When can a disabled person be laid off when reducing staff? Is such an employee entitled to benefits?

Is it possible to lay off a disabled person?

In Art. 81 of the Labor Code of the Russian Federation provides the main reasons why an employer may terminate cooperation with a particular employee. In particular, reduce the number of hired personnel. There are no restrictions in this article regarding people with disabilities.

But before you start the event, you need to know some nuances. In particular, it is possible to terminate the employment relationship with an employee with a disability (for example, group 3) due to layoffs if all positions in which he can work are removed from the staffing table. That is, management has nothing to offer such an employee.

The employer is obliged to follow the procedure for dismissing an employee with a disability. According to Art. 179 of the Labor Code of the Russian Federation, such employees have a preferential right to remain at work in the presence of the following circumstances:

• injury or mutilation that led to a disability group was received at the workplace or during the performance of official duties;
• this employee has a higher level of qualifications and skill than other employees subject to layoffs;
• he financially supports 2 or more minor children;
• he is a working person in the family;
• injury or injury resulting in disability was received during combat operations;
• the employee is the only parent of a child with a disability;
• having the status of “liquidator of the consequences of the Chernobyl accident”.

The preemptive right is confirmed by documents.

What does the law say about layoffs of disabled workers?

According to Article 179 of the Labor Code of the Russian Federation, an employee with a disability belongs to one of the categories of employees who have a preferential right to remain at work.

You should also know that...

1. An employment contract with a disabled employee, contrary to the preemptive right, can be terminated (Article 83, paragraph 5 of the Labor Code of the Russian Federation) if the employee is declared incapable of working on the basis of a medical report, which is issued in the manner prescribed by law.
2. Termination of the contract is permitted if the transfer of the employee to another vacant position suitable for a disabled person due to health reasons is impossible due to the absence of such vacancies or the discrepancy between the health status of the available vacancies.
3. It is also permissible to terminate the contract if a disabled employee refuses the offered positions.
4. The employer is obliged to offer the employee all available and suitable vacancies in the given area. And also in other areas, if provided for by the contract.

Procedure for terminating relations

The employer is obliged to comply with the procedure for terminating an employment agreement due to staff reduction. Especially with disabled people. He must take the following actions:

• Notify each employee subject to layoffs in advance about upcoming events
  . The notification must be in writing, delivered personally to each person against signature at least 2 months before the expected date of dismissal.
• At the same time, an order is issued for the enterprise to begin staff reduction measures
  . The administrative document must contain a list of employees who will be dismissed. Each of them must be familiarized with the order against signature.
• If one of the dismissed persons, including a disabled person, wishes to terminate the relationship early, the employer must be notified in writing
  . An agreement is drawn up and the person being dismissed is paid benefits.
• Calculation
  . All other employees are paid on the last working day.

Download a sample employee notification of the upcoming layoff

Download a sample order to reduce the staff of an organization

Download a sample application for early termination of an employment contract upon layoff

Management is obliged to offer each employee, including a disabled person who has been laid off, other positions. An offer, just like a refusal or consent, must be made in writing. You can suggest:

• vacancies corresponding to the qualifications, education and health status of the disabled person;
• vacancies that are located lower in position, the wages for which are slightly lower, but which are suitable for a disabled person for medical reasons;
• if the company has branches in different areas, then positions can be offered there too.

Important! Before starting measures to reduce the number of disabled people, the employer needs to make sure that the personnel department stores data from the medical commission on the personal rehabilitation program for this employee.

Documents of a disabled person

A person is assigned a disability only after he has passed a medical and social examination. A commission consisting of doctors of various specialties determines the nature of the disease, injury or injury, and its ability to affect a person’s ability to work. Having studied this data, the following can be assigned:

• Group 1 – complete loss of performance;
• Groups 2 and 3 – partial loss of performance.

When a person with a disability is employed, he must provide the employer with medical documents and a personal rehabilitation program. These documents may contain a list of recommendations for further employment:

• possible restrictions;
• what positions he cannot hold;
• what work he cannot do;
• other.

The employer is obliged to adhere to these recommendations even when laying off a disabled person. So:

• If a person is declared completely incapacitated , this is already grounds for vacating the position, since he cannot perform any work, even the easiest. If the fact of complete incapacity for work is revealed before the order to reduce staff is issued and signed, then the employee is dismissed for health reasons - clause 5 of Art. 83 Labor Code of the Russian Federation. In this case, no additional payments are provided.
• If a person is recognized as partially able to work , then he must be offered positions that he can occupy in accordance with his state of health and medical indications. In addition, combatants have a preferential right to remain at their workplace.

If a partially able-bodied person refuses the vacancies offered to him, the employer can lay him off. If he agrees, a transfer to another position is formalized. From a personnel point of view - in general order.

Benefits for disabled people during layoffs

The presence of a special social status, protected at the state level, allows people with disabilities to have some privileges in the event of undergoing a layoff procedure.

The following benefits should be highlighted:

• a disabled person being laid off must be offered vacancies that are not contraindicated for him due to health reasons;
• The employer's responsibility is to create a workplace (position) for a disabled person. The norm is expressly provided by law;
• When calculating, severance pay to a disabled person must be paid immediately and in full;
• the obligation to maintain the worker’s average earnings in the event of transfer to a lower-paid position;
• one-time compensation in the amount of two months' average income in case of dismissal due to layoffs.

Remember, persons with disabilities are protected by additional special laws. Therefore, their dismissal must, in addition to the Labor Code of the Russian Federation, also take into account the provisions of Law 181-FZ.

Other nuances that every employer should know

Every employer should know that in addition to the preferential right to remain at work (valid only for WWII and military veterans), disabled people do not have other privileges along with other employees. But:

• Severance pay is mandatory. Its size is 2 average monthly salaries. If a dismissed person registers with the Labor Center within 2 weeks after receiving the work book and does not find a new job within 2 months, then the former management will be required to pay another benefit in the amount of 1 salary.
• If during employment the management knew that the applicant had a disability (that is, he provided documents to MSEC), then dismissal under clause 5 of Art. 83 of the Labor Code of the Russian Federation, that is, for health reasons, will be considered incorrect. Judicial practice on this issue is clear - reinstatement at work, payment for forced absence and compensation for material damage.
• If a disabled person agrees to be transferred to a lower-paid position, then the employer has an obligation to maintain the same wages for a whole calendar month after the transfer.

If a disabled person believes that his rights have been violated, he has the right to file a complaint.

Nuances

When laying off a person with a disability, it is necessary to take into account that he has a number of benefits:

• the employee must be paid severance pay;
• if a person was hired with an established disability group, then dismissal under clause 5, part 1, article 83 of the Labor Code of Russia will be considered incorrect, since the employee has already been recognized as partially disabled;
• if the employee agreed to be transferred to another position that has lower wages than the previous position, then the manager must keep his wages in the same amount for 1 month from the date of the employee’s transfer;

It is important to know! If an injury was sustained by an employee during the performance of his duties during working hours, then the previous level of remuneration is maintained until the day of complete recovery or the person is declared unfit for work or incapacitated.

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• upon dismissal, a person is given a settlement allowance, the amount of which is equal to the average wage for 2 months or 3 months, if the person has not yet applied to the Central Work Center.

If the employer violates the rights of a disabled employee, he can appeal to higher authorities: the labor inspectorate, the prosecutor's office or the court. At the same time, the application can be submitted to one or all authorities at the same time. When filing an application with the court, it is necessary to take into account that the statute of limitations is 3 months from the day the person learned about the violation of rights, or 1 month after the layoff.

Is it possible to appeal?

As practice shows, employers try to fire disabled people for health reasons - that is, clause 5 of Art. 83 Labor Code of the Russian Federation. This formulation is possible if health problems were not known during employment and if the disabled person is recognized by MSEC as completely incapacitated.

In other cases, dismissal on this basis will be unlawful. The dismissed person has the right to complain to:

• labor inspectorate;
• the prosecutor's office;
• court.

You can complain to all authorities at the same time. The period for consideration of a complaint by labor inspectors is 10 calendar days. Based on the request, an inspection is carried out. If facts of violation of employee rights are revealed, management expects a fine. In addition, the disabled person will be required to reinstate him in his position and pay for his forced absence.

Payments upon dismissal of a disabled person

A disabled person who has been laid off is obliged to receive all payments due under the law and the company’s collective agreement. Their list includes:

• wages for all previously worked periods;
• monetary compensation for days of vacation counted but not used;
• payment of sick leave, travel allowances, and other payments accrued during the period of validity of two months from the date of issue of the order until the moment of dismissal;
• severance pay in connection with dismissal due to reduction;
• additional payments provided for by the terms of collective agreements.

It should be noted that after making a decision to reduce the number of employees, potential candidates for dismissal retain the right to early voluntary dismissal for the following reasons:

• on your own initiative (desire);
• based on the consent of the parties;
• by reduction.

Thus, in order not to lose severance pay, the worker has the right to resign early due to layoff. To do this, he needs to write a corresponding application addressed to the employer.

It should be noted that the period from the moment the decision on reductions is made to their actual implementation is a normal working period. This means that citizens are obliged to perform the labor functions assigned to them in full. Otherwise, the administration has the right to fire them for violating labor discipline.

Remember, simultaneously with the issuance of a work book, the employer is obliged to fully pay the worker for the work performed and pay severance pay as provided for by law (collective agreement).