Right to a workplace: which categories of workers cannot be dismissed when staffing is reduced? What is redundancy and who cannot be laid off according to the law.

You can't protect yourself from troubles. And even if today you are confident that you are appreciated at work, and you are not in danger of being fired, then tomorrow the crisis and the affairs of your company may turn in such a way that you will be left out of work.

What do you need to know if you suddenly find yourself under redundancy? What legal information can be useful for you so as not to lose what you are legally entitled to?

The first thing you should know: about downsizing and your subsequent dismissal the employer is obliged to notify you no later than two months in advance, individually notifying you written notice. Otherwise, you have the right to apply to the court and demand your reinstatement at work.

True, having won the case in court, you are unlikely to be able to work normally in your previous place, but in this way you will be able to obtain compensation in the amount of wages for the entire period of “forced downtime”, that is, from the moment illegal dismissal before a court decision is made.

What else are you entitled to if you have to give up your job due to staff reductions? On the day of dismissal, the employee must be paid all amounts due to him and given a work book.

According to the law, when reducing the number of staff, the employer is obliged to offer the candidate for reduction any vacancies that are available in the organization, and they may be either requiring less qualifications or with a lower salary.

Unfortunately, some unscrupulous employers They use this for their own selfish purposes; they offer the employee a obviously worse and unattractive position, hoping that the person will refuse it.

In this case, this employee is explained that the requirements of the Law have been met, and if the provided vacancy does not suit him, then he can apply at his own request. If this happens in your case, do not rush to write such a paper. You need to write a statement refusing to be transferred to another position offered in connection with staff reduction, since in the event of voluntary dismissal, the employee loses the right to decent payments.

What payments are we talking about when terminating an employment contract with an employee due to staff reduction?

Severance pay in the amount of average monthly earnings, which is determined based on earnings for the last twelve months.

Keeps for up to two months average earnings. This time is given for employment in a new place of work (in exceptional cases the period is extended to three months) Article 178 of the Labor Code of the Russian Federation. If this cannot be done in this case, then after the deadline has expired, the employee joins the labor exchange.

Cash compensation for all time unused vacations. It can be demanded for those days that the employee did not have time to take time off during vacation for the entire period of his work in this organization, starting from 2002 (this is the time when the current Labor Code of the Russian Federation, providing for such compensation, came into force).

Some categories of workers have large quantity chances of remaining in the same place of work even in the event of a significant reduction in staff. So, for example, it is impossible to dismiss pregnant women, women with children under three years of age, single mothers raising a child under fourteen years of age or a disabled child under eighteen years of age, in accordance with Article 261 of the Labor Code, due to a reduction in numbers or staff, and other persons raising such children without a mother.

If employees have the same labor productivity and qualifications, then preference for staff reduction will be given to those who have a family in which two or more disabled members are dependent on it, if there are no other employees with independent earnings in the family; to an employee who, while working for this enterprise received a work injury or “earned it” Occupational Illness, to those who improve their qualifications in the direction of the employer without interrupting their work.

If the employer dismisses employees who are on vacation or sick leave, then his actions will also be considered illegal.

You should also pay attention to whether the new staffing table includes the position you previously occupied. If she is present there, then it is absolutely impossible to fire him on this basis.

Downsizing entails an inevitable series of layoffs. But not all employees can be laid off. Who can't be laid off?

About abbreviation

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

Who cannot be fired due to staff reduction?

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

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

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 months in advance. calendar days.

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.

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.

Preemptive right

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

If qualifications and labor productivity are equal, preference in remaining at work is given to:

  • persons in whose families there are no other employees with independent income;
  • family - if they have two or more dependents;
  • employees who received an occupational disease or work injury while working in this company;
  • disabled veterans of military operations to defend the Fatherland and disabled veterans of the Second World War;
  • employees who were sent by the employer to improve their qualifications without interruption from work.

The employer has the right to provide in a collective agreement for other categories of employees with a preferential right to retain work with the same professional qualities.

A brief guide to action in the event of a threat of layoffs. What rights do workers have and what categories fall under the reduction can be found in the article.

In view of the current “crisis” situation in the economy, downsizing has become an integral part of many companies. And since this is a rather painful topic that can affect even seemingly very successful employees, let’s try to figure out how to avoid this.

Who is not being laid off in Russia?

Not every employer follows legal rules when making redundancies. Therefore, it is very important to know whether the manager has the right to “cut” you from the staff. Categories not subject to reduction include:

1. Disabled workers or, that is, on sick leave (Part 6 of Article 81 of the Labor Code of the Russian Federation)
2. Mothers on maternity leave with the right to retain their jobs (Part 4 of Article 256 of the Labor Code of the Russian Federation)
3. Employees on educational leave, mainly at their own expense
4. Pregnant employees (Article 261 of the Labor Code of the Russian Federation)
5. Single mothers who are raising children under 14 years of age or a disabled child, and other guardian parents (Article 261 of the Labor Code of the Russian Federation)
6. Members of trade unions (clauses 2, 3 and 5 of Article 81 of the Labor Code of the Russian Federation)

Who is the first to be laid off by law?

If, during a layoff, there is a choice between two positions of the same rank and similar obligations, then employees need to know their rights in accordance with Article 179 of the Labor Code of the Russian Federation. The following categories have the privileges of not being laid off from two similar positions:

1. Employees who have two or more dependents in their family
2. Workers who are the main breadwinner
3. Employees who may have received an occupational injury or illness at this enterprise
4. Employees who improve their skills without interruption from working hours
5. Disabled combatants

What to do to avoid getting laid off?

  • The main criteria by which the decision to make redundancies is made are the employee’s education, labor productivity, level of competence and personal suitability. And if the threat of losing your job is in the air, be prepared to reconsider your working skills in a new and qualitative way as soon as the first preconditions arise.
  • Be prepared to retrain or take on additional responsibilities. Given the current trend towards combining the responsibilities of several employees into one, this is very important. The number of overtime hours may also need to be increased. Thus, demonstrating their desire to preserve their workplace
  • Have a healthy corporate spirit. Be happy with your place, don't gossip or escalate the situation. In any case, even the most biased leader will choose a person with positive attitude to work and success.
    The ability to maneuver through life’s obstacles is an important quality. And even if you are faced with the threat of losing your job, a bit of optimism and knowledge of your rights and qualities will always help you
  • Stock up on your health for future use. It's time to get involved in sports and learn more about healthy eating. No sick days will be welcome during the frenzied race against cuts. If you do get sick, be prepared to show management your desire to complete the work plan at home or as soon as possible

What to do if you are laid off?

  • Start calling all companies that might be interested in your position. Don't get tired of sending out resumes and be persistent. Despite the crisis, many companies need qualified workers
  • Don’t waste time and be sure to register with the Employment Center. Besides material payment, you can get retraining there or simply meet your new employer
  • Meet people anywhere and everywhere. Collect new contacts and don’t forget to tell about yourself and what a wonderful specialist you are. Tell your friends and family. That you are looking for a job. The world is full good people and help can come from anywhere
  • Consider other ways to earn money. There are many freelance job vacancies on the Internet. If you are an accountant or other specialist who can provide services remotely or via the Internet, then take advantage of this opportunity

Are mothers of minor children subject to layoffs?

  • Parent being sole breadwinner a child under the age of three in a family raising three or more young children, if the other parent does not work, is not subject to reduction
  • If an employee has a dependent child who is 12 years old or 4 years old and is not his sole breadwinner, then this list Excluded
  • Thus, the employer has the right to dismiss, due to a reduction in the number (staff) of the organization’s employees, a woman who has a dependent child of 12 years or 4 years, subject to the dismissal procedure provided for by law on this basis

Got laid off while on maternity leave?

An employer does not have the right to lay off a mother who is on maternity leave to care for a child. During the period of parental leave, the employee retains his place of work (position) (Part 4 of Article 256 of the Labor Code of the Russian Federation).

A pregnant woman was laid off. What to do?

Article 261. The Labor Code provides guarantees to pregnant women. Unjustified dismissal of a woman on the grounds of her pregnancy is punishable by a fine of up to two hundred thousand rubles or in the amount of the salary of Art. 145, “Criminal Code Russian Federation» dated June 13, 1996 N 63-FZ (as amended on June 5, 2012)

Pensioners who were laid off. There was a year left until retirement and they were laid off. What to do?

  • In this case, it will be possible to design early retirement on the basis of Article 32 of the Law. RF “On employment in the Russian Federation”
  • Citizens who have not reached the age of 60 years for men and 55 years for women and have an insurance period of at least 25 and 20 years for men and women, respectively, as well as the necessary length of service in the relevant types of work, giving them the right to early assignment of an old-age pension provided for in Articles 27 and 28 Federal Law"ABOUT labor pensions in the Russian Federation", the duration of the unemployment benefit payment period increases beyond the established 12 months by two calendar weeks for each year of work exceeding the insurance period of the specified duration
  • At the same time, periods of work and other activities are included in the insurance period and other periods established in Articles 10 and 11 of the said Federal Law are counted.
  • The total period for payment of unemployment benefits cannot exceed 24 calendar months in total for 36 calendar months

Are pensioners who are working laid off?

All working pensioners fall under General terms reductions and payment of compensation in accordance with Article 180 of Chapter 27 of the Labor Code on guarantees and compensation to employees and liquidation of an organization, reduction in the number or staff of an organization’s employees.

Notice of layoff. Order of reduction

Here are the main stages of the reduction procedure:

  • Issuance of a reduction order
  • Notifying employees and offering them other available work
  • Notification of the trade union and employment service
  • Dismissal of employees

After making a decision to reduce, each manager must issue an order. This document must indicate the dates of reduction and changes that will be made to the staffing table.
After issuing the order, the manager is obliged to notify all employees about the upcoming reduction and no later than two months before the dismissal. The notice is drawn up for each employee and handed over personally to him against his signature.

The notice usually lists the positions offered to the employee, which is precisely the essence of Art. 180 of the Labor Code of the Russian Federation obliges the employer to offer those being laid off another available job (if available).

IMPORTANT: The employer must offer vacancies as they become available until the day of dismissal.

A record of dismissal is made in the work books of employees dismissed due to staff reduction with reference to clause 2, part 1, art. 81 TK.

Sign up for work book when dismissed due to reduction, it may look like this: “ Employment contract terminated due to a reduction in the organization’s workforce, paragraph 2 of part one of Article 81 of the Labor Code of the Russian Federation.”

Dismissal due to staff reduction. What do you need to know?

Not all employers play fair, and unfortunately not all employees know their rights when being made redundant. For example, when the number of staff is reduced, a fairly significant package of payments and guarantees is provided to the employee.


Notice of reduction must be received at least two months before the date of dismissal due to staff reduction. In case of layoff, the employee is required to pay a penalty in the amount of salary for the next two months after dismissal.

IMPORTANT: When writing an application for layoff, you must ensure that you are provided with a sample of a layoff, and not a voluntary dismissal.

When a laid-off employee registers with the Employment Center, he is required to look for work according to his skill level. If such work is not provided to him within two months, the employer is obliged to pay compensation in the amount of salary for another two months.

Video: What rights does an employee have when being made redundant?

This will depend on the conclusions that the head of the company draws for himself based on the data of a commission specially created for this purpose. The procedure for creating one is not regulated anywhere.– that is, it is completely the boss’s decision.

If the employee does not belong to, let’s say, a caste of relatively untouchables (for example, does not have two or more dependent people), it is impossible to accurately guess whether he will be asked to leave.

Any enterprise First of all, it gets rid of ballast in the form of positions that have become unnecessary. Some divisions are being consolidated, others are being disaggregated, some departments are merging with others. And it is precisely those who work in such departments - which, in fact, will no longer exist - who are the first candidates for layoffs.

The remaining candidates will be considered according to the degree of usefulness for the enterprise, as well as how the loss of a citizen’s job will affect his family. And in general - is it possible to to this person apply such a measure.

Important: no entrepreneur in his right mind would leave without work a competent specialist who can be relied upon and who is part of the backbone of the company. This is another plus in favor constant increase qualifications - this way you will not be on the same list with those who are subject to reduction in the first place.

HR's point of view

When downsizing, who gets fired first from an HR perspective? This there will be those personnel who, objectively speaking, are of no use to the enterprise- that is, from which the profit is either negligible or non-existent.

Persons who are laid off first when staffing is reduced include:

  • recently hired people from whom there is no direct income (in itself seniority is no longer a decisive argument);
  • working pensioners.

As already mentioned, such a decision will not be made by anyone alone, but with the participation of a special commission, which would preferably include representatives of the trade union organization.

The following lists will be compiled, which will help determine who will be the first to be laid off:

  • the most productive personnel;
  • the most qualified;
  • who received a work-related illness in this particular organization;
  • having disciplinary sanctions;
  • exceeding the plan;
  • who is responsible for the failure of the plan;
  • receiving advanced training on the job;
  • having dependents– if so, which ones exactly? The situation will also be important when there seem to be no dependents, but the candidate for dismissal is the only working person in the household.

These people will be a priority, but this does not mean that if necessary, they will not be laid off. They will cut back if necessary, just not in the first place.

Important: but whoever the decision is made to dismiss, this must be done in accordance with the procedure prescribed by the Labor Code (Article 179) and only with the sanction of the trade union. If the opinion of the trade union is not taken into account, the court will invalidate such a reduction.

Who gets laid off first from the point of view of legislation and the labor code?

The law on staff reductions does not say anything about who is fired first. The choice remains with the employer.

It is necessary that the candidate does not belong to one of the following categories:

  • on maternity leave (Article 256 of the Labor Code);
  • absent due to temporary disability (Article 81 of the Labor Code);
  • pregnant women;
  • having two or more dependents;
  • combat veterans.

Important: but in the event of liquidation of the company, they are fired too!

Does the employee have the right to stay?

Of course, you have the right to remain - after all, in accordance with the law, the employer is obliged in this case to offer the candidate for layoff either another similar position or a lower one, and the limit is not limited in any way. Therefore, it should not be surprising that in other cases the engineer will be asked to become a representative of the technical staff.

But it’s a completely different matter if a citizen belongs to the category of those workers whom they have no right to lay off at all. Or the procedure itself was not followed correctly - for example, they did not find out about the layoff suddenly, but no less than two months before “day X”, and the employee must be given a corresponding notice against signature.

After the indicated two months (and if mass reduction– after three), the citizen is fired, an entry is made in the work book, a corresponding order is issued, with which now former employee should be familiarized with a personal signature (which, by the way, he has the right not to sign).

Next he becomes mandatory registered with the employment service, he calmly looks for a new job for two months, retaining the average earnings from the organization he left (Article 178 of the Labor Code).

To do this, you need to provide the following documents to the employment center:

  • general civil identity card;
  • certificate of income for the last two months;
  • work book.

If the employer violates the prescribed procedure for layoffs, the citizen has the right to appeal to labor inspection, the prosecutor's office (where, by the way, they really don't like to consider such complaints, immediately sending them to court) or to the court.

Important: It will be useless to apply anywhere if the documentation indicates it as a reason for dismissal own wish! Therefore, if it seems that you have been unfairly laid off, you must first review all the documents. Namely, what is the reason for dismissal, with reference to the article.

The lawsuit is filed to the court of general jurisdiction at the location of the organization. In addition to basic information, it is necessary to indicate exactly the evidence that the reduction is inadmissible. That is why it is best to contact an experienced lawyer specializing in labor disputes before doing anything.

Now you know who will be the first to be laid off. No one can consider themselves guaranteed to be protected from layoffs.

That is why both the employer and the employee need to maintain common sense and remember each other’s rights and responsibilities, without trying to look for “workarounds”. Then the process of reorganizing the company will be less difficult, and those laid off will leave without unnecessary stress.

Useful video

For more information about employee reductions, see the video below: