How to correctly formalize dismissal due to staff reduction

Reduction of staff or number of employees is one of the few cases in which an employer can terminate an employment contract with employees on its own initiative. This means one of two events:

The number of staff units per position is reduced. For example, a store had three salespeople, but two are enough to operate, so one unit needs to be cut.
Certain positions are excluded from the staffing table completely. Sometimes we are talking about the liquidation of entire structural divisions. For example, a company decided that they did not need a PR department; this work could be outsourced.

At the same time, it is important to arrange everything correctly in order to avoid problems and lawsuits. Let's figure out how to do this.

Issue an order

To start the reduction procedure, the manager needs to sign the relevant document. An order to reduce the number or staff is drawn up in free form. It must indicate the following:

layoff date - set it so that you can get everything done;
the reason for the reduction - for example, due to a decrease in production volumes or the economic situation;
positions being reduced.

In the same document, you can approve a new staffing table. But this is not necessary; this can also be done in a separate order.

Offer of other positions

It is very important to correctly reduce the number of employees; step-by-step instructions are given in the Labor Code of the Russian Federation; they must be followed at all stages. After making such a decision, the responsible person or members of the commission find out which of the employees whose positions (units) have been abolished has a preferential right to remain in the organization (Article 179 of the Labor Code of the Russian Federation). If the employee does not have such a right, the procedure for his dismissal begins.

But first, in accordance with Art. 81 of the Labor Code of the Russian Federation, when reducing the number or staff of employees, the employer must offer the employee to transfer him to another position in the organization. It may correspond to his qualifications or be lower, the main condition is that such a position must correspond to the specialist’s health status. At the same time, the employer is obliged to offer absolutely all positions available in a given area, but in other areas (for example, if he has a branch) only if such a rule is established by the company’s local regulations.

Decide who you will lay off

It is better to start dealing with this issue before issuing an order. There are some nuances here, and therefore you have to think about a lot.

Who should not be laid off?

There are several Labor Code of the Russian Federation Article 261 categories of such workers:

Pregnant women. This works even if neither the employer nor the employee knew about this circumstance. When it subsequently turns out that the woman was pregnant on the date of dismissal, she can be reinstated at work through the court.
Women with children under three years of age.
Single mothers with children under 14 years of age or with a disabled child under 18 years of age, or any other person if she is raising these children without a mother.
The sole breadwinner of a child under three years of age in a large family or a disabled child under 18 years of age, if the other parent does not work.
An employee of the Labor Code of the Russian Federation Article 81 on vacation or sick leave.

They can either wait until the limiting circumstances stop - the children grow up, the vacation ends - or negotiate a dismissal by agreement of the parties.

How to choose from the rest

If you're cutting an entire department, you won't have to choose. But if you need, for example, instead of 13 mechanics to leave 8, this is a task with an asterisk. The law prescribes the preservation of the Labor Code of the Russian Federation Article 179 of the workplace for employees with higher labor productivity and qualifications. The definition of the second criterion is in the law of the Labor Code of the Russian Federation, Article 195.1: this is the level of knowledge, skills, professional skills and experience.

When comparing the qualifications of employees, it will be easier for those who have recently conducted their certification. If it did not exist, it is necessary to collect all the information that may indicate it. If several employees have the same level of productivity and qualifications, additional factors come into play. Preference is given to:

family - if there are two or more dependents;
the only working person in the family;
employees who received an injury or occupational disease while working for you;
disabled people of the Second World War and military operations to defend the country;
employees who improve their skills in the direction of the employer without interrupting their work.

In order for everything to be formalized as correctly as possible, it is better to create a commission that will deal with this issue. She will compare information on employees and draw up a detailed report for each with an assessment of labor productivity and qualifications, as well as preferential conditions. In this case, you will have something to answer to the accusations if someone does not agree with your choice and goes to the supervisory authorities or court.

Who can and cannot be fired during staff reductions

In general, the employer is free to lay off any employee of the company. However, there are especially protected categories of workers who are legally prohibited from being dismissed due to staff reduction. These include

women expecting the birth of a child,
parents of children under three years of age,
citizens or single mothers who have children under 14 years of age and under 18 in the case of disabled children.

As for minor employees, their dismissal during staff reduction is possible only when a special commission of the labor inspection agrees to this, protecting the rights of workers who have not reached the age of majority.

Inform employees about layoffs

This must be reported to the employee personally and signed by no less than the Labor Code of the Russian Federation Article 180 at least two months before the date of reduction. For those employed in seasonal work, this period is 7 Labor Code of the Russian Federation, Article 296 days, for those employed for less than two months - 3 Labor Code of the Russian Federation, Article 292 days. However, the employment contract can be terminated earlier - with the written consent of the employee. But you will have to pay him additional compensation in the amount of average earnings.

If an employee refuses to sign the notice, you need to notify him of the layoff in the presence of two witnesses and draw up a report about it.

By law, you are obliged by the Labor Code of the Russian Federation Article 180 to offer the person under layoff vacant positions that may suit him. This can be done either in a notification or in separate documents. If he agrees, he is not fired, but transferred to another place.

Procedure

The process of staff reduction is multi-stage and consists of several stages.

First of all, the management of the organization makes an appropriate decision and creates a written basis.

Important clarification: dismissal of employees due to staff reduction is possible only in cases where their positions are abolished in the company, and transfer to another vacancy within the company is impossible (i.e., the employer must initially consider the possibility of transferring employees to vacant positions that correspond to their qualifications and specialization and, if available, offer them to those being dismissed).

Then, in the manner prescribed by law, the trade union body (if there is one at the enterprise) is notified and an order is issued, which every employee who has been laid off must familiarize himself with. If any employee does not want to sign a document, this must be recorded in a special act.
The final stage: final settlement with those dismissed (which is made on the last working day), as well as making appropriate entries in the workers’ work books, their personal cards and other personnel documents.

Notify the union

If there is such an organization, it must be notified of upcoming layoffs by the Labor Code of the Russian Federation Article 82 no later than two months before them. Or in three months, if the reductions are massive Resolution of the Council of Ministers - Government of the Russian Federation of February 5, 1993 N 99. They are considered as such if they liquidate an organization with at least 15 employees, or dismiss from 50 people in a month, from 200 in two or from 500 for three.

The trade union must be provided with the personal data of workers, their profession, position and specialty. You need to add to the package of documents:

a copy of the order to reduce staff or numbers;
draft order on dismissal of employees;
draft staffing table.

Template for union notice of staff reduction →

Opinion of the trade union body

A reduction in the number or staff of an organization’s employees takes into account the opinion of the trade union body (if there is one):

the trade union is notified in writing of the adoption of such a decision two months in advance (if mass dismissal is planned - three months in advance);

if it is planned to dismiss employees who are members of a trade union, the employer requests a reasoned opinion from the body. He must apply in writing and prepare a response within a week. If consent to dismissal is given, it is valid for a month; if this period is missed, the entire procedure is repeated;

if the employee being dismissed is also the leader of a trade union, consent to his dismissal is sought from the superior trade union.

Notify the employment office of layoffs

You must report layoffs to the department no later than Law of the Russian Federation of April 19, 1991 N 1032-1, than two months before the termination of employment contracts (three, if there are massive layoffs), if you are acting on behalf of the organization, or no less than two weeks, if you are an individual entrepreneur. You must send a notification to the employment service in which you indicate the following information about the layoffs:

job title;
profession;
specialty and qualification requirements for it;
terms of remuneration.

The notification must be accompanied by the same package of additional documents that you sent to the trade union.

Employment service notification template about staff reduction →

Reasons for reducing the number of employees

The employer has the right to independently determine the grounds on which staff are being reduced (part 1 of article 22 of the Labor Code of the Russian Federation, clause 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, Determination of the Constitutional Court of the Russian Federation dated July 15, 2008 No. 413-O-O) .

Most often, reductions are the result of:

low profitability;
unfavorable economic situation;
changes in production technology (for example, through automation).

In order to defend their point of view in court, management should obtain the necessary information to explain the reasons why the need for a regular event arose.

Complete the necessary documents

Before dismissal, you need to prepare for each employee:

A certificate of the amount of earnings for two calendar years in form 182n.
Documents with information that were sent to the Pension Fund during its work in the SZV-M form and in the SZV-STAZh form.
A copy of section 3 of the calculation of insurance premiums.

It is also necessary to make an entry in the personal card form T‑2. Indicate the basis for dismissal - staff reduction, date, as well as the number and date of the order to terminate the employment contract. The document is signed by the employee and the HR department employee.

Finally, all that remains is to draw up a settlement note in form T-61. It contains general information about the employee, information about termination of the employment contract and the amount of the due payment. The employer has no obligation to show this document to the employee.

Reasons

A reduction in the number or staff of workers is 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 entire structural units or specific positions with people are excluded, staff reduction occurs.

Of course, it is possible to reduce the number of staff and the number of positions in parallel; this is a common practice. First, management makes a decision, then implements it - dismissal occurs to reduce the number or staff of employees. Typically, the manager alone makes such a decision, and it is formalized in accordance with the nomenclature of affairs adopted at the enterprise. Or, but much less frequently, the decision is formalized in the protocol of the collegial executive body (depending on the system of management bodies and the distribution of their powers in the organization).

Pay the employee

The employee is paid:

Salary.
Compensation for unused vacation, if applicable.
Severance pay of the Labor Code of the Russian Federation Article 178 in the amount of average monthly earnings.

These payments must be made on the last Labor Code of the Russian Federation Article 140 working day of the employee.

If a laid-off person cannot find a job for more than a month, he will have to pay the average monthly salary for the second month from the date of layoff. If within two weeks he registered with the labor exchange and did not find a job in two months, a similar payment may be due for the third month. But not always, the decision on its necessity is made by the employment service. Or you can give the fired person an additional two average earnings at a time and not monitor his future fate.

Registration, guarantees and compensation

Registration takes place according to the general rules established by the Labor Code of the Russian Federation, taking into account the specifics of the above procedure. Guarantees for reducing 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 numbers or staff. 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), his average earnings are retained (in this case, the amount of severance pay paid is also offset).

IMPORTANT!

You cannot fire a person on sick leave, even due to a layoff; you have to wait until he returns to work. Let us repeat once again that all formalities must be strictly observed, all actions must be carried out in full compliance with the Labor Code, therefore it is important to involve competent personnel officers and lawyers to carry out the procedure. Large enterprises can seek professional services; you can always get advice from regulatory and executive authorities, for example, the local Labor Inspectorate.

Grounds for termination of an employment contract

The grounds for termination of an employment contract are listed in Art. 77 of the Labor Code of the Russian Federation and include dismissal:

At your own request.
At the initiative of the employer.
By agreement of the parties.
Upon expiration of the fixed-term employment contract.
Due to the transfer of an employee to another employer or his appointment to an elective position.
If the employee refuses to continue working due to a change in management.
When the essential terms of the employment contract change.
If an employee refuses to be transferred to another position (due to medical contraindications).
If an employee refuses to be transferred to another location.
Under conditions independent of both parties.
In case of violation of the procedure for concluding an employment contract.

Note

: an employee may be dismissed for other reasons, not directly stated in the Code, but provided for by current labor legislation.

Documents grounds for issuing a dismissal order

The list of supporting documents is given in the order in the appropriate line; such documents may include:

An order to change the staffing table is a mandatory document, drawn up in free form, which is drawn up by the employer at the initial stage of preparatory measures, contains a list of people to be laid off, as well as the moment this decision comes into force, taking into account the warning period;
Personal notification for the employee informing about the upcoming layoff;
An offer of another job is made in writing if the organization has other jobs suitable for the person being laid off. Suggestions can be sent to the employee throughout the entire notice period;
Refusal of the dismissed person from offers, if any;
An act of refusal by an employee to sign a notice if the latter does not want to perform this action for any reason.

The set of documents must be sufficient to recognize the legality of the dismissal procedure in connection with reduction.

Preparation of an organization order

When abolishing staff units, two orders are issued:

Order on the reduction of certain positions.
An order for the dismissal of specific individuals whose jobs have been eliminated.

Let us focus our attention on the first administrative document. This order is prepared at the very beginning of the procedure. It serves as the basis for initiating organizational and staffing measures. Currently, there is no single form of such an order approved at the official level. As a rule, each organization develops its own template.

There are several generally accepted rules that should be taken into account when drawing up an order:

Prepared on A4 paper;
Typed in block letters on a computer;
Mandatory presence of all signatures (general director and the person entrusted with responsibility for the execution of the order).

Sample document

A standard staff reduction order should include the following sections.

The document is available for download

The preamble is an introductory part containing generally accepted information:

Full name of the employing organization.
Date and registration number of the paper.
Title of the document.
Subject of the order.

“Body” of the order - this section provides specific instructions regarding changes in the staffing structure:

An official layoff date is set;
A list of positions subject to abolition is provided.

If you plan to remove only a few staff positions, then they are indicated directly in the text of the document after a colon. A large list is included in the appendices to the order.

Appointment of a responsible person - the head of the organization must appoint an employee (full name and position) who is responsible for monitoring the implementation of the order, and give him the following instructions:

Notify employees who have been laid off and offer them other available positions;
Notify the trade union and the employment service.

At the end of the document, the manager who issued this order, as well as the specialist responsible for execution, puts his signature.

You may find the following information interesting: the procedure for reducing staff in the form of step-by-step instructions.