All the nuances of dismissal of employees of pre-retirement age

Features of dismissal of pre-retirees

A pre-retirement employee is considered to be an employee who has five years or less to work before retirement. In 2022, pre-retirement people include men born in 1965 and older, and women born in 1970.

An employee of pre-retirement age has the right to resign at any time of his own free will by submitting a corresponding application to the employer. The Labor Code provides for other grounds for termination of a contract:

• at the initiative of the employer;
• by agreement of the parties.

They can also dismiss due to circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation). For example, if another employee is reinstated to a pre-retirement position by a court decision, or the employee himself is declared incapable of working for medical reasons.

You cannot fire a pre-retirement employee just because of age. Art. 3 of the Labor Code of the Russian Federation prohibits discrimination, and the employer can be held accountable for violating the provisions of this article.

What points are important to consider for an employee of pre-retirement age:

1. There are no special privileges upon dismissal. The employment contract is terminated on a general basis.
2. For employees of municipal and state institutions; Military personnel and police officers have different criteria for retirement age than for people working under employment contracts.
3. In some cases, you have the right to receive a pension early.

If an employee of pre-retirement age is disabled, he cannot be fired for this reason alone. But the employer, having received certificates of disability from him, is obliged to offer him positions suitable for health reasons. If there are no such positions or the employee refuses them, the contract is terminated according to clause 8, part 1. Art. 77 Labor Code of the Russian Federation.

Is it possible to quit without working?

According to Art. 80 of the Labor Code of the Russian Federation, an employee of pre-retirement age has the right to resign at his own request by submitting an application two weeks in advance. This period is called service, during which you need to go to work.

You can quit without working if the employer does not mind or when the employee leaves due to retirement. In the latter case, the manager is obliged to terminate the contract on the date specified in the application.

During a pandemic

During the coronavirus pandemic, an employee of pre-retirement age also has the right to resign on his own initiative. If the enterprise is in quarantine, the application can be sent by registered mail with acknowledgment of receipt, immediately giving written consent to send documents by mail.

You can also send your application by email, signing it with an enhanced qualified electronic signature.

Is it possible or impossible to fire a pre-retirement employee and how to do it correctly?

Workers of pre-retirement age are persons who have less than 5 years left before the start of payment of an old-age insurance pension (Part 3 of Article 1 of Federal Law No. 350 of October 3, 2022). Taking into account the increase in the previous retirement age from 2022, to clarify such information, the employer should contact the Pension Fund. They will tell you the exact status of the employee.

An employer is prohibited from dismissing a pre-retirement employee without reason, that is, simply due to his age. Responsibility for this is established in accordance with Federal Law No. 352 of October 3, 2022. This law introduced Article 144.1 of the Criminal Code of the Russian Federation, which defines the corresponding criminal liability of the head of an organization for the illegal dismissal of a pre-retirement employee. The norm came into legal force on October 14, 2022.

In accordance with the current labor legislation of the Russian Federation, the employer has the right to officially dismiss a pre-retirement employee in the following situations: at the employee’s own request, by agreement of the parties or on his own initiative, if there are legal grounds for this - disciplinary violations, staff reduction, etc.

Dismissal will be legal if circumstances arise that do not depend on anyone’s wishes, or the employee’s employment contract has expired (see Article 77 of the Labor Code of the Russian Federation).

At the initiative of the employer

Dismissal of a pre-retirement employee at the initiative of the employer is possible only on the following legal grounds specified in Art. 81 Labor Code of the Russian Federation:

• reduction in the number (staff) of employees;
• upon liquidation of a company (enterprise);
• the employee’s inadequacy for a certain position due to insufficient qualifications;
• repeated failure to perform various official duties without good reason;
• single violation of labor internal regulations (absenteeism, disclosure of official secrets, performance of official duties in a state of drug or other intoxication, etc.);
• submitting false documentation to the employer when applying for employment in an organization (company).

The insufficient qualifications of a pre-retirement person must be officially confirmed by the corresponding conclusion of the certification commission.

An employer has the right to early dismiss a pre-retirement employee for theft of the organization's property only on the basis of an appropriate court decision or a resolution on the application of administrative punishment.

Violations of established labor safety rules should be considered by a separate commission , which is obliged to determine whether the employee was familiar with the safety rules when receiving instructions, etc.

That is, when dismissing a pre-retirement employee at the initiative of the employer, it is important to comply with all the requirements of labor legislation. You cannot fire an employee with the words: “He can’t do his job anymore.” There must be results of certification carried out in the manner prescribed by law. Otherwise, the employer faces criminal liability.

At your own request

An employer has the right to cancel an employment contract (agreement) with a pre-retirement employee based on an application from an employee to leave work of his own free will. However, in such a case, the head of the organization (company) should be careful.

If the pre-retirement age of the dismissed person is indicated in the relevant order as the basis for the official dismissal of a pre-retirement person, the employer may thereby give rise to criminal liability under Art. 144.1 of the Criminal Code of the Russian Federation.

An employer should not put pressure on an employee and persistently persuade him to write a letter of resignation from work of his own free will.

If the court is presented with documentary evidence that the pre-retirement employee submitted his resignation under the influence of threats (pressure), then the defendant, represented by the employer, will be held criminally liable under Art. 144.1 of the Criminal Code of the Russian Federation (resolution of the Plenum of the Armed Forces of the Russian Federation No. 46 of December 25, 2022).

By agreement of the parties

The employer has the right to cancel an employment contract (agreement) with a pre-retirement employee by agreement of both parties (Article 78 of the Labor Code of the Russian Federation). However, the head of the organization should not force the employee to sign such a document. Otherwise, the employer may also be brought to the appropriate criminal liability established in Art. 144.1 of the Criminal Code of the Russian Federation.

Guarantees for pre-retirees upon termination of the contract

What can an employee of pre-retirement age expect upon dismissal and after:

1. If the contract is terminated due to layoffs or in connection with the liquidation of the enterprise, and there are less than two years left before the retirement age, by decision of the employment center, an insurance pension may be assigned early. This is possible if a person has no chance of finding a job (Article 32 of the Federal Law of April 19, 1991 No. 1032-1 “On employment of the population...”). Men need to have 25 years, and women – 20 years of experience.
2. If you register for unemployment, a pre-retirement pensioner can receive an increased benefit - up to 12,130 rubles.
3. When you contact the employment center, you can get retraining for free.
4. If the dismissal is related to disability, some regions of the Russian Federation provide regional payments and tax discounts.

If a reduction is coming in an organization, an employee of pre-retirement age can take advantage of the preferential right to remain, provided that he has higher qualifications and labor productivity (Article 179 of the Labor Code of the Russian Federation). Also, benefits are given to employees who have been injured or have an occupational disease at their employer; disabled people from combat or WWII; sole breadwinners with at least two dependents.

Dismissal of an employee on the same day - grounds and step-by-step procedure

What is better: dismissal by agreement of the parties or at your own request?

Early retirement in case of layoff. How to achieve it?

If a citizen of pre-retirement age has been laid off and registered with the employment department, which cannot find a job for him, then he has the right to early retirement.

This is also important to know:
Dismissal of a pensioner: is it legal and how to formalize the dismissal?

Only if all the listed conditions (in the law) are met is there a chance that a person will be sent to retire ahead of schedule.

But usually the employment center tries to provide an unemployed citizen with a suitable job, and only if such an opportunity is not available can the question of granting a pension be raised.

To receive a referral for early retirement from the employment center, you must provide the following documents:

• Statement;
• Passport;
• Employment history;
• Military ID;
• SNILS;
• Officially certified documents confirming the amounts and period of contributions to the Pension Fund;
• A certificate from work, certified by the seal of the enterprise, about the average salary received in any period of five consecutive years of work - until the beginning of 2002.

In some cases, additional documents may be required.

Finding a job before retirement age serves as a basis for terminating payments of a pension received early. Sometimes the Pension Fund refuses to provide an early pension citing:

• refusal (2 times) of proposed work by the employment service;
• dismissal from work for other reasons;
• There is an error in the documents provided.

Employer's liability for illegal dismissal of a pre-retirement employee

The employer's liability arises only if an employee of pre-retirement age is fired unreasonably. For example, they were forced to write a letter of resignation of their own free will, the contract was terminated under Art. 81 of the Labor Code of the Russian Federation, when this could not be done.

For the unjustified dismissal of a pre-retirement employee, the employer may be charged under Art. 144.1 of the Criminal Code of the Russian Federation. If guilt is established, he faces one of the following penalties:

• fine up to 200,000 rubles. or in the amount of earnings for 18 months;
• compulsory work for up to 360 hours.

To bring a former manager to criminal liability, you must contact the labor inspectorate or prosecutor's office with a statement. The punishment is imposed by a court verdict after a detailed consideration of the case.

Dismissal... cannot... be ensured

An employer cannot fire an employee because he has reached retirement age. But this does raise the problem of meeting modern requirements for employees. The employer will have to choose:

• retrain the employee;
• dismiss an employee on the grounds provided for by labor legislation.

In case of retraining, it is important to remember that such advanced training will be carried out at the expense of the employer, that is, it will require additional expenses.
A good solution is to look for free government programs. For example, such programs exist today for entrepreneurs. The most common reason for dismissal is a reduction in staff or numbers. Article 81 of the Labor Code of the Russian Federation defines the grounds for termination of an employment contract at the initiative of the employer. One of them is a reduction in the number of employees or staff (clause 2, part 1). Typically, such a decision is formalized by an order or protocol (decision), depending on whose competence this issue falls within: the sole or collegial executive body of the organization.

If labor productivity and qualifications are equal, preference in remaining at work is given to:

1. family persons with two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is their permanent and main source of livelihood);

2. persons in whose family there are no other workers with independent income;

3. persons who received a work injury or occupational disease while working for this employer;

4. disabled people of the Second World War and disabled people from combat operations to defend the Fatherland;

5. employees who improve their skills at the direction of the employer without interruption from work.

Based on Part 2 of Article 180 of the Labor Code of the Russian Federation, employees are warned by the employer personally and signed by the employer about the upcoming dismissal due to a reduction in the number of employees or staff of the organization at least two months before the dismissal. We recommend drawing up the notice in two copies, on one of which (on the one that remains with the employer) the employee personally puts a mark that the notice has been received. If an employee refuses to receive notice of dismissal, this must be recorded in an appropriate act.

In accordance with part 3 of article 81 of the Labor Code of the Russian Federation, dismissal under paragraph 2 of part 1 of this article is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer. This means that the employer is obliged to offer the dismissed employee both a vacant position or work that corresponds to his qualifications, and a vacant lower position or lower-paid work that the employee can perform taking into account his state of health (Article 180 of the Labor Code of the Russian Federation).

Termination of an employment contract is formalized by an order (instruction) of the employer (Article 84.1 of the Labor Code of the Russian Federation), which the employee must be familiarized with and signed. If the order cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it under signature, a corresponding entry is made on the order (instruction).

Of course, from a human point of view, it is always better to retrain the staff. But often employers decide in favor of laying off specialists near retirement age.

It is easier for an employer to refuse to hire a pre-retirement person than to take on risks and additional responsibility in the form of:

• payment of contributions;
• criminal punishment for unlawful dismissal of a pre-retirement employee.

But at the same time, refusal to hire will have to be justified separately.

Now, for an unreasonable refusal to hire citizens from a risk group or for unjustified dismissal, employers will have to pay a fine of 200 thousand rubles or in the amount of the entrepreneur’s income for one and a half years. Monetary sanctions can be replaced by compulsory work for up to 360 hours.

It is important to note that the amendments were made not to the Labor Code of the Russian Federation or the Code of Administrative Offenses of the Russian Federation, but to the Criminal Code of the Russian Federation.
The new article is numbered 144.1. Deputies believe that this measure will rarely have to be used, and most often the perpetrators will get off with only administrative punishment. The fact is that in most cases it is extremely difficult to prove the employer’s malicious intent. A new article in the Criminal Code of the Russian Federation was introduced, according to legislators, for a psychological impact on employers.

However, in fairness, it should be noted that employers have learned to justify refusals to hire by the presence of a more professional applicant.

Dismissal at your own request

To resign voluntarily, an employee of pre-retirement age needs to submit an application to the human resources department or directly to the employer.
The next steps look like this:

1. The manager signs the application and issues an order to terminate the employment contract with reference to clause 3, part 1 of Art. 77 Labor Code of the Russian Federation.
2. The person leaving is presented with the order upon signature.
3. On the last working day, a paper work book and other documents are issued, and the final payment is transferred.

If you want to quit without working, it is better to discuss this with the employer in advance. The application indicates the date of dismissal, and if it is not there, the contract will be terminated only at the end of the notice period. Previously, they won’t be able to fire you – they don’t have the right.

If an employee changes his mind about resigning, he has the right to withdraw his application before the end of his service, even if the order has already been signed.

Contents and sample application

What must be indicated in the application:

• Name of the organization;
• Full name, position of manager;
• Full name, department, position of the person leaving;
• the wording “I ask you to dismiss me at my own request on (date), if the dismissal is related to the assignment of a pension - “in connection with retirement” further;
• date of compilation, signature.

Sample application

Possible reasons

Do they have the right to fire a pre-retirement employee and for what reasons? Termination of an employment contract can only be carried out on the grounds listed in labor legislation.

At your own request

If a pre-retirement employee quit of his own free will, then no problems with the procedure should arise. Dismissal on the specified basis is carried out in accordance with the general procedure (Article 80 of the Labor Code of the Russian Federation):

• the employee submits an application, which is registered by the human resources department, the manager himself or his secretary;
• works the required 2 weeks (or other period established by law);
• The HR department prepares the work book and personal file, and the accounting department makes the calculations.

If the employer refuses to accept the application , the pre-retirement employee should proceed as follows:

• send an application by registered mail with a list of investments, thereby confirming the fact of your desire to resign;
• contact the labor inspectorate;
• stop working on the day specified in the application.

By abbreviation

In accordance with the “Review of Current Issues...” from Rostrud, published in February 2022, pre-retirees are not included in the list of employees who have immunity from dismissal due to reduction, which means the procedure is carried out in the general manner , as described above (2 months notice , offer of another position, etc.).

Other grounds

Pre-retirees may also be fired:

• by agreement of the parties (Article 78 of the Labor Code of the Russian Federation);
• in connection with the expiration of a fixed-term contract (Article 79 of the Labor Code of the Russian Federation);
• upon liquidation of an organization (clause 1, part 1, article 81 of the Labor Code of the Russian Federation);
• for official inconsistency (clause 3, part 1, article 81 of the Labor Code of the Russian Federation);
• in connection with violation of labor discipline (clauses 5-8, part 1, article 81 of the Labor Code of the Russian Federation).

The dismissal procedure is carried out in accordance with the general procedure established for each of the grounds.

Dismissal at the initiative of the employer

An employer may dismiss an employee of pre-retirement age under Art. 81 of the Labor Code of the Russian Federation, if there is one of the following grounds:

1. Reduction of staff or liquidation of the company. Staff are notified of this at least two months in advance.
2. One-time gross violation: absenteeism, being intoxicated at work, disclosing commercial or state secrets, theft at the place of work.
3. Loss of trust due to the commission of guilty actions by an employee servicing material or monetary assets.
4. Violation of labor protection requirements, if this resulted or could lead to serious consequences.
5. Inconsistency with the position held, as determined by the certification commission.
6. Systematic failure to fulfill duties according to the job description, if there is an outstanding disciplinary sanction - a reprimand or reprimand.
7. Change of owner of the enterprise (only the manager, his deputies and the chief accountant can be fired).
8. A one-time gross violation by a manager, his deputy or chief accountant, if this causes property damage to the organization.

Dismissal under Art. 81 of the Labor Code of the Russian Federation is a right, not an obligation of the employer. For guilty actions or inactions of an employee, he can limit himself to a remark or reprimand if he wants. If he wants to terminate the contract and there are grounds for this, all documents make reference to the corresponding paragraph of Art. 81 of the Labor Code of the Russian Federation and the reasons are indicated, including in the work book.

Criminal liability for dismissal of people of pre-retirement age

In order for criminal liability to arise, it is necessary to prove that the employer had intent. In the context of the issue of dismissal of employees of pre-retirement age, it is proposed that intent be understood as self-interest, the interest of the head of the company. The difficulty lies in the fact that in labor relations intent is difficult to prove, or it is completely absent. For this reason, in labor disputes, as a rule, the concept of administrative rather than criminal liability appears.

For example, the Criminal Code of the Russian Federation provides for criminal liability for late payment of wages to employees if it is possible to prove the presence of intent (Article 145 of the Criminal Code of the Russian Federation). But in practice, it is impossible to prove that the employer’s actions were intentional; it is always possible to justify the delay in payments by difficulties that arose at the enterprise.

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Dismissal by agreement of the parties

If desired, the parties can enter into an agreement that will indicate the date and other conditions of dismissal. For an employee of pre-retirement age, this option is good because you can demand additional compensation, especially if the director wants to get rid of him, but cannot fire him under Art. 81 Labor Code of the Russian Federation.

To conclude an agreement, you must first agree on its terms, draw up a completed document and sign it. After this, an order is issued, and the employer acts in the same manner as when dismissing an employee at his own request.

Contents and sample agreement

What is usually stated in the agreement:

• Company name;
• employer and employee data;
• conditions for termination of the contract;
• date of dismissal;
• types and amount of additional payments;
• date of compilation, number;
• terms of termination of the agreement;
• signatures of the parties.

Sample agreement

Is it possible to withdraw an application if dismissal due to retirement has already taken place?

After writing a statement, the employee voluntarily retired. The organization issued an order and fired him from the date specified in the application. After some time, the person changed his mind and wrote a new application, this time about recalling the previous one.

In this situation, the employer has the right to refuse the pensioner, since the employment relationship with the employee has already been terminated. You can only withdraw your own resignation letter within a 2-week notice period. In this case, the employee, as a pensioner, resigned immediately, without warning.

Read more about withdrawing your resignation letter at your own request here.

You can find out how to return over-withheld tax to a fired pensioner by reading the article “Art. 231 Tax Code of the Russian Federation: questions and answers" .

Pros and cons of dismissal by agreement for a pre-retirement worker

Let's consider the pros and cons of dismissal by agreement of the parties for an employee of pre-retirement age:

Advantages

You can quit without working

The agreement may establish additional payments in addition to the basic ones.

If the employer offers an agreement, but there are grounds for dismissal under Art. 81 of the Labor Code of the Russian Federation, you should agree to the first option so as not to spoil the work book

The benefit from the employment center will be higher

Flaws

Cannot be terminated unilaterally. To terminate, you need the consent of the employer, or you will have to go to court.

You cannot retire early if the agreement is concluded in lieu of dismissal due to liquidation or reduction

Payments to pre-retirees upon dismissal

As mentioned earlier, on the last working day, an employee of pre-retirement age must be paid wages for the time worked and compensation for all days of unused vacation. Upon termination of a contract for reduction or liquidation - severance pay in the amount of average earnings for two months (Article 180 of the Labor Code of the Russian Federation).

If an employee resigns by agreement, an additional benefit established by the document is transferred.

If money is transferred to a bank card, it will arrive on the same day. If the salary is issued at the cash desk, and the employee did not work on the day of dismissal, he must be given all the funds no later than the day following the day he applied for them (Article 140 of the Labor Code of the Russian Federation). But usually cash is issued immediately.

Dismissal of a pre-retirement worker in 2022: latest news

The ban on dismissal of workers of pre-retirement age was established back in 2022, when the pension reform was planned. In fact, this should be perceived not as a ban - and before this it was forbidden to dismiss on the grounds of age - but as the introduction of criminal liability.

In addition, it was previously proposed to exempt employers from liability under Art. 144.1 of the Criminal Code of the Russian Federation, if they voluntarily compensated for the damage caused by illegal dismissal, and the crime was committed for the first time. But amendments to Art. 76.1 of the Criminal Code of the Russian Federation were never adopted.

Some changes also came into effect on May 1, 2021:

1. Former employees of the coal industry and members of civil aviation flight crews must recalculate their pension increases.
2. Employers can now choose whether to send workers over 65 years of age to work remotely or not. A year ago, temporary rules on remote work for older people were mandatory.
3. The debt deferment for pensioners and entrepreneurs with debts of up to 1 million rubles has ended. Previously, it was provided for a period of up to 24 months.

There are also changes that affect not only workers of pre-retirement age. For example, now there are fines for disembarking children without tickets from public transport - up to 5,000 rubles. for drivers, up to 30,000 rub. – for organizations. Also, the fine for violating the rules for crossing railway tracks has increased fivefold - up to 5,000 rubles.

but on the other hand

Strange as it may seem, trade union leader M. Shmakov once opposed the introduction of criminal penalties for employers. At a meeting held in August 2022, he stated that his Belarusian neighbors, who had introduced criminal prosecution for the unjustified dismissal of elderly citizens, were faced with a mass dismissal of older workers a couple of years before the onset of this pre-retirement age. Moreover, they stopped hiring people at that age. The head of the country's independent trade unions then expressed reasonable fear that Russian practice on this issue would turn out to be similar to Belarusian.

How to legally dismiss a pre-retirement employee

Now let's look at how to fire an employee of pre-retirement age without his desire according to the law. The manager has several options:

1. Organize an attestation commission. If, based on the results of recertification, it is determined that the pre-retirement employee does not correspond to the position held, he can be dismissed under clause 3, part 1 of Art. 81 Labor Code of the Russian Federation.
2. Monitor the work of your subordinate more carefully, record all violations in documents: draw up reports of lateness, collect memos.
3. Offer the employee an agreement.

From a moral point of view, this is unethical, but if you set a goal, after some time you will be able to terminate the contract.

An agreement is the best option for both parties. It is extremely difficult to challenge it, and the employer can be almost 100% sure that he will not be prosecuted. But it is important that the document is signed voluntarily. You can offer good compensation that the employee cannot refuse.

A pre-retirement employee was fired illegally: what to do?

If an employee of pre-retirement age was fired illegally, and he wants to hold the employer accountable, but not be reinstated in his position, it is easier to submit an application to the labor inspectorate. There is no need to go to court. The complaint can be submitted in person or through the Online Inspection service.

If you need to be reinstated, recover compensation for forced absence, compensation for moral damage, or change the wording of the dismissal, you must file a claim with the district or city court. You can choose a court at the place of residence of the plaintiff or the address of the defendant (Article 29 of the Code of Civil Procedure of the Russian Federation).

A statement of claim for disputes regarding dismissal is filed within one month from the date of receipt of the work record book or a copy of the order (Article 392 of the Labor Code of the Russian Federation). If you miss the deadline for going to court, it will be reinstated only if there are good reasons for the absence, which will have to be proven.

Challenging the illegal dismissal of an employee of pre-retirement age: judicial practice

Let's look at a few examples of decisions on real cases challenging the dismissal of workers approaching retirement age:

1. A pre-retirement woman was laid off due to redundancy. In court, she wanted to declare the termination of the contract illegal and change the date of dismissal; to recover compensation for moral damage, average earnings for the period of forced absence. The plaintiff argued that the dismissal was directly related to her age. Decision No. 2-2029/2020 2-2029/2020(2-8591/2019;)~M-7247/2019 2-8591/2019 M-7247/2019 dated May 12, 2022 in case No. 2-2029/2020 the claim was denied - the defendant’s guilt has not been proven.
2. According to the plaintiff, at the time of termination of the contract she had reached pre-retirement age, and the employer violated the dismissal procedure. She asked the court to reinstate her at work and collect several types of compensation from the defendant. By decision No. 2-3357/2019 2-3357/2019~M-1007/2019 M-1007/2019 dated May 28, 2022, in case No. 2-3357/2019, the claim was rejected - the fact of violation of the provisions of the Labor Code of the Russian Federation has not been proven.
3. A pre-retirement worker was laid off due to redundancy. In court, he explained that the employer had not offered any vacancies. He asked that he be reinstated and that payments be recovered from the defendant. By decision No. 2-329/2019 2-329/2019~M-63/2019 M-63/2019 dated February 8, 2019 in case No. 2-329/2019, the claims were denied: the plaintiff did not have a preemptive right to remain in position, and the defendant had no other vacancies.

Features of termination of employment relations with employees of pre-retirement age

Unreasonable refusal to hire

Unreasonable refusal to conclude an employment contract is prohibited by Article 64 of the Labor Code of the Russian Federation. At the same time, according to Part 2 of Art. 64 of the Labor Code of the Russian Federation, any direct or indirect restriction of rights or the establishment of direct or indirect advantages when concluding an employment contract, depending on gender, race, skin color, nationality, language, origin, property, family, social and official status , age, place of residence (including the presence or absence of registration at the place of residence or stay), attitude to religion, beliefs, membership or non-belonging to public associations or any social groups, as well as other circumstances not related to business qualities employees is not permitted, except in cases in which the right or obligation to establish such restrictions or benefits is provided for by federal laws.

Part 5 of Art. 64 of the Labor Code of the Russian Federation, the employer is obliged to report the reason for the refusal in writing, no later than within seven working days from the date of presentation of the written request of the person who was refused to conclude an employment contract. If the applicant is not provided with a written message about the reason for the refusal, the employer may be held administratively liable under Part 1 of Art. 5.27 of the Code of the Russian Federation on Administrative Offences. In addition, if the applicant is not sent, or is untimely sent, a written reasoned message about the reason for refusal to hire, he can also recover from the employer the amount of moral damages. This conclusion was reached, for example, by the Stavropol Regional Court, in the Appeal ruling dated 06/07/2017 in case No. 33-4119/2017.

Labor legislation does not provide a legal definition of the concept of “business qualities”. The Plenum of the Supreme Court of the Russian Federation proposed its definition in Resolution No. 2 of March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation.” The business qualities of an employee should, in particular, be understood as the ability of an individual to perform a certain job function, taking into account his existing professional and qualification qualities (for example, the presence of a certain profession, specialty, qualifications), the personal qualities of the employee (for example, health status, the presence of a certain level of education, work experience in a given specialty, in a given industry). This clarification is enshrined in paragraph. 6 clause 10 of Resolution No. 2. At the same time, the law, by the qualifications of an employee, understands the level of knowledge, skills, professional skills and experience of the employee (Part 1 of Article 195.1 of the Labor Code of the Russian Federation).

Thus, the legislation contains only an approximate list of reasons why an employer does not have the right to refuse to hire a job seeker. Therefore, the question of whether discrimination occurred when refusing to conclude an employment contract is decided by the court when considering a specific case (paragraph 4, paragraph 10 of Resolution No. 2).

So, based on established judicial practice, the following may be considered legitimate grounds for refusing to hire a person who has reached pre-retirement age:

— lack of vacancies in the organization (Appeal ruling of the St. Petersburg City Court dated December 2, 2015 No. 33-21762/2015 in case No. 2-3862/2015);

— non-compliance of the applicant applying to occupy a certain position in the organization with the special requirements established by the internal local act of the organization. These requirements may relate, inter alia, to work experience in the specialty, proficiency in one or more foreign languages, the ability to work on a computer or with special programs (Appeal ruling of the Volgograd Regional Court dated June 26, 2013 in case No. 33-6911/2013; Determination of the Moscow City Court dated 04/08/2011 in case No. 33-10215; Ruling of the Kaluga Regional Court dated 09/03/2012 in case No. 33-2165/2012).

In addition, according to a number of courts, the absence of an application for employment does not allow establishing the fact of a citizen’s will to be employed by an employer and, therefore, the fact of discrimination in hiring.

Thus, the Orenburg Regional Court, in an appeal ruling dated May 23, 2012 in case No. 33-2903/2012, refused to satisfy the claims to recognize the refusal to hire as discriminatory, as well as to force them to conclude an employment contract and to compensate for material harm caused as a result of non-payment of wages, compensation for moral damage, due to the failure of the applicant to provide evidence confirming the fact that he applied to the employer for a job. The Perm Regional Court came to a similar opinion, refusing in its Ruling dated 04/16/2012 in case No. 33-3102, the requirement to impose an obligation to conclude an employment contract, due to the failure of the applicant to contact the employer with an application for employment (Ruling of the Moscow City Court dated July 12, 2011 in case No. 33-18661. The Supreme Court of the Republic of Mordovia, in a cassation ruling dated May 24, 2011 in case No. 33-968/13, indicated as a basis for refusing an applicant, in the absence of evidence of an interview between him and the employer regarding his admission for a job, drawing up a written application for admission and submitting it to the HR department.

Thus, refusal to hire an applicant who has reached pre-retirement age should not be associated with “age” discrimination. Moreover, since the current legislation contains only an approximate list of reasons why an employer does not have the right to refuse to hire a job seeker, the question of whether discrimination occurred when refusing to conclude an employment contract, in the event of a dispute, is decided by the court, when considering a specific case.

Unjustified dismissal

An employee who has reached pre-retirement age can be dismissed solely on the grounds provided for in Article 81 of the Labor Code of the Russian Federation and if there are objective reasons for the application of these grounds.

Such grounds include, in particular:

• unsatisfactory test result;
• liquidation of the organization;
• reduction in numbers (staff);
• incompatibility of the employee with the position held (work performed). Termination of an employment contract on this basis presupposes that the decision should be made on the basis of the conclusions of the certification commission about the employee’s business qualities (clause 31 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, Appeal ruling of the Khabarovsk Regional Court dated February 27, 2013 in case No. 33-1369). The business qualities of an employee, as mentioned above, should be understood as his ability to perform a certain job function, taking into account his existing professional and qualification qualities (for example, the presence of a certain profession, specialty, qualification), the personal qualities of the employee (for example, health status, the presence of a certain level of education, work experience in a given specialty, in a given industry).
• change of owner of the organization's property. On this basis, you can dismiss only the head of the organization, his deputies and the chief accountant;
• repeated failure to fulfill labor duties by an employee subject to a disciplinary sanction;
• absenteeism by the employee;
• theft by an employee at the place of work;
• loss of trust in an employee directly servicing monetary or commodity assets due to the fact that he committed guilty actions giving grounds for such loss;
• adoption by an authorized body of a legal entity, or the owner of the organization’s property, or a person (body) authorized by the owner of a decision to terminate the employment contract with the head of the organization.

If the employee is dismissed on a basis not provided for by law, or without sufficient reasons for applying a specific legal basis, the decision to dismiss him can be canceled in court. In this case, the employee is subject to reinstatement at his previous job (Part 1 of Article 394, Article 396 of the Labor Code of the Russian Federation).

In its turn. the employer, in addition to criminal liability, may also incur liability (Article 234, Part 2, Article 394, 396 of the Labor Code of the Russian Federation; Parts 1, 2, Article 5.27 of the Code of Administrative Offenses of the Russian Federation; Paragraph 4, Clause 63 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17. 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”):

1). or physical suffering, the degree of guilt of the employer, other circumstances, as well as the requirements of reasonableness and fairness (clause 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 20, 1994 N 10).

2) administrative - in the form of a fine for violation of labor legislation and other regulations containing labor law norms.

Lawyer's answers to private questions

Can a pre-retirement worker be fired while on sick leave?

Yes, if he leaves of his own free will. It is impossible to dismiss on the initiative of the employer - this is prohibited by Art. 81 of the Labor Code of the Russian Federation (except for the liquidation of an organization or closure of an individual entrepreneur).

How to prove coercion to dismiss an employee of pre-retirement age at his own request?

Any documents related to the case can be used as evidence; notarized screenshots of correspondence via SMS or social networks; audio and video recordings, witness statements.

Can a pre-retirement employee resign due to redundancy before two months?

Yes, early termination of the contract under clause 2, part 1 of Art. 81 of the Labor Code of the Russian Federation is provided for in Art. 180 Labor Code of the Russian Federation. In this case, average earnings are paid, calculated in proportion to the remaining notice period.

How long can a pre-retirement employee be dismissed for wrongdoing?

According to Art. 193 of the Labor Code of the Russian Federation, disciplinary sanction in the form of a reprimand, reprimand or dismissal is applied no later than one month from the date of discovery of the misconduct. If you are fired for theft or other actions where there must be a verdict or court order, the term begins to count from the moment the verdict or order comes into force.

Can a pre-retirement employee be fired if a writ of execution is sent to the employer?

No, this is not grounds for termination of the contract. In addition, if there is a writ of execution, the accounting department is obliged to make deductions from the salary to pay off the debt or pay alimony.

When does management not have the right to do this?

As a result, taking into account Art. 144.1 of the Criminal Code of the Russian Federation and the general provisions of labor legislation, a pre-retirement person cannot be dismissed from his current place of work only on the grounds that he has reached the current pre-retirement age.

An employer needs to learn how to accurately determine an employee's pre-retirement age. In doing so, he should use the data given in the third column of the table on the right.

These age indicators apply only to those workers who are entitled to a pension on general legal grounds.

For residents of the Far North and equivalent territories, pre-retirement age begins 5 years earlier. There are other categories of citizens who have the right to early retirement (see Chapter 6 of the Federal Law “On Insurance Pensions”).

Also, in the event of dismissal of a pre-retirement employee, the employer must take into account the legality of the grounds for this. In such a situation, you can use the reference information from the following table:

When dismissing a pre-retirement employee due to a reduction in the number of employees (staff), reference to the current age of the employee will be considered unlawful, and the dismissal will be illegal.

A chronic illness of a pre-retirement employee is not a reason to fire him. If an employee becomes ill and there are medical recommendations for transfer to another position, the employer is obliged to provide the pre-retirement employee with appropriate open vacancies. Only if such an employee refuses the offered job, the employer has the right to dismiss him.