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Preferential right upon dismissal reduction. The right to a workplace: what categories of workers cannot be fired during staff reductions? Which employees are eligible

According to the Labor Code of the Russian Federation, the grounds for dismissal of an employee, initiated by the employer, may be a reduction in staff or the number of employees.

A reduction in staff means that a certain position is abolished, and all employees occupying it will be fired. The reduction in the number of employees is that the position remains, but the number of employees occupying it decreases. Both in the first and in the second case, the reduction process must take place in the prescribed manner, without violating the rights of the employee.

Reduction Notice

Having made a decision on the upcoming reduction, the employer in writing, at least two months before the start of layoffs, is obliged to notify the employee personally about this. The fact that the employee was given a notice of reduction properly will be evidenced by his signature on the letter.

The fact that the enterprise is preparing to reduce workers must be reported not only to those who fall under the dismissal, but also to the trade union organization and the employment service. The deadline for notifying the elected body of the primary trade union organization is the same as for the employee, i.e. no later than two months before the start of the cuts, and in case of mass layoffs - three months.

It is possible to dismiss members of a trade union in connection with a reduction only with the consent of the trade union organization. The deadline for notifying employment services about a future reduction is the same - two months before the start of measures to dismiss workers.

For employers working as individual entrepreneurs, this period is two weeks. In his appeal to the above bodies, the employer must indicate full information about the position, qualifications and working conditions of each dismissed employee.

Guarantees for laid-off workers

According to the law, reducing the number of employees or staff, the employer must offer the dismissed employees a different position at this enterprise.

At the same time, the proposed position must correspond to the qualifications of the employee, his state of health, however, it can be both lower and lower paid. In case of reduction, the employee has the right to receive from the employer data on all vacancies that are in the given area or, if provided for by the collective agreement, outside it.

And only on condition that the employer cannot fulfill its obligations to the employee to provide him with a free vacancy, or the employee refused to provide written consent to the proposed job, a reduction can be made.

If the parties have reached an agreement, there is no need to wait for the end of the two-month term to terminate the employment contract.

Priority right to stay at work in case of staff reduction

The guarantees established by the legislation for laid-off workers also include the right of pre-emption in case of being left at work in case of reduction. This right lies in the fact that the employer will have to leave at the enterprise the employee whose qualifications are higher and the quality of work is better than that of others.

If there are several such employees, then according to the legislation, the following categories have the right to retain their position:

  • - employees who support two or more disabled family members;
  • - workers whose earnings are the only source of income for the whole family;
  • - employees who, while working at this enterprise, received an injury or occupational disease;
  • - invalids of the Great Patriotic War and invalids who took part in military operations to protect the state;
  • - employees who improve their skills at the place of work in the direction of the employer.

The collective agreement, which is drawn up at the enterprise or organization, may contain an extended list of categories of employees who have the preferential right to remain at work in case of redundancy.

In addition, the Labor Code of the Russian Federation protects against contraction pregnant women, mothers who are raising children under three years of age, single mothers raising children under the age of fourteen, or a disabled child under eighteen, as well as those who are raising the listed categories of children.

Can't be fired and employees who are on vacation or on sick leave at the time of reduction due to temporary disability. In case of violation of this rule, the employee has the right to appeal the dismissal in court and be reinstated in his previous position.

This must be done within one month from the day the employee received a copy of the dismissal order or from the moment the work book was issued. Otherwise, you will have to restore the missed period in court. According to the Code of Civil Procedure, the prosecutor must make his opinion on the issues of reinstatement, he can also appeal the court decision.

Employee's right to severance pay

An employee with whom an employment contract was terminated due to a reduction in staff or headcount, has the right to receive severance pay from the employer. The amount of the allowance should be equal to the average monthly earnings during the period of work at the enterprise or organization.

The average monthly salary must be retained by the employee who has lost his job for the entire time it takes to find employment, but no more than two months from the date of dismissal. Severance pay can also be paid in the third month after the dismissal, but only if, after the reduction, the employee registered with the employment service and for two weeks they could not find a new job for him.

An employment or collective agreement may stipulate increased amounts that are paid to employees in the event of a reduction. For those who work in the Far North or areas with the same status, labor legislation determines longer terms for paying severance pay in the event of a reduction.

For unworked days leave due to layoffs, deductions from wages are not allowed.

As you can see, the state protects citizens from unreasonable layoffs, establishes compensation in case of job loss, and gives citizens the opportunity to challenge their dismissal.

What to do after receiving a layoff notice?

Do nothing in the first minutes and even hours. Any legal documents should be taken into account with a calm mind.

  • Read the notice of reduction carefully. Pay attention to the dates, bank details, the signature of the head.
  • Read the list of vacancies for which you can apply in case of reduction. It must also be certified by the signature of the head of the enterprise.
  • Find out if the trade union committee has agreed to the reduction.
  • Sign the documents and work quietly for more than 2 months, if you agree and do not belong to one of the following categories of citizens:
    • pregnant woman;
    • a woman (or other person) raising a child under 3 years of age;
    • a single parent (or other person) raising a child under 14 years old, or up to 18 years old if the child is disabled;
    • sole breadwinner in a family with 3 or more children.

You can agree in writing with the administration's proposal for early dismissal. In this case, you are paid the average salary for the remaining period and all other money due to the reduction.

Can I not sign a redundancy notice?

Yes, you can. The countdown will only start from the moment you sign the notice of reduction. If the document does not contain the signature of the head or the date of familiarization, it cannot be signed.

Also, if you do not agree with the actions of the management or belong to one of the categories of citizens listed above, you can file a lawsuit with the labor dispute commission without signing any document.

The employer may ask you to state in writing the reasons for refusing to sign the documents. Write explanations in duplicate, get your copy certified by the secretary. This document can also testify in court, both in your favor and in favor of the head of the enterprise.

But you can opt out of these actions. If you disagree again, the administration has the right, in the presence of witnesses, to draw up an act reflecting the fact of a warning about the reduction and your refusal to sign.

If the commission on labor disputes decides the case is not in your favor, the countdown of the 2-month revision will begin from the day the act is drawn up. Further, the employee has the right to apply to the people's court ( Art. 201 Labor Code of the Russian Federation).

Woman gets pregnant after signing redundancy notice

In the Labor legislation of the Russian Federation it is clearly indicated that termination of an employment contract with a woman who is in a state of pregnancy is not allowed, with the exception of the complete liquidation of the organization. The same rights are enjoyed by a woman who has already signed a notice of reduction and after that she learned that she was expecting a child.

There can be no question of any preferential right in case of staff reduction, she cannot be fired at all. A woman has this right only if she submits a medical certificate of pregnancy before dismissal (within two months).

You must write a statement indicating the reason why you are requesting the suspension of the reduction order with a note that a copy of the document (medical certificate) is attached.

The application is written in two copies. One is served on the table to the head, the other is certified by the secretary and kept by you.

If the employer does not agree to revoke the layoff order, the certified statement will be your evidence in court to provide information to the administration about the pregnancy.

It must be remembered that an employee who has learned about a violation of his rights must apply to the court within a month from the date of dismissal (not the day the order for dismissal is signed) or the work book is handed over (against signature).

Changing the organizational structure and staffing of the organization for the implementation of efficient economic activity and rational property management is the exclusive right of the employer (). At the same time, labor legislation provides for a number of mandatory requirements aimed at observing the labor rights and legitimate interests of laid-off employees - for example, the employer is obliged at least two months before dismissal to warn employees personally and against signature about the upcoming dismissal, and then offer the employee another available in the organization or an individual entrepreneur has a job (vacant position) that he can perform taking into account his state of health. It should be clarified that an employee can be offered both a vacant position or a job corresponding to his qualifications, and a vacant lower position or a lower-paid job that the employee can perform taking into account the state of health ().

But before performing these actions, the employer should determine which of the employees has the priority right to leave at work. This right is granted to employees with higher labor productivity and qualifications ().

To do this, the employer needs to have objective information about the labor efficiency and qualifications of the employees to be laid off. I recommend creating a commission that will collect and analyze the necessary data. It is not established by law who should be a member of such a commission, but according to established practice, personnel workers, lawyers, and, if there is a trade union body, its representative, are included in the commission. However, sometimes, depending on the size of the organization, only one staff member or even the head of the department does this.

Responsible employees or the manager himself collect information about the qualifications of employees and their productivity.

Then these data are compared with the qualification characteristics established by the Qualification Directory of Positions and professional standards - this is how the compliance of employees with their positions in the organization is determined.

If the position is not contained in the Qualification Directory of Positions or professional standards have not yet been developed for it, the employer assesses the compliance of employees with the requirements established in the employment contract or job description of this vacant position.

It is not uncommon for workers to have equal labor productivity and qualifications, and then according to preference should be given to workers:

  • with a family, if there are two or more dependents, or if there are no other self-employed workers in the family;
  • who received an industrial injury or occupational disease during the period of work with this employer;
  • improving their qualifications in the direction of the employer without interruption from work;
  • as well as the invalids of the Great Patriotic War and the invalids of military operations for the defense of the Fatherland.

If an employee belongs to one of these categories, but was fired anyway, he can appeal the dismissal in court. If the claim is satisfied - and the likelihood of this is quite high - the employer will have to reinstate the employee in his previous position with payment for forced absenteeism ().

The advantage of one employee in comparison with another must be proved by the employer, through objective data and the availability of the necessary documents of employees: documents on education, work book, certificate of skill level, characteristics, etc. At the same time, the deadlines for the provision of relevant documents by employees in domestic legislation are not established, and the employer can determine them independently - for example, by indicating in the notice of the reduction in the number or staff.

The establishment of short periods (for example, a week) entails certain risks for the employer if employees provide documents after their actual dismissal. The courts do not recognize such actions of employees as an abuse of the right if it is established that the employer did not explain to the employees their rights or set too short a time limit for presenting documents. In addition, the employer cannot refer to the fact that he did not know about the benefits of a particular employee, if he did not offer him to provide supporting documents at all (,).

Thus, when carrying out measures to reduce the number or staff, it is necessary to carefully approach the issue of the priority right of employees to remain at work.

  • Chapter 7. COLLECTIVE AGREEMENTS AND AGREEMENTS
  • Chapter 8. PARTICIPATION OF EMPLOYEES IN THE MANAGEMENT OF THE ORGANIZATION
  • Chapter 9. RESPONSIBILITY OF THE PARTIES OF SOCIAL PARTNERSHIP
  • PART THREE
  • PART FOUR
    • Section XII. FEATURES OF LABOR REGULATION FOR CERTAIN CATEGORIES OF EMPLOYEES
      • Chapter 40. GENERAL PROVISIONS
      • Chapter 41
      • Chapter 42
      • Chapter 43
      • Chapter 44
      • Chapter 45
      • Chapter 46
      • Chapter 47
      • Chapter 48
      • Chapter 48.1. PECULIARITIES OF LABOR REGULATION OF PERSONS WORKING FOR EMPLOYERS - SMALL BUSINESS ENTITIES, RELATED TO MICRO-ENTERPRISES (introduced by Federal Law of 03.07.2016 N 348-FZ)
      • Chapter 49
      • Chapter 49.1. FEATURES OF REGULATION OF THE LABOR OF REMOTE WORKERS (introduced by the Federal Law of 05.04.2013 N 60-FZ)
      • Chapter 50
      • Chapter 50.1. PECULIARITIES OF LABOR REGULATION OF EMPLOYEES WHO ARE FOREIGN CITIZENS OR STATELESS PERSONS (introduced by Federal Law No. 409-FZ of December 1, 2014)
      • Chapter 51
      • Chapter 51.1. PECULIARITIES OF LABOR REGULATION OF EMPLOYEES EMPLOYED IN UNDERGROUND WORKS (introduced by Federal Law No. 353-FZ of November 30, 2011)
      • Chapter 52
      • CHAPTER 52.1. PECULIARITIES OF REGULATION OF THE LABOR OF SCIENTIFIC WORKERS, HEADS OF SCIENTIFIC ORGANIZATIONS AND THEIR DEPUTIES (introduced by Federal Law No. 443-FZ of December 22, 2014)
      • Chapter 53.1. PECULIARITIES OF REGULATION OF THE LABOR OF EMPLOYEES SENT TEMPORARYLY BY THE EMPLOYER TO OTHER INDIVIDUALS OR LEGAL ENTITIES UNDER THE LABOR AGREEMENT FOR EMPLOYEES (STAFF) (introduced by Federal Law No. 116-FZ of 05.05.2014)
      • Chapter 54
      • Chapter 54.1. PECULIARITIES OF LABOR REGULATION OF ATHLETES AND COACHES (introduced by Federal Law No. 13-FZ of February 28, 2008)
      • Chapter 55
  • PART FIVE
  • PART SIX

    • Article 179 of the Labor Code of the Russian Federation. Priority right to stay at work in case of reduction in the number or staff of employees

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    When reducing the number or staff of employees, the preferential right to remain at work is granted to employees with higher labor productivity and qualifications.

    (As amended by Federal Law No. 90-FZ dated June 30, 2006)

    ConsultantPlus: note.

    In accordance with the currentlegislationother categories of citizens also enjoy the preferential right to remain at work in the event of liquidation, reduction in the number or staff.

    With equal labor productivity and qualifications, preference is given to staying at work: family - in the presence of two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is for them a permanent and main source of livelihood); persons in whose family there are no other self-employed workers; employees who received an industrial injury or occupational disease during the period of work with this employer; invalids of the Great Patriotic War and invalids of military operations for the defense of the Fatherland; employees who improve their skills in the direction of the employer on the job.

    (As amended by Federal Law No. 90-FZ dated June 30, 2006)

    The collective agreement may provide for other categories of workers enjoying the preferential right to remain at work with equal labor productivity and qualifications.

    (As amended by Federal Law No. 90-FZ dated June 30, 2006)

    The procedure for dismissal in case of staff reduction

    The procedure and rules for the dismissal of employees in case of staff reduction are determined by the Labor Code of the Russian Federation and Feder. laws. Let's take a look at how this procedure works.

    • Firstly, the enterprise issues a corresponding reduction order. The document indicates the new staffing table and appoints officials who are responsible for conducting the entire event.
    • Secondly, the trade union association and the employment service are notified of the ongoing procedure for reducing the workforce. The deadlines for sending a written notice to these two organizations are the same (Article 82 of the Labor Code of the Russian Federation). It is sent no later than 2 months in case of mass reduction, and no later than 3 months in case of individual reduction. The criteria by which the dismissal of employees can be classified as mass should be indicated in collective agreements. In case of violation of the notice period, the dismissal can be considered illegal.
    • Thirdly, according to Article 179 of the Labor Code of the Russian Federation, a circle of citizens who have an advantage when remaining in the state should be outlined. Part 1 of Article 179 of the Labor Code of the Russian Federation provides that when the number of jobs is cut, employees with the highest qualifications and the most significant labor productivity have such an advantage. If the level of productivity and the quality of labor skills are equal, then the following persons have the right to remain in their positions: 1. family employees with 2 or more dependents; 2. sole breadwinners in the family; 3. employees who have been injured or prof. illness at this job; 4. disabled veterans of the Second World War and military operations (part 1 of article 179 of the Labor Code of the Russian Federation); 5. Employees sent by the firm for on-the-job training (Part 2, Article 179 of the Labor Code of the Russian Federation). Separate categories of citizens who have a legal pre-emptive right to remain in the official staff with a reduction are also listed in the Federal. laws. These are, for example, officials admitted to the state. secret, citizens affected by the Chernobyl disaster, and others. In addition, there are socially protected categories of employees. They cannot be reduced, regardless of the absence or presence of these advantages (Article 261 of the Labor Code of the Russian Federation). These are: pregnant women; women with a child under 3 years old; single mothers of disabled children under the age of 18; single mothers of young children (under 14).
    • Fourthly, all reduced employees 2 months before the day of dismissal of each are warned about this in writing and against signature. To terminate the contract before the end of 2 months, you need to obtain the written consent of the employee and pay him the average earnings for the time remaining until the end of the two-month period. The dismissal will be declared illegal without following this warning procedure.
    • Fifthly, all other available vacancies, both equal and lower, are offered to employees who have fallen under the reduction. Jobs must be offered within the entire two-month period. If the employer does not do this, but there are vacant vacancies, the dismissal can be considered unlawful.
    • Sixth, when an employee who is a member of a trade union is included in the list for layoffs, it is necessary to seek the opinion of the trade union body. The position of the trade union must be expressed within 7 days, after this period it is not taken into account. If the trade union does not agree with the dismissal, then the organization has 3 days to resolve the contradiction. Unresolved issues are recorded in the minutes. Even if the consent of the union is not obtained, the management has the right to decide on the dismissal of the employee after 10 days after the request for the opinion of the union. After that, a trade union member can be fired within a month. Dismissal will be legal only if the entire procedure is followed.
    • Seventh, work. the contract is terminated, an appropriate order is issued. An entry is made in the work book about dismissal due to staff reduction (Article 81 of the Labor Code of the Russian Federation). In addition to the salary, on the last working day, the dismissed employee is paid an allowance equal to the average monthly earnings. Also, the average salary can be kept for him for another month (taking into account the severance pay, you can receive money for 2 months), provided that he does not find a new job earlier.
    So, the procedure for reducing employees takes a certain number of stages and must be fully complied with by the employer. If there is at least one violation, the employee can appeal his dismissal and be reinstated. An unjustifiably reduced employee may also recover from the organization the average earnings during the forced absenteeism, and instead of being reinstated, demand that the wording of the entry in the work book be changed to “dismissed of his own free will” (Article 394 of the Labor Code of the Russian Federation).

    The reduction in the staff is caused by the difficult financial situation of the company, firm, enterprise or its restructuring. This is a very painful, stressful situation for both the employer and employees. In addition, the process of preparing for a reduction in staff is long and laborious, it can take up to three months.

    The manager needs to take into account legal norms, determine the lists of people to be reduced, provide them with options for possible vacancies. In addition, the reduction entails financial costs in the form of payments and compensations provided for by the Labor Code of the Russian Federation.

    For an employee, a possible reduction and loss of a job is associated with a sense of instability, the need to look for a new job, establish themselves in a new team and gain a reputation as a qualified specialist.

    The procedure for dismissal by reduction

    1. Preparation of an order, which indicates the reasons for the reduction, the persons responsible for the procedure from the employees of the personnel and accounting department are appointed, and the timing of the reduction of personnel is determined.
    2. Notification of employees about the upcoming dismissal with offers of employment options. The offered vacancies may be with a lower level of qualification and with a lower salary.
    3. Notification of the Employment Center and the trade union.
    4. Dismissal (issuance of an order, payment of compensation, issuance of a work book with the necessary records).

    Defines a list of persons who cannot be fired due to downsizing. These include socially unprotected categories of citizens:

    1. Pregnant women at any stage of pregnancy, confirmed by medical documents.
    2. Mothers with a child under the age of three.
    3. Mothers who single-handedly raise a disabled child under 18 years of age or have dependent children under 14 years of age, if the second spouse does not have a permanent income, and the status of a single mother is documented. The father, like any other legal representative of the child, has the same rights in similar situations.
    4. Families with three or more children with a second non-working parent.
    5. Combat veterans.
    6. Participants in the liquidation of the accident at the Chernobyl nuclear power plant.
    7. Minor citizens under the age of 18, without the consent of the state authorities.

    Employees who have preemptive right to save a job:

    • qualified employees (need to be confirmed by attestation documents, certificates of advanced training courses);
    • married (in the presence of dependents);
    • sole breadwinners;
    • who have received an occupational injury while working at this enterprise;
    • having a disability (in hazardous work);
    • having additional knowledge and skills (for example, knowledge of foreign languages ​​and PC);
    • having prizes, awards, promotions;
    • employees studying on-the-job training courses.

    Who gets laid off at work Firstly:

    • employees whose positions have been reduced, who have become unclaimed as a result of the consolidation or liquidation of certain departments and divisions;
    • recently hired;
    • employees who do not bring practical benefit or profit to the company (“ballast”);
    • undisciplined workers who violate labor discipline, disrupt work or do not fulfill the plan;
    • working pensioners.

    The issue is resolved by a special commission, which determines the significance for the enterprise of each individual person and draws up lists for dismissal.

    Legal Reduction is carried out in compliance with all provisions of the Labor Code of the Russian Federation, taking into account the legislative and qualification advantages of employees.

    Wrongful reduction:

    • fictitious reduction, when under the dismissal there is a desire to get rid of an objectionable employee without legal grounds, if the manager cannot provide documents to justify the reason for the dismissal;
    • without taking into account the pre-emptive right;
    • without notifying the trade union or without the consent of the latter to terminate the employment contract with this employee;
    • without offering the employee vacancies for subsequent employment;
    • untimely notification of the employee about the reduction (less than 2 months before the scheduled date);
    • dismissal later than two months after the notice period;
    • termination of labor relations with a person who is at that time on vacation or on sick leave;
    • distortion in the order of the date of dismissal (notification);
    • untimely issuance of funds and documents;
    • any errors in the documents drawn up during the reduction of the employee;
    • violation of the reduction procedure.

    Those dismissed by reduction are entitled to a severance pay in the amount of a monthly salary (calculated for 1-2 months in which the employee actually worked), compensation for previously unused vacation. After the reduction, if the employee does not find a job and registers with the Employment Center, he has the right to pay for another two months.

    Some unscrupulous managers, trying to save money on payments and compensations, use various tricks to force their employees to quit "at their own expense". This practice is not legal. In this case, a firm position should be taken, since a person deprives himself of his money “at his own expense”.

    If an unlawful reduction was made in relation to an employee, first of all he needs to file a claim addressed to the director of his company or enterprise about the violation of his interests. If the dispute is not resolved, the citizen can apply to the trade union, the State Labor Inspectorate, the prosecutor's office or the court to protect their rights.

    Features of dismissal to reduce pensioners

    With regard to working pensioners, the practice of dismissal by reduction is similar to the general one. Discrimination on the basis of age is not allowed, the reduction of a position due to the fact that the one who occupies it has reached retirement age is not legal.

    When determining candidates for dismissal, the pensioner enjoys the same preemptive rights as his younger colleagues. If a working pensioner has dependent family members (for example, grandchildren or elderly relatives), he belongs to the category of persons who cannot be fired.

    In addition, long-term work experience and work experience in this field may be another priority to keep your job.

    The procedure for dismissal and payment of all benefits and compensations for pensioners is the same as for other categories. True, the issue of compensation for the second and third months after dismissal in case of unemployment is controversial: the pensioner has a pension and cannot be considered unemployed.

    The Federal Service for Labor and Employment of the Russian Federation, referring to, explains that employees are not divided into categories, therefore everyone is entitled to post-employment benefits, including pensioners.

    You can learn about who cannot be fired by reduction from this video review.

    Preemptive right in case of reduction state assumes that the employer cannot reduce the employee, guided only by its own discretion. The law establishes the rules by which the selection of candidates for reduction is made. Let's consider them in detail.

    Preemptive right in case of staff reduction (general rules for determining)

    The algorithm for determining the priority right to leave employees at work in the event of a staff reduction involves the following steps:

    1. Employees who cannot be laid off are excluded from the possible candidates for dismissal due to layoffs. These include those listed in Art. 261 of the Labor Code of the Russian Federation persons: pregnant women, mothers of children under 3 years old, single mothers with a child under 14 years old and some others. It is also forbidden to reduce employees who are on maternity leave (part 4 of article 256 of the Labor Code of the Russian Federation, part 6 of article 81 of the Labor Code of the Russian Federation)
    2. The qualifications and the level of labor productivity of candidates for reduction are compared. You need to compare the qualifications of employees whose positions are the same and created in the same structural unit. So, it would be right to compare the qualifications of two leading accountants of the same department, incorrectly - the leading accountant and the accountant of the 2nd category (appellate ruling of the Moscow City Court dated 06.08.2015 No. 33-27711 / 2015). The same applies to the evaluation of labor productivity.
    3. If, according to the results of comparing productivity and qualifications, these parameters turned out to be the same, one should proceed to the determination of family and other circumstances that give an advantage in case of reduction.

    Important: if a position is completely liquidated or all staff units of one position are reduced, no benefits are determined (see appeal ruling of the Moscow City Court dated January 22, 2015 No. 33-1708).

    We determine the pre-emptive right in case of reduction by evaluating qualifications

    The first criterion for selecting candidates for reduction is the level of their qualifications, since, by virtue of Part 1 of Art. 179 of the Labor Code of the Russian Federation, it is precisely workers with a higher level of qualification and the highest labor productivity that are subject to being left at work when the organization's staff is reduced. Qualification is determined by assessing the level of skills and knowledge of employees, as well as their work experience (Article 195.1 of the Labor Code of the Russian Federation). As a rule, such an assessment is carried out by examining documents confirming the work experience, the presence of professional and additional education, scientific titles, advanced qualifications, an academic degree, etc., as well as by analyzing the results of the worker's work.

    So, for example, if both employees have the same education and experience, the lower qualification of one of them may be indicated by the presence of disciplinary sanctions for improper performance of official duties (appellate ruling of the Moscow City Court dated September 10, 2015 No. 33-32630 / 2015). Incentives for quality work are also taken into account when evaluating.

    Don't know your rights?

    Comparison of worker productivity

    The second parameter evaluated when setting pre-emptive right in downsizing, — labor productivity, while there is no definition of productivity in the law. In practice, it is understood as an indicator of labor efficiency, the unit of measurement of which depends on the specifics of the employee's activity (for example, efficiency can be expressed in the quantity of products produced).

    If the employer uses a labor rationing system and / or labor can be measured in quantitative terms (number of sales, number of products produced, etc.), then it is not difficult to determine productivity. In other situations, they resort to assessing the number of completed professional tasks for a certain period (requesting characteristics from managers, studying reports on work).

    Who has the advantage in downsizing with the same productivity and qualifications?

    The law (part 2 of article 179 of the Labor Code of the Russian Federation) defines the circle of employees who are given preference if the parameters discussed above turned out to be equal.

    So, other things being equal, the advantage is:

    1. Employees in whose family there are no other working persons (the only breadwinners of the family).
    2. Employees with two or more dependents. For a family member to be recognized as a dependent, 2 conditions must be met:
      • lack of ability to work (due to age or health status);
      • receiving maintenance from an employee - a candidate for reduction (full or partial, but in any case being the main source of livelihood).
    3. Workers who during their employment with this employer have received an occupational disease or injury at work.
    4. Workers are invalids of the Second World War, as well as invalids of military operations in which they participated in the defense of the Fatherland.
    5. Employees sent by the employer to improve their skills on the job.

    Other circumstances providing redundancy privileges, can be established in collective agreements (part 3 of article 179 of the Labor Code of the Russian Federation).

    How to better compare the performance of employees (practical recommendations)

    The legislation does not contain specific requirements for the procedure for determining the benefits of staying at work in case of redundancy, but practice shows that the courts have more confidence in the procedure carried out by the commission with fixing the results in writing.

    Let's list the main points:


    As you can see, determining the benefits of employees is the most important procedure for downsizing, which must fully comply with the requirements of labor legislation. To reduce the risk of recognizing dismissals as illegal, the employer should carry out it carefully, reflecting the results of each stage in the documents.

     
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