It would seem that everything is clear. The Labor Code contains Art. 261, which defines categories of persons who are not subject to reduction. These are pregnant women, single mothers and other persons raising children under the age of 14 and a disabled child under the age of 18, women with a child under the age of 3. But in practice everything is much more complicated.
There are cases when an organization does not have a collective agreement, and management has planned a procedure for reducing the number of staff, and therefore began to serve notices to employees. And suddenly the team organizes itself and nominates initiative representatives. The complexity of the situation lies in the fact that most often the representatives are those people who themselves fall under the reduction procedure.
What to do with negotiators?
Art. 39 of the Labor Code of the Russian Federation provides guarantees and compensation to persons participating in collective bargaining. It states that employee representatives who were nominated as negotiators for the purpose of concluding a collective agreement retain their place of work for the entire period of negotiations.
Negotiations on concluding a collective agreement are a lengthy process and can take three months. Therefore, if you are negotiating a collective agreement at a time when at the same time the procedure for reducing the number of employees has been launched, you cannot reduce representatives. They retain their place of work for the entire period of negotiations.
Reduction of women on maternity leave for up to 3 years
You also need to remember about Art. 256 of the Labor Code of the Russian Federation, which states that for women (fathers, grandmothers, grandfathers and other persons) who are on parental leave until the child reaches the age of 3 years, they retain their place of work for the duration of this leave ( job title).
Difficulties with this category of personnel often arise in state-owned companies. Personnel officers receive orders from above that it is necessary to exclude some positions and even structural units, and suddenly it turns out that it is in these structural units that people on parental leave work. What to do with them? They often follow orders and cut back. But if the employee goes to court, he will be reinstated at work.
Unlawful reduction
In some cases, a reduction may be unreasonable from the point of view of labor legislation. In what cases can an employee go to court and defend his position?
- Dismissal due to reduction will be unjustified if the employer violated the procedure for implementing the procedure. According to Art. 180 of the Labor Code of the Russian Federation, when making a reduction, the employing organization is obliged to warn its employees in writing and against signature 2 months in advance. Thus, by violating this requirement, an enterprise may face legal proceedings in which it will act as a defendant.
- Before dismissal, the employer is obliged to prove to the employee that employment in another position within the company corresponding to the level of training and qualifications of the employee is impossible in principle. Violation of this rule will entail the illegality of the reduction procedure.
- The employee's preferential right to remain was not respected. If the employer has not found out which employees have greater labor productivity, dismissal will also be illegal.
- The employment service was not notified. As a general rule, the employment center must be notified in the appropriate manner two months before the dismissal of the employee.
- In addition, the process will be unlawful if the general procedure for preparing documentation has been violated. For example, no order was issued to change the staffing table.
- If the rule on the inadmissibility of dismissal of certain categories of personnel has not been observed , such as pregnant women, employees during periods of temporary disability, on vacation, etc., the reduction process can also be challenged in court.
Dismissal of a pregnant woman
The only reason on which pregnant women can be fired is the liquidation of the organization or termination of the activities of the individual entrepreneur.
It is also important to pay attention to one detail here. Even if the employee herself did not know about the pregnancy, but it later turned out that she was pregnant on the date of dismissal, then she will be reinstated at work through the courts.
According to paragraph 25 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 28, 2014 No. 1, “the employer’s lack of information about pregnancy is not a basis for refusing to satisfy a claim for reinstatement at work.”
And one more thing: a pregnant woman, whose employment contract was terminated at the initiative of the employer, is subject to reinstatement even if by the time her claim for reinstatement is considered in court, the pregnancy has not persisted.
Employers constantly return to the same question: what to do with pregnant women and people on maternity leave for up to 3 years, if they need to be laid off due to production needs, but this cannot be done by law?
In fact, in this case there are only two ways out:
- you reach an agreement with them and formalize the dismissal by agreement of the parties;
- waiting for them to move from the preferential category to the non-preferential category.
Who falls under the “single mother” category?
Since a single mother is protected from the reduction of Art. 261 of the Labor Code of the Russian Federation, it is important to understand how the courts understand this category of workers. If we turn to paragraph 28 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 28, 2014 No. 1, it recommends proceeding from the fact that single mothers include a woman who is the only person who actually carries out parental responsibilities for the upbringing and development of natural or adopted children in accordance with with family and other legislation, that is, raising them without a father, in particular, in cases where the child’s father:
- died;
- deprived of parental rights;
- limited parental rights;
- declared missing;
- declared incompetent (partially capable);
- due to health reasons, he cannot personally raise and support a child;
- is serving a sentence;
- avoids raising children or protecting their rights and interests.
What to do if an employee is on vacation or sick leave and needs to be made redundant?
Dismissal of an employee during a period of incapacity and while on vacation is considered illegal (Article 81 of the Labor Code of the Russian Federation).
If an employee resigns of his own free will, then nothing prevents him from being fired during vacation or sick leave. But the reduction is the initiative of the employer. And here everything is not so simple.
Situations often occur when the employer actually does the right thing: he notifies the employee of the upcoming dismissal two months in advance, draws up the documents, but then the day of dismissal comes, and the employee does not come to work - he says that he is sick. What to do?
Many employers start making things up and end up making mistakes. Although the basic rule that they must follow is that no matter how long an employee is sick or on vacation, as long as his disability or vacation lasts, you cannot fire him.
What scares employers in such situations? While the employee is on sick leave, a new staffing table may come into force, and his work function will “disappear.” In fact, it is no longer possible to provide the employee with work.
For example, you expect an employee to return from sick leave on November 10th. Until November 9, he had temporary disability. November 10th comes, you file your resignation. At the same time, there is no need to set a dismissal date of November 8 or 9, since it should not fall during the period of incapacity or vacation.
Since on November 10 you actually can no longer provide an employee with work, the ideal solution in this case is to formalize downtime for organizational reasons (lack of a position in the staffing table) and formalize the dismissal on November 10.
Why employees are being laid off: reasons and purposes for changing the staffing table
The situation in and around the company is constantly changing. This leads to the need to revise the staffing table from time to time. Sometimes you need to expand your staff, but there are times when you have to cut some positions. This may be caused not only by unfavorable changes in the market and in the industry of the enterprise, but also by changes in technology.
The most common reasons for reduction are:
- The company changes its field of activity or closes one of its areas. In this case, not only individual employees can be laid off, but entire departments can be liquidated.
- Demand for products (services) decreases, the number of counterparties decreases. As a result, positions involving multiple employees with the same job responsibilities are being eliminated.
- The company is sold to new owners or management changes. In such a situation, changes may not be caused by economic reasons, but by the point of view of the new owners (managers) on how to effectively conduct business.
- Management decides to increase salaries for some positions due to a limited budget. Then some positions are reduced, and the responsibilities of employees are redistributed among the remaining team members with a salary increase.
- Technologies are being improved, production is being automated, etc. Technology sometimes changes in such a way that some positions become unclaimed. Then you have to reduce these positions or change them to others.
Under no circumstances should you eliminate a position, fire people, and then introduce a new one into the staffing table with a different name but similar job responsibilities.
The court or labor inspectorate recognizes such a reduction as fictitious. Economic crises can also lead to staff reductions. Enterprises that find themselves in such conditions must somehow survive, and to do this they have to optimize costs, including wages, through reductions. And the exclusion of some positions from management may be caused by optimization of the management process.
How is the priority right to remain at work determined?
At the same time as those employees who cannot be laid off, one must also remember about those categories of personnel who, by law, have a preferential right to remain at work. And here the most important question is: when does such a right arise? Then, when there are several employees vying for one place.
For example, you have two full-time electrician positions, but you only need to keep one. We will have to decide who has priority to remain at work.
It is in such situations that the need to create a commission arises. And although this is not written about in any regulatory act, many employers felt the need for a commission when faced with the intricacies of the personnel reduction procedure in practice.
The fact is that the key task of the commission is to collect information about employees and determine their preferential rights. Such work greatly helps and protects the company from negative consequences, because the main motive of employees who challenge the layoff procedure in court is to prove that they should have stayed working. Their question is “why me?” triggers a check of the correctness of the employer’s actions - did he identify the preemptive right and how exactly?
What are the legal grounds for reducing the number of employees?
The employer determines the grounds for layoffs independently. But in any case they must be justified. Moreover, the reduction can be of two types:
- maintaining all positions while reducing the number of workers employed in them;
- elimination of some positions in the staffing table.
The reasons leading to this decision must be stated in the order. These may include the following:
- Economic reasons . For example, when production volumes decrease, it is advisable to reduce the number of employees. These reasons include changes in tax legislation. Then you need to look for internal reserves and reduce some types of expenses.
- Structural reasons . They occur when the management system of an enterprise changes, and it becomes necessary to liquidate some divisions if their activities cannot be considered effective. Similar reasons include enterprise reorganization.
- Technological reasons . This is the automation of the production process, the introduction of new equipment into operation, which leads to the fact that some positions are no longer needed by the enterprise. Leads to a reduction in staff or number of employees and the introduction of innovative technologies.
In the order to change the staffing table, the manager can formulate the reason at his own discretion. For example, “due to the difficult economic situation” or “due to personnel optimization”, etc.
The reader may be interested in the subtleties of layoffs for pensioners, part-time workers, mothers of many children, maternity leavers, people of pre-retirement age, and pregnant women.
