The economic crisis is forcing many large organizations to reduce the number of employees. Many resort to legal methods, and some, trying to save money, break the law. In this article we will figure out whether it is legal to dismiss an employee if there are three years, two years or less left until retirement. We will also discuss the legal reasons for dismissal before retirement several years or months in advance.
Of course, employers want to fire pensioners. After all, according to many bosses: a person of pre-retirement age is no longer so fast and takes longer to complete tasks, learns new things less well, gets sick more often, so keeping him as an employee is not profitable. On the other hand, these are the people who have the most experience in the enterprise and can pass on useful skills to young staff.
As we said earlier, employers are divided into two camps: those acting in accordance with the law and those violating it. The first ones either lay off a person, or wait for dismissal due to pension (if the employee wishes), or dismiss only if there are misconduct. The latter force the employee to resign of his own free will or dismiss him under a fictitious article (read where to complain here).
Dismissal of any kind for people of pre-retirement age is a tragedy, because getting a new job at this age is unlikely. The law protects citizens who find themselves in such trouble and provides for early retirement, which will also be discussed in this article.
Regulation by law
Previously, in legal terms, rules were adopted that allowed the dismissal of a citizen upon reaching retirement age. However, since 1992, entry into venerable years cannot be used as a reason for dismissal of a citizen due to reduction (although this does not apply to some professional categories). A certain part of the bosses, when dismissing a number of employees, adheres to the fact that citizens of retirement age are relatively protected in legal terms when compared with other people (since they have a slightly different type of income). However, this contradicts legislative norms and can be understood as a discrepancy with the principle of equal rights and opportunities for employees (part one of the second article of the Labor Code) and an infringement of certain categories of citizens (third article of the Labor Code).
Dismissing a citizen of retirement age due to staff reduction (as well as other groups of employees) is permissible only when it is not possible to allow him to continue to perform his job duties. In other words, the company cannot provide a person with a suitable position that matches his professional skills, salary level, and health status.
Note ! _ Another option is the pensioner’s independent refusal to continue working. Before dismissing a citizen of retirement age due to reduction, he must be informed of all possible outcomes.
Article 3 of the Labor Code of the Russian Federation
Based on the first part of Article 179 of the Labor Code of the Russian Federation, pensioners may have some privileges during layoffs, since they usually have greater qualifications compared to other employees.
The protection of employees of retirement age of the social plan is specified in the Labor Code of the Russian Federation. If an employer is going to ask a pensioner to vacate his job, he must study Article 81 “Termination of an employment contract at the initiative of the employer,” which discusses all permissible conditions:
- destruction of the organization;
- reduction in the number of employees due to economic problems;
- low qualification of the employee;
- new management of the company;
- presence of disciplinary sanctions;
- absenteeism;
- showing up at work while drunk;
- committing legal violations at work;
- disclosure of corporate data considered secret.
As you can see, retirement age is not included in the list of reasons, so using this reason to dismiss an employee is unacceptable and is a violation of the law.
Excerpt from Article 81 of the Labor Code of the Russian Federation
Note ! _ When the number of employees is reduced for objective reasons, then general rules apply to retirees, on the basis of which the reorganization is carried out.
Most of the important information is found in Chapter 27 of the Labor Code of our country. The title is as follows: “Guarantees and compensation for employees who are faced with termination of the contract.” It contains several small articles - 178, 179, 180, 181. Having studied the presented text, it is impossible to note any striking differences between the dismissal of a pensioner and other categories of citizens. Thus, the rights of citizens of retirement age are similar to the rights of employees of other ages.
Article 178 talks about severance pay paid after leaving the workplace. Based on the Labor Code, it amounts to one salary and is issued within a couple of months. This period is counted from the moment you leave work. Note that if an employee contacted the Employment Center less than two weeks after leaving his job and they could not help him find a new job, then he may receive severance pay for a month more.
Article 178 of the Labor Code of the Russian Federation
Touching upon practice, we can say that court verdicts vary. The reason is that the Labor Code of the specified chapter does not write whether it is necessary to equate an unemployed person after dismissal due to reduction to a person who is unemployed but receiving pension payments.
Note ! _ Logically, we can conclude that these categories of citizens have nothing in common. However, there are situations when applicants sought to provide them with severance pay from their superiors for three months precisely on the basis of omissions in the Code. True, such cases are rare. This problem is still very acute, causing a lot of controversy.
Legislative framework for the ban on dismissal before retirement age
On what basis is it prohibited to dismiss an employee of pre-retirement age ? If necessary, refer to the law introduced to the State Duma by V. Putin: he proposed to adopt amendments to the Criminal Code of the Russian Federation. The goal was to show that by targeting an elderly citizen, a businessman is committing not an administrative offense, but a crime. It is expected that such an approach will create a new attitude towards employees.
As a result, Article 144.1 appeared in the Criminal Code, providing for liability for the dismissal of workers near retirement age. But the effectiveness of its use remains in question, since government intervention can not only help, but also harm.
The problem is that a businessman will not fire an employee if he works well. After all, by the age of 50, a person reaches the peak of his career: even if he does not have the same strength as before, he has experience, skills, and good knowledge of the field on his side. Employers often get rid of people who wait until retirement, and if they wish, they will find a way to do this legally.
You can learn more about the consequences of illegally dismissing a citizen near retirement age
Rights of an employed pensioner
A working citizen of retirement age, based on labor laws, is no different from an ordinary employee, who is subject to absolutely all labor rules.
The rights of an employed pensioner are equal to the rights of other employees. Please note that working pensioners are entitled to some privileges:
- The Labor Code does not allow discrimination against an employee based on his age. Thus, a pensioner cannot be fired or not hired because of his status.
- Often, citizens of retirement age have more experience and qualifications. If layoffs are planned due to staff reduction, it is natural that more qualified workers have an advantage over others.
- Management must provide a working citizen of retirement age with an extraordinary leave of two weeks. The salary does not remain with him.
- If a pensioner wants to leave his job of his own free will, he is not required to work for the mandatory two weeks.
Working pensioners have some privileges
Judicial practice on dismissals before retirement age in 2020
Although the jurisprudence on the issue of illegal dismissals due to age has not yet developed, it is likely that victims will have to engage in lengthy proceedings. Questions of validity and invalidity remain blurred; Taking into account that the system is far from ideal, we can assume that the one who gives the bribe will win the case. This means that the enterprise gets an advantage, so older people will accept the loss of their jobs.
Another option is an agreement between the manager and the judge regarding the nature of the punishment. If we are talking about a large city with its level of salaries, then it is more profitable for the company to give 200,000 rubles than to keep an unnecessary employee who cannot cope with his duties for years. After all, it is unlikely that a businessman will decide to get rid of an employee who knows his business perfectly! The damage would be more serious if the judge imposed a fine in the amount of 18 months' income, but with the help of a bribe the issue will probably be resolved.
In fact, any measures in a country where corruption has spread to all areas remain useless. They are aimed only at strengthening the security forces and officials: an elderly person will be able to defend their interests with difficulty, but law enforcement officers who want to destroy unwanted businesses use innovations in the Criminal Code as a reason for unnecessary quibbles.
The procedure for dismissing a pensioner at his request
If a citizen of retirement age decides to resign on his own, then the process follows the general rules on the basis of a corresponding application. The employee does not have to state the reasons for such a decision, as for any application of his own free will. The words “due to retirement” are incorrect and contrary to the law, because reaching retirement age and dismissal cannot be interconnected.
Note ! _ In the application, you will still have to write that the resigning employee is a pensioner, exempt from the need to work for the mandatory two weeks based on the eightieth article of the Labor Code.
Example of a resignation letter
Sometimes the reason for leaving work may be written down in the work book in the following form (this is not necessary): “Dismissed at his own request due to retirement age/retirement.”
The procedure for laying off a working citizen of retirement age:
- When a decision has been made to fire a certain number of employees, management must issue an order to create a reduction commission.
- Having received the corresponding conclusion from the commission, the director makes an order to destroy the rates, indicating the reasons for this decision, and to dismiss the employees working at this place - by name.
- If you plan to reduce the number of employees, you must send a written notice to the employment service and the organization’s trade union three months in advance.
- The notice period for employees is two months, and they must also be presented with job options.
- When citizens of retirement age are included in the list of dismissed workers, they are entitled to certain compensation.
Before dismissing a pensioner, the employer is obliged to provide him with alternative positions at the same enterprise
Before dismissing a retiree, the boss should familiarize him with the options for maintaining employment in the company. The new workplace must meet the requirements of the pensioner: match his education, his working skills, and the salary must be at the level of the previous one. A person may well not accept this offer and look for a new job without waiting until two months have passed.
Note ! _ The volume of payments remains at the same level.
What is considered pre-retirement age in 2020?
According to the Law “On Employment of the Population in the Russian Federation,” pre-retirement age is considered to be 5 years before a citizen has to go on vacation. This means that the category includes women 55 years old and men 60 years old. If you are one of them, then you will be provided with a number of benefits, including a prohibition for the employer to fire you due to your advanced age.
Do I need to provide documents proving membership in this category? According to the laws, an employee does not have to receive a certificate stating that he has reached the specified age. On the Pension Fund website you will read that no additional actions are required from you, since employers will receive the necessary documents by email.
In practice, the situation is different, since officials do not always fulfill their duties. Since the innovations are still fresh, many officials themselves do not know when pre-retirement age begins in a particular case . Managers of enterprises or accountants do not know how or do not want to send intercommunication requests. This means that pre-retirees who want to receive legal benefits should order a certificate and provide it to the company. To cope with the task, contact the territorial branch of the Pension Fund or MFC; You will also place an order on the Pension Fund website, indicating where to deliver the electronic document.
Payment terms
Time periods set for payments due to pensioners laid off due to staff reduction:
- severance pay is provided on the date of dismissal;
- compensation for finding a new job is paid within two months (every month);
- Payments for the third month of job search can be provided based on official paper issued at the employment center.
If a pensioner has not found a job while registered with the Central Employment Service, he will be paid benefits for the third month
Applicants for early retirement
Among other things, there are the following categories of citizens who have the right to receive cash receipts until the age of their old-age pension, if they have had a certain job throughout their life. These categories of activities include:
- logging workers;
- workers of locomotive crews;
- activities on ships and ships;
- work on mountain ranges;
- rescue work;
- pilots;
- work in the fire service;
- stage activities;
- transport drivers involved in transporting passengers;
- machine operators at work in the port;
- pedagogical activities with children;
- labor activity in health care authorities.
How to apply for an early pension?
Severance pay for the third month after the pensioner was laid off
A citizen of retirement age dismissed on the basis of reduction has the right to receive compensation in the amount of average monthly earnings for the third month after dismissal if a list of such conditions is met (part two of Article 178 of the Labor Code, letter of the Ministry of Finance of Russia dated March 15, 2006 No. 03-03-04 /1/234):
- this employee must register with the employment service within two weeks from the date of dismissal;
- this employee was unable to get a new job three months after dismissal;
- there is a decision from the employment service to maintain average earnings for the third month.
Note ! _ Payments to a person of retirement age do not eliminate the impact of the rules prescribed in the Labor Code concerning this category of citizens in terms of retaining their average monthly earnings, including in the third month after leaving the workplace, if the case fits the criteria prescribed above (definition Krasnodar Regional Court dated September 27, 2012 in case number 33-19551/2012).
Excerpt from Article 178 of the Labor Code of the Russian Federation
There is an assumption that providing a person with old-age pension payments is grounds for refusing to pay him compensation for the third month after dismissal. However, the courts call this opinion erroneous, because if a person is not recognized as unemployed (and a retired citizen cannot be recognized as such, because he has money to live on), this does not prevent the employment center from satisfying his application for a suitable job (based on the decision of the Central District Sochi court dated January 25, 16 in case number 2a-856/16).
To formalize the decision to retain the average monthly salary for a citizen of retirement age for the third month, the employment service must assess the existence of special circumstances that prevent him from finding a job.
Note ! _ If suitable jobs existed and were provided to the pensioner, and he refused them without a good reason, this will be the basis for the court to annul the decision of the employment service to provide and maintain benefits.
Example:
Let us take as a basis for calculations the amount of the average employee’s earnings of 3,641.3 rubles. We point out that within two months after dismissal, the citizen was unable to find a new job; this month there were 22 working days.
The allowance for the temporary period of employment is: 3,641.3 * 22 = 80,108.6 rubles.
There are cases when a citizen manages to find a job during the second month from the date of layoff. Then he can also be paid benefits, but not for a full month, but only for those working days while he did not yet have a new position.
If a citizen finds a job within 2 months, he will be paid benefits for those days until he was employed
Note ! Neither severance pay nor benefits for a temporary period of employment are subject to taxes on personal income in a part not exceeding three times (for residents of the Far North and similar regions - six times) the average monthly earnings (part three of Article 217 of the Tax Code). That is, when the boss makes additional payments on his own, they are taxed at 13%.
What questions are raised in connection with the ban on dismissal before retirement age?
Laws regarding the dismissal of persons of pre-retirement age raise questions among citizens. They are most often interested in the following:
- After the adoption of new laws, an employer cannot fire a citizen if he has less than 5 years left until retirement? In fact, no one forces you to leave a specialist who cannot cope with his responsibilities in the workplace. Only dismissal that is not related to the employee’s business qualities, education and experience is prohibited. However, deputies are silent on how to identify the real reason why the employer decided to get rid of the elderly person.
- Will protecting workers near retirement age hurt younger employees? The State Duma announced that there will be no discrimination against other personnel. After all, young people are in demand on the labor market, and employers have no reason to fire them. True, the deputies did not explain the situation: it turns out that a person who has another 5 years and 2 months left before retirement is in great demand by his superiors, and after 60 days he becomes unnecessary and should be protected from the point of view of legislation.
- What to do with employees who work under a fixed-term contract if it ends 4 years before the citizen’s retirement? The State Duma has not yet given a clear answer.
- Who will be punished for dismissing a person in his pre-retirement years? A criminal case is opened against the person who signed the employment contract on the part of the employer. But the law does not provide for a number of situations: for example, the manager who hired the calculated employee himself managed to quit. It is also unclear when an applicant is refused admission, because the contract was not even signed. So far, members of United Russia have made statements that the Investigative Committee will sort out difficult situations.
Even Deputy Prime Minister Tatyana Golikova, who presented the bill in the 1st reading, was unable to answer a large number of questions. It cannot be said that the innovations have been fundamentally improved since then, so Russians will have to prepare to independently protect their interests.
Benefit for the following months after the retiree’s dismissal
What kind of payments are provided to laid-off pensioners if they worked in the Far North and similar areas? The rules here are similar to those that apply in other places:
- salary for the time period worked;
- compensation for vacation balances;
- severance pay.
Note that the time it takes to maintain the average salary per month (for the duration of employment) after terminating an employment contract is slightly different.
Article 318 of the Labor Code of the Russian Federation
As for people working in the Far North or similar areas, they are entitled to an average salary for a period of up to three months from the end of the employment contract, taking into account severance pay (Article 318 of the Labor Code).
In some situations, the salary may be left for this category of citizens for another three months - if this was the decision of the employment service or a number of the listed criteria are met:
- the citizen visited the employment service within a month after leaving work;
- this citizen was not employed by the employment service.
These rules of the Labor Code of Russia also affect citizens of retirement age who continue to fulfill their labor duties (letter of Rostrud dated February 11, 10, number No. 594-TZ).
Note! Compliance with the right to retain average monthly earnings for the next three months from the date of dismissal (up to six months) depends on the specific situation. Special cases must be established by the employment service. Even if the law does not provide a list of such “special situations”, this cannot be the reason for the decision on the part of the employment service to leave employees without average monthly earnings, provided only that the employees and the employment service itself follow the rules for providing public services for assistance in choosing a suitable place work (decision of the Kuril District Court of the Sakhalin Region dated February 27, 2018 in case number 2-19/2018).
Sometimes severance pay is paid for a longer period
Reader question: can an employee of pre-retirement age be forced to resign?
Hello! A difficult situation arose at work: I am a dispatcher at a heating company, initially there were 4 people on the team. But problems arose in business, the enterprise was on the verge of bankruptcy. They began to get rid of employees: the director was the first to be asked to leave, but he defended his rights and received everything that was due by law. Now they are taking over the regular staff, and I am afraid that they will force me to resign of my own free will. Tell me what to do, because I’m already at retirement age.
Thanks for the question! The fact is that voluntary dismissal is possible only with the consent of the employee. You have the power to refuse to sign the application, and they won’t be able to pay you off. But dismissal is permitted for other reasons related to your qualifications, performance of duties, and education.
If you work under a fixed-term contract, your bosses will simply not renew the agreement. But in case of violations committed during the dismissal of an employee in pre-retirement years, the employer runs the risk of being liable under the Criminal Code of the Russian Federation.
Payment for performing labor duties
Upon layoff of an employee, management must repay the debt to a citizen of retirement age for payment for work duties. The total amount includes salary, bonus, raises, bonuses and similar incentives. If a pensioner was fired in the middle of the reporting month, he is given money for the period that he actually worked. If an employee’s earnings are calculated based on output, then the monetary amount is calculated based on actual indicators (for example, the number of parts created before the reduction).
When providing a salary to a dismissed pensioner, management must credit and pay personal income tax and insurance contributions according to the rules established by law.
Note ! _ Let's look at an example. On November 14, 17, a citizen of retirement age was dismissed from his position as a storekeeper at Start LLC due to job reduction. The salary of this citizen is 18 thousand 712 rubles. Every month he receives a salary increase in the amount of 1 thousand 60 rubles.
On the date of dismissal, the citizen was accrued wages for the time actually worked - from November 1 to November 14, 2017. Let's calculate the amount:
(18 thousand 712 rubles + 1 thousand 60 rubles) / 22 working days * 10 working days = 8 thousand 987 rubles, 27 kopecks.
When accounting for withheld personal income tax, a citizen is provided with payments based on the following calculations:
8 thousand 987 rubles, 27 kopecks – 8 thousand 987 rubles, 27 kopecks * 13% = 7 thousand 818 rubles 93 kopecks.
When a pensioner retires, he must be paid in full.
Refusal to hire a person of pre-retirement age
Innovations in the field also affected the area of hiring pre-retirees . Thanks to changes in the Criminal Code, they do not have the right to be refused on the basis of age: the penalty is a fine of 200,000 rubles. or 360 hours of corrective labor.
Despite the fact that the government is trying to protect the interests of pre-retirees, the measure taken has caused confusion among businessmen and employees. After all, the law is already on the side of pensioners who are denied employment due to their advanced age. But in practice, the measure does not work, since you can always find a lot of alternative reasons. People are rejected for a variety of reasons, and it's strange to expect employers to suddenly start telling the truth. And this is in cases where they generally need to justify the refusal!
For example, a pre-retirement worker comes to apply for a courier position: due to his health, he is likely to go to fewer addresses than a 20-year-old candidate. But they will not refuse him on the basis of his advanced age, but will ask him to bring medical documents. As a result, the employer will indicate that the applicant has shortness of breath, tachycardia, joint diseases - there are no completely healthy people. Result? The candidate is not suitable for medical reasons, and the law has not been violated.
What does a pre-retirement worker need to consider?
The adopted amendments to the law, supposedly protecting the rights of a pre-retirement worker when applying for a job , will actually prevent him from getting a job. After all, business representatives will avoid risky categories of personnel or enter into fixed-term contracts.
A pre-retirement worker in such a situation needs to carefully choose an employer. After all, if he decides to change his place, he may lose his old position and not find a new one. Ideally, when choosing vacancies, you should pay attention to options that involve competitive selection and resume assessment. If you receive a written refusal, there is little chance of challenging it in court.
Vacation compensation
If a pensioner is fired, but has several days of vacation left, the boss must pay compensation for each day not used for rest.
A similar payment is provided both for unused annual leave and for days of additional leave provided to the pensioner, based on the rules specified by law.
The calculation of cash payments for vacation balances is based on the information presented in the fifth paragraph of Article 139 of the Labor Code.
SDZ = SGZ: 12 months: 29.3,
where SDZ is the amount of money received for each day of the remaining vacation (average earnings per day);
SGZ – employee’s profit for the past 12 months (average earnings for the year);
29.3 is the recorded average monthly number of calendar days.
Excerpt from Article 139 of the Labor Code of the Russian Federation
The amount of vacation compensation that was not used by a dismissed employee of retirement age is subject to personal income tax and insurance contributions according to the same rules.
Let's consider an example: a citizen was fired from the position of manager of a household due to layoffs due to the destruction of the enterprise. He was fired on October 1, 1717, and the citizen had 13 days of vacation left, which he did not have time to use.
To calculate the money provided in the form of compensation, accountants used the following data:
- the reporting period for calculating average earnings for the year is from October 1, 16 to September 30, 17;
- total income for the time period from October 1, 16 to September 30, 17 is 252 thousand 960 rubles;
- average daily earnings - 719 rubles, 45 kopecks (252 thousand 960 rubles / 12 / 29.3).
At the time of dismissal, a citizen:
- vacation compensation was credited - 9 thousand 352 rubles, 85 kopecks (719 rubles, 45 kopecks * 13 days);
- personal income tax calculated - 1 thousand 215 rubles, 87 kopecks (9,352.85 * 13%);
- compensation was made, taking into account personal income tax, 8 thousand 136 rubles, 98 kopecks (9,352.85 – 1,215.87).
Pensioners are entitled to compensation for unused vacation
Tips for pre-retirees: how to protect yourself
What should a pre-retirement worker do to avoid dismissal and not be left without funds? Take the following measures:
- Constantly improve your skills, even if your employer does not pay for the courses. Government programs are at your disposal, but you can simply read specialized literature or communicate on professional forums.
- Consider ways to provide yourself with an alternative source of livelihood. You can rent out your property or try to make money from a hobby. The main thing is that you do not fall for the tricks of scammers on the Internet who take advantage of the naivety of middle-aged people.
- If you have not passed the certification, you can agree to the vacant position offered, albeit with a lower salary. The task in such cases is to “hold out” until retirement.
Choose the appropriate options, because although the latter depends on the will of the employer, the rest of the actions are in your hands.
Which pensioners should not be laid off?
Some categories of citizens are considered socially protected, and some have significant services to the state. Therefore, they cannot be fired. Let's list them:
- veterans and disabled people of the Great Patriotic War;
- veterans and disabled combat veterans;
- citizens who were injured as a result of performing duties at work, but are capable of performing work duties;
- disabled people;
- citizens with dependent dependents;
- parents with many children.
Some citizens cannot be laid off
In the collective agreement, companies can also provide their own list of employees who cannot simply be fired. They are kept on staff even when the number of employees has been reduced to the maximum.
Expert opinions on the issue of banning dismissals of pre-retirement workers
Immediately after the bill was introduced, it was sharply criticized by business and experts. True, the deputies argued that the changes would work, but in the Russian Federation the function of parliament has long been reduced to pushing buttons. There were few real arguments on their part: the promised training programs are likely to become the same imitation of activity as the work of employment centers.
Employer's opinion: what entrepreneurs say on forums
Representatives of small and medium-sized businesses discuss innovations at specialized forums. Read their opinions to make the right conclusions when applying for a job.
“I want to hire employees without difficulty and easily fire them if we don’t suit each other. Therefore, I will not hire a person whom I cannot get rid of without unnecessary problems. Recently, I was approached by an applicant who seemed like a valuable employee: at the age of 58, he had experience, knowledge, an impressive resume and real skills on his side. I offered an annual contract so that we could get used to the business; he said he wanted to work until retirement. If so, then it would be more profitable for me to refuse cooperation altogether; there are no irreplaceable people.”
Conclusion? Don't try to impress potential bosses with your gray hair and don't scare them with the Criminal Code. Of course, the president and the government are on your side, but only formally. In fact, you need to impress with your qualifications, serious attitude, and willingness to look for mutually beneficial options.
The importance of compromise is also evidenced by a review from a large employer who wished to remain anonymous:
“I don’t look at anyone’s passport, because age is not an indicator. Of course, I try to accommodate older people, because I sincerely sympathize with them. In 7-8 years, not just knowledge, but entire professions become obsolete: you have to constantly update your skills and prove that you are no worse than the younger ones. I can imagine if I didn’t have a business and I would be looking for work on a general basis! Yes, they would send me away, like the others. Therefore, if I see that a person really wants to work, I give him a chance. But when I understand that in the future the applicant will start making trouble and cheating on his license, I refuse under any pretext.”
