Today we will tell you about the law that introduces a ban on dismissals of workers of pre-retirement age in 2021. We all remember the public outcry caused by the proposal to increase the retirement age. In September 2021, the President addressed the population of the country and proposed a softer transition to new conditions, and also guaranteed the opportunity for citizens to work until they apply for an insurance pension.
At the same time, this guarantee must be supported by measures that the state has the right to apply to unscrupulous employers. Then it was proposed to introduce criminal liability in cases of infringement of the rights of persons of pre-retirement age in connection with:
- unjustified refusal to hire;
- unjustified dismissal.
The concept of “Pre-retirement age” in 2021
A new concept has been introduced into legislative acts, which has been defined as pre-retirement age. This is a five-year period that precedes the date on which a citizen has the right to apply for an insurance pension. As the retirement age increases, the following period will be considered pre-retirement:
- 55-60 years for women;
- 60-65 years for men.
During the transition period, the rule will be based on the generally established retirement age in a specific year minus 5 years.
Rules of user conduct on the site
Paragraphs 1 and 3 of Article 2 of the Labor Code of the Russian Federation:
Based on generally accepted principles and norms of international law and in accordance with the Constitution of the Russian Federation, the basic principles of legal regulation of labor relations and other relations directly related to them are recognized, including:
— prohibition of forced labor and discrimination in labor;
Article 3 of the Labor Code of the Russian Federation:
Everyone has equal opportunities to exercise their labor rights.
No one can be limited in labor rights and freedoms or receive any advantages depending on gender, race, skin color, nationality, language, origin, property, family, social and official status, age, place of residence, attitude to religion, beliefs, membership or non-membership in public associations or any social groups, as well as other circumstances not related to the employee’s business qualities.
Establishing differences, exceptions, preferences, as well as restricting the rights of workers that are determined by the requirements specific to this type of labor established by federal law, or due to the special care of the state for persons in need of increased social and legal protection, or established by this Code or in cases and in the manner that they provide, in order to ensure national security, maintain an optimal balance of labor resources, promote, as a matter of priority, the employment of citizens of the Russian Federation and in order to solve other problems of the domestic and foreign policy of the state.
Persons who believe that they have been discriminated against in the world of work have the right to apply to the court for restoration of violated rights, compensation for material damage and compensation for moral damage.
Article 77 of the Labor Code of the Russian Federation:
The grounds for termination of an employment contract are:
1) agreement of the parties (Article 78 of this Code);
2) expiration of the employment contract (Article 79 of this Code), except for cases where the employment relationship actually continues and neither party has demanded its termination;
3) termination of an employment contract at the initiative of the employee (Article 80 of this Code);
4) termination of an employment contract at the initiative of the employer (Articles 71 and 81 of this Code);
5) transfer of an employee, at his request or with his consent, to work for another employer or transfer to an elective job (position);
6) the employee’s refusal to continue working in connection with a change in the owner of the organization’s property, a change in the jurisdiction (subordination) of the organization or its reorganization, or a change in the type of state or municipal institution (Article 75 of this Code);
7) the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties (part four of Article 74 of this Code);
the employee’s refusal to transfer to another job, required for him in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the employer’s lack of relevant work (parts three and four of Article 73 of this Code;
9) the employee’s refusal to be transferred to work in another location together with the employer);
10) circumstances beyond the control of the parties (Article 83 of this Code);
11) violation of the rules for concluding an employment contract established by this Code or other federal law, if this violation excludes the possibility of continuing work (Article 84 of this Code).
An employment contract may be terminated on other grounds provided for by this Code and other federal laws.
Article 78 of the Labor Code of the Russian Federation:
An employment contract can be terminated at any time by agreement of the parties to the employment contract.
Article 81 of the Labor Code of the Russian Federation:
An employment contract can be terminated by the employer in the following cases:
1) liquidation of an organization or termination of activities by an individual entrepreneur;
2) reduction in the number or staff of employees of an organization or individual entrepreneur;
3) the employee’s inconsistency with the position held or the work performed due to insufficient qualifications confirmed by certification results;
4) change of owner of the organization’s property (in relation to the head of the organization, his deputies and the chief accountant);
5) repeated failure by an employee to perform labor duties without good reason, if he has a disciplinary sanction;
6) a single gross violation by an employee of labor duties:
a) absenteeism, that is, absence from the workplace without good reason throughout the entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day ( shifts);
b) the appearance of an employee at work (at his workplace or on the territory of an organization - employer or facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcohol, narcotic or other toxic intoxication;
c) disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee;
d) committing at the place of work theft (including small) of someone else's property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses;
e) a violation by an employee of labor safety requirements established by the labor safety commission or the labor safety commissioner, if this violation entailed serious consequences (industrial accident, breakdown, catastrophe) or knowingly created a real threat of such consequences;
7) commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him by the employer;
7.1) the employee’s failure to take measures to prevent or resolve a conflict of interest to which he is a party, failure to provide or provide incomplete or unreliable information about his income, expenses, property and property-related liabilities, or failure to provide or provide knowingly incomplete or unreliable information about income, expenses, on the property and obligations of a property nature of their spouse and minor children, opening (availability) of accounts (deposits), storing cash and valuables in foreign banks located outside the territory of the Russian Federation, ownership and (or) use of foreign financial instruments an employee, his spouse and minor children in cases provided for by this Code, other federal laws, regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation, if these actions give rise to a loss of confidence in the employee on the part of the employer. The concept of “foreign financial instruments” is used in this Code in the meaning defined by Federal Law No. 79-FZ of May 7, 2013 “On the prohibition of certain categories of persons from opening and having accounts (deposits), storing cash and valuables in foreign banks located outside the territory of the Russian Federation, own and (or) use foreign financial instruments”;
the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;
9) making an unjustified decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;
10) a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;
11) the employee submits false documents to the employer when concluding an employment contract;
12) has become invalid. — Federal Law of June 30, 2006 N 90-FZ;
13) provided for in the employment contract with the head of the organization, members of the collegial executive body of the organization;
14) in other cases established by this Code and other federal laws.
The procedure for certification (clause 3 of part one of this article) is established by labor legislation and other regulatory legal acts containing labor law norms, local regulations adopted taking into account the opinion of the representative body of workers.
Dismissal on the grounds provided for in paragraph 2 or 3 of part one of this article is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job) which the employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.
In the event of termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality, termination of employment contracts with employees of this unit is carried out according to the rules provided for cases of liquidation of the organization.
Dismissal of an employee on the grounds provided for in paragraph 7 or 8 of part one of this article, in cases where guilty actions giving grounds for loss of confidence, or, accordingly, an immoral offense were committed by the employee outside the place of work or at the place of work, but not in connection with the performance of his labor duties, is not allowed later than one year from the date of discovery of the misconduct by the employer.
It is not allowed to dismiss an employee at the initiative of the employer (except in the case of liquidation of an organization or termination of activities by an individual entrepreneur) during the period of his temporary incapacity for work and while on vacation.
Information on the application of a disciplinary sanction to an employee in the form of dismissal due to loss of confidence on the basis of clause 7.1 of part one of this article is included by the employer in the register of persons dismissed due to loss of confidence, provided for in Article 15 of the Federal Law of December 25, 2008 N 273-FZ “On combating corruption.”
Article 83 of the Labor Code of the Russian Federation:
The employment contract is subject to termination due to the following circumstances beyond the control of the parties:
1) conscription of an employee for military service or sending him to an alternative civilian service that replaces it;
2) reinstatement of an employee who previously performed this work, by decision of the state labor inspectorate or court;
3) failure to be elected to office;
4) sentencing of an employee to a punishment that precludes the continuation of previous work, in accordance with a court verdict that has entered into legal force;
5) recognition of the employee as completely incapable of working in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation;
6) death of an employee or employer - an individual, as well as recognition by a court of an employee or employer - an individual as deceased or missing;
7) the occurrence of emergency circumstances that impede the continuation of labor relations (military action, catastrophe, natural disaster, major accident, epidemic and other emergency circumstances), if this circumstance is recognized by a decision of the Government of the Russian Federation or a government body of the relevant subject of the Russian Federation;
disqualification or other administrative punishment that precludes the employee from fulfilling his duties under the employment contract;
9) expiration, suspension of validity for a period of more than two months or deprivation of an employee of a special right (license, right to drive a vehicle, right to carry a weapon, other special right) in accordance with federal laws and other regulatory legal acts of the Russian Federation, if this entails the impossibility of the employee fulfilling his duties under the employment contract;
10) termination of access to state secrets if the work performed requires such access;
11) reversal of a court decision or cancellation (declare illegal) of the decision of the state labor inspectorate to reinstate the employee at work;
12) has become invalid. — Federal Law of December 1, 2014 N 409-FZ;
13) the occurrence of restrictions on engaging in certain types of labor activity established by this Code, other federal law and excluding the possibility of an employee fulfilling his duties under an employment contract.
Termination of an employment contract on the grounds provided for in paragraphs 2, 8, 9, 10 or 13 of part one of this article is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer (either a vacant position or a job that corresponds to the employee’s qualifications, or and a vacant lower position or lower paid job) that the employee can perform taking into account his state of health.
In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract. Show more
Law on criminal liability for dismissal of persons of pre-retirement age
The bill quite quickly passed all readings in the State Duma, and on October 3, 2021, it was signed by the President and published. Law 352-FZ amended the Criminal Code, adding Article 144.1 to it. Now, for unjustified refusal to hire or dismissal of citizens who have no more than 5 years left before their old-age pension, employers face criminal prosecution.
The article provides for the following types of punishment for the guilty person:
- a fine of up to 200 thousand rubles;
- wages or other income of the convicted person for a period of up to 18 months;
- compulsory work up to 360 hours.
Criminal liability for illegal layoffs
For the illegal dismissal of a pre-retirement employee, the head of the organization (enterprise) is subject to appropriate criminal liability. The amount of the fine and other criminal penalties for such a crime are established in Art. 144.1 of the Criminal Code of the Russian Federation.
What fine can be imposed?
For unjustified termination of employment relations with a pre-retirement person, the head of an organization (enterprise) may be subject to the following criminal liability established in Art. 144.1 of the Criminal Code of the Russian Federation:
- a fine of up to 200,000 rubles;
- imposing penalties in the amount of the employer's monthly income for a maximum of 18 months;
- assignment to various compulsory work for up to 15 days.
According to Art. 19 of the Criminal Code of the Russian Federation only individuals over 16 years of age are subject to criminal liability. That is, the director of the organization or individual entrepreneur will bear responsibility for the unjustified dismissal of a pre-retirement employee.
Application practice
Currently, a small judicial practice has been formed in cases concerning the dismissal of pre-retirement workers. This is due to the fact that Art. 144.1 of the Criminal Code of the Russian Federation was recently introduced. However, at the moment, the courts are making decisions not in favor of pre-retirees. Below are two illustrative examples from judicial practice.
Example No. 1 : Decision of the Stavropol District Court dated March 27, 2021 in case No. 2-787/2019 (the plaintiff’s last name has been changed).
According to the materials of this case, pre-retirement Mamaev filed a claim with the Stavropol District Court against his employer, MP Stavropol Resource Service, to declare his dismissal illegal and reinstate him in his previous job as a legal adviser. Mamaev was fired due to staff reduction.
Mamaev did not agree with the dismissal, pointing out that pre-retirement workers cannot be fired. Moreover, this employee considered that the fact of dismissal when he reached pre-retirement age could be considered the hiring of a new lawyer with no work experience in the legal department.
However, the court in its decision refused to satisfy the plaintiff's claims. The judge rejected Mamaev's argument that the employer violated Art. 144.1 of the Criminal Code of the Russian Federation, since such an article establishes criminal liability for unjustified cancellation of an employment contract with a pre-retirement person. At the same time, Mamaev was fired due to staff reduction, which is a legal basis for his dismissal.
Example No. 2: Decision of the Sudzhansky District Court of the Kursk Region dated February 13, 2021 in case No. 2-48/2019 (the plaintiff’s last name has been changed).
According to the case materials, pre-retirement Samsonov filed a claim with the Sudzhansky district court against his employer, represented by the Sudzhanskie Vesti AUKO, for reinstatement at work.
Plaintiff Samsonov, in his statement of claim, argued that his dismissal was carried out illegally due to the lack of economic justification for staff reduction. In addition, Samsonov considered that the staff reduction was carried out by the employer in order to evade criminal liability under Art. 144.1 of the Criminal Code of the Russian Federation.
However, after considering all the materials of the case, the court came to the conclusion that the decision to reduce staff by the editor-in-chief of the AUKO “Editorial office of the newspaper “Sudzhanskie Vesti”” complied with the established legal requirements and the Charter of the institution. In addition, the employer had legal grounds for dismissing Samsonov due to staff reduction.
Such arguments of the defendant were officially confirmed by written explanations from representatives of a third party. As a result, the court rejected the claim of pre-retirement Samsonov.
Resolution of the Plenum of the Armed Forces of the Russian Federation No. 46 dated December 25, 2021 provides recommendations to courts on law enforcement practice when considering relevant criminal cases under Art. 144.1 of the Criminal Code of the Russian Federation. First of all, the employer who employs pre-retirees should familiarize themselves with this document.
How will responsibility for the dismissal of future retirees be implemented?
Firing an employee is no easy task. This may be preceded by either serious violations of labor discipline, or staff reductions, or liquidation of the enterprise. Therefore, the article practically introduced into the Criminal Code will apply to those citizens who cannot find a job in order to “work” until retirement.
The employer will be held accountable under this article, i.e. a party to an employment contract who violated the procedure for hiring or dismissing a person of pre-retirement age. Thus, an official representing the organization or a legal entity will be determined.
In this case, it is necessary to understand the norm of unreasonableness. This can only be the employee’s inconsistency with professional criteria, insufficient work experience, lack of necessary education and the presence of other factors that may affect the performance of job duties. In other words, the citizen does not meet the qualification requirements, and the organization can give him a reasoned answer about this.
It is precisely this measure that will not allow discrimination against the age category, which can lose their job at any whim of the employer. Now such offenses will be considered criminal.
But lawmakers don't believe such harsh measures should be applied in every case. The Labor Inspectorate should not be excluded from the chain. This is the first authority to contact in case of violation of labor rights. When considering a case, the Inspectorate usually applies the measures provided for by the Code of Administrative Offenses. This article of the Criminal Code is, rather, intended to prevent such violations.
For what reasons do they have the right to dismiss before retirement?
In general, the Labor Code does not provide any restrictions on the dismissal of employees of pre-retirement age. Therefore, an employer can fire an employee, but only if there are legal grounds for this.
This is also important to know:
Can an employer fire a disabled person and how to do it?
The list of legal grounds for dismissing an employee at the initiative of the employer is located in the Labor Code of the Russian Federation, Article 81 “Termination of an employment contract at the initiative of the employer.”
The only thing that can help you stay at work is a collective agreement, which stipulates the impossibility of dismissing an employee of pre-retirement age for a number of reasons. But this collective agreement, alas, is not drawn up by all employers or the specified clause may not be included there. Article 81 of the Labor Code of the Russian Federation allows you to dismiss an employee if there are grounds, the main of which are:
- Liquidation of the organization;
- Reduction in the number or staff of employees;
- Employee inconsistencies;
- Change of owner of the organization (applies to dismissals of the head of the organization, his deputies and the chief accountant);
- Repeated failure by an employee to perform job duties without good reason;
- Gross violation of labor duties;
- Commitment of guilty actions by an employee or an immoral offense;
- Making an unjustified decision that resulted in a violation of the safety of the organization’s property;
- Submission of false documents by the employee to the employer when concluding a TD.
Pros and cons of this punishment
Such an initiative has been considered comprehensively and not everyone believes that it will bring positive changes in the world of work. The following advantages of innovations are noted:
- employers now have a deterrent that does not allow them to refuse a job applicant due to old age. The situation with dismissal is similar;
- the number of citizens of pre-retirement age registering with Employment Centers and receiving benefits from the state will decrease. On the contrary, they will continue to fill the funds and budget through payroll deductions.
Experts call the negative aspects:
- employers will anticipate the situation and try to sever the employment relationship with the employee before reaching retirement age. At the same time, when hiring older people, restrictions can be set when working conditions become a constraint. All these factors will cause an increase in unemployment among mature people;
- There will be a problem with the employment of young specialists due to the lack of vacancies. Organizations will be forced to let future retirees work;
- The number of lawsuits related to clarifying the reasons for the refusal to hire or dismiss people of pre-retirement age will likely increase. Unfoundedness must be proven.
We are also talking about the fact that the adopted law can negatively affect the efficiency of organizations. It will be difficult to update the staff, since the retirement age is rising and it will become impossible to fire a person in adulthood. Experience is a good thing, but age often wins here. The other side is that it is impossible to leave a citizen of pre-retirement age without a means of subsistence.
Early retirement in case of layoff. How to achieve it?
If a citizen of pre-retirement age has been laid off and registered with the employment department, which cannot find a job for him, then he has the right to early retirement.
This is also important to know:
How to quit without working at your own request in 2020
Only if all the listed conditions (in the law) are met is there a chance that a person will be sent to retire ahead of schedule.
But usually the employment center tries to provide an unemployed citizen with a suitable job, and only if such an opportunity is not available can the question of granting a pension be raised.
To receive a referral for early retirement from the employment center, you must provide the following documents:
- Statement;
- Passport;
- Employment history;
- Military ID;
- SNILS;
- Officially certified documents confirming the amounts and period of contributions to the Pension Fund;
- A certificate from work, certified by the seal of the enterprise, about the average salary received in any period of five consecutive years of work - until the beginning of 2002.
In some cases, additional documents may be required.
Finding a job before retirement age serves as a basis for terminating payments of a pension received early. Sometimes the Pension Fund refuses to provide an early pension citing:
- refusal (2 times) of proposed work by the employment service;
- dismissal from work for other reasons;
- There is an error in the documents provided.
“You are not suitable for us”: how people of pre-retirement age can get a job
Often older people are denied employment even if they are certified specialists and have extensive work experience.
Zoya Matveeva is 65 years old and has been looking for a job for 3 months. She has a higher economic education and 25 years of work experience. She retired, but after several months she realized that there were 15 thousand rubles. not to live. But as soon as employers find out how old she is, they immediately refuse her.
The woman even tried to underestimate her age in order to get to the interview and prove her competence there, but even pre-retirement people, apparently, should not count on a serious position.
“You know, we have this unspoken restriction: do not hire people after 50.
“I see,” they answered Zoya at one of the firms.
Valentina Krasovskaya is 90 years old, but it’s hard to believe. She is active and still works as a doctor and owns a private clinic. She provided work not only for herself, but also for other pensioners and pre-retirees - the team was made up of people mainly of this age. According to Valentina, such employees are the most hardworking people - attentive and honest:
“In some sections it’s better when there are older people. They have compassion and attention to patients since Soviet times. They are responsible, committed and honest, without a doubt.”
One of the clinic workers, 48-year-old Larisa Mikhailovna, said that she had not been able to find a normal job since she was 40 years old. Women were offered positions as cleaners and maids, most often unofficially. Even more often, they cheated with salaries.
“After 35 years it is already very difficult to find a job. It is possible, but unofficially and with deception. I went to enterprises, but they found out that I was already 40 years old: they needed young people, but experienced ones,” Larisa Korobova told TVK News.
The labor and employment agency says that there is work and there is a lot of it. According to their data, in 2021, more than 5 thousand pre-retirees applied for services. 87% are employed, and 100 people are undergoing training. But it turns out that people over 55 years old cannot count on all professions.
According to the letter from Rostrud, employers from October 1 to October 15, 2021, must submit lists of pre-retirement workers to local employment centers.
“Now employers are hiring more office managers and clerical workers in this particular age category: they are more conscientious about their responsibilities. Basically, these are accountants, cashiers, clerks, and florists. Men are programmers, the security profession is in demand,” said Natalya Borisova, deputy head of the regional labor and employment agency.
But it is almost impossible to take a good position at the current pre-retirement age: the employer will find a reason for refusal and it will not be age. But, since, according to the law, the employer cannot refuse because of age - this would be, for example, competence or lack of experience.
“Any grounds not related to business qualities are discriminatory - gender, age, religion. Most employers understand that a refusal based on discriminatory grounds can be challenged. And I assume that the employer can disguise this as the employee’s missing business qualities,” says lawyer Olga Pasynkova.
The law on punishment for dismissal of people of pre-retirement age should help in this situation. However, experts note that this law does not have a working mechanism, so it is more populist than useful. This means that you shouldn’t expect real protection and help from him for pre-retirement people.
