Dismissal of a person approaching retirement age

The legislative framework

Pre-retirement age is the status of a citizen whose years are approaching the retirement mark. The legislation sets an age threshold, upon reaching which you can apply for a pension. Also leave your job.

In practice, most mature citizens try to continue working. They are considered working pensioners, simultaneously receiving a pension + salary .

The concept appeared recently, due to recent reforms related to the retirement age itself. It was increased in Russia. In fact, the pre-retirement period for citizens occurs 4-5 years before their subsequent retirement. It is appointed based on length of service or reaching the required age.

However, everyone has the right to continue working if their health and capabilities allow. The payments are small, even regular indexation does not help.

The authorities try, to the best of their ability and ability, to protect older citizens from sudden dismissal:

• rapid professional development programs are being created;

• criminal penalties for negligent employers who decide to illegally deprive an employee of a job;

• additional social support – maintaining certain tax benefits;

• benefits are provided for pre-retirees at the federal and regional levels.

Due to the annual increase in the retirement age threshold, the period of pre-retirement years will increase accordingly.

Pension reform is a large-scale and long-term program, according to which the age is increased in stages. You can determine when a person is considered a pre-retirement or a full-fledged pensioner based on his year of birth.

It turns out that last year, 2021, pre-retirement women were women born in 1964-1966, and men were born in 1959-1961; in 2021, women were born in 1965-1968. and men - from 1960-1963, in 2021 - women born in 1967 and men born in 1962.

Payments to the unemployed

People should think about it earlier, because... according to the amended provisions of the law (FZ-32, No. 1032-1), not everyone receives benefits for the next 36 months after dismissal. This prerogative depends on the accumulated experience.

A dismissed employee who has already reached pre-retirement years enters the general Employment Service. He is assigned only an annual allowance (allowance). Further financial support is calculated based on length of service.

For each year a citizen works, he is paid an allowance of +2 weeks. For example, a person has been at work for 26 years, then the payment period is: 12 months (standard) + 2 weeks. 40 years = 12 months (initial) + 7 months, 2 weeks.

If there is a layoff, the employee should take out an early pension or try to get a new job. Find another place.

Early pension is assigned by authorized bodies subject to the following conditions:

· the citizen is officially recognized as unemployed;

· has a documented work experience of 20-25 years;

· the employment service acknowledges in writing that it is impossible for a citizen to find a job;

· he actually has 1.5-2 years left before retirement (maximum) .

In order to maintain unemployment benefits, a laid-off employee must continue to look for work. Attend interviews and training courses offered by the Labor Exchange. Managers regularly draw up various lists, write directions - they try to accommodate people by offering various, even low-paid, vacancies.

If a citizen deliberately ignores calls from the Exchange, he will be denied a pension, and in addition, will be removed from the general register of unemployed.

A project is currently being developed on pension contributions (the funded part of the pension) on a voluntary basis by future pensioners; you can read more about the guaranteed pension plan separately. Starts in 2021.

How to get an early pension

According to Art. 32 of Law 1032-1 of April 19, 1991 Russian citizens are given the opportunity to retire early. Socially vulnerable Russians and people working in difficult conditions can take advantage of this. Therefore, if you lose your job due to layoffs, you can achieve a well-deserved rest ahead of schedule.

Attention

The procedure for its appointment is regulated by the Federal Law of the Russian Federation “On Employment of the Population in the Russian Federation”.

This right arises subject to the following conditions:

• less than two years left until official retirement;
• the accumulated experience is: for females at least 20 years and for males at least 25 years;
• The employment center assigned the status of unemployed;
• there is a statement about the desire to receive a pension ahead of schedule.

Official unemployed status can be assigned if:

• the work book contains a record of dismissal due to reduction;
• there is registration in the regional branch of the Federal Law.

Reasons for leaving before retirement

By law, employers cannot fire employees on their own whim or personal grudge. must be compelling reasons , the list of which is described in the Labor Code of the Russian Federation, the contents of Article 81.

The loss of a job by a citizen is accompanied by termination of the existing employment agreement. This is considered a dismissal made at the initiative of the employer.

What will protect the employee? – a collective agreement, when there is a separate clause regarding the impossibility of dismissal. For example, a person cannot be kicked out until he reaches a certain (retirement) age. In practice, few managers write such agreements or the specified clause is not included there.

The following are considered valid reasons for dismissing an employee:

· liquidation of the organization (then everyone loses their jobs, this is a common misfortune);

· reduction of staff/total number of employees;

· inadequacy of the employee (his professional unsuitability);

· change of owner (then the manager/his deputies + chief accountant are changed, ordinary employees remain);

· repeated violation/ignoration by the employee of his own duties;

· violations of general labor discipline and safety rules;

· a person committing an immoral act or making wrong decisions that resulted in large-scale losses;

· Submitting false documents/incorrect information during an interview;

· carrying out fraudulent schemes at work ;

· committing thefts, forgeries or damage to company property.

Any of the above factors must be confirmed first. Acting thoughtlessly is dangerous.

It is punishable to force someone to quit.

On what grounds can an employee of pre-retirement age be dismissed?

If we talk about such a category of employees as workers of pre-retirement age, it, as such, was not enshrined at the legislative level at all. Therefore, the manager certainly has the right to dismiss such an employee unilaterally, but with certain restrictions. First of all, to terminate the employment relationship at the initiative of the employer, he must have compelling reasons. Their exact list is contained in Article 81 of the Labor Code of the Russian Federation. These include the following circumstances:

• complete liquidation of the organization on the basis of a court order or a decision of other authorized persons;
• carrying out reductions by the employer in its organization, if the choice of employees subject to dismissal was truly justified;
• violation by an employee of the labor discipline established in the organization, subject to the presence of indisputable evidence of the guilt of a particular employee;
• the commission by a subordinate of various immoral acts that exclude the possibility of continuing his work activity in this organization;
• making a wrong decision by a subordinate, the consequences of which negatively affected the organization’s property;
• the employer has evidence of the fact that the employee, during his employment, provided false information or forged documents to the HR department;
• identification of the fact that the employee’s qualifications do not correspond to the position he occupies. It should be noted that this information must be confirmed by the official conclusion of the certification. Otherwise, the manager will not have any grounds for dismissing his subordinate.

Staff reduction

When a company is going through a difficult time - productivity is falling, investors are leaving, the effects of inflation are taking their toll - the manager thinks about how to more effectively reduce costs. He is obliged to pay all employees on staff. By law, production downtime does not affect people's receipt of payments.

Reduction - measures taken by management, as a result of which some employees will be fired. Who exactly the leader decides. To be fair, he needs to evaluate not the years of employees, but their professional and personal qualities. Therefore, the first to be fired are unreliable people who have accumulated enough reprimands and penalties while working. Then they get rid of those who did not complete the internship.

Read more about pre-retirement reduction in a separate article.

If the usual staffing table has changed, the company faces imminent liquidation, then the director’s actions are lawful. He can even drive out pregnant women or mothers of many children.

In the order and work books of those being dismissed, the reason is clear: “staff reduction” . It does not prevent a person from getting settled again, because such events happen, and not everyone is able to influence this.

Law prohibiting the dismissal of future retirees

According to the provisions of Federal Law No. 352, updated on October 3, 2018, the requirements for the actions of employers have become stricter.

You cannot expel people unreasonably , this applies to any category: pre-retirement age, expectant mothers, parents of large families and other citizens, retirement age.

Directors and other authorized persons who dismiss employees, justifying their actions by their age, are punished:

· fine of 200 thousand / total 18 monthly income of the enterprise;

· compulsory work (terms are assigned individually, maximum 360 hours).

This is regulated by Article 144.1 of the Criminal Code of the Russian Federation. Employees whose dismissal was illegal have the right to submit a corresponding application to the authorities.

Important! Supplement the claim with supporting evidence. For example, a copy of the dismissal order, which states the reason. Call recordings, correspondence screenshots, etc.

About pensions for the self-employed in a separate article.

How employers can avoid breaking the law

Any boss is interested in the efficient and uninterrupted operation of the organization. This is ensured by a properly selected team of specialists of various ranks and professions. The pension reform changed the order of things. A threat has arisen to individuals - “future pensioners” - that their employers will rush to fire them or will not want to hire them. Criminal liability has been introduced regarding unlawful actions of directors.

For this reason, those responsible for the selection and placement of personnel (managers, personnel officers) must follow these rules:

1. Do not indicate specific age restrictions when publishing advertisements for applicants.

2. Remember that citizens - “future pensioners” are now socially protected along with pregnant employees. Some have the right to receive pensioner status earlier, for example, mothers of many children.

3. When formulating a refusal to hire a person, it is worth indicating the reasons more clearly. For example, that he is not professional enough, has no experience, or does not yet have the appropriate qualifications.

4. It is impossible to fire such people simply on the initiative expressed by the employer.

All actions - acceptance of a new employee, promotion/demotion, transfer, dismissal - must be documented.

Rights of working citizens of “pre-retirement”

What should the management of the employer company provide them with:

• Additional days when they undergo mandatory medical examination. 2 days, they are paid at the rate of average earnings. The break gives you the opportunity to leisurely go through all the appointments of doctors, take tests and wait for their results.

There are no specific dates; this is established by agreement between the parties. To use this opportunity, the employee only needs to write an application.

According to generally accepted rules, medical examination is required once every 2 years periodically. This is a voluntary action, with the exception of special services where there are health requirements.

• Receive benefits - financial support for the unemployed; for people of pre-retirement age, the minimum amount of unemployment benefits will be 1,500 rubles, the maximum - 12,130 rubles.

How to get a pre-retirement certificate, what kind of status it is and how to apply for it – in the article.

• The right to improve qualifications or undergo retraining. Moreover, the cost of the courses is paid by the employer. His expenses are reimbursed from the local budget. This program has been successfully implemented in several regions. Thanks to this, it is possible to improve your skills for free, learn new things in order to meet the requirements of the time.

Compensation will be paid if the following conditions are met:

· the citizen has completed full training - partial training is not reimbursed;

· protection from dismissal during this period - pre-retirement workers who decide to study will not be fired (with the exception of if they themselves express a desire);

· one-time right.

The employment service monitors the degree of implementation of the program and the activity of citizen participants. Employers initially enter into an agreement with her.

By the way, about the rights of pre-retirement people - on March 12, 2019, the State Duma in the third reading adopted a law that citizens of pre-retirement age (55 women and 60 men) have the right to request alimony for parents from children, ex-spouses, and relatives.

Previously, pensioners enjoyed this right. The state decided that shifting the responsibility for caring for the disabled population onto the shoulders of loved ones is more correct than taking responsibility themselves.

Benefits for persons 2 years before retirement age

An additional benefit for persons of pre-retirement age is provided for in Art. 32 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 “On employment in the Russian Federation.” Within the framework of the provisions of the norm, provision is made for the payment of benefits to persons whose duration exceeds the established period and the possibility of early retirement. Employees of pre-retirement age are provided with:

1. Increasing the period for paying unemployment benefits beyond the annual period by 2 weeks for each year exceeding the insurance period required to receive a pension. The condition for increasing the payment period is an insurance period of over 20 years for women and 25 years for men.
2. When registering due to layoff or liquidation and there is no possibility of further employment, persons are assigned a pension before the due date. Additional conditions include compliance with requirements and consent of persons. The insurance pension is assigned no earlier than 2 years before retirement age.

Upon reaching retirement age, persons who have received an insurance pension can switch to an old-age pension. After hiring and until dismissal, the right to early insurance pension is suspended.

Who is granted early retirement?

People holding special positions and working every day in difficult and stressful conditions. In this way, the calculation of length of service occurs in a different way, when a year can go by in two or three .

Early retirement and possibly early dismissal
may be granted to:
· doctors;

· teachers;

· Railway workers – locomotive transport;

· public transport;

· who works in the Far North, also involved in complex underground work (they are entitled to northern bonuses and preferential conditions for retirement);

· mothers of many children;

· providing for a disabled person.

There are only 30 categories . However, to receive your pension early, you must meet several conditions:

· retirement age (specified by law) will occur in 1.5, maximum 2 years;

· accumulated work experience (more information about the minimum work experience is here);

· if a person was unable to get a job again after the reduction/liquidation of the enterprise.

To apply for an early pension, a citizen must independently visit the local Employment Center. Provide documents there, and if the decision received is positive, take a certificate. Go with her to your Pension Fund, leave a statement indicating your desire to apply for a pension.

Galina Narrowed

Practicing lawyer, providing consultations, representation in court, writing articles

Question for a lawyer

If you lose your job, what year can a pre-retiree retire?

This is possible 2 years before the established retirement age, for example, in 2021 these were women aged 54.5 years and men aged 59.5 years.

I heard that pre-retirement people who have lost their jobs due to the coronavirus pandemic for 3 years can retire. This is true?

The Ministry of Labor proposed this measure (allowing those who have lost income and have 3 years left to retire) - women 53.5 years old and men 58.5 years old. But what conditions will be offered is not yet clear. General conditions for early termination are 20 and 25 years of insurance experience (men/women) + confirmation from the central insurance company that they are registered, but there is no work.

Another measure for people who lost their jobs due to self-isolation measures was the proposal to increase the minimum unemployment rate to 4.5 thousand, but at the level of discussion at the moment.

The point of view of the current legislation

The possibility of early retirement was developed specifically for citizens of our country who lost their place of permanent employment a short time before reaching retirement age or found themselves in another difficult life situation.

In order for a citizen to have the right to receive an early pension, he will need to comply with the following conditions:

• it is necessary to recognize the person as unemployed. The Employment Center has the authority to assign such status. This is where the interested person should apply by submitting a personal application and other required documents. After their consideration, the authorized specialist makes an appropriate decision on assigning this status. If a person violates the current rules for being registered, this status may be removed from him;
• mandatory work experience - 25 and 20 years - for men and women, respectively;
• if a citizen was fired due to layoffs, his age for applying for a pension should be 58 years for men and 53 years for women;
• whether a person has a desire to receive an early pension.

The procedure for dismissing a future pensioner

When an employer has the right to deprive a pre-retirement employee of work:

· own desire - the employee notifies management about this in writing;

· termination of the contract due to agreement of the parties;

· staff reduction/liquidation of the enterprise.

The dismissal procedure will depend on the main reason for its initiation.

Expert opinion

Andrey Tychkov, labor lawyer

Over the last quarter of 2021, the number of unemployed people of pre-retirement age at labor exchanges increased by 15%. There are no data for 2020 yet. The statistics reflect ONLY registered pre-retirees. Plus those who didn’t want to are looking for an opportunity to earn money on their own. For the unemployed, the amount of unemployment payments is 11,280 rubles maximum.

How to apply for early retirement in case of layoff?

In order to qualify for early retirement, a citizen must first register with the Employment Center. This is required in order to obtain the status of an unemployed person. Next, specialists from the above organization will assist in finding a suitable job. If one is not found, the citizen will be able to contact the pension organization to arrange early payments.

It should be noted that in order to receive an early pension, the Employment Center must provide the individual with a special referral. First, the citizen himself will have to collect and submit the following documents:

• personal statement, which can be written in any form;
• passport, to confirm a person’s identity;
• the employee’s work book to confirm that he has the required period of work experience;
• military ID, for men;
• SNILS;
• information from the last place of work regarding the average salary of a citizen, secured by the signature of an authorized person, as well as the company seal of the organization.

In some cases, a specialist may request other documents if there is such a need. Another important nuance is the fact that, in case of employment, a person loses the right to receive early payments.

Actions if forced to resign

The law limited the ability of directors to fire people, especially those approaching retirement age. However, regulations should not prevent businesses from functioning normally. Therefore, managers who doubt an employee’s professional or physical ability to perform daily duties have the right to require him to take an exam. If the result of the inspection only confirms the citizen’s skills, all claims should be immediately withdrawn.

Sometimes employers use various measures of pressure, forcing a person to write a statement. On paper, the situation looks legal, but in practice, the employee simply lost his job thanks to the intrigues of his superiors.

Future pensioners cannot write such statements; these actions will automatically deprive them of benefits issued by the Employment Center, as well as other payments.

If you keep your job and there is no opportunity, it’s easier to ask your boss to indicate the reason: “downsizing . Or arrange for the person to be transferred to another, similar place. Some firms have a collective agreement policy that details the general terms and conditions. They apply to all hired employees. It is worth studying the provisions of the agreement more carefully. Perhaps it stipulates the issuance of a significant bonus when an older employee leaves the service to become a pensioner.