion that the decision to reduce staff by the editor-in-chief of the AUKO “Editorial office of the newspaper “Sudzhanskie Vesti”” complied with the established legal requirements and the Charter of the institution. In addition, the employer had legal grounds for dismissing Samsonov due to staff reduction.

Such arguments of the defendant were officially confirmed by written explanations from representatives of a third party. As a result, the court rejected the claim of pre-retirement Samsonov.

Resolution of the Plenum of the RF Armed Forces No. 46 dated December 25, 2020 provides recommendations to courts on law enforcement practice when considering relevant criminal cases under Art. 144.1 of the Criminal Code of the Russian Federation. First of all, the employer who employs pre-retirees should familiarize themselves with this document.

How will responsibility for the dismissal of future retirees be implemented?

Firing an employee is no easy task. This may be preceded by either serious violations of labor discipline, or staff reductions, or liquidation of the enterprise. Therefore, the article practically introduced into the Criminal Code will apply to those citizens who cannot find a job in order to “work” until retirement.

The employer will be held accountable under this article, i.e. a party to an employment contract who violated the procedure for hiring or dismissing a person of pre-retirement age. Thus, an official representing the organization or a legal entity will be determined.

In this case, it is necessary to understand the norm of unreasonableness. This can only be the employee’s inconsistency with professional criteria, insufficient work experience, lack of necessary education and the presence of other factors that may affect the performance of job duties. In other words, the citizen does not meet the qualification requirements, and the organization can give him a reasoned answer about this.

It is precisely this measure that will not allow discrimination against the age category, which can lose their job at any whim of the employer. Now such offenses will be considered criminal.

But lawmakers don't believe such harsh measures should be applied in every case. The Labor Inspectorate should not be excluded from the chain. This is the first authority to contact in case of violation of labor rights. When considering a case, the Inspectorate usually applies the measures provided for by the Code of Administrative Offenses. This article of the Criminal Code is, rather, intended to prevent such violations.

What to do if you were forced to resign, where to go to protect your rights?

In case of illegal dismissal, a pre-retirement employee has the right to apply to the following authorities:

1. State Labor Inspectorate . A pre-retirement employee can call the hotline of the relevant regional office, file a complaint through the online inspectorate, or contact the inspector in person.
2. Court . The legal basis for canceling an employment contract with an employee who has reached pre-retirement age must be formalized accordingly. Otherwise, if a claim is filed in court, the dismissed pre-retirement employee has the right to challenge the incorrect recording of absenteeism, violation of the certification procedure, etc.

At the initiative of the employer

Quite rightly, a pre-retirement worker can be fired according to the provisions of Art. 81 Labor Code of the Russian Federation for:

1. Professional inadequacy for the position held, if confirmed by the certification commission.
2. Unreasonable or systematic failure by an employee to fulfill official duties in the presence of official penalties.
3. Gross violation of labor discipline: absenteeism, showing up at work while drunk.
4. Violation of safety regulations, which led to injuries, casualties, and damage.
5. Loss of trust in a person who works with finances and material assets.
6. Disclosure of trade secrets.
7. Providing false documents.
8. Immoral act of a person whose work is related to children.

You can be asked to leave a leadership position if:

• change of owner;
• making a decision that caused damage to the enterprise;
• one-time gross violation of duties;
• based on the conditions provided for in the employment contract.

In addition, there are compelling reasons not related to violation of labor discipline or failure to fulfill duties. These include the liquidation of an enterprise and reduction of personnel or staff. In this case, the pre-retirement employee is not protected by law, and his candidacy is considered on an equal basis with other employees.

If it is necessary to dismiss an elderly employee, the employer is obliged to take all stages of registration responsibly so that in the future he is not accused of violating Art. 144.1.

Rice. 3. Only properly executed documentation can protect the manager

Benefits for such employees after leaving work

After dismissal, pre-retirees have various benefits. These, in particular, are considered to be preferential preferences regarding the payment of unemployment benefits (Government Resolution No. 1426 of November 7, 2020).

The amount of unemployment benefits for pre-retirees can be in the range of 1,500 - 11,280 rubles. Moreover, benefits can be paid for a whole year.

Moreover, for those who have an insurance period of more than 20 years (for women) and 25 years (for men), the period for paying monthly unemployment benefits increases by 14 calendar days for each additional year of work. However, the total payment period is no more than 2 years (Article 34.2 of Federal Law No. 1032-1 of April 19, 1991).

In addition, according to Federal Law No. 35 of March 18, 2020, Art. 169 of the RF IC is supplemented by a provision according to which certain categories of pre-retirement people (disabled adults and ex-spouse in need of help) have the right to alimony. This law applies to persons over the age of 60 (for men) and 55 years (for women).

Thus, according to the current legislation of the Russian Federation, the employer has the right to dismiss a pre-retirement employee on various legal grounds. However, this cannot be done solely on the basis of the employee reaching the appropriate pre-retirement age. In case of unjustified dismissal of a pre-retirement employee, the employer may be subject to appropriate criminal liability.

Can a person approaching retirement age be fired?

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

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

Article 81 of the Labor Code of the Russian Federation allows you to dismiss an employee if there are grounds, the main ones of which are:

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

Ask to be laid off or offered another position in which you can work until retirement.

Many employers, when hiring an employee, enter into a collective agreement, according to which, if the employee retires due to age, a large bonus is paid.

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If you are deprived of the opportunity to work and are illegally fired for a fictitious violation, then you have the right to appeal to the labor inspectorate with a complaint against the employer, or to court. You can read about how to file a complaint against an employer with the labor inspectorate in our other article.

Citizens of pre-retirement age are entitled to financial support in the event of a reduction in jobs by the employer, as well as benefits upon dismissal. Additionally, individuals receive the following benefits:

• pre-emptive right in accordance with the Labor Code of Russia (Article 179) at the time of dismissal of an employee;
• taboo for employers to dismiss persons who are guardians of minor children or disabled people in accordance with the Labor Code of Russia, in particular Article 261.

Local documents will also record secondary benefits for these citizens, which will take into account their length of service and the presence of occupational diseases.

Recently, many employers have been trying to fire employees near retirement age, and there are many reasons for this, ranging from decreased productivity to the desire to employ younger specialists in their place. From the point of view of the law, employees who have little time left before retirement are not so protected, however, their age is not a basis for dismissal.

In Art. 3 of the Labor Code of the Russian Federation states that age, race, gender, nationality, social status and beliefs do not provide any advantage in professional activities and should not influence the attitude of the employer, and if he wants to fire his employee, citing any of the above, this considered discrimination in the world of work. Direct grounds for dismissal at the request of the manager are listed in Art.

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

• the citizen must be recognized as unemployed in the prescribed manner;
• It is imperative to confirm a total work experience of at least 25 and 20 years for men and women, respectively;
• The employment service must admit that it is not possible to employ a citizen;
• The employee has no more than 2 years left before reaching retirement age.

A worker applying for early retirement should remember that even the payment of unemployment benefits may be suspended due to a citizen’s evasion of employment. That is, the Labor Exchange is obliged to look for vacancies, send registered citizens for interviews and offer all vacancies, even with low pay and qualifications.

If the company plans to reduce staff, then according to Art. 179 of the Labor Code of the Russian Federation, employees with the highest qualifications and labor productivity, as well as certain categories of employees, have a preferential right to continue their work activity:

• If the qualifications and productivity of all subordinates are equal, then family people raising two or more dependents have an advantage; persons providing for the entire family if its other members are not employed; employees who received injury or illness in connection with their work activities in this organization; disabled combat veterans; employees who improve their skills without interrupting their work duties.
• Other categories of employees specified in the collective agreement.

According to Art.

When laying off an employee who is a trade union member, it is necessary to take into account the opinion of the trade union committee (Article 82 of the Labor Code of the Russian Federation), for which the employer must apply in writing to the trade union committee. Further registration of the employee’s dismissal due to reduction is subject to all the rules of Art. 84.1 Labor Code of the Russian Federation. The redundant employee is paid severance pay in the form of his average monthly earnings.

Attention

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. Benefits for pre-retirement layoffs The legislation of other industries provides for some benefits for laid-off “pre-retirement” workers. Thus, employment legislation provides for them to increase the period of payment of unemployment benefits to 24 months under certain conditions.

• Violation of labor protection requirements, which entailed serious consequences.
• Loss of trust on the part of the employer caused by the commission of guilty actions when servicing commodity or financial assets.
• Providing false information about your financial or property status, or refusing to provide such information, if this entails a conflict of interest or can prevent it.
• Committing an immoral act if an employee is engaged in educational activities and further work in the organization is impossible.
• Providing false documents during employment.

Also, individual cases that are the reason for termination of an employment contract at the initiative of the employer may be indicated in the document itself, but reaching pre-retirement age in any case is not grounds for dismissal.

Labor Code of the Russian Federation, and these include the following: Also, individual cases that are the reason for termination of an employment contract at the initiative of the employer may be indicated in the document itself, but reaching pre-retirement age in any case is not grounds for dismissal.

Despite the fact that, according to the law, it is practically impossible to dismiss a person of pre-retirement age without grounds, there are still circumstances in which an employment contract can be terminated: Thus, dismissal before retirement due to reaching a certain age is unlawful and can be appealed in court ok.

Dismissal at pre-retirement age, reduction of the number or staff of employees of an organization, individual entrepreneur; (edited)

However, increasingly, managers are trying to terminate employment contracts with unwanted employees and employ other people in the places of dismissed subordinates, but it should be remembered that if there is no legislative basis for this, then such actions are unlawful. To achieve justice, you should first contact the labor inspectorate.

Employees of this organization will conduct an inspection and issue an appropriate order to eliminate violations, but in order to be reinstated and receive moral compensation, they will have to file a claim.

As a rule, such cases are dealt with by the district courts at the location of the defendant, but before going there, you need to carefully prepare:

• Find an employment contract: it will serve as proof of employment in the company.

What rights does the plaintiff have in this case:

• He may change the claims.
• Demand compensation for attorney fees and state fees from the defendant.
• Reduce or increase the amount of required compensation.
• Refuse the claim, change its subject and grounds.

Sometimes a settlement agreement is concluded between plaintiffs and defendants, but it should be remembered that this document deprives the employee of the right to re-apply to court on the same grounds. The settlement agreement must be confirmed by a judicial authority, and from the moment of confirmation it is recognized as valid. To reinstate an employee to his previous position, the manager must do the following:

• Issue a new order canceling the dismissal order. It must indicate the grounds: for example, “in connection with the entry into force of the Court Ruling dated dd.mm.yy.

We invite you to familiarize yourself with: The procedure for dismissal at the end of the employment contract || The director's employment contract has expired, is this considered dismissal?

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

That is, a worker of pre-retirement age at the time of registration with the Employment Service can only count on annual financial support for 12 months, but further accrual of benefits depends on work experience exceeding the norm of 25 and 20 years. Thus, in accordance with Article 32 of Federal Law No. 1032-1, for each year of work in excess of the specified norm, a future pensioner can count on payment of benefits for 2 weeks.

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

According to Art.

• Issue a new order canceling the dismissal order. It must indicate the grounds: for example, “in connection with the entry into force of the Court Ruling dated dd.mm.yy.

What do you need to know? Not every citizen of pre-retirement age can count on receiving benefits for 36 months from the date of dismissal, because in accordance with Part 1 of Article 32 of Federal Law No. 1032-1, the period for receiving benefits in excess of the norm directly depends on the total length of service. That is, a worker of pre-retirement age at the time of registration with the Employment Service can only count on annual financial support for 12 months, but further accrual of benefits depends on work experience exceeding the norm of 25 and 20 years.

Thus, in accordance with Article 32 of Federal Law No. 1032-1, for each year of work in excess of the specified norm, a future pensioner can count on payment of benefits for 2 weeks. For example, if you have 26 years of experience, the benefit will be paid for 12 months and 2 weeks, and if you have 40 years of experience, an additional 7 months and 2 weeks will be added to 12 months.

Is it allowed to lay off an employee with early retirement?

Russian legislation establishes the possibility for an employee to retire early if he is laid off at his main place of work.

At the same time, the reduction of an employee of pre-retirement age during 2019 should be carried out due to the current economic situation at the enterprise, and not because of reaching a certain age.

If an employee is laid off, he may qualify for early receipt of a labor pension if the following conditions are met:

• The required period of time was worked out (for men, 25 years of experience, for women, 20 years of experience);
• At the time of submitting documents, he is unemployed;
• He does not have the opportunity to find a job;
• Retirement should take place in the next 2 years.

In order to use this opportunity, you must submit an application to the Russian Employment Center. There they must consider it and, if all the criteria are met, send a proposal for early pension assignment.

Pre-retirement age: the law on tax benefits for pre-retirees has been signed and published

In order to receive it you need to:

• The person was declared unemployed;
• Had a work experience of 20 years for women and 25 for men;
• When reducing, be over 53 for a woman and 58 for a man;
• Voluntary desire for her early retirement.

To be recognized as unemployed, you must:

• have an entry in the work book about dismissal due to staff reduction;
• Be registered with the employment department;
• Do not refuse job offers more than twice.

Pre-retirement age includes a period of 5 years before full retirement. Currently, retirement is carried out at 55 and 60 years old, but as the retirement age increases, the dates will shift. At the same time, the pre-retirement period will remain the same.

With the standard reduction option, the employer will prefer to keep a younger specialist at work, but according to the law, experience gives a significant advantage over other employees. For this reason, priority in the case of equal qualifications will go to a person of pre-retirement age who has significant length of service and work experience. Violation of this rule by the employer may lead to the employee being reinstated if he goes to court or the labor inspectorate.

In accordance with the 2020 regulations, the reduction of pre-retirement year employees is regulated by general rules. The only full-fledged benefit is the possibility of early retirement, but this will require fulfilling many conditions:

• be officially unemployed;
• do not have employment opportunities, as confirmed by documents from the employment center;
• there must be a maximum of two years left before retirement;
• there are 30 points according to the cumulative system;
• minimum experience of 25 and 20 years for men and women, respectively.

It is worth considering that with an increase in the retirement age, a special provision will begin to apply, which will lead to an increase in state guarantees for persons of pre-retirement age, including regarding labor relations.

The Labor Code of the Russian Federation regulates all issues of reduction in several articles located in different chapters:

• clause 2, part 1, art. 81 of the Labor Code of the Russian Federation establishes as a basis for the dismissal of an employee at the initiative of the employer a reduction in the number of employees carried out in the organization; Part 3 of the same article talks about the procedure for laying off an employee;
• Art. 82 of the Labor Code of the Russian Federation regulates the procedure for taking into account the opinion of the trade union body on the dismissal of a redundant employee;
• Art. Art. 178 – 180 of the Labor Code of the Russian Federation are devoted to guarantees and compensation for laid-off workers, including issues of establishing advantages for remaining at work during layoffs.

Persons of pre-retirement age are not mentioned as a separate category of workers in the Labor Code of the Russian Federation; The specifics of the procedure for their reduction have not been established.

Russian President Vladimir Putin signed a law amending Articles 391 and 407 of the Tax Code of the Russian Federation regarding pension benefits for property taxes. The text of Federal Law No. 378-FZ dated October 30, 2018 was published on the Official Internet Portal of Legal Information.

The law establishes the right of taxpayers to be exempt from property tax and land tax upon reaching a certain age. For men it is 60 years, for women – 55 years.

Upon reaching this age, taxpayers receive a deduction for land tax in the form of a reduction in the tax base by the cadastral value of 600 square meters of land area and an exemption from property tax for individuals in respect of one object not used in business.

Until now, this right was granted to pensioners, that is, upon reaching retirement age. Accordingly, raising the retirement age would automatically delay the provision of such benefits.

The new amendments cancel the connection of these benefits with the onset of retirement age and establish a fixed age when the taxpayer becomes entitled to these benefits.

https://youtu.be/ZiQE_2MnTmw

The law will come into force on January 1, 2020.

Chronicle of events

10/25/2018. The Federation Council approved the law on providing pension benefits on property taxes before retirement.

Let us remind you that the law amends Articles 391 and 407 of the Tax Code of the Russian Federation. They establish that the right to exemption from property tax and land tax arises for taxpayers upon reaching not a pension age, but a certain age: for men - 60 years, for women - 55 years.

Accordingly, after a gradual increase in the retirement age, taxpayers will be able to receive benefits on property taxes, as before - men at 60 years old, women at 55 years old.

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10/16/2018. The head of the Russian Union of Industrialists and Entrepreneurs (RSPP), Alexander Shokhin, said that representatives of the business community sent a letter to the State Duma with a request to reduce insurance premiums for payments to employees of pre-retirement age.

The head of the Russian Union of Industrialists and Entrepreneurs clarified: “We proposed cutting it in half, from 22% to 11%. Colleagues offer 10%, so they wrote up to 10-12%.”

At the same time, the business proposed to preliminarily reduce insurance premiums for payments to employees of pre-retirement age as an experiment in pilot regions.

“It would be entirely possible to conduct a legal experiment in a number of industries and regions where this topic can be “touched out.” Right now an experiment is being conducted on the self-employed; exactly the same experiment could be conducted to begin with. In any case, this work will have to be carried out,” explained Alexander Shokhin.

The business community also asked State Duma deputies to soften the already introduced criminal liability for employers for dismissing pre-retirees.

“Before initiating a criminal case, you need to bring them to administrative responsibility under the Code of Administrative Offenses. And then only those who have already been subject to administrative liability can be brought to criminal liability as certain “repeat offenders.” This does not contradict the already adopted law, it can be supplemented,” Interfax quotes Alexander Shokhin as saying.

10/15/2018. The Ministry of Labor proposed retraining workers of pre-retirement age away from their main place of work with the payment of stipends in the amount of the minimum regional salary.

The corresponding procedure is provided for by the draft “Program of measures for organizing vocational training and additional vocational education for citizens of pre-retirement age in accordance with the skills and competencies in demand in the economy until 2024” developed by the ministry.

In total, by 2024, the ministry plans to train 450,000 workers of pre-retirement age, or 75,000 annually. The training of each pre-retirement student is expected to take three months, with an average course cost of 33,000 rubles.

For pre-retirees, the courses will be free. All training costs, including scholarships, will be financed from the budget.

“It seems that it is necessary, first of all, to teach skills and knowledge related to modern information and communication technologies, teaching and mentoring skills, control and accounting, reporting and information exchange,” the RBC program says.

10/11/2018. The State Duma approved a law providing pension benefits on property taxes for women upon reaching 55 years of age and for men upon reaching 60 years of age. Deputies unanimously supported the document.

In this case, we are talking about the benefits currently established for pensioners to pay property tax (houses, apartments, rooms, garages, parking spaces, etc.) and land tax on plots of 600 square meters. m.

Let us recall that this law is associated with an increase in the retirement age from 2020 and ensures that citizens receive the specified tax benefits not upon retirement, but earlier - upon reaching a certain age.

In the near future, the law will be sent to the Federation Council, and only then to the President of the Russian Federation.

10.10.2018. The State Duma today approved in the first reading a law on providing pension tax benefits on property taxes before retirement age. 414 deputies voted in support of the head of state’s bill.

Let us recall that bill No. 544565-7 establishes that after raising the retirement age, property tax benefits currently available to pensioners will be provided upon reaching the age that was considered retirement age as of December 31, 2020 (55 years for women and 60 years for men).

Accordingly, after raising the retirement age, individuals will receive tax benefits for land tax and property tax for individuals even before their retirement according to the new rules.

The law should come into force on January 1, 2020.

08.10.2018. Deputy Prime Minister Tatyana Golikova said, speaking in the State Duma, that maintaining pension benefits for paying property taxes and land taxes for people of pre-retirement age will bring them additional income in the amount of 1,700 rubles per year.

Let us recall that the bill with amendments to Articles 391 and 407 of the Tax Code of the Russian Federation establishes that after raising the retirement age, property tax benefits currently available to pensioners will be provided upon reaching the age that was considered retirement age in 2020 (55 years for women and 60 years - for men).

This means that after raising the retirement age, individuals will receive tax benefits for land tax and property tax for individuals even before their retirement according to the new rules.

The bill is currently being prepared for the first reading in the State Duma.

Commenting on these amendments to the Tax Code of the Russian Federation in the State Duma Committee on Budget and Taxes, Deputy Prime Minister Fr.

Dismissal of an employee of pre-retirement age under the Labor Code

Each reason for dismissal is regulated by a separate article of the Code and puts forward a number of requirements for both the employer and the employee. For example, when a pre-retirement employee is dismissed:

• At his own request, he is obliged to notify the company of his resignation two weeks before the desired date of dismissal. In the literal sense of the word, he is not obliged to work out this period, but in order not to waste time, he must either agree with his superiors on an earlier payment, or use vacation days that have not been taken off, or take sick leave. You still cannot skip work without a reason on the eve of dismissal.

• In connection with medical indications, an employee receives an immediate payment, as well as a number of payments under social insurance, collective agreements and other regulations, when a non-working disability group is established. If health has deteriorated temporarily, the employer is obliged to transfer the employee to easier work for up to 4 months. If there is no such work, during this period the employee must retain his job and after recovery the person can return to work. If there is no likelihood of restoration, and the company does not have a vacancy with easier working conditions, or the employee refuses it, he is dismissed under paragraph 8 of Article 73 of the Labor Code of the Russian Federation.

Reduction of pre-retirement people

The norms of the Labor Code of the Russian Federation establish financial and legal guarantees for an employee upon dismissal due to the closure of an enterprise, as well as the layoff of an employee of pre-retirement age in 2020. According to Art. 180 of the Labor Code of the Russian Federation, the employee must be notified of the upcoming dismissal during the liquidation of the enterprise or due to layoffs against signature at least 2 months before the day of dismissal. According to Part 3 of Art. 180 of the Labor Code of the Russian Federation, with the consent of the employee, the administration of the enterprise may terminate the employment contract with him without waiting for the expiration of a two-month period from the date of notification of the upcoming dismissal. In this case, for the remaining time until the day of dismissal, the employee is entitled to compensation in the amount of average earnings.

If a pre-retirement employee is laid off in 2020, the procedure provided for in Part 1 of Art. 180 Labor Code of the Russian Federation. That is, an employee subject to layoffs must be offered other vacant positions in the organization. Accordingly, dismissal is possible only if the employee refuses the offered vacancies or there are no vacancies in the organization.

For reference: according to Art. 179 of the Labor Code of the Russian Federation, when a reduction is carried out (if there are several positions of the same type), the employee whose labor productivity and qualifications are higher will have the priority right to remain at work. At the same time, the pre-retirement status does not give the employee any advantages for remaining at work. Accordingly, the issue of layoffs for pre-retirement employees will be resolved on a general basis.

Establishing the concept of pre-retirement age starting in 2019

Let's study in more detail the issue of pre-retirement workers and their rights as parties to labor interactions.

What does the law establish as pre-retirement age?

Normative acts do not define such categories of citizens as pre-retirees. In practice, they are considered citizens who have no more than five years left before retirement.

The lack of a precise definition is due to the fact that reform in the field of pension provision has just begun and involves increasing the retirement age every year.

Below in the table we provide information on the number of years that define a person as a pre-retirement person in relation to his retirement:

From the information given in the table, you can see that over the course of several years there will be a shift in the pre-retirement age. As a result, in 2013 this age for women will be 55 years, and for the male part of the population – 60 years.

It is important for personnel officers to correctly determine which employees are pre-retirement and which are not. This information will help avoid liability for the company and its responsible persons under the Criminal Code of the Russian Federation.

Guarantees and possible benefits for this category of citizens

Since January 2020, a preferential category of citizens has appeared, such as pre-retirees, who have additional guarantees from the state.

They are due to the desire of the state authorities to reduce the negative consequences for pre-retirees caused by the adoption of new rules for the retirement of workers.

The following benefits for pensioners can be distinguished (the list is not closed):

• Provision by the company management of two paid days that the employee can use for medical examination.
• Upon reaching the age at which the employee previously had the right to apply for a pension, the pre-retirement worker has the same benefits as in previous times - tax benefits (exemption from property tax, deduction for land tax, etc.), preferential travel on transport, benefits on utilities.
• Pre-retirees can take advantage of special training programs that will increase their chances of finding work in the labor market.
• Early registration of the funded part of the pension - you can start receiving it at 55-60 years of age ahead of schedule.
• The rules of law establish restrictions on the grounds for employers to dismiss employees of pre-retirement age, and establish serious liability for violation of established rules, including unauthorized refusal to employ a pre-retirement employee.

Currently, there are no other benefits for pre-retirement workers, for example, a reduction in the standard working hours.

Is there a ban on dismissal of employees with pre-retirement status during staff reductions?

A situation may arise in a company in which it will be necessary to carry out a procedure for laying off employees (this can be either for economic reasons or due to liquidation).

As part of the procedure, people working in the company of pre-retirement age may be dismissed due to reduction.

Who will be considered pre-retirement?

At the moment, there is a transition period in which the state is gradually (six months per year) raising the retirement age, and by 2024 it will be 53 years for women and 58 years for men. During the transition period, it is quite difficult to calculate when pre-retirement age occurs. To calculate, you can use the following table:

It is important to know when an employee becomes a pre-retirement employee, since pre-retirement employees have some benefits that regular employees do not have:

1. Two days for medical examination per year, for other employees - one day every two years (Article No. 185.1 of the Labor Code of the Russian Federation). Days of medical examination are paid “on average” (the average salary for a certain period).
2. Receiving increased unemployment benefits during the year in the amount of no more than 11,280 rubles , others receive a maximum of 8,000 rubles (Government Decree No. 1375 of November 15, 2018).
3. Pre-retirees have the right to undergo retraining and take advanced training courses at the expense of the employer , who will be reimbursed for these funds from the budget (Order of the Government of the Russian Federation No. 3025-r dated December 30, 2018).
4. Protection of pre-retirees from layoffs without good reason.

How the law will work

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

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

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

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

What to do if you are laid off at retirement age?

Dismissal due to layoff is the most profitable option for an employee, because layoff provides for certain payments. Therefore, if you are offered this option, it is better to agree, because if there are a couple of years left until retirement, you can apply for early retirement.

If you are laid off, the Labor Code guarantees you:

• Maintaining the employee’s average earnings for 2 months;

When registering with the employment department:

• For the first 3 months, a benefit in the amount of 75% of the average monthly salary;
• In the next 4 – 60%;
• In the remaining 5 – 45%.