New article of the Criminal Code
In accordance with amendments to legislation adopted on October 3, 2021, the retirement age in Russia has been increased to the following limits:
- for women - up to 60 years;
- for men - up to 65 years.
The changes are being introduced gradually, starting in 2021. On the same day, Putin signed Law No. 352-FZ, which introduced criminal liability for employers . It will be subject to officials of organizations and entrepreneurs who, without any reason:
- a person of pre-retirement age will be fired;
- such an employee will not be accepted.
Penalty for dismissal of citizens of pre-retirement age: prospects for the authorities’ idea
Sergey Elin, managing partner of AKG AIP, an expert in financial and legal security of business, will try to understand the nuances of such an idea. He believes that the initiative is quite dubious.
Pension reform, which involves increasing the retirement age, has been the subject of discussion for a long time. Currently, the retirement age in Russia for men and women is 60 and 55 years, respectively. From 2019, the retirement age will be gradually raised to 65 for men (by 2028) and 63 for women (by 2034).
Russian President Vladimir Putin, during a televised address to citizens of the country, proposed raising the retirement age for women not to 63, but to 60 years, introducing the social category “citizens of pre-retirement age” (from 60 years for men and from 55 years for women), and also establishing criminal liability for employers for their dismissal.
Immediately after Putin’s address, Vice President Tatyana Golikova proposed levying a fine for the unjustified dismissal of working citizens of pre-retirement age in the amount of up to 200 thousand rubles or 18 months’ salary.
Let's draw an analogy with criminal liability for delays in payment of wages, provided for in Article 145 of the Criminal Code of the Russian Federation.
This article provides for criminal liability for non-payment of wages for more than three months, committed out of selfish or other personal interest by the head of the organization. It is very important here that for criminal liability to arise, and not some other kind, there must be self-interest or other interest. And in principle, criminal liability for the most part implies the presence of intent, which is either absent in labor relations or is extremely difficult to prove. This is what usually limits the application of Article 145 of the Criminal Code of the Russian Federation.
In the situation with the proposed initiative on criminal liability for the dismissal of an employee, I think there will be even more pronounced complexity in this issue.
It would be more logical to introduce the proposed amount at the level of either administrative responsibility or disciplinary norms, and then it would be quite objective. In any case, the question arises: how to classify this or that situation and hold it accountable?
The catch may probably be that, in essence, the norm will be quite subjective and will not actually work.
I think the same story will happen with employees of pre-retirement age - for example, an employer who fired an elderly person can be held liable if the employer receives any benefit from this dismissal. In fact, it is quite difficult to imagine such a situation.
Is it possible to say that this initiative is simply designed to reduce some of the social tension that has arisen in connection with the pension reform? This looks like an attempt to reassure citizens - yes, we raised the retirement age, but we introduced criminal liability, and older people will not be fired from work because of their age.
Meanwhile, such a measure can become a problem for both the employer and employees.
For the employee, it will be a minus, because it will cause a more cautious attitude towards him, creating an employer for whom he will be, so to speak, a representative of a “risk group”, indirectly pushing him not to enter into an employment relationship if he has a choice. For the employer, such a measure will complicate personnel records management and, one way or another, create some additional risks. But the norm will not solve its most important task.
Theoretically, if such an article appeared, the employee would have to prove that the dismissal was related precisely to his age, and not to incompetence, which the employer would certainly insist on in such a situation.
Since the question is very subjective, any dismissed employee of pre-retirement age would have to defend his case for a long time, and such people may not have enough strength or health to do this.
The situation would be no better for the employer: he would have to, again relying on very subjectively interpreted evidence, convince the court that the employee is truly incompetent, ineffective or conflict-ridden.
As a result, the new measure simply would not work and at the same time would encourage the employer to refuse people of pre-retirement age in advance, so that problems would not arise later. Because of this, the employer will pay more attention to the wording and approaches to dismissal (not to mention the fact that all this will complicate the selection of personnel), and an older employee would rather prefer to quietly leave his job than go through the courts.
Any employer is always interested in an effective employee.
And it is often not so important to him what age this employee is; if he is efficient and competent in the field of activity in which he works, then he is beneficial to the employer, even purely economically. Example: if a pensioner works, say, as a courier, then the employer most likely will not care so much whether he is 60 or 55 years old, if he does a good job and brings money to the company. However, in some government agencies and corporations there is an unspoken rule: when retirement age comes, a person is sent to retire, no matter how well he worked. It is in organizations of this kind that the most problems will arise after the adoption of the amendment to the criminal code. It is probably more rational to adjust the policies of government agencies at the administrative level. Directives, instructions or recommendations from the ministry, for example, are quite sufficient for this. However, this unspoken practice of dismissing employees of retirement age still exists, and it could be regulated, but not by introducing criminal liability.
As a result, the situation with the idea of criminal liability for the dismissal of workers of pre-retirement age is quite controversial. It is necessary to distinguish the line between dismissal due to age and dismissal due to unsuitability, otherwise liability for an offense can be easily circumvented.
It is absurd to bring criminal charges against all employers indiscriminately and prohibit dismissing pensioners and people of pre-retirement age completely, regardless of how they work. But it is just as absurd that an employer can voice anything but age as a reason for dismissal, and not everyone can prove the opposite. Any amendment can be made, but if it is easy for both the employer and the employee to circumvent it, then it does not make sense.
In addition, if criminal liability arises only due to the very fact of dismissal of an elderly person, it becomes completely unclear how such a scheme will work.
The material was prepared with the support of MGO OPORA RUSSIA.
Responsibility measures
If an employer unreasonably fires a “pre-retirement employee” or does not hire him, then the following penalties :
- a fine of up to two hundred thousand rubles or in the amount of salary (other income) for 18 months;
- compulsory work up to 360 hours.
What is considered an unjustified dismissal or refusal to hire a position? Comments were given by Deputy Prime Minister Tatyana Golikova. According to her, this implies an employer’s decision, which is not made based on the citizen’s business qualities, experience and education. The one who made this decision will be punished.
Important! What is pre-retirement age? The answer is contained in the note to the new article of the Criminal Code of the Russian Federation. This is the period 5 years before retirement.
What is an unreasonable refusal to hire?
The Labor Code of the Russian Federation does not give a clear definition of this concept. In Art. 64 of the Labor Code of the Russian Federation, an unjustified refusal is formulated as follows:
Restriction of rights or establishment of advantages when concluding an employment contract depending on gender, race, skin color, nationality, language, origin, property, family, social and official status, age, place of residence, attitude to religion, beliefs, membership in public associations or any social groups, as well as other circumstances not related to the business qualities of employees.
Pay attention to the highlighted phrase about business qualities: what these qualities mean is not spelled out in the law, which means that a lot can be summed up under them. For example, the Supreme Court of the Russian Federation in Resolution No. 2 of March 17, 2004 recommends taking into account the professional, qualification and personal qualities of the employee, as well as his state of health.
Why was a new fine needed?
After the signing of the pension amendments, fears arose in society that people of pre-retirement age may face labor discrimination. Employers will try to get rid of older employees under any pretext, and new ones will not hire them because of their age.
According to State Duma Speaker Vyacheslav Volodin, Article 144.1 of the Criminal Code of the Russian Federation should protect a working person who has several years left before retirement. The first deputy head of the United Russia faction, Andrei Isaev, noted that the new norm will be applied in the event of a blatant intentional violation on the part of organizations and individual entrepreneurs.
Positive and negative aspects of introducing criminal liability against employers
The possibility of bringing employers to criminal liability was analyzed by many experts who had ambivalent views on the use of such a method of influence. Many experts believe that this approach will not bring positive changes, but government officials point to the following advantages:
- Persons with the right to dismiss employees will begin to take a more conscious approach to the procedure for canceling an employment agreement with representatives of pre-retirement age. The risk of criminal prosecution will be a deterrent for them. That is why the decision will be made solely on the basis of available evidence of the person’s guilt, due to which further cooperation becomes impossible;
- Attracting this measure to employers will reduce the number of unemployed citizens, which will significantly reduce the burden on the country’s budget;
- A guarantee of job security will reduce the resentment of people of pre-retirement age towards the pension reform initiated by the authorities.
Despite the presence of the above positive aspects, many experts have suggested the following negative aspects of this innovation:
- Despite the fact that there is a penalty for dismissing pregnant employees or refusing to hire them, many employers, without any problems, find sufficient reasons to completely avoid cooperation with this category of people. In this regard, there is a high probability that employers will simply take a more careful approach to determining the reason for terminating a contract with pre-retirees, while trying to complete cooperation in advance in order to avoid any additional problems in the future. Thus, the possibility of criminal prosecution will only lead to an increase in the number of unemployed citizens;
- The risk of being punished will become the basis for reducing vacancies, which will undoubtedly affect the employment of not only older, but also young professionals;
- The effective activities of many legal entities will be significantly reduced if a fairly large proportion of the staff consists of people of pre-retirement age.
Important information for employers
In order not to fall under a new fine, you need to be extremely careful about this category of workers, not only existing ones, but also potential ones. For example, when searching for personnel, you should not indicate age restrictions - this may be regarded as discrimination.
If it is necessary to refuse employment to a person of pre-retirement age, you need to clearly formulate the reasons . For example, lack of qualifications or lack of necessary work experience. The wording must be unambiguous, not allowing for ambiguous interpretation.
It is also important to remember that certain categories of citizens have a special retirement period . For example, a woman with one child will be considered “pre-retirement” at 55 years old, and a mother of many children - at 45 years old.
