What is downsizing. What is a reduction in the number or staff of employees, and what is the difference between these concepts? Justification of the decision to reduce the staff

Retrenchment is the elimination of one or more positions from the staff schedule, i.e. dismissal of all people who work in these jobs.

But downsizing does not always lead to a reduction in the number of employees. Sometimes new vacancies are created at the same time and people are transferred there.

Each company has a staffing table, which indicates all the positions and the number of employees to perform the work.

Downsizing is the reduction in the number of people, in other words, there can be 10 employees at one workplace, but with a reduction, their number is reduced to 6.

How are these concepts different?

It may seem that the reduction of staff, units and position is no different. But downsizing eliminates positions altogether from the schedule. For example, in economic department I have a cashier position. It was decided to abolish this working position due to the transfer of salaries to cards. Changes are included in the schedule, and the position of the cashier is liquidated, employees are fired. If 5 cashiers work, then all five will be laid off.

The downsizing process is easier for the manager, because you don’t have to choose who to keep and who to cut.

Downsizing is the reduction in the number of staff in one position.. For example, in kindergarten employs 15 educators. But the number of children has decreased, the groups are incomplete, so 10 workers are enough to do the job. In such a situation, the position in the state schedule will remain, and the number of educators will decrease - 5 will be made redundant.

What is the difference for employer and employees?

It may seem that there is no particular difference here. Reduction in two situations implies the loss of a job. But there are differences.

On the part of the employer, the procedure for liquidating a position (reduction of staff) will be much easier. At the same time, the manager will not have to choose who to keep and who not, because everyone leaves this position.

It is more convenient for employees to reduce staff units, because they have a chance to prove their superiority over others, not to lose their jobs and positions.

Some employees who have been laid off may continue to work for the company if they agree to change positions. The replacement may be of a lower status, have a lower pay.

Compliance with the dismissal process

The procedure for downsizing and staffing is the same. There are no differences in terms of design and implementation of the process. Here it is important to do everything right, to draw up documentation. Violation of the order will lead to the fact that the employee will go to court and win it.

So, the process includes several stages:

There are no significant differences in the procedure. The only difference is that when reducing the number, you need to be guided by Article 179 of the Labor Code when choosing employees who will remain, i.e. to prefer highly qualified and high-performing employees.

There are also staffing changes. With a decrease in the number of positions in the schedule will remain unchanged, only the number of workers decreases, and with a reduction in staff, the number of positions in the state will decrease.

In conclusion, it is worth noting that during any of these procedures all the rights of employees and the laws of the Labor Code must be observed. Artificial reduction is always easily detected and challenged in court.

Among other ways to terminate employment contract redundant layoffs stand out in particular. The fact is that, among other types of dismissal provided for by Labor Code(Labor Code of the Russian Federation), this is the most time-consuming, but at the same time, perhaps, the most guaranteeing the observance of the rights of the employee.

Tom, what employees and employers need to know when laying off staff, I dedicated this article.

The dismissal of an employee to reduce staff in the Labor Code of the Russian Federation is included in Article 81, which considers all cases when an employment contract is terminated by an employer.

○ Downsizing.

✔ Labor Code on dismissal due to staff reduction.

Article 81 of the Labor Code of the Russian Federation combines both cases of dismissal for absenteeism, violation of discipline or labor protection measures, and cases when an employee quits, although he is not guilty of anything (these include, in addition to reduction, the liquidation of an organization, for managers, their deputies and chief accountants - change of the owner of the organization).

The Labor Code of the Russian Federation does not decipher the difference between downsizing and downsizing. In practice, the difference is also insignificant and consists only in the fact that with a reduction in the number of positions in staffing is preserved, but there will be fewer employees on it (for example, instead of three managers in the department, one remains).

When the staff is reduced, a specific position is generally excluded from the schedule (for example, the position of a personnel officer is abolished at an enterprise, and his duties are transferred to an accountant).

✔ Who can and cannot be made redundant?

Despite the fact that the reduction in the number or staff of employees depends entirely on the initiative of the enterprise's management, the law provides for certain benefits for a number of categories of employees.

I will tell you more about them below. In the meantime, I will say that when reducing, there is a rule about preferential abandonment at work. Art. 179 of the Labor Code of the Russian Federation provides that, in the event of a reduction, it is necessary, first of all, to dismiss workers with lower qualifications and with lower labor productivity.

In practice, this usually means that lay off first of all workers with less work experience because seniority usually implies experience.

The reduction should take into account the results qualifying exams, education of the employee (in the same position, an employee with higher education will have an advantage over a colleague with a secondary specialty), as well as the indicators achieved by each of the employees in the previous period.

The Labor Code of the Russian Federation and other acts also require that the following employees enjoy the advantage when leaving at work:

• Having disabled children.
• Single mothers and fathers.
• The only breadwinners.
• Disabled or occupational disease obtained from this enterprise.
• War invalids.
• Heroes of the USSR and the Russian Federation, holders of the Order of Glory.
• Victims of the Chernobyl disaster and the Semipalatinsk tests.
• Increasing qualifications in the direction of the organization, combining training with work.
• Employees-inventors (oddly enough, the USSR Law “On Inventions in the USSR” is still in force in this part).

In addition, some employees cannot be fired at all by the employer except for own will, agreement or for committing a misdemeanor.

With regard to the reduction, in addition to the usual beneficiaries, members of the leadership of trade unions not lower than the shop level cannot be dismissed.

It is prohibited to dismiss elected representatives of the team of employees who are involved in resolving disputes with the employer.

✔ The main reasons for the reduction.

The law does not directly establish in which cases the employer has the right to reduce the number or staff of employees.

The Constitutional Court of the Russian Federation, in its ruling No. 867-O-O of December 18, 2007, established that this is the right of the employer in cases where economic necessity requires it.

However, in turn, the Supreme Court of the Russian Federation, by ruling No. 19-В07-34 dated 03.12.2007, introduced a rule that in the event of a dispute, the court has the right to check the necessity and validity of the reduction.

Thus, an employer wishing to take such measures must order about the reduction, indicate for what reasons the dismissal is made.

As a rule, the reasons forcing employees to lay off are:

• Low profit of the enterprise and the inability to pay salaries to the former staff.
• The low efficiency of the former staff and the presence of positions that are not needed.
• A change in technology or organization of production, in which part of the workers is unclaimed.

✔ The necessary conditions.

Dismissals of employees for reduction are possible subject to the employer's compliance with a number of conditions

1. Full and strict compliance with the reduction procedure provided for by law.
   If the enterprise previously concluded collective agreements with employees, or the employment contracts of the dismissed contain additional guarantees upon dismissal, they must also be observed.
2. Justification for dismissal.
   As already mentioned, in the event of a dispute, the court has the right to check whether the dismissal was justified economically and organizationally.
3. Employment notice.
   Separately, this item should be highlighted, since some employers manage to completely forget about this requirement, as a result of which they are then forced to pay fines and pay employees for forced absenteeism.

✔ The order, procedure and rules of dismissal for reduction.

Reduction of staff for any enterprise is a rather complicated procedure, and violation at any of its stages is fraught with a fine or legal proceedings for the employer.

Dismissal must be done in the following order:

1. The management of the enterprise issues an order on the planned reduction at least two months before the employee is to be fired (Article 180 of the Labor Code of the Russian Federation). The fact that the reduction is expected, each of the employees subject to dismissal is warned personally and, against signature, gets acquainted with the text of the order. However, the redundancy order should not be confused with the order to dismiss a specific employee - such orders are issued much later, when the term of dismissal approaches.
2. Employees who are subject to reduction, the management of the enterprise is obliged to offer any other position that meets the qualifications of the dismissed employee. It should be remembered that the offer of another job is not a one-time action: the employer is obliged to notify the dismissed of the vacancies opening at the enterprise until the very termination labor contract. The employee is obliged to either accept the offer and continue working in another position, or refuse - and the refusal must also be recorded in writing, with the date and signature of the employee.
3. The employer notifies the trade union organization, if such exists at the enterprise. The notice period is the same as for employees, but if a mass layoff is planned, the union should be warned not two, but three months in advance. This rule was established by the decision of the Constitutional Court of the Russian Federation. In turn, the trade union must express its opinion on the dismissal within seven days. If the trade union does not agree to the reduction of workers, then, according to the law, positions must be coordinated within three days. If, in this case, no agreement was reached, the employer has the right to dismiss the workers, but the trade union can appeal this decision to the Federal Labor Inspectorate (Rostrudinspektsiya). The inspection, in turn, may recognize the dismissal as illegal and demand the reinstatement of the dismissed person at his former place of work with payment compensation and for forced absenteeism. The decision of the Federal Labor Inspectorate can be appealed by the employer to the court.
4. In addition to the trade union, the employer warns the employment service within the same time frame (two, with mass layoffs - three months).
5. If within two months the employee has not agreed to any of the vacancies offered to him, the employer issues a dismissal order to reduce staff. The order is usually issued by unified form T-8. At the same time, the employee is issued a work book, paid a salary for the days worked of the last month of work and compensation for unused vacation days (depending on the time worked since the last vacation). The most important thing is that the employee, in accordance with Art. 178 of the Labor Code of the Russian Federation, severance pay is paid. Its size is not less than the average monthly salary, but under an employment contract or a collective agreement with employees, the allowance can be increased.
6. If an employee, after being fired, was registered with the labor exchange, but was not employed, the former enterprise continues to pay him the average monthly salary for two months (but with the deduction of the already received severance pay).
7. If the employee agrees, he can quit on a reduction and before the expiration of the two-month period. In this case, the employer pays him, in addition to the severance pay, also a salary for the time not worked between the day when he actually quit and when he was supposed to quit according to the employer's plan. In addition, the employment contract or collective agreement may provide for other payments in case of staff reduction.

1. Order on the planned dismissal for reduction - at least two months in advance;
2. Employment Service Alert and trade union organization(if there is one at the enterprise) - not less than two months, in case of mass layoffs - not less than three.
3. The deadline for paying wages for the worked part of the month, compensation for unused vacation and severance pay - no later than the day of dismissal.
4. The terms of payment of the average salary for an employee registered with the employment service, but not employed - up to two months.

Violation of these terms can lead to a fine for individual entrepreneurs - up to 50 minimum wages, for legal entities- up to 500 minimum wages.

/ All about reducing the number or staff of employees - what is the difference between the procedures?

All about reducing the number or staff of employees - what is the difference between the procedures?

During a period of financial instability, many employers are forced to resort to measures such as reducing the number of their employees. This procedure has a number of features, non-observance of which can lead to problems with supervisory authorities and litigation with subordinates.

This article will help you understand the difference between downsizing and headcount. Consider all the pros and cons of this procedure. We will support all the presented materials with an analysis of judicial practice.

Regulatory definitions, according to the Labor Code of the Russian Federation

The dismissal of subordinates when reducing the number is a rather complicated procedure. Employers take this step for several reasons:

• Automation of the production process (the company no longer needs a position);
• Difficult financial situation;
• Content Inefficiency staff unit.

in labor law the issue of dismissal is regulated by Article 81 of the Labor Code of the Russian Federation. In it, terms such as downsizing and staffing are combined into one concept. A clear answer to the question "downsizing or staffing: what's the difference?" not in the labor code, nor in related legislative acts.

Despite the fact that the terms are combined in the law, judges endow these 2 concepts with different meanings (data can be taken from the analysis of judicial practice).

The differences must be carefully studied, since in practice, when employees are dismissed due to a reduction in staff or number, not only the algorithm of actions will differ, but also the list of guarantees laid down for employees (Article 180, Article 179 of the Labor Code of the Russian Federation). In case of non-compliance with the procedure for dismissal, the head may fall under Article 5.27 of the Code of Administrative Offenses, as well as under the sanctions provided for by labor legislation.

How do these concepts differ in practice?

On the issue of differences between staff reduction and headcount, a stable position has been formed in judicial practice:

1. The reduction in the number is regarded as a partial reduction in the number of working units in a certain position. For example, if the enterprise provides for 7 positions of electricians, then after the reduction, there may be 3 of them.
2. Downsizing means the complete annulment of a specific position, regardless of how many people worked in it.. That is, after the reduction, at the aforementioned enterprise, the position of an electrician would be completely abolished.

If we talk about benefits and compensation payments upon dismissal under clause 2 of article 81 of the Labor Code of the Russian Federation, then in both cases they will be the same. But the guarantees laid down for employees during the reduction are observed in practice in different ways. And in case labor disputes on violation of the rights to these guarantees, the wording in the dismissal order will play a decisive role.

We take into account some nuances

When reducing the number or staff of employees (what is the difference between these concepts, we have already figured out), it is necessary to follow a certain algorithm of actions:

1. Create a reduction order.
2. Offer vacancies.
3. Notify the employment office.

When implementing these points, it is necessary to take into account some nuances, the observance of which will help to avoid problems with the courts later. As for notifying employees, the deadlines are clearly spelled out: the manager is obliged to warn subordinates at least 60 days before dismissal. Regarding the offer of free vacancies - due to different interpretations of the concepts of reduction of "staff" and "number", in case of non-observance of the rights of employees and subsequent litigation, the judges issue different decisions.

Let's analyze the issue in more detail: with a decrease in the number of employees, some of the employees remain to work, while the authorities need to choose who exactly it will be. Dismissed employees can sue that they were dismissed from their positions illegally, did not exercise their right to the advantage of remaining in positions (more qualified employees and some categories of citizens have such a right: participants in hostilities, the Second World War, etc.), did not offer another vacancy. And in this case, the courts often take the side of the plaintiffs, reinstating them at work.

If the court finds that the person was fired illegally, the manager will have to pay a penalty, and in some cases even moral damage and lost profits.

With a reduction in staff, the situation looks somewhat different: since it is not the number of units that is canceled, but the position in full, the authorities do not have the question of which of the employees to dismiss and which to leave. In addition, people working in a certain specialty are often simply not suitable for another vacancy. And if it is precisely the reduction in staff that appears in the case of labor disputes, the court basically takes the side of the employer.

Benefits for employee and employer

If the employer decides to reduce the number of subordinates, he may try to persuade employees to write a statement on their own. It is undesirable to do this layoffs for a specialist will be much more profitable: in addition to , he will also receive compensation payments, the size of which can reach up to 3 average monthly earnings.

As for the benefits of the employer, it would be more appropriate to write in the order “staff reduction” rather than “staff reduction”. With the wording “staff reduction”, labor disputes in compliance with Article 179 of the Labor Code of the Russian Federation are most often resolved in favor of the employer, and the manager will not have to think about who to keep in office and who to fire.

Analysis of court cases

Concerning practical experience, the judges clearly distinguish between the terms “staff” and “number. To fully clarify the picture of the distinction between concepts, we will consider some court cases related to this topic.

One of the firms was downsizing, during which the public relations manager was fired. According to the staffing table, the position of a manager was not differentiated by duties performed, that is, the rates of sales managers and advertising managers (for which there were vacancies) remained. The employee was not offered an alternative, he went to court. The court reinstated him, as it considered that the company had not made a reduction in staff, but a reduction in the number, and the public relations officer should have been offered the position of a sales or advertising manager.

If at the enterprise one specialty implies different responsibilities, this must be indicated in the staffing table and draw up different job descriptions for staff. This approach will help the employer win the case in labor disputes.

Another situation. The employer, upon dismissal, indicated the reason: “downsizing”, although the whole division with the positions available in it was disbanded. The employee filed a lawsuit due to the fact that he, as a specialist who received an occupational disease at the enterprise, was not granted the right of priority retention in the position (Article 179 of the Labor Code). The court sided with the employer, considering that there had been a reduction in staff, and not in numbers, and under this procedure, the implementation of this right is not mandatory.

Useful video

Conclusion

Before carrying out the procedure for reducing employees, the manager should study all the subtleties this process to analyze judicial practice. The law does not provide for a distinction between such concepts as "staff" and "number", in practice, everything looks a little different. The outcome of litigation with employees may depend on the wording of the reason for dismissal in the order.

You don’t know how to properly draw up a reduction in the staff of employees, but want to fire without consequences? We recommend that you start by studying normative documents, which will be needed in the process of preparing for the dismissal of subordinates. The list of required norms is small and is presented in the table.

Step-by-step instructions on how to properly reduce employees

Proposed step-by-step instruction the procedures for dismissal to reduce staff for 2020 and sample documents are developed taking into account the current legislation. But the article discusses the general scheme for terminating employment contracts, it can be supplemented depending on the documentation approved by the employer for internal use.

Step 1. Issue an order

The order for dismissal due to staff reduction is issued on the basis of any primary document:

• decisions of the owners of the company on the optimization of staffing;
• order of a higher organization or parent company, etc.

• the name and number of staff units that are subject to dismissal;
• the terms in which the reduction of employees should be made in connection with the reduction in staff, and the timing of the preparation required documents;
• responsible persons for the organization and preparation of documentation.

The order should be prepared at least 2 months before the planned reduction. If this leads to mass layoffs, then at least 3 months.

As an example of determining the mass layoffs, the following figures are taken (paragraph 1 of the provision approved by the Decree of the Council of Ministers of the Russian Federation of 05.02.1993 No. 99):

• 50 or more people within 30 calendar days;
• 200 or more within 60 calendar days;
• 500 or more within 90 calendar days.

Or dismissal of 1 percent of the total number of personnel within 30 calendar days in regions with total strength employing less than 5,000 people.

Step 2. We notify the trade union and employment authorities

1. Trade union.

If there is a trade union in the organization, it is necessary to send a notice of the planned reduction. The notice period is at least 2 months before the planned dismissal. If the reduction in the number of employees leads to mass layoffs - at least 3 months in advance.

Please note that if the organization does not have a trade union, but the employee joined the ranks of another representative body of workers, it is necessary to notify that organization of the planned termination of the employment contract.

2. Public employment service.

This organization must be notified without fail. Terms of referral are the same as for the trade union. Only for individual entrepreneurs there are differences - the notice period is 2 weeks, regardless of the number of people being laid off.

According to the law, the procedure for reducing a position in the staff list is different. If no one is actually fired, there is no need to send notices to the union and the employment service.

Step 3. Determine the circle of persons who have the preferential right to stay at work

If one of two identical positions is reduced in an organization, the employer faces a choice of which of the employees to keep. According to article 179 of the Labor Code of the Russian Federation, employees with higher labor productivity and qualifications have an advantage in staying at work. Under equal conditions, the priority right shall be:

• family employees with 2 or more dependents;
• the only breadwinners in the family, regardless of the presence of children;
• workers who have contracted an occupational disease or injury while working for that employer;
• Chernobyl victims;
• reducing the staff of employees admitted to state secrets is unacceptable;
• military spouses, etc.

The employer has the right to expand the list of exceptions by including other categories of employees in the collective agreement.

Step 4. We notify employees in writing of the upcoming dismissal

The employer is obliged to notify each downsizing employee in writing of the upcoming dismissal at least 2 months before his dismissal. Moreover, the procedure for reducing the position and notifying the employee assumes that the fact of the warning is confirmed by the signature of the employee. If the employer does not have written confirmation, the employee will subsequently be able to be reinstated at work.

If the employee is actually absent from work, the employer sends him a notification by registered mail with acknowledgment of delivery by mail. But remember that employees must familiarize themselves with the fact of the upcoming dismissal at least 2 months in advance, therefore, when sending a letter, it is necessary to take into account the delivery time.

Step 5. We offer employees other available vacancies in writing

The employer is obliged to offer all the reduced employees the vacant positions he has, which are not contraindicated for them for health reasons. If new vacancies become available at the employer during the notification period, they are also offered. If this is not done, the employee will demand reinstatement through the court, since the reduction in the staff unit was made in violation of the law.

The fact of the offer of available vacancies is recorded in writing. If the employee refuses the offer, his refusal is also recorded in writing. If he refuses to sign the papers, draw up an act. In the future, you will need it in court to prove compliance with all norms of the law.

Step 6. We get the opinion of the trade union about the reduction of the employee who is a member of this trade union

If the enterprise has a trade union, its opinion is taken into account in accordance with Article 373 of the Labor Code of the Russian Federation (see Step 2). Ignoring this requirement entails the reinstatement of an employee who is a member of a trade union at work.

In total, the trade union has 7 days to develop a position on the issue of the dismissed employee. During this time, the employer must receive a reasoned opinion of the trade union, otherwise it is allowed not to be taken into account.

If the trade union agrees with the upcoming cuts, it will write so.

In case of disagreement of the trade union with the decision taken by the employer to reduce the employee, the employer is obliged to consult with the trade union within three days and find compromise solution. These negotiations must be documented in minutes.

Although the opinion of the trade union is advisory in nature, and the final decisions remain with the employer, the opinion of the trade union cannot be ignored. Otherwise, it is possible to apply either to the labor inspectorate or directly to the court.

The courts often take the side of the employee, therefore it is very important to carry out this stage in strict accordance with the norms of the law and within the specified time frame.

Step 7. We draw up the termination of the employment contract

An order to dismiss an employee to reduce staff is issued by.

Article 81, paragraph 2, part 1 of the Labor Code of the Russian Federation is indicated as the reason for dismissal.

Who can't be cut

The list of employees who cannot be fired due to staff reduction is set out in article 261 of the Labor Code of the Russian Federation:

• pregnant women;
• women raising children under the age of 3;
• single parent raising a disabled child under the age of 18 or a child under the age of 14;
• the sole breadwinner of a disabled child under the age of 18 or a child under the age of 3 in a family with three or more young children.

Payouts

The amount of the allowance for dismissal due to staff reduction is calculated in the manner established by Article 139 of the Labor Code of the Russian Federation. As an additional compensation in case of redundancy dismissal, the payment that is due to the employee in the event of his written consent to terminate the employment contract before the expiration of the notice period for the upcoming dismissal may become.

An example of calculating monetary compensation

To calculate the amount of compensation for dismissal due to staff reduction, all types of cash payments provided for by the remuneration system used in the organization are taken into account.

On the day of dismissal (regardless of the reason for dismissal), the employer is obliged to transfer to the employee all the funds due to him, including compensation for unused days of annual paid leave.

The size of the sum in a particular case does not matter, let's call it X.

The amount of payment X is included in the calculation of the average monthly salary of the employee, on the basis of which the employee will be compensated in connection with the reduction, let's call it Y.

On the last day of his work, the employee receives a cash payment equal to X + Y.

The next month, the employee will receive another payment equal to Y if he does not find a new job (the employer requires the original work book before the calculation is made).

Further, if a person, within two weeks from the date of dismissal, was registered with the employment agency, but was never employed, the employment agency has the right to decide on the need to accrue a third compensation. In this case former employee will receive another payment in the amount of Y.

If labor Relations terminated before the expiration of the two-month warning period for the upcoming dismissal at the initiative of the organization, and the person is dismissed with his written consent, the employer compensates him for the unworked time with a cash payment in the amount of average earnings (calculation is carried out under article 139 of the Labor Code of the Russian Federation). In fact, this makes it possible to start the search new job as early as possible without financial loss.

Schematically, step-by-step instructions for reducing employees in 2020 look like this:

Penalty for violations

For non-compliance with the procedure for dismissal to reduce staff, including for incorrectly drawn up documents, the employer faces administrative liability under Article 5.27 of the Code of Administrative Offenses of the Russian Federation and a fine of up to 50,000 rubles for each illegally dismissed employee. In case of repeated violation, the fine rises to 70,000 rubles for each employee. In addition, the employer will each time have to compensate the illegally dismissed employee for the earnings that were not received during the entire period of forced absenteeism. Plus, the legal costs are also reimbursed by the employer.

But we recommend that employers and officials familiarize themselves with the judicial practice in this regard. One of the interesting cases was examined by the Supreme Court of the Russian Federation. It follows from the case file that the GIT received several complaints about violations committed by the employer during the reduction of staff. On these grounds, the inspectors conducted 2 unscheduled inspections, and in connection with the identification of violations, issued 2 different decisions to involve official employer to administrative responsibility for hours. 1 Article. 5.27 of the Code of Administrative Offenses.

However, the Supreme Court of the Russian Federation, by resolution No. 41-AD18-21 dated 01.10.2018, canceled one of the fines. According to the judges, in this case there are not two different offenses, but only one, and it is permissible to bring to justice only once. The decision also states that the results of several inspections can be combined into one decision on bringing to administrative responsibility if the same violations are found, as in the situation under consideration.

Reducing the number and staff of employees is a procedure sometimes necessary to keep a business afloat. The procedure for its implementation, established by the Labor Code of the Russian Federation, is mandatory for all employers, without exception. Strict observance of all the formalities and requirements of the law is the main condition for its legitimacy.

Legal basis

The Labor Code regulates such an event as a reduction in the number or staff of employees in articles relating to dismissal and providing for compensation and guarantees to employees. The Labor Code regulates the reduction in the number or staff of employees in sufficient detail and clearly, but questions always arise when applying the norms of the code. Of great importance arbitrage practice, The Supreme Court often issues clarifications on the application of articles of the law, for example, on this issue the Decree of the Plenum of the Supreme Court No. 2 of March 17, 2004 is still relevant, in which a lot of attention is paid to this issue.

The reduction in the number of employees occurs at the initiative of the employer, this basis for terminating the employment contract is formulated in Art. 81 of the Labor Code of the Russian Federation. Art. 178 - are completely devoted to guarantees and compensations for a person dismissed on such a basis.

Mass layoffs

The employer has certain obligations when carrying out mass reduction the number or staff of the organization. Mass character criteria are established in sectoral and territorial agreements. As a rule, the mass character is established by the number of people laid off during a certain period of time. If there are no sectoral and territorial agreements, it is necessary to use the criteria established in the Regulations on the organization of work to promote employment in conditions of mass dismissal. This document was approved by Decree of the Council of Ministers of the Russian Federation No. 99 of 02/05/1993, but it is valid:

• within 30 calendar days - 50 people and more;
• within a period of 60 calendar days - 200 people and more;
• within 90 calendar days - 500 people and more.

Foundations

Reducing the number or staff of workers are two different reasons for reducing the number of workers - labor units:

• if changes in the staffing table lead to a decrease in the number of units of one position, the number of employees is directly reduced;
• if integers are excluded structural units or specific positions with people, there is a reduction in staff.

Of course, it is possible to reduce the number of staff and the number of posts in parallel, this is a common practice. First, the management makes a decision, then implements it - there is a dismissal to reduce the number or staff of employees. Usually, the head alone makes such a decision, and it is drawn up in accordance with the nomenclature of cases adopted at the enterprise. Or, but much less often, the decision is documented in the minutes of the collegial executive body (depending on the system of management bodies and the distribution of their powers in the organization).

Action algorithm

If an employer needs to correctly carry out a reduction in the number of employees, a step-by-step instruction will help to do this without missing anything important.

Step 1. Issue an order.

Step 2. Identify workers who cannot be laid off.

Step 3. Conduct a personnel audit to identify those who have advantages over others in the same positions.

Step 5. Offer vacancies to those who are planned to be fired.

Step 6. Dismiss those who did not agree to the transfer (documentation, payment due).

Let us analyze in detail the procedure for reducing the number and staff of employees step by step.

Step 1. Order

The order must contain the following mandatory details:

• an indication of positions, structural divisions or units that are subject to reduction;
• date or dates;
• an indication of the persons responsible for the procedure, or the creation of a commission authorized to carry out the procedure.

sample order

How to reduce an employee to reduce staff, we will consider further.

Step 2. Identify those who cannot be made redundant

These restrictions are specified in various articles of the Labor Code:

• by part 6 Art. 81, Art. 179, part 1, 4 Art. 261, Art. 264 of the Labor Code of the Russian Federation and paragraphs 15, 28 of the Resolution of the Plenum Supreme Court RF dated January 28, 2014 No. 1, for example, a woman expecting the birth of a child can only be fired if the enterprise is liquidated (this rule has been in effect since 2012);
• in accordance with Part. 4 Article. 261 of the Labor Code of the Russian Federation, only in exceptional cases can an employer dismiss a woman with a child under three years old, a single mother of a disabled child under the age of 18, and other citizens with similar family circumstances. Decrease labor collective does not apply to these cases.

Step 3. Identification of those who have the preferential right to remain at work

After making the appropriate decision, when reducing the number or staff of employees, the employer, the responsible person or members of the commission find out which of the employees whose positions (units) have been abolished has the pre-emptive right to remain in the organization (Article 179 of the Labor Code of the Russian Federation). It is available to employees of the state with higher qualifications (if there are employees in the state who perform the same duties). In the presence of the same qualifications and labor productivity, preference should be given to citizens who are raising two or more dependents, injured, etc. If the employee does not have a preemptive right, the dismissal procedure begins.

Step 4 Notification

This required condition: everyone dismissed for such a reason (reduction of staff or number of labor units) must be personally warned about the reduction against signature at least two months before the actual date of dismissal. If the notification is received too late, the employee will be able to challenge the management's decision on formal grounds.

Sample Notice

Only if the employee agrees to terminate the employment relationship before the expiration of the two-month period at the suggestion of the employer, the contract can be terminated earlier. It should be borne in mind that the employee retains the right to all guarantees and payments due to him, he is paid additional compensation in proportion to the time remaining before the expiration of the specified notice period for dismissal.

The opinion of the trade union body

The reduction in the number of employees of the organization takes into account the opinion of the elected trade union body (if any):

• the trade union is notified in writing about the adoption of such a decision two months in advance (if a mass dismissal is planned - three months in advance);
• if it is planned to dismiss employees - members of the trade union, the employer requests a reasoned opinion of the body. He must apply in writing, and a response is prepared within a week. If consent is given to dismissal, it is valid for a month, if this period is missed, the whole procedure is repeated;
• if the dismissed employee is the head of the trade union, the consent to his dismissal is requested from the higher trade union.

Employment Service Notice

The employer is obliged to notify the employment service agency in writing of the dismissal of specialists, indicating the position, profession, specialty, qualification requirements and payment terms. It is mandatory to notify the employment service, however, the status of the event matters when determining the term for the formation of this document:

• usual - two months before the dismissal of employees;
• mass - three months before the start.

Step 5. Offering Other Positions When Downsizing

At this stage, it is necessary to offer state employees the vacancies available to the administration. In accordance with Art. 81 of the Labor Code of the Russian Federation, when reducing the number of units, the employer must offer the employee to transfer him to another position in the organization's staff. It may correspond to his qualifications or be inferior, the main condition is that such a position must correspond to the state of health of a specialist. At the same time, the employer is obliged to offer absolutely all positions vacant in a given locality, but in other localities (for example, if he has a branch) - only if such a rule is established by local regulations companies.

Step 6. Registration, guarantees and compensation

Formation takes place according to general rules established by the Labor Code of the Russian Federation, taking into account the specifics of the above procedure. Guarantees in the event of a reduction in the number or staff of employees - in short, these are:

• notification;
• two months' notice;
• offer of another free and vacant position;
• payment of compensation.

The law establishes compensation for reductions in the number or staff of employees. The employee is paid severance pay in the form of his average monthly earnings. For the period of employment (but not more than two months), he retains the average earnings (in this case, the amount of the paid severance pay is offset). In exceptional cases, the average earnings are maintained for the third month of employment and even for the sixth.

It should be noted that according to Art. 81 of the Labor Code of the Russian Federation, it is impossible to dismiss an employee while he is on vacation or on sick leave. We have to wait for him to go to work. This rule is also relevant for situations where dismissal is carried out to reduce the number of employees.

All formalities must be strictly observed, all actions are performed in full accordance with the Labor Code, therefore it is important to involve competent personnel officers and lawyers in the implementation of the procedure. Large enterprises may apply for professional services, you can always get advice from supervisory and executive bodies e.g. at the local Labor Inspectorate.

Settlement is made on the last business day, as is the case for all other cases. Payout composition:

• wages for hours worked;
• compensation for unused vacation;
• severance pay;
• other compensation payments.