Downsizing or downsizing? Layoff for downsizing. Nuances

Among other ways to terminate an employment contract, redundancy is highlighted. The fact is that among other types of dismissal provided for by the 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 due to staff reduction in the Labor Code of the Russian Federation is included in Article 81, which considers all cases when labor contract terminated by the 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 staff, the position in the staffing table remains, but there will be fewer employees in 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 floor cannot be dismissed.

It is prohibited to dismiss elected representatives of the team of employees who participate 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 agreed upon 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 inspectorate, 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 according to an employment contract or a collective agreement with employees, the allowance can be increased.
6. If the 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.

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 a total number of employees 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 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 authority, but was never employed, the employment authority 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 the employment relationship is terminated before the expiration of the two-month notice 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 according to article 139 of the Labor Code of the Russian Federation). In fact, this makes it possible to start the search new work 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 judicial practice on this account. One of the interesting cases was analyzed Supreme Court RF. 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, they issued 2 different resolutions on bringing the employer's official to administrative responsibility under Part 1 of Art. 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.

At the initiative of the management of the enterprise, organizational measures may be carried out, as a result of which there is a reduction in staff or a reduction in the number of employees. The legality of the dismissal and the exercise of the preferential right to keep the job will depend on the correctness of the legal wording.

What is the difference

To determine the number of specialists in the enterprise and the list of positions they hold, the staffing. This document is approved by the owners of the company or its leader. Changes in staffing may be due to the following circumstances:

• the need to optimize production and/or management process In the organisation;
• reduction in payroll costs or reduction in funding from a higher organization;
• reorganization at the enterprise caused by unsatisfactory results of activity.

The reduction cannot be associated with personal claims against one or more employees. In case of violations of discipline, citizens can be legally dismissed without reducing positions or the total number of personnel. If the employee properly copes with his duties, even personal hostile relations with the management cannot be grounds for dismissal.

The legal difference between downsizing and downsizing of an enterprise is as follows:

• downsizing implies the complete exclusion of one or more positions from the staff list - at the same time, all employees who held the reduced position are subject to dismissal or transfer to another position;
• downsizing implies keeping the position in the staffing table, however, the total number of work units will be reduced - in this case, one or more employees will be able to keep their position, including when exercising the pre-emptive right.

With a reduction in staff, the employee will not be able to retain his previous position, under any circumstances, even if he has immunity to dismissal. For example, it is impossible to dismiss a pregnant woman for reduction, therefore, if her position is excluded from the staff list, she must be transferred to another job within the enterprise.

Consider what differences and consequences the reduction in the number and staff of the enterprise has.

Is there a difference in design

Despite the significant difference in the consequences of reducing the number and staff, the registration procedure will not differ so noticeably. The employer must do the following:

• approve the staffing table, providing for a change in the structure and number of the company;
• determine the list of persons who cannot be dismissed from the enterprise (for example, a pregnant woman);
• when reducing the number - to determine the list of specialists who have an advantage to maintain their position (labor productivity, qualifications and other factors will be taken into account);
• transfer to free vacancies of employees who have advantages to keep their jobs;

• preparation and delivery of written warnings to employees two months before the proposed dismissal;

• issuance of an order indicating the date and grounds for termination labor relations.

• On the basis of the order, all guaranteed payments will be accrued, documents for dismissal will be drawn up.

• monetary compensation for actual hours worked;
• bonuses and additional payments of a stimulating nature, if they were provided for by the employment contract and local acts companies;
• vacation pay when providing days of remaining rest, or appropriate compensation in cash;
• payment by sick leave presented during the period of employment;
• severance pay in the amount of the employee's monthly salary.

In addition, under any reduction option, citizens are guaranteed compensation in the amount of average earnings for two or three months after the termination of employment. To exercise the right to receive this payment, you must submit an application to the employer and confirm the absence of a new job. For the third month, compensation will be paid only upon registration as unemployed and the submission of an appropriate order from the employment center.

Can the reduction be contested?

In case of significant violations in the reduction procedure, citizens will be able to go to court and achieve reinstatement. This can be done within a month after reading the order or receiving a work book. Upon confirmation of violations, the following consequences occur:

• the dismissal order is subject to cancellation on the basis of a judicial act;
• the reduced position or staff unit is subject to restoration;
• an employee whose rights have been violated will be able to receive remuneration for the entire time of forced absenteeism, as well as compensation for non-pecuniary damage.

The employer is not prohibited from repeating the reduction procedure, in compliance with all the requirements of the law.

There is another option to challenge the reduction and reinstatement in the workplace. Judicial practice considers as a violation labor rights a situation where, within 6 months after the dismissal of a citizen, a new specialist will be hired for his position. To do this, the previous position can be re-introduced into the staff list, or the number of staff can be increased.

The law recognizes such behavior of the employer as an abuse of rights in relation to one or more employees. Under such circumstances, the initial specialist may count on reinstatement, including through a court order.

One of the grounds for termination of an employment contract at the initiative of the employer is a reduction in the number or staff of the organization's employees, individual entrepreneur(clause 2, part 1, article 81 of the Labor Code of the Russian Federation).

In order for the dismissal this reason was lawful, the employer must prove the following:

a) the actual reduction in the number or staff of the organization's employees. Otherwise, an employee dismissed under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation, without sufficient grounds, is subject to reinstatement at work.

b) observance of the preferential right to leave at work (Article 179 of the Labor Code of the Russian Federation), first of all, employees with higher qualifications, and those who are prohibited from being fired (for example, pregnant women). If the skill level or business qualities the same, preference is given to persons specified in Part 2 of Art. 179 of the Labor Code of the Russian Federation. Separate federal laws also provide for categories of workers who have the preferential right to remain at work. According to paragraph 6 of Art. ten federal law dated 05/27/1998 N 76-ФЗ "On the status of military personnel" spouses of military personnel have a preferential right to remain at work in state organizations and military units in case of a reduction in the number or staff of employees. Preemptive right also have military personnel who first went to work after dismissal from military service (paragraph 5, paragraph 5, article 23 of the Federal Law of 05.27.1998 N 76-FZ).

c) fulfillment of the obligation at the suggestion of the employee, taking into account his state of health, another available job ( vacant position or work corresponding to qualifications, or underpaid work). The employee is offered all the vacancies that meet the specified requirements that the employer has in the given locality, as well as vacancies in other localities, if this is provided for by the collective or labor contract, agreement. Failure by the employer to fulfill this obligation entails the reinstatement of the employee at work.

d) a written notice to the employee about dismissal no later than two months. The proof of this is the employee's handwritten signature in the notice of termination of the employment contract. Failure by the employer to fulfill this obligation entails the reinstatement of the employee at work.

With the written consent of the employee, the employer has the right to dismiss him before the expiration of the warning period with the payment of compensation in the amount calculated in proportion to the remaining time (part 3 of article 180 of the Labor Code of the Russian Federation). If the employee does not give written consent to this, dismissal before the end of the notice period will be illegal;

e) preliminary request:

Consent of a higher elected trade union body to the dismissal of the head (his deputy) of the elected collegial body of the primary trade union organization, the elective collegial body of the trade union organization structural unit organization (not lower than the shop and equated to it), not released from the main work (hereinafter - the head (his deputy) of the elected collegial body of the trade union organization) (part 1 of article 374 of the Labor Code of the Russian Federation).

Reasoned opinion of the elected body of the primary trade union organization on the decision of the employer to dismiss the employee - a member of the trade union or the head (his deputy) of the elected collegial body of the trade union organization (in the absence of a higher elected trade union body) (parts 1, 2 of article 373, part 13 of article 374 TC RF).

Termination of an employment contract with these employees without complying with the requirements for a preliminary request for the consent of a higher elected trade union body or a reasoned opinion of the elected body of the primary trade union organization is recognized by the courts as illegal, while the employee is subject to reinstatement (

Often the question arises - what is the difference between downsizing and downsizing? In the event of a need, the employer may try to make an organizational decision regarding the reduction in the number of employees in the entrusted enterprise, or staff units generally. In order to avoid the occurrence of lengthy lawsuits initiated by previously dismissed employees, it will be necessary to follow the established procedure as accurately as possible, to reduce the staff within the framework of the rules established by the current legislation. Below it is proposed to analyze how the reduction in the number of employees differs from the reduction in the staff, how to properly organize and carry out this process, and why it is necessary to adhere to the note of the law.

Which categories are not eligible for layoffs

Starting a reduction in the number of employees, it must be remembered that certain categories are subject to the stipulated social protection, they must not be touched from workplaces even if necessary:

• Women at the stage of pregnancy;
• Women who have in the family or in the upbringing of one or more children under the age of three;
• Single mothers raising children under the age of 14. An exception to the age criteria can be called situations where the child is disabled, in this case, the age threshold can be increased to 18 years. A similar provision is established by the Labor Code, namely, Article 261;
• An employee who, at the time of such actions, is in a disabled state (for example, due to a disease), as well as on vacation, does not fall under the reduction in the number of staff. This regulation directly establishes part 6 of Article 81 of the Labor Code.

What to do in case of dismissal before the expiration of a line of two months

Having roughly established what the difference between a reduction in the number of employees and a reduction in staff is, you can proceed to the practical part - the submission of specific recommendations and advice. For example, if an employee, falling under the established reduction, is forced, on his own initiative, to write a document in which he expresses his consent to an early solution to this problem, the termination of the employment contract is carried out with him strictly after a period of two months. It is worth noting that such an employee must also be paid appropriate compensation, its size directly depends on the time itself, which is up to two months. This circumstance is regulated by the provisions of the third part of Article 180, currently adopted by the Labor Code.

An employee of an organization may quit not due to a reduction in staff, but directly by his own decision, this is also indicated by the established provision of Article 80 of the Labor Code. This is the most positive result for the employer itself, because in this case there is no need to pay the appropriate compensation, which is due to the reduction in the number of employees and specialists employed in the framework of production process.

Alternatively, a reduction in the number or staff of employees may become a completely conditioned reason so that the employer can terminate the employment contract previously concluded with specialists. Before the staff is reduced, the head of the organization, personnel service it is necessary to make sure in advance that one decision is correct. In particular, the question concerns whether there is a decrease in staff or the number of employees, you must first resolve the difference itself in these terms:

• The reduction in the number of employees available at the enterprise provides for a slight decrease in the units themselves, which is done for a specific position established within the framework of the production process regulations. For example, instead of the six analysts currently available, after calculating the required number of staff, only three specialists remain, the number of which is set sufficient to perform various production tasks within the framework of the organization;
• The reduction of the relevant staff provides for the complete exclusion from the previously required posts established at the stage of organizing and planning the production of the staff. In this case, the position of an analyst is completely eliminated from the state, which in no way affects the conduct of subsequent operations performed within the framework of the organization's activities.

This is the difference between the reduction in the number of specialists itself, from similar indicators, only already the staffing of positions. As you can see, the difference from downsizing is quite fundamental and should be carried out as carefully and promptly as possible, taking into account the key features of this process.

Which option should you choose

What should the employer do, which option should be chosen, and how significant will be the role of the reduced number of employees or positions for the full functioning of the commercial structure. Even considering that the Labor Code itself includes approximately the same amount of established compensations and guarantees provided to employees subject to dismissal, in fact, both of these situations differ significantly. If there is an acute question regarding the reduction of the number of employees, then it will be necessary to solve the problem directly with the preferential right of individuals to work. For example, the employer will have to make a decision as to who exactly is to be fired, and such a choice carries a logical rationale and should be presented to employees in a similar way.

In fact, in Labor Code it has been established that if it is necessary to reduce the number of specialists assigned to perform work, it will be necessary to choose those who have higher labor productivity, and at the same time have the appropriate qualifications. This is only a theory, but in practice it happens that the employer chooses directly between two or more employees who have approximately the same performance, and this will become a real problem. In the event that there is a reduction in staff, this can become a real problem, because such a situation involves the removal from the composition of all specialists with this position. In other words, then the manager does not stop at the problem of who and why should be removed from the enterprise, he abolishes the position.

With free positions, there is no fundamental difference, this is also indicated by the arbitrage practice. Despite this, from the point of view of the possible risks of subsequent litigation, the procedure for reducing the staff of specialists has proven itself to be a reliable and practical option.

A few words about the rules for the reduction and dismissal of staff

When carrying out the reduction of employees, their dismissal, it is important to carry out the procedure itself as correctly as possible, to prepare and formalize the necessary procedures, without which it will be difficult to manage in the future. If these documents were prepared incorrectly, then after the expiration of the established period, it will be necessary to restore the person to his previous place of work and even pay him the corresponding forced absenteeism. The court may reinstate a person in his position by force if technical errors were made.

Important! This procedure includes several separate stages of work, each of which is carefully prepared.

Initially, on the part of the company's management, the personnel department prepared an order for the subsequent reduction of people to the required number. It establishes the list of those posts to be reduced. For example, by this order (a separate order is being prepared), a new staffing table is established and approved directly, with additional adjustments and changes made that caused a reduction in the staff of employed specialists, their number, which is also due to legislative norms. Thus, the number of staff is reduced, which, at times, is an actual condition for the entire production process. The main thing is to do it as correctly and competently as possible in terms of the current legislation. With the correct calculation of staff reduction, no complications will arise.