Is it possible to fire pensioners when reducing staff?

Can a pensioner be fired due to redundancy?

Information

Until 1992, a labor code was in force, which allowed the enterprise administration to dismiss an employee after his age approached the retirement limit. Based on the new norms regulating the relationship between the employer and employees, the citizen retains the right to work.

Pensioners, like other employees, may be laid off. The dismissal procedure takes place on a general basis. All actions of the personnel department comply with the provisions of legal norms.

Measures to reduce the number of staff units are most often triggered by the following events:

• modernization of production;
• change in the scope of activity;
• job reductions in order to optimize labor resources;
• reduction in the volume of products produced at the enterprise.

Important

Pensioners who have dependent minor children are not subject to dismissal.

The ban also applies to:

• guardians;
• disabled people of WWII and combat.

What is staff reduction

Most of the management of large enterprises and firms know what it is like to face financial problems and other troubles in the functioning of the structure. And although it is not legally established that in this case the best solution to the problem would be to reduce the office staff, most often directors resort to this option.

The essence of the reduction is the exclusion of a number of positions from the staffing table. That is, if, for example, when the number of employees changes, only the number of positions within a specific work area decreases (for example, instead of two managers in a department, only one remains), then when a reduction occurs, any position is completely eliminated.

The reasons for such measures are:

1. low income of the enterprise and the inability to pay wages in the appropriate amount to the previous staff of employees;
2. change in the scope of activity of a company or enterprise;
3. low efficiency of employees and lack of need for some positions;
4. introduction of new technologies, reorganization of the labor process, as a result of which the demand for some positions decreases.

The listed factors or other significant reasons for reduction must be present without fail, because simply hiring and firing people is not allowed - the procedure must be justified. Especially evidence of real reasons will be required if a controversial situation arose and one of the previous employees went to court.

Dismissal procedure

Due to the fact that a working pensioner is an ordinary staff member, the dismissal procedure is carried out in accordance with the general requirements of the law.

The actions of the administration represent a certain algorithm, following which many mistakes can be avoided.

1. The director of the company, together with the heads of structural divisions, holds a meeting at which an official decision is made to change the staffing table.
2. Based on the decision made, the commission members issue an order. The text indicates the need to reduce certain staffing positions, the names of positions, the names of employees and the date of execution of the order.
   Information

   The list of those affected by reduction is compiled by the heads of departments, but is approved by all members of the commission, including the director.

3. According to the legal framework, employees included in the list are given a written notice of the administration’s intentions 2 months before the date of execution of the order.
4. If there are vacancies at the enterprise that correspond to the qualifications of the employee who was laid off, he is offered a new position. In this regard, retirees have priority, because their experience and professional level are of great value to the company.
   Attention

   One of the important conditions for the possibility of transfer is good health.

5. Simultaneously with notifying the employee of the upcoming layoff, the manager notifies the trade union organization of the upcoming changes, as well as the employment service.
6. All employees included in the layoff list are given a written notice against their signature.
7. In order for qualified employees, such as retirees, to continue to use their accumulated experience, the administration offers an alternative vacancy. The pensioner confirms his disagreement to renew the employment agreement with his signature in the act, which is drawn up in the event of refusal to accept the administration’s offer.
   Attention

   He retains the right to resign early while maintaining benefits for the remaining period.

8. Two months after receiving the written notice, a dismissal order is issued. The wording indicates the reason - reduction.
9. The dismissed employee is given documents (including a work book) and payment funds. The process of transferring papers and funds is recorded in personnel journals and accounting statements.

Mandatory advance notice of layoffs

So, as it turned out above, the dismissal of pensioners when staffing is reduced is carried out according to the rules applicable to all employees. The employer is obliged to inform his employee, who has already reached the age of a pensioner, about the existing decision to terminate the employment contract with him no less than two months before the actual implementation of this decision. In this case, this notification must be delivered personally to a specific person who is affected by the current situation. And the employee being laid off is required to record his awareness of this in writing. To comply with the mentioned rule, an employee who is subject to staff reduction must write a receipt.

Payments and benefits

The date indicated in the notice of reduction is the last working day. It is then that the employee is given documents and payment funds for the period worked. The law also provides for the payment of benefits in the amount of average monthly earnings, and this amount is retained by the pensioner for two months.

The benefit is, in essence, material support for the fired person during the period of searching for a new job. If this appears in the first month after dismissal, then the employer has the right to refuse the next tranche.

The total amount issued includes:

• wages;
• severance pay;
• compensation for unclaimed leave.

Based on the internal regulations of the organization, a reduced employee may be awarded an additional amount for length of service or other achievements.

Attention

Payments to a pensioner with whom the employment agreement is terminated early are carried out in accordance with legal acts, namely Art. 178, 180 Labor Code of the Russian Federation.

Within 2 weeks, a redundant employee can register with the employment service, then it becomes possible to receive severance pay for the third month.

Labor rights of a pensioner

From the point of view of labor legislation, a person of retirement age who continues his professional activity is the same employee as other citizens. However, for the category of older employees, a number of privileges are provided that facilitate both the process of performing official duties and its completion.

The list of reliefs includes the following:

1. A pensioner has the right not only to continue working after reaching a specified age, but also has the opportunity to begin looking for a new place of work. What is meant here is that the employer is not authorized to fire or refuse to hire an employee due to retirement age. Simply put, discrimination based on age in such situations is not permissible (Article 3 of the Labor Code of the Russian Federation). This is a reason for direct appeal to the judicial authorities.
2. A working pensioner has the opportunity to take an additional two-week (but no more) extraordinary leave. However, there is a caveat - wages are not saved in this case.
3. A citizen has the right to receive an offer to transfer to another position within the same enterprise.
4. For a pensioner, a reduction in working hours is allowed if there are medical reasons .

In addition, it is possible to dismiss a working pensioner at his own request without working an additional 14 days, if there are appropriate grounds. Reaching retirement age is one of those things. The second possible reason is deteriorating health.

LATEST NEWS ABOUT THE RIGHTS OF A PENSIONER IN AN ADDRESS BY THE PRESIDENT OF RUSSIA PUTIN 08.29.18

Working off

According to the regulations described in labor legislation, the administration informs the employee in writing about the upcoming reduction of his position. For two months from the date of delivery of the notice, the previous functional duties are to be performed.

But pensioners can exercise the right to early dismissal by drawing up an application with a corresponding request. If the employer agrees to terminate the employment agreement, the employee retains the right to receive severance pay and other payments provided for by legal acts, and is also paid a sum of money proportional to the period remaining from two months.

Attention

Pensioners have a pre-emptive right to terminate their employment relationship with their employer early, referring to Art. 81, clause 2, part 1 of the Labor Code.

If early dismissal is denied, the pensioner must work for the required period (2 months). An alternative option is voluntary resignation. The employee submits an application indicating the reason - retirement. The Labor Code allows you to resign in this case without working on the day specified in the application. But at the same time, a pensioner should not count on the severance pay due to the staff being reduced.

What does the law say about the dismissal of pensioners? Last changes

Until recently, in the Russian Federation the retirement age threshold was 60 years for male workers and 55 years for women. On July 19, 2018, the State Duma adopted in the first reading the Draft Law on Pension Reform in Russia, in which the retirement age was set for men at 65 years and for women at 63 years.

On August 29, 2020, President Vladimir Putin addressed the citizens of Russia, where he spoke in detail about all aspects of the changes proposed by the government in the pension reform, outlined his position and shared his proposals. One of his proposals is to reduce the increase in the retirement age for women proposed by the bill from 8 to 5 years, i.e. The retirement threshold for women will be 60 years.

READ THE PRESIDENT'S PROPOSALS ON PENSION REFORM IN FULL

In some cases, it is possible to receive pension social benefits from the state before the specified age. Such situations include the presence of a category of disability or, for example, the accumulation of a certain length of experience while working in certain professional fields.

An important point is that even after reaching the appropriate age, the pensioner does not lose the right to continue working.

Not a single legislative act of the Russian Federation defines advanced age as a basis for dismissal of a citizen. However, some employers, wanting to attract new and younger personnel, ignore the law. This is expressed in the dismissal of a working pensioner without obtaining his consent. This is considered a violation, in the presence of which you can safely contact the labor inspectorate or the judicial authorities.

More specifically, questions and nuances regarding the rights of working pensioners are disclosed in the following regulations:

• paragraphs 80 and 81 of the Labor Code of the Russian Federation;
• Federal legal act No. 400-FZ (“On insurance pensions”);
• Law “On Labor Pensions in the Russian Federation” No. 173-FZ

Taking the legislation as a basis, we can say that pensioners have labor rights that are also vested in other working citizens. Accordingly, the procedure for completing professional activity in this case is carried out in a standard manner and on the grounds given in paragraph 77 of the Labor Code of Russia.

Entry in the work book

The text of the entry in the work book must match the contents of the dismissal order. It is entered by the personnel officer after the introductory signature of the pensioner under the order of the manager.

On the last working day, an entry is made in the work book, including the following data.

• Record number;
• Reason for dismissal (dismissal due to layoff);
• Link to the article of the code (Article 81, clause 2 of the Labor Code of the Russian Federation);
• Date of termination of the employment agreement;
• Signature of the head of the enterprise;
• Seal of the organization.

Attention

The order and entry entered into the work book must necessarily contain references to the article of the Labor Code of the Russian Federation.

The reason is not age

When modernizing an enterprise, an employer sometimes takes radical anti-crisis measures and massively fires “extra” employees. Sometimes it comes to liquidation of the enterprise. Therefore, unfortunately, literally any employee (except for those with benefits), including retirees, can be laid off. But he has the power to prevent his rights from being infringed.

Attention! An earned pension does not cancel the established procedure for dismissal, and the pensioner has equal rights with other employees, and most importantly, payments.

An employer cannot lay off a pensioner due to age - this is considered discrimination

You cannot make a pensioner redundant based solely on his age. Having collected the necessary evidence, he will file a lawsuit to recognize such dismissal as discrimination. And he has every chance of winning the case. It is important for the HR department and the head of the organization to strictly follow the step-by-step instructions when dismissing a pensioner due to staff reduction, performing the procedure within the legal framework.

Is it possible to appeal dismissal?

The list of redundant staff is compiled not on the basis of age category, but on professional suitability, taking into account changes planned in production. Therefore, people of different ages can get into it. The pensioner has the right to challenge management’s decision in court, citing the following reasons:

• belonging to a preferential category of persons (presence of guardianship, status of a combat disabled person, etc.);
• inability to exercise the priority right to stay at the enterprise or take a vacant position;
• if the notification deadlines were violated during the staff reduction procedure;
• if an incorrect entry is made in the work book;
• upon refusal to pay severance pay.

The reason for proceedings in state authorities is often the requirements of Art. 179 of the Labor Code of the Russian Federation, which clearly states that employees of retirement age should enjoy the preferential right to transfer to another division of the enterprise. A high qualification level and experience are always a priority for any organization. However, the proposed vacancy must be commensurate with the qualifications of the unit being reduced.

Important

Dismissal is considered illegal when the staffing table remains unchanged. This decision by management contradicts the regulations for processing documents related to reducing the number of staff.

Privileges and guarantees

When carrying out the procedure for downsizing or liquidating a company, persons receiving state subsidies are entitled to privileges. The employer must provide pensioners with the following guarantees:

• do not discriminate against individuals based on age, provide equal rights to work for older citizens compared to younger employees;
• take into account the qualifications, experience, knowledge and skills, high labor productivity of a pensioner when determining the list of employees subject to personnel reduction;
• provide additional unpaid leave out of turn for up to 2 weeks to a person receiving old-age benefits, upon his request;
• pay all subsidies established by the state when the number of workers in the company is reduced;
• do not force a pensioner to work for the required 2 weeks if the citizen decides to resign of his own free will.

Preemptive right to remain on staff of the enterprise

According to the provisions of the Labor Code of the Russian Federation, an employee receives an advantage when remaining in his position during the procedure for optimizing production at the enterprise, if he is highly qualified and performs duties in accordance with the provisions of the employment agreement. If a person of retirement age is actively working in production and his work is highly productive, then the company management must take these factors into account when compiling a list of employees to be laid off.

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Which pensioners are prohibited by law from being laid off?

People belonging to socially unprotected categories of citizens who have served the Russian Federation and the enterprise have the right to remain in their previous position while minimizing the size of the company for objective reasons. These include the following Russians receiving a pension:

• those who took part in battles on the battlefields of the Great Patriotic War (WWII);
• those who received injuries in the Second World War that led to disability;
• having disabilities due to participation in other battles in hot spots;
• injured during work, but able to perform job functions in accordance with the provisions of the employment agreement;
• providing for minor dependents;
• falling under the definition of a privileged group that is not subject to reduction, in accordance with the provisions of the collective agreement;
• who are guardians of minor children, provided that they are the only employed family members.

A pensioner cannot be unemployed

Therefore, based on all the information above, we can state the fact that people who have reached retirement age in our country are fired in exactly the same manner and taking into account the same rules as when dismissing workers of other age categories.

In turn, the employment service considered it necessary to explain to citizens that it does not have any reasons for refusing help to pensioners in finding a job, but the payment of benefits to this category of applicants will not be made. That is, a pensioner can register with the employment service in search of work, but at the same time cannot be recognized as unemployed and receive appropriate assistance from the state.

Paperwork

We recommend that you take a closer look at the procedure for preparing the documents required for dismissal, since they not only have legal force, but also serve as evidence of many facts, including the fact that the manager carried out the reduction lawfully and, accordingly, did not violate the law.

• Order on the formation of a commission. The document does not have an approved form, but is still considered invalid without certain information.
  Therefore, be sure to indicate in the document the name of the enterprise, the publication date and internal number of the order, as well as the reason for its creation (staff reduction) and two main orders - to create a commission and appoint an employee responsible for familiarizing other employees with the order.

  Do not forget to list the names and positions of all commission members, as well as managers who must approve the order, and require them to sign the document.

• An order drawn up by members of the commission. Please note that it is not enough to indicate the last names, first names, patronymics and positions of employees who have been laid off; the document still needs to specify a number of actions that the head of the commission must perform.
  The list of these actions includes sending a notification to the trade union committee and preparing notifications about reductions and the availability of vacant positions that a pensioner can occupy.
• Notice of layoff.
  The notice is written by the employer in free form. The main purpose of the document is to notify the employee of the upcoming dismissal. It must be pointed out that the reduction is taking place on the basis of an order published by the commission. The notice must also offer positions for which the pensioner can be hired and a message that over the course of two months he will receive various offers to take a new job, and in case of refusal, he will be fired after the two-month period.
• Notification of a vacant position. The document should not only contain a request to move to a new position, but also require a written response to such a proposal from the pensioner.
• Order of dismissal. Managers must draw up this kind of document using the unified form No. T-8.
  The order must necessarily contain references to the article on the basis of which the employment contract is terminated, as well as to the document that served as the basis for the dismissal process.

Sample order form T-8.

Payments when a working pensioner is laid off in 2020

Based on Art. 77 of the Labor Code of the Russian Federation, in case of staff reduction due to a change in the organizational structure of the company, as well as in connection with the liquidation of the enterprise, the employer may dismiss a retired employee in the general manner . In accordance with legislative regulations, a corresponding notice is sent to the pensioner no later than 2 months before the planned dismissal.

On the day of dismissal (11/13/17), the employer paid Kulakov severance pay. The amount of the benefit is equal to the product of the average daily earnings by the number of working days in the reporting period following the date of dismissal - from 11/14/17 to 12/13/17. This period includes 22 working days. Thus, the amount of severance pay accrued in the amount of 11,280.74 rubles. (22 working days * 512.77 rubles).

Step-by-step instructions for employers who decide to lay off an employee of retirement age

In order to lawfully dismiss a pensioner, we strongly recommend that managers follow the instructions below and carry out all the actions described in it strictly one by one. To cancel an employment contract due to staff reduction, the following series of instructions must be followed:

1. publish the order. This document contains information about the formation of a commission, which, taking into account all the current circumstances, makes a verdict on which of the employees will be laid off.
   IMPORTANT!!! When making decisions on upcoming changes to the staffing table, the commission must take into account that there are employees who cannot be fired under Russian law.

   Thus, Article No. 261 of the Labor Code confirms that it is impossible to lay off women who are in a situation or have children under three years of age, single mothers and individuals who are guardians of children under fourteen years of age, as well as persons responsible for disabled minors.

2. 
   Issue a new order. Such a document should give instructions adopted by the commission regarding the reduction procedure.
   The order must indicate the surname, name, patronymic and position held of the pensioner who wants to be dismissed. The document must be drawn up in advance, namely two months before the reduction.

3. Notify the pensioner of the upcoming severance of business relations. In order to lay off an employee and not break the law, the manager must comply with the notification periods specified in the second part of Article 180.
   The pensioner should be notified of dismissal two months before the upcoming procedure. Notification occurs by issuing a notification and providing it to the employee, who in turn confirms his familiarization with the document by affixing a personal signature.
4. Contact a retiree with an offer to take up a new position. Along with the delivery of the notice, the manager is obliged to put forward an offer for the pensioner, giving the opportunity to take a similar position at the enterprise, if one is currently available.
   Otherwise, the employer must constantly monitor the emergence of vacant positions until the two-month notice period for layoffs expires, and simultaneously inform the employee about this.

   REFERENCE INFORMATION!!! If for some reason a pensioner does not want to work in the proposed vacant position, then he must record his refusal in writing on the notices provided to him by the employer.

5. Inform the elected body of the primary trade union organization. The manager must inform the trade union body about the upcoming reduction in the number of employees, which includes pensioners, no later than two months in advance, and in the case of mass layoffs even earlier - three months in advance.
6. Issue a dismissal order. Only after all the above actions can you begin to publish the document, relying on which the employment contract will be canceled due to layoffs.
   The document must contain the signature of the laid-off pensioner and indicate that the dismissal occurs on the basis of an order previously drawn up by the commission, which contains orders to make changes to the staffing table by terminating employment relations with specific employees.
7. Issue a work book and pay monetary compensation. The manager must make a corresponding notice of dismissal in the pensioner’s work book, indicate the number of the order on the basis of which the reduction takes place, and return it to the owner.
   In addition to the standard payments due to all individuals who terminate their employment contract with the employer, the laid-off employee must receive severance pay, the payment details of which are described in Article 178 of the Labor Code.