When reducing, it is necessary to take into account the pre-emptive right of some employees to remain in their previous position. In practice, personnel officers have many questions about how to determine or fix this right by law. Experts will help you figure it out!
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The only case when it is necessary to take into account the preemptive right
It is very important to understand the difference between the terms "reduction of the organization's staff" and "reduction of the number of employees".
Downsizing- This is the elimination of an entire position in the staffing table. For example, there was a position of "dispatcher", 4 people worked on it, and then from staffing this position has been removed.
At reduction in the number of employees staff position - position, profession, remains, but the number of staff units is reduced for it. For example, instead of 4 mechanics, the head of the organization decided to leave only 2. The position remained, but the number of units for it decreased.
It is necessary to determine the pre-emptive right of the employee in case of reduction only when there is a reduction. That is, from all employees occupying the same position with the same responsibilities, you need to choose who to keep and who to fire. If all staff units are reduced by position, then there is no need to take into account the preemptive right, because there is no choice situation (appeal ruling of the Moscow City Court dated 08.08.2016 No. 33-30669 / 2016).
See the selection of litigation in the “Personnel System”:
Who has the first priority in the reduction
First of all, the employer has the right to leave at work employees who have higher labor productivity and qualifications (part 1 of article 179 of the Labor Code of the Russian Federation).
Qualification in the Labor Code of the Russian Federation is determined by the presence of knowledge, skills, professional skills, experience. It is confirmed:
- diplomas,
- certificates and certificates
- the results of certifications, exams,
- certificates,
- work book.
Labor productivity is understood as the quantitative side of the performance of work. There will definitely be documents fixing labor productivity if, on their basis, the employer considers the bonus to employees. Quantitative indicators are easy to compare among sellers (revenue), sales managers (volume of transactions), cashiers (amount of accepted amount from customers), piece workers (made products).
★ The expert of the magazine "Personnel Business" will tell,.
But sometimes it's hard to compare. The work of an administrator, accountant, personnel officer cannot always be measured by the number of papers. In practice, in relation to such employees, the following indicators are used:
- absence of periods of temporary disability;
- correct preparation of reports, contracts and other documents;
- speed and timeliness of fulfillment of tasks and orders of the head;
- compliance with certain requirements and standards;
- the presence of penalties and thanks for the period of work, etc.
The employer has the right to determine which of the employees is more competent and useful for the company. But the dismissed employee has the right to challenge this decision. Therefore, it is important to have documentary justification for more highly qualified remaining employee.
The choice of the "second line": which categories of workers are not specified in the Labor Code
If the productivity and qualifications of the laid-off workers are equal, then the employer must keep at work employees classified by law as “preferential” categories. And here the field for choice is simply huge. Not only Labor Code Russian Federation, but also other federal laws establish the benefits of certain categories of workers for staying at work.
Table. Preferential right in case of dismissal on reduction in the second place
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the federal law |
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Part 2 Art. 179 Labor Code of the Russian Federation |
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An employee who was exposed to radiation at the Semipalatinsk test site |
paragraph 10 of Art. 2 federal law dated 10.01.2002 No. 2-FZ |
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A worker who was exposed to radiation as a result of the disaster at the Chernobyl nuclear power plant |
paragraph 7 of Art. 14 of the Law of the Russian Federation of May 15, 1991. No. 1244-1 |
The law allows in a collective agreement or local act organizations to provide for other categories of employees who will have a pre-emptive right in case of redundancy dismissal (part 3 of article 179 of the Labor Code of the Russian Federation).
Many employers prefer not to get involved in comparing qualifications and performance, but start choosing immediately from preferential categories of workers. It is not right. First of all, they have the right to stay the best workers(appellate ruling of the Moscow City Court of December 12, 2012. No. 11-30985).
Absolute immunity: who does not need an advantage in reducing the number of employees
The pre-emptive right of an employee in case of reduction is not considered in relation to those employees who are generally not subject to dismissal at the initiative of the employer in connection with a reduction in staff or headcount. These categories of workers are specified in articles 261 and 264 of the Labor Code of the Russian Federation:
- pregnant women,
- women with a child under the age of three,
- single mothers (fathers) raising a disabled child under the age of 18 or a child under the age of 14,
- parents or other legal representatives of the child (adoptive parents, trustees, guardians) who are the sole breadwinner of a disabled child under the age of 18,
- parents or other legal representatives of the child (adoptive parents, trustees, guardians) who are the sole breadwinner of a child under the age of three in a family raising three or more young children, if the other parent (another legal representative of the child) is not in an employment relationship.
Labor Code, N 197-FZ | Art. 179 Labor Code of the Russian Federation
Article 179 of the Labor Code of the Russian Federation. Priority right to leave at work in case of reduction in the number or staff of employees (current version)
When reducing the number or staff of employees, the preferential right to remain at work is granted to employees with higher labor productivity and qualifications.
With equal labor productivity and qualifications, preference is given to staying at work: 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.
The collective agreement may provide for other categories of workers enjoying the preferential right to remain at work with equal labor productivity and qualifications.
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Commentary on Art. 179 Labor Code of the Russian Federation
1. Established criteria - higher labor productivity and employee qualifications provide right choice candidates subject to dismissal and provide an opportunity to retain labor Relations with highly skilled workers.
If, when deciding on the pre-emptive right, it turns out that employees have equal labor productivity and qualifications, then preference is given to employees listed in Part 2 of Art. 179. At the same time, the employer may grant this right to any employee specified in paragraph 2, without observing the sequence given by the legislator.
A higher qualification is evidenced by the fact that the employee has primary, secondary, higher professional education, obtaining a second education, the presence of an academic degree, academic title, etc. Labor productivity is characterized by the quality of the work performed, the absence of defects, a large volume of products produced per unit of time compared to other workers, etc.
2. Enshrined in Part 2 of Art. 179 the concept of "dependents" was adopted by the legislator from the Law on Labor Pensions.
Persons dependent on an employee include disabled family members, who are recognized as:
1) children, brothers, sisters and grandchildren of the deceased breadwinner who have not reached the age of 18, as well as children, brothers, sisters and grandchildren of the deceased breadwinner studying full-time in educational institutions of all types and types, regardless of their organizational and legal form, in including in foreign educational institutions located outside the territory of the Russian Federation, if the referral for training is made in accordance with international treaties RF, except educational institutions additional education, until they complete such training, but not longer than until they reach the age of 23 or children, brothers, sisters and grandchildren of the deceased breadwinner over this age, if they became disabled before reaching the age of 18. At the same time, brothers, sisters and grandchildren of the deceased breadwinner are recognized as disabled members of the family, provided that they do not have able-bodied parents;
2) one of the parents or a spouse or grandfather, grandmother of the deceased breadwinner, regardless of age and ability to work, as well as a brother, sister or child of the deceased breadwinner who has reached the age of 18, if they are engaged in caring for the children, brothers, sisters or grandchildren of the deceased breadwinner, do not who have reached the age of 14 and are entitled to a labor pension in case of loss of a breadwinner;
3) the parents and spouse of the deceased breadwinner, if they have reached the age of 60 and 55 years (men and women, respectively) or are disabled;
4) the grandfather and grandmother of the deceased breadwinner, if they have reached the age of 60 and 55 years (men and women, respectively) or are disabled, in the absence of persons who, in accordance with the legislation of the Russian Federation, are obliged to support them.
Family members of the deceased breadwinner are recognized as being dependent on him if they were fully supported by him or received assistance from him, which was a permanent and main source of livelihood for them (see Article 9 of the Law on Labor Pensions).
3. In addition to those listed in Part 2 of Art. 179 employees, preference in staying at work is given to: the authors of inventions (Article 35 of the Law of the USSR of May 31, 1991 N 2213-1 "On Inventions in the USSR"); spouses of military personnel government organizations, military units(Article 10 of the Federal Law of May 27, 1998 N 76-FZ "On the Status of Military Personnel"); citizens discharged from military service and members of their families at work, where they entered for the first time after dismissal from military service, as well as single mothers of military personnel undergoing military service by conscription (Article 23 of the said Law); citizens awarded the title of Hero Soviet Union, Hero Russian Federation or who are full cavaliers of the Order of Glory (Article 8 of the Law of the Russian Federation of January 15, 1993 N 4301-1 "On the status of Heroes of the Soviet Union, Heroes of the Russian Federation and full cavaliers of the Order of Glory"); officials and citizens admitted to state secrets on a permanent basis (Article 21 of the Law on State Secrets); persons who received or suffered radiation sickness and other diseases associated with radiation exposure caused by the consequences of the Chernobyl disaster, persons who received disability as a result of the Chernobyl disaster, participants in the liquidation of the consequences of the Chernobyl disaster in the exclusion zone in 1986-1990, as well as persons evacuated from the exclusion zone and resettled from the resettlement zone, other persons equated to them (Article 14 of the Chernobyl Law); persons exposed to radiation as a result of nuclear tests at the Semipalatinsk test site, who received a total (cumulative) effective radiation dose exceeding 25 cSv (rem) (Article 2 of the Law on social guarantees citizens exposed to radiation at the Semipalatinsk test site).
4. Legal guarantees enshrined in Art. 179 are supplemented by guarantees at the local level, which are included in collective agreements and agreements. Thus, it is established that the priority right to leave at work is granted:
Persons of pre-retirement age (two years before retirement) (Industry agreement on coal industry Russian Federation for the period from April 1, 2013 to March 31, 2016; Industry agreement on federal state unitary prosthetic and orthopedic enterprises under the jurisdiction of the Ministry of Health and social development Russian Federation, for 2012 - 2014);
Employees who have no more than three years left before retirement (Industry agreement on organizations of the Federal Agency for Technical Regulation and Metrology for 2012 - 2014);
Judicial practice under article 179 of the Labor Code of the Russian Federation:
- Decision of the Supreme Court: Determination N 209-KG17-2, Judicial Collegium for Military Personnel Affairs, cassation
According to the author of the cassation appeal, the conclusion of the courts on the employer's compliance with the procedure for her dismissal from work due to her lack of pre-emptive rights specified in Part 2 of Art. 179 of the Labor Code of the Russian Federation, leaving at work is erroneous ...
- Decision of the Supreme Court: Determination N 26-KG14-38, Judicial Collegium for Civil Cases, cassation
Therefore, the court in violation of the requirements h. 3 Article. 81, part 1, 2 art. 179, part 1 of Art. 180 of the Labor Code of the Russian Federation did not check the defendant's compliance with the procedure for dismissing the plaintiff, thereby violating the right of Makhloev M.I. to judicial protection of their ^Hellish rights. / In connection with the above, the decision of the court of first and appeal instances cannot be recognized as lawful ...
- Decision of the Supreme Court: Determination N 73-KG16-5, Judicial Collegium for Civil Cases, cassation
Part 2 of Article 179 of the Labor Code of the Russian Federation determines that disabled family members who are fully supported by an employee or receive assistance from him, which is for them a permanent and main source of livelihood, are recognized as dependents ...
Article 178. Severance pay
Upon termination of an employment contract in connection with the liquidation of an organization (clause 1 of part one of Article 81 of this Code) or a reduction in the number or staff of employees of an organization (clause 2 of part one of Article 81 of this Code), the dismissed employee is paid severance pay in the amount of the average monthly salary, as well as the average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay).
In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the public employment service agency, provided that the employee applied to this agency within two weeks after dismissal and was not employed by him.
Severance pay in the amount of two weeks of average earnings is paid to the employee upon termination of the employment contract due to:
refusal of the employee to transfer to another job, necessary for him in accordance with medical opinion issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation, or the lack of an appropriate job for the employer (clause 8 of part one of Article 77 of this Code);
conscription of an employee for military service or sending him to an alternative alternative civil service(clause 1 of the first part of Article 83 of this Code);
reinstatement at work of an employee who previously performed this work (paragraph 2 of part one of Article 83 of this Code);
the refusal of the employee to transfer to work in another locality together with the employer (paragraph 9 of the first part of Article 77 of this Code);
recognition of an employee as completely incapable of labor activity in accordance with a medical report issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation (paragraph 5 of part one of Article 83 of this Code);
refusal of the employee to continue work due to a change certain parties terms of the employment contract (paragraph 7 of the first part of Article 77 of this Code).
An employment contract or a collective agreement may provide for other cases of payment of severance benefits, as well as establish increased amounts of severance benefits, with the exception of cases provided for by this Code.
Article 179
When reducing the number or staff of employees, the preferential right to remain at work is granted to employees with higher labor productivity and qualifications.
With equal labor productivity and qualifications, preference is given to staying at work: 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; invalids 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.
The collective agreement may provide for other categories of workers enjoying the preferential right to remain at work with equal labor productivity and qualifications.
Article 180
When carrying out measures to reduce the number or staff of the organization's employees, the employer is obliged to offer the employee another available job ( vacant position) in accordance with part three of Article 81 of this Code.
About the upcoming dismissal in connection with the liquidation of the organization, the reduction in the number or staff of the organization's employees, employees are warned by the employer personally and against signature at least two months before the dismissal.
The employer, with the written consent of the employee, has the right to terminate the employment contract with him before the expiration of the period specified in part two of this article, paying him additional compensation in the amount of the employee's average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal.
When threatened mass layoffs the employer, taking into account the opinion of the elected body of the primary trade union organization, takes the necessary measures provided for by this Code, other federal laws, a collective agreement, an agreement.
Article 181
In case of termination of the employment contract with the head of the organization, his deputies and the chief accountant in connection with the change of ownership of the organization's property new owner obliged to pay specified employees compensation in the amount not less than three times the average monthly salary of the employee, except for the cases provided for by this Code.
Article 181.1. Severance pay, compensation and other payments to employees in certain cases of termination of employment contracts
Collective agreement, agreements, local regulations, employment contracts or decisions of the employer, authorized bodies legal entity, as well as the owner of the property of the organization or persons (bodies) authorized by the owners, the payment of severance benefits, compensations and (or) the assignment of any other payments to them in any form cannot be provided for in cases of dismissal of employees on grounds that relate to disciplinary sanctions ( part three of Article 192 of this Code), or termination employment contracts with employees on the grounds established by this Code, other federal laws, if this is connected with the commission of guilty actions (inaction) by employees.
Layoffs are not uncommon these days. In this regard, the worker needs to be literate in matters of reduction, in particular, to know in which cases the employee has the right to leave work.
Criteria for resolving the issue of reduction
When studying this issue, it is worth referring to with comments, according to which the priority right to remain at work in case of reduction is given to employees in accordance with two criteria: productivity and qualifications.
To avoid unintended consequences, in particular statements of claim from laid-off employees, the employer should form an objective picture of the qualifications and achievements of employees subject to further reduction.
When deciding on the value of a qualification, an employer should use an approved Qualification guide positions, with the help of which the position of an employee in a particular organization is determined. In the absence of a position in the directory, the provisions of the labor and collective agreements should be evaluated. In this case, the assessment is carried out comprehensively: work experience, marital status, level of education, and the presence or absence of disciplinary sanctions are taken into account.
However, in some cases, the employer does not have an obligation to identify benefits.
Assessment procedure
Sometimes the employer does not have a prescribed obligation to assess the qualifications of an employee. For example, when reducing the positions of an entire structural part, a department, since there is no one to compare with, the department is completely disbanded. If the dismissal occurs in a certain position, then the reduction is considered mandatory. Failure to comply with the evaluation procedure usually ends with the fact that the court reinstates the employee in the organization, so it is in the interests of the employer to carry out this procedure with particular care. At the same time, the choice of the method for establishing the significance of employees remains with the person conducting the check.
Commission for assessing the professional level of employees
In such a situation, a special commission is created at the enterprise to determine the pre-emptive right to remain at work, this form is most preferable for the courts of the Russian Federation. The commission is made up of personnel workers, heads of departments from which the dismissal is carried out, trade union members and lawyers (in the absence of such a position in the organization, the best way out would be additional legal advice in order to avoid legal errors). The creation of a commission should be approved by an appropriate order explaining the powers of each of the participants. The head, like no one else, knows how to characterize an employee, a lawyer will be able to competently draw up a legal opinion, a personnel officer is best acquainted with the personal file of an employee.
Any commission draws up a meeting in minutes, reflecting in it the main data: information about those present and absent, issues on the agenda, applicants for reduction, full details about employees and the decision of the commission.
A convenient form for analysis will be statistical cards or comparative tables arranged according to certain criteria.
Evaluation criteria for identifying benefits
An employee is usually evaluated on experience and quality of knowledge. As objective indicators, they consider compliance with production standards, the fulfillment of planned indicators, and individual tasks.
Qualifications include skills, experience, skills of an employee. The assessment also takes into account the level of education, the presence of additional characteristics, the quality and volume of the work done, take into account penalties and incentives at work, and other circumstances. In the event of a trial, taking into account these circumstances will incline the opinion of the judge in favor of the employer, since the rules of Art. 179 of the Labor Code of the Russian Federation. With the comments of the court, it becomes clear which way the practice is going, how the benefits of reduction are revealed.
Accounting for seniority upon dismissal
The professional path of an employee is directly reflected in a document such as a work book. The procedure for confirming the length of service is regulated by two laws - “On labor pensions” and “On individual personalized accounting”. Also in this area are the "Rules for calculating and confirming the length of service for establishing labor pensions" (07.22.02, Government Decree No. 555), "On the procedure for confirming the length of service for the appointment of pensions" (08.24.90, Decree No. 848).
Confirmation of unrecorded experience (for example, in the event of the loss of a book or combined work) can be carried out using employment contracts, orders of the director, and certificates. The periods of work under a civil law contract can be evidenced both by the service agreement itself and by payment documents. You can also find out about the length of service by making a corresponding request to the bodies of the pension fund, if you have military tickets, certificates from the commissariats, archives, divisions. Quite an extreme option - in case of disasters and catastrophes, periods of labor activity are confirmed by testimonies.
With the development of electronic databases, the system of personalized accounting has also improved - in recent years, all information has been digitized, services such as "Gosuslug" have been created.
In any case, when considering a separate candidate, one should be guided by the norms of Art. 179 of the Labor Code of the Russian Federation, with the comments to which the employer should familiarize himself in advance in order to remember that the length of service is not the most weighty argument when granting the right to remain in case of reduction.
Accounting for education and professional qualities
Based on the provisions of the Federal Law "On Education", qualifications are confirmed by diplomas, certificates, certificates. Documents are usually presented both when applying for a job, and if a commission has already been organized, and the presence of a diploma or certificate may affect the decision to leave the employee at work. But if, according to the directory, a specific position does not require special education, then the certificates of completion of education will not be considered an advantage. Of course, the employer will take into account, say, courses that allow you to obtain additional qualifications, language lessons, driving skills, and more.
Performance Accounting
Art. 179 of the Labor Code of the Russian Federation, with comments to which it is important to understand, one of the criteria for determining advantages is labor productivity. In order for the dismissal to be lawful, it is necessary to collect documents that could confirm in court that this or that employee performed more difficult work than his colleagues, or took additional work, that is, performed orders of a larger volume, which is easily confirmed by agreements or orders .
Most convenient way Comparison is the use of tables, forms, in which each task and result for a certain period of time is entered. Such accounting requires accuracy from the employer, from personnel worker - effective work throughout the entire time. Performance factors also include disciplinary action and encouragement.
Categories of workers whose dismissal is prohibited by law
There are a number of workers who are prohibited from being fired even though their performance and qualifications are not as high. These are primarily women who have children or are just expecting them: pregnant women, with children under 3 years old, single mothers with children under 14 years old.
At the same time, the Supreme Court in 2014 determined that single women are those who raise a child without a father due to death, being in prison or deprivation of parental rights.
Categories of workers having an advantage in case of equal qualification
Part 2 Art. 179 of the Labor Code of the Russian Federation indicates a list of employees who have advantages in case of equality in assessing their qualifications and work: these are employees who have two or more dependents; citizens who have received labor injuries or diseases associated with a harmful and dangerous profession; people who received a disability as a result of military campaigns related to the defense of the Fatherland; invalids of the Great Patriotic War; employees who take continuing education courses at the direction of the employer on the job, as well as employees who are the only breadwinners in the family.
Mistakes allowed when reducing
Among the mistakes made by the employer and leading to violations of the law include decisions to dismiss in the absence of evidence of insufficiently high qualifications, ignoring the norms collective agreement, non-application of the norms of part 2 of article 179 of the Labor Code of the Russian Federation. Arbitrage practice also dictates that when choosing a candidate from employees with equal conditions and relating to the categories of Part 2 of Article 179 of the Labor Code of the Russian Federation, it is necessary to apply the sequence specified in the law. Thus, persons with dependents will have priority over citizens with disabilities.
Timely advice from a lawyer will help eliminate the occurrence of problems with the law and avoid the restoration of an employee in cases where relations with him have already been damaged.
When reducing the number or staff of employees, the preferential right to remain at work is granted to employees with higher labor productivity and qualifications.
With equal labor productivity and qualifications, preference is given to staying at work: 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; invalids 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.
The collective agreement may provide for other categories of workers enjoying the preferential right to remain at work with equal labor productivity and qualifications.
Comments to Art. 179 Labor Code of the Russian Federation
1. The main condition for staying at work is labor productivity. Labor productivity - an indicator of the effectiveness of an employee's activity - is measured by the number of products (parts, projects, consultations, etc.) produced per unit of time, and is considered as output or labor intensity. Labor productivity ensures the competitiveness of the organization. Labor productivity is an indicator of the volume of production per unit of invested resources (labor, raw materials, capital, etc.) of a firm or economy.
2. In accordance with Art. Art. 21 - 25 of the Law of the Russian Federation of July 10, 1992 N 3266-1 "On Education", employees with the following types of education work in the organization: professional training: initial professional education; secondary vocational education; higher professional education (has 3 qualifications: bachelor, specialist, master); postgraduate professional education: postgraduate and doctoral studies.
Qualification is a component of 3 elements: knowledge, skills, skills. These elements are used to compare workers. The knowledge of an employee in any specialty is defined in the state educational standard, which is the basis for an objective assessment of the level of education and qualifications of graduates, regardless of the form of education. State educational standards for any specialty can be found on the Internet at the Informika website.
3. Other categories of workers who enjoy the preferential right to remain at work with equal labor productivity and qualifications include workers with great professionalism, inventions and implemented proposals to increase labor productivity, increase profits, etc.