Registration of partial staff reduction. Why it is necessary to determine the procedure for changing the names of positions in the staffing table: what could be the consequences of wrong steps. What are the ways to make changes?

When drawing up a new staffing table when reducing staff, it is worth taking into account all legislative and labor rules. The time for scheduling is the development of a reduction plan. A new type of staff distribution is being introduced after the reduction procedure is completed. The staffing table has a number of conditions that the manager will need to fulfill.

Procedure

If there are grounds for a reduction in staff, the manager makes a decision, which is considered the beginning of the development of a reduction plan.

Important! The decision must have mandatory grounds, which allow the reduction procedure to begin due to various factors. An employer cannot lay off workers unless there are sufficiently compelling reasons.

The whole procedure:

• the presence of factors and making a decision on staff reduction based on them;
• the creation of a special commission that develops a reduction plan, including the development of a new staffing table based on initial factors;
• issuing a reduction order and notifying all interested persons and organizations;
• carrying out staff reductions in accordance with the plan;
• transfer or dismissal of employees with full pay.

The new staffing table is formed during the creation of the plan, that is, all positions that may no longer be liquid are excluded. It is worth considering that the same positions that are being eliminated cannot be introduced in the new staffing table.

Important! Until the new type of schedule has been fully developed, employees cannot be fired. For this reason, a schedule is developed at a preliminary stage before notification of all organizations and individuals begins.

The new staffing schedule is developed by a commission that creates a reduction plan based on the received data on the need to optimize or increase efficiency. The commission must include the employer himself and the head of the personnel department. When creating a schedule, it is necessary to take into account all the characteristics of the employees who occupy positions. A number of positions cannot be excluded. These options include jobs for women on maternity leave and other vacationers, as well as those in preferential categories.

The staffing table is a fundamental document for labor processes. For this reason, it must be created taking into account all the rules and features.

Features of the new staffing table

The staffing table is drawn up on the basis of several documents and factors. List of influencing elements:

• old schedule;
• reduction plan;
• optimization and efficiency measures;
• actual reduction of a number of positions, that is, if a position has been reduced, it cannot be reintroduced;
• a list of non-redundant positions, depending on the presence of preferential categories of employees in them.

In fact, when drawing up a schedule of a new nature, several rules must be followed:

• the schedule includes all non-reduced positions and excludes low-performing positions that are determined during the development of the plan;
• New staffing positions are introduced only if there are grounds for this;
• Units for which there are no sufficient grounds for reduction cannot be excluded from the schedule.

Important! When notifying a trade union organization or any body, such as an elected employee, you will need to provide not only a reduction plan, but also a developed staffing schedule that will allow employees to work more efficiently. The union is already checking the validity of the reduction in staff and all units that were excluded from the new model.

For any non-compliance with rules or labor standards, the employer can be held accountable through the court or labor inspectorate. Both the laid-off employee and the trade union can file a lawsuit on the grounds of illegality and violation of labor rights. Only in court will the employer have to prove the legitimacy of the procedure and the validity of introducing the schedule. During layoffs, the manager is not required to provide his employees with a layoff plan.

If the employer’s guilt is proven, the reduced positions will be restored, even if there is a new staffing table. It is worth considering that in the event of an unjustified reduction, the new staffing table may be canceled completely. For this reason, when developing a plan, the commission must first take into account all the labor rights of employees.

Entering a schedule

The development of a new staffing table is carried out on the basis of the plan during the preliminary stage of reduction. Only after the schedule has been drawn up and certified, employees are notified of the layoff in accordance with the issued order.

The order includes all positions that are excluded from the new version of the staff list.

The date of introduction of the new schedule is indicated in the order, which regulates the period of reduction, that is, if employees are laid off completely on the 1st day, then the schedule is introduced during this period. It does not need to be entered before the due date, since there are still unreduced positions that are not included in the new document.

Introducing a new staffing schedule ahead of schedule is considered a violation. All available vacancies under the new option must be offered while waiting for the final reduction date. This applies to all positions, including part-time positions. The provision of a new workplace is carried out strictly based on the presence of a pre-emptive right, which is taken into account at the stage of developing the plan.

It is worth considering that the new staffing table is an official document, so after its creation it is certified by the signature of the manager and the seal of the organization.

The new staffing table is prepared in conjunction with the reduction plan. There are several rules that the employer must follow. The schedule must be created by a special commission that will take into account all the features of the positions and the employees who occupy them. The reduction procedure cannot begin until a new schedule has been created, since all available vacancies of the new type must be provided to employees by priority.

When dismissing an employee due to a reduction in headcount or staffing, it is important not only to correctly carry out the entire reduction procedure, but also to correctly calculate the payments due to dismissed employees, as well as to correctly calculate taxes. Albina Ostrovskaya, leading tax consultant at the TaxOptima consulting company, talks about how to do this.

Who can't be fired due to redundancy?

First, let's say a few words about how downsizing differs from downsizing. When staffing is reduced, the number of staff positions for a particular position is reduced. For example, instead of six accountants, four remain on the staff. And when staffing is reduced, the position(s) itself is excluded from the staffing table. For example, the position of legal adviser is abolished in an organization.

The reduction procedure requires special documentation. In addition, laid-off employees are entitled to certain guarantees and compensation. Violation of the procedure may result in legal action from dismissed employees. Often, former employees win cases precisely because the company did not comply with the legally established procedure for layoffs.

First of all, you need to know that for some categories of workers there is a ban on layoffs. Thus, it is impossible to lay off pregnant employees, women with children under the age of 3, single mothers raising children under the age of 14 (a disabled child under the age of 18) and other persons raising these children without a mother. It is also prohibited to lay off those workers who are the sole breadwinners in a family with a disabled child under 18 years of age, or the breadwinners of a child under 3 years of age in a family raising three or more young children, if the other parent does not work (Article 261 of the Labor Code RF).

Preemptive right

Now let’s look at the concept of “preemptive right to remain at work.” So, if a decision is made to reduce the accounting staff by 2 units, the employer needs to select from several accountants those who will have to be fired, and this choice must be justified. Article 179 of the Labor Code of the Russian Federation clearly states that when the number or staff of employees is reduced, the preferential right to remain at work is given to employees with higher labor productivity and qualifications.

The Labor Code of the Russian Federation does not answer the question of how higher labor productivity and qualifications are determined. However, there is a definition of qualification. An employee's qualifications are the level of knowledge, skills, professional skills and experience of an employee. Consequently, in deciding whether to remain at work, both the level of education of the employee will be important (an employee with a higher education will have an advantage over an employee with a secondary vocational education, with a higher rank over an employee with a lower rank), and specific work results (for example, achievement of certain indicators and results in work). Length of service in a particular position should also be important when selecting employees to be retained. In general, in practice, when deciding the issue of labor productivity of employees subject to dismissal due to reduction in headcount or staff, the employer, most often, proceeds mainly from the subjective opinion formed about a particular employee during the performance of his official duties.

If the level of qualifications and productivity of several employees subject to layoffs are the same, preference is given to the persons specified in Part 2 of Article 179 of the Labor Code of the Russian Federation. Such persons include, in particular, family workers with two or more dependents, workers in whose family there are no other persons with independent earnings.

Are there any vacancies? Offer!

If during a layoff there are vacant positions in the company, the employer is obliged to offer them to the “redundant” employee (Article 180 of the Labor Code of the Russian Federation). Moreover, the proposed position may be lower than the one the employee previously occupied, both in status and in salary.

For example, at the time of reduction of the position of a senior tax consultant in an audit company, there is a vacancy for a tax consultant. In this case, the employer must offer the retrenched senior consultant a consultant position. If the employee does not agree to these conditions, the company can lay him off (Part 3 of Article 81 of the Labor Code of the Russian Federation). The employee’s refusal must be recorded on paper so that the company has evidence that it has complied with the requirement to offer available vacancies to the dismissed employee.

And if a tax consultant is laid off, but the company has a vacant position as a senior tax consultant, can the laid-off employee apply for this vacancy? No, he can not. The fact is that the position of senior tax consultant has higher requirements and the consultant who is leaving will most likely not meet these requirements. As the Plenum of the Supreme Court of the Russian Federation noted, when deciding on the transfer of an employee to another job, it is also necessary to take into account the real ability of the employee to perform the work offered to him, taking into account his education, qualifications, and work experience (clause 29 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 ).

Please note: you should not limit yourself to offering only those vacancies that existed in the company at the time the decision to make redundancies was made. Vacancies in the company may appear constantly. Therefore, the employer is obliged to offer another available job during the entire period of reduction measures, including on the day of dismissal.

Step-by-step actions of the employer

Step 1. The head of the company issues an order to reduce the number or staff, which indicates the positions to be reduced and the number of staff units to be reduced. This document is published at least 2 months before the expected start of layoffs. If the proposed reduction is massive, then the reduction order must be issued at least 3 months before the reduction.

Step 2. At the same time, an order is prepared (according to the unified form No. T-3, approved by Resolution of the State Statistics Committee of the Russian Federation dated 01/05/04 No. 1) and an order is issued to approve the new staffing table.

Step 3. Employees who are subject to layoffs are warned of their upcoming dismissal. To do this, a notice of termination of the employment contract due to a reduction in staff or numbers is drawn up. It must indicate the date of familiarization, under which the employee signs. The employee must be familiarized with such notice at least 2 months before dismissal.

Step 4. Notifications are drawn up about the offer to the employee of another vacant position (if any). The employee must also sign the notification, and in case of refusal of the proposed vacancy, record his refusal in writing in this document.

Step 5. The employer notifies the employment service of the upcoming layoff. The notification form is contained in Decree of the Government of the Russian Federation dated 02/05/93 No. 99 (Appendix No. 2). The full names of the laid-off workers, their education, profession (or specialty), qualifications, as well as their average salary are indicated there. But regional employment centers can also approve their own forms for submitting information about laid-off workers. The employment service should be notified no later than 2 months before the start of the relevant activities (in case of mass layoffs - 3 months).

Step 6. An order is issued to terminate the employment contract with the employee in the unified form No. T-8 (approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1).

Step 7 Entries are made in the work book upon termination of the employment contract. The entry will look like this: “Dismissed due to a reduction in the number (staff) of the organization’s employees, paragraph 2 of part 1 of Article 81 of the Labor Code Russian Federation».

Step 8 All necessary amounts are paid to dismissed employees. Payment is made on the day of dismissal (Article 140 of the Labor Code of the Russian Federation).

Please note: this algorithm must be used by employers who do not have a trade union.

Entitled payments

The laid-off employee is entitled to wages for the days worked in the month of dismissal (including the advance payment, if it was paid for that month). Compensation for unused vacation, if any, is also paid. In addition, the company is obliged to pay the laid-off employee severance pay in the amount of average monthly earnings (Article 178 of the Labor Code of the Russian Federation). All these amounts are paid to the employee on the day the employment contract ends.

Also, the laid-off employee retains his average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay). An employee can receive this payment after he writes a corresponding application to the organization and presents a work record book confirming that he did not work anywhere at that time.

In exceptional cases, the average monthly salary is retained by the dismissed employee during the third month from the date of dismissal by decision of the employment service body, if within two weeks after the dismissal the employee applied to this body and was not employed by it. To pay for the third month, an individual must submit a document from the employment service to the company.

Please note: the amount of severance pay may be higher than the average monthly salary if this is provided for in the labor or collective agreement.

Early layoff

As noted earlier, the employer is obliged to warn the employee about the upcoming layoff at least two months before dismissal. However, he can dismiss an employee earlier, but subject to the payment of additional compensation (Part 3 of Article 180 of the Labor Code of the Russian Federation) and the consent of the employee. The amount of compensation is determined based on average earnings, calculated in proportion to the time remaining before the expiration of the notice period for dismissal. And the employee must give his consent in writing. Usually in this case the employee writes a statement.

Taxation of severance pay

Severance pay, as well as average monthly earnings for the months following the reduction, should not be taxed, since these amounts are classified as income exempt from taxation (clause 3 of Article 217 of the Tax Code of the Russian Federation). However, only an amount up to three times the average monthly salary is eligible for benefits. Anything that exceeds this amount is subject to personal income tax.

But insurance premiums do not need to be charged on these payments, regardless of the amount of payments (subclause 2, clause 1, article 9 of the Federal Law of July 24, 2009 No. 212-FZ).
As for profit taxation, accruals to employees released due to layoffs are classified as labor costs (clause 9 of Article 255 of the Tax Code of the Russian Federation). At the same time, increased amounts of payments are also included in expenses if they are provided for in an employment or collective agreement (letter from the Ministry of Finance of Russia

This article will tell you how to properly fire an employee when reducing numbers or staff.

Procedure	Explanations of the procedure and documentation
STEP 1
Issue an order to create a commission to reduce the number or staff, signed by the director of the organization. The commission makes a decision and draws up a protocol on the reduction of specific employees	1. This stage is not mandatory, but desirable. The decision to cut specific positions can be made by the director of the company. However, judicial practice shows that it is advisable to make such decisions collectively with the involvement of the company’s public. 2. When making decisions to dismiss specific employees, it should be taken into account that pregnant women and women with children under the age of three cannot be dismissed under this article; single mothers raising a child under fourteen years of age (a disabled child under eighteen years of age); other persons raising such children without a mother (Part 4 of Article 261 of the Labor Code of the Russian Federation). 3. Employees with higher labor productivity and qualifications have a priority right to remain at work (Part 1 of Article 179 of the Labor Code of the Russian Federation), that is, they are assessed first professionalism of employees and their usefulness to the company. Here you should take into account the level of education, work experience, results of the next certification, fulfillment of the planned indicators established for this position, the presence of incentives from the employer, knowledge of the specifics of the work, the employee’s improvement of qualifications for the position held, etc. At the same time, a comparative analysis of employee qualifications should be carried out not only within the same job titles, but also for positions with different titles, but with similar functional responsibilities. Evidence of higher performance is : performing a greater amount of work compared to other employees occupying similar positions or performing the same work; receiving bonuses for high performance; higher labor participation rate, absence of marriage, etc. Compliance with the right to preferential retention at work must be documented. In practice, a comparison table is usually compiled for this purpose. Note! In accordance with current legislation, other categories of citizens (spouses of military personnel, employees from among orphans and children left without parental care, etc.) have a preferential right to remain at work in the event of a reduction in the number or staff. 4. With equal labor productivity and qualifications, the following categories of employees have a preferential right to remain at work (Part 2 of Article 179 of the Labor Code of the Russian Federation): - employees who have two or more dependents (disabled family members who are fully supported by the employee or who receive assistance from him, which is their permanent and main source of livelihood); - persons in whose family there are no other workers with independent earnings (child benefits, old-age or survivors' pensions, scholarships, unemployment benefits, etc. are not considered income). We are talking specifically about wages); - employees who received a work injury or occupational disease in this organization; - disabled people of the Great Patriotic War and disabled people fighting in defense of the Fatherland; - employees who improve their skills at the direction of the employer without interrupting work. The collective agreement may provide for other categories of workers who enjoy a preferential right to remain at work with equal labor productivity and qualifications.
STEP 2
Issue an order to reduce staff and create a list of reduced positions and employees, taking into account the preferential right to remain at work.	1. An order to reduce staff (carrying out organizational and staffing measures) must be issued two months before the expected dismissal of an employee, but the order itself is put into effect simultaneously with the order to dismiss the employee. 2. In cases where changes in the staffing table are quite extensive, it makes sense to create a new staffing table (which will come into force in two months, and in which there will be no positions for the employees being laid off). The new staffing table is introduced by order of the employer no earlier than the day from which the positions being reduced cease to exist, i.e. the day of the employee's dismissal. If the changes are isolated in nature, then issuing an order to amend the current staffing table will be sufficient. 3. You should not use dismissal due to staff reduction to “fictitiously” reduce a position, that is, shortly after the reduction of a position, introduce a new staffing table in which the reduced position (sometimes with a different name) is actually present or the number of employees and payroll increases. Often laid-off employees are offered a job in the same organization, but under a civil contract. When an employee goes to court to protect his rights, in this case the decision will most likely be made in favor of the employee. The introduction of another position with a different name, preserving the same functions, as well as the introduction and removal of positions from the staffing table, which ultimately did not lead to a reduction in staffing units as a whole, is not a reduction.
STEP 3
Notify the employee of the upcoming dismissal due to staff or headcount reduction.	1. Employees subject to layoffs should be notified no later than two months before the upcoming dismissal (Part 2 of Article 180 of the Labor Code of the Russian Federation). 2. The employee must be notified in writing against signature, indicating the date of receipt of the notification. It is also advisable to provide each employee being dismissed with a personal “notice” of the upcoming dismissal. If the decision is made by the commission, the employee can also be provided with the minutes of the commission meeting or an extract from it for review. One copy of the notice should be kept for yourself, and the second copy should be given to the employee. 3. If an employee refuses to sign a notice or any other documents related to the reduction of his position, then such a notice can be sent to his home address by registered mail, with a list of attachments, and drawn up act of refusal of the employee to familiarize himself with the notice, which is certified by the signature of the originator and two other employees present at the refusal. 4. With the written consent of the employee and if the employer is interested, the employment contract can be terminated before the expiration of a two-month period, with the payment of additional compensation in the amount of the employee’s average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal (Part 3 of Art. 180 Labor Code of the Russian Federation). On the issue concerning the application of Article 180 of the Labor Code of the Russian Federation, see Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the 1st quarter of 2007.
STEP 4
Offer the employee to take another vacant position.	1. Upon delivery of the notification, as well as when new vacancies appear within 2 months from the date of delivery of the notification to the employee, the employer is obliged to offer the employee all available vacancies in the organization (in the given area, unless otherwise provided by the labor or collective agreement). Vacant positions should be offered both corresponding employee qualifications and lower paid positions which an employee can perform taking into account his state of health (Part 3 of Article 81 of the Labor Code of the Russian Federation). When compiling a list of vacancies offered, you should remember that an employee may have several different professions, therefore, when compiling a list of vacancies offered to an employee, you should take into account all of his professional skills. 2. In case of disagreement to continue working under the proposed conditions, the employee must write on the notices indicating the list of vacancies about his refusal of the offered positions (“I refuse the offered vacancies”, sign and date). If the employer cannot offer the employee another vacancy due to their absence, then it is recommended to draw up a document about this (for example, a notice) and bring it to the attention of the employee against signature. The staffing table and staffing arrangement in the organization should also indicate the absence of vacancies. The court, as a rule, always requires these documents as evidence of the legality of the actions of the employer (defendant). 3. In the event of termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality, termination of employment contracts with employees of this unit is carried out according to the rules provided for cases of liquidation of an organization (Part 4 of Article 81 of the Labor Code of the Russian Federation).
STEP 5
Notify the elected body of the primary trade union organization (if there is one) about the upcoming reduction - Art. 82 Labor Code of the Russian Federation. Taking into account the motivated opinion of the elected body of the primary trade union organization when dismissing workers who are members of the trade union (Article 373 of the Labor Code of the Russian Federation). If there are minors, the employer is obliged to: obtain the consent of the State Labor Inspectorate and the Commission for the Affairs of Minors and the Protection of Their Rights to dismiss minor employees (Article 269 of the Labor Code of the Russian Federation). Written notification to the employment service authorities about the upcoming release of workers (Part 2 of Article 25 of the Law of the Russian Federation “On Employment in the Russian Federation”, as amended on July 27, 2010).	1. The employer notifies the trade union about reduction of numbers or staff in writing no later than 2 months before the start of the event, in case of mass reduction - no later than 3 months. The criteria for mass dismissal are determined in sectoral and (or) territorial agreements. 2. The law requires “informing”, but not “obtaining consent” from the trade union body, therefore, if the trade union body raises its objections to candidates for dismissal intended by the employer, the parties conduct additional consultations, the results of which are documented in a protocol. Ultimately, the employer has the discretion to make the decision. The employer has the right to terminate the employment contract no later than one month from the date of receipt of the reasoned opinion of the elected body of the primary trade union organization (Part 5 of Article 373 of the Labor Code of the Russian Federation). In addition to the general procedure, the dismissal of leaders (their deputies) of elected collegial bodies of primary trade union organizations (not exempt from their main work) is allowed only with the prior consent of the corresponding higher elected trade union body (Article 374 of the Labor Code of the Russian Federation). If there is no such body, then the dismissal of these employees is carried out in accordance with Art. 373 of the Labor Code of the Russian Federation (motivated opinion). 4. When making a decision to reduce the number or staff of an organization’s employees and the possible termination of employment contracts with employees, the employer is obliged to notify the employment service authorities in writing about this no later than two months before the start of the relevant activities ( individual entrepreneur no later than two weeks) and indicate the position, profession, specialty and qualification requirements for them, the terms of payment for each specific employee, and if the decision to reduce the number or staff of the organization’s employees may lead to mass layoffs of workers - no later than three months before the start of the relevant events. Note! When introducing a part-time working day (shift) and (or) part-time working week (Article 74 of the Labor Code of the Russian Federation), as well as when production is suspended, the employer is obliged to notify the authorities in writing about this employment service within three working days after a decision has been made to carry out appropriate activities.
STEP 6
Complete the transfer of employees who have expressed their consent to take other positions.	The procedure for registering the transfer of an employee to another position is carried out according to the standard procedure. In this case, the employee must write on the notice his consent to move to one of the proposed positions (indicating the specific position) and put the date. Next, changes are made to the employment contract by drawing up an additional agreement to the employment contract, after which the employer issues an order to transfer the employee to another position.
STEP 7
Formalize the dismissal of employees who did not agree to take other positions offered.	1. Before the expiration of the two-month notice period, it is necessary to issue an order to dismiss the employee in the prescribed form, in which he must sign. Next, you need to make an entry in the work book. On the last day of work, it must be given to the dismissed person. Upon his written application, other documents related to the work must also be issued. And make the final payment. The fact of issuing a work book must be registered in the work book register with the obligatory affixing of the date of issue and the employee’s personal signature. 2. If it is impossible to issue a work book due to the absence of the employee or his refusal to receive it, it is necessary to send the employee by mail a notice of the need to appear for the work book or agree to send it by mail. From the date of sending the notification, the employer is released from liability for the delay in issuing the work book (Part 6, Article 84.1 of the Labor Code of the Russian Federation). 3. Dismissal of an employee at the initiative of the employer during the period of his temporary incapacity for work and while on vacation is not allowed (Part 6 of Article 81 of the Labor Code of the Russian Federation). It should be taken into account that the law deals with the temporary incapacity of the employee himself, sick leave for child care in this case cannot serve as a basis for deferring dismissal. If the employee is sick or on vacation on the day of dismissal, dismissal is postponed until the day he returns from vacation or recovers. If the employee is absent from the workplace for other reasons (including the illness of his child), then dismissal is made according to the usual rules, and the employee must also be sent a telegram or registered letter with an offer to pick up his work book and receive a payment.
STEP 8
Pay dismissed employees severance pay and compensation	In the final payment, in addition to wages payments for the last month of work must also include the amounts provided for in Parts 1 and 2 of Art. 178 Labor Code of the Russian Federation. If an employee does not find a job within 2 months and confirms this fact to the employer, then he must be paid additional compensation. An employee dismissed under paragraph 2 of Article 81 of the Labor Code of the Russian Federation retains his average monthly earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay). The employee will receive an average monthly salary only if he is unable to get a new job. To confirm this fact, the former employee must present a work record book. If an employee entered into an employment contract during the second month, then he should be paid the average salary only for those days of the second month until he was employed. If the employee is not employed in the third month from the date of dismissal, the company pays an additional average monthly salary for this month according to the decision of the employment service, however, provided that the employee applied there within two weeks after dismissal. An employee dismissed from an organization located in the regions of the Far North and equivalent areas is retained the average monthly salary for the period of employment, but not more than three months from the date of dismissal (including severance pay). In exceptional cases, the average monthly salary is retained by the specified employee during the fourth, fifth and sixth months from the date of dismissal by decision of the employment service, provided that within a month after dismissal the employee applied to this body and was not employed by it (Article 318 of the Labor Code of the Russian Federation ).

1. It is necessary to distinguish between the concepts of “downsizing” and “staff reduction”.

Thus, staff reduction is a reduction in the number of employees in certain positions, and staff reduction is the exclusion of individual staff units from the staffing table.

An analysis of judicial practice shows that in a number of cases neither employers nor the courts distinguished between these concepts.

If a reduction in the number of employees has actually been made, and it is written in the order and in the work book that the dismissal was made in connection with a reduction in the number, the employee has the right to ask to change the wording of the reason for the dismissal, including by going to court on the basis of Part 5 of Art. 394 Labor Code of the Russian Federation.

2. Justification for reduction

As a general rule, the employer independently determines the structure and staff of the organization and has the right to make changes to the staffing table, including reducing positions.

When resolving disputes about dismissal under clause 2 of Art. 81 of the Labor Code of the Russian Federation, the court does not have the right to enter into a discussion of the validity of the decision to reduce the number or staff.

Employer must prove the fact of staff reduction, and not the validity of the management decision. The court, in turn, checks whether the staff reduction actually took place, but it does not have the right to delve into the reasons for such a reduction.

The Dudinsky City Court of the Krasnoyarsk Territory satisfied K.’s claims on the following grounds. As established by the court, the plaintiff was dismissed under paragraph 2 of Art. 81 of the Labor Code of the Russian Federation (staff reduction). However, after conducting a comparative analysis of staffing tables (before and after the reorganization), the court came to the conclusion that the facts of reduction in numbers, staff, as well as the position occupied by the plaintiff itself, were not proven. This is due to the fact that the number of inspectors after the reorganization remained unchanged and amounted to 115 units, and it was not possible to conduct a comparative analysis of job descriptions due to their loss. In addition, the plaintiff was not offered all vacant positions, including lower ones, which he could occupy taking into account his education and qualifications. In this regard, the defendant’s reference to the plaintiff’s refusal of employment was found to be unfounded. Moreover, the court found that while the plaintiff was on staff, other people were hired for vacant positions, while the administration did not take into account the circumstances that gave K. a preferential right to remain at work.

Based on the foregoing, the court declared the plaintiff’s dismissal illegal and decided to reinstate the employee in his previously held position (Review of judicial practice in labor disputes involving territorial tax authorities for the first half of 2002. Letter of the Personnel Policy Department of the Ministry of Taxes of Russia dated March 19, 2003 No. 15- 5-11/41-I577).

An example from the judicial practice of the Amur Regional Court

F. appealed his dismissal from the position of legal adviser at the Dorozhnik municipal unitary enterprise. Without denying that a reduction in staff at the enterprise actually took place, the plaintiff challenged the validity of the reduction of the lawyer’s position, pointing out that the defendant remained in need of a lawyer’s services. The Svobodnensky City Court of the Amur Region rejected F.’s claim. The Judicial Collegium for Civil Cases of the Amur Regional Court upheld the decision of the trial court without change, indicating that the court has no right to interfere in economic activities of the enterprise and resolve issues of the feasibility and necessity of regular activities carried out by the employer. The validity of adjusting the staffing table is not a circumstance to be established when resolving a labor dispute.

3. The procedure for exercising the preferential right to remain at work

3.1. The preferential right to remain at work should only apply to employees in the position that is being reduced.

T. filed a claim against the Central Bank of the Russian Federation represented by the branch of the RCC in Kotlas of the Main Directorate of the Central Bank of the Russian Federation for the Arkhangelsk Region for reinstatement at work. She motivated her demands by the fact that the defendant, when reducing the number or staff, did not take into account her priority right to remain at work over other employees, in particular over V. As established by the court, T. worked as an accountant of the first category in the accounting and operational department of the RKTsg branch. Kotlas of the Central Bank of the Russian Federation for the Arkhangelsk region. At the RCC, the staffing level was reduced by two units of accountants of the first category of the accounting and operational department, while retaining the employees of the interbank and electronic settlements sector that are part of the structure of this department.

The plaintiff was notified of her upcoming dismissal two months in advance. As part of her employment, she was offered the position of an accountant of the second category in the department of automated information processing in the Arkhangelsk RCC, which she refused. By order of the employer, the plaintiff was dismissed under paragraph 2 of Art. 81 Labor Code of the Russian Federation.

By the decision of the city court, left unchanged by the judicial panel for civil cases of the Arkhangelsk Regional Court, T.’s claim was denied. The regional board correctly indicated that in the RCC of Kotlas, two units of accountants of the first category of the accounting and operational department were reduced (activity code 0700). The position of accountant of the first category in the sector of electronic and interbank settlements (activity code 0600), which was occupied by V., was not reduced.

3.2. An assessment of higher labor productivity and employee qualifications, and a decision on the preferential right to remain at work in the event of a reduction in the number or staff of the organization's employees is made by the employer.

An example from the judicial practice of the Belgorod Regional Court

The plaintiff filed a lawsuit against MP Santekhservice LLC for reinstatement at work, recovery of wages for the period of forced absence, compensation for moral damage, citing the fact that when dismissing the employer, her priority right to remain at work was not taken into account. She considers the dismissal illegal, since the management of the Santekhservice MP has a negative attitude towards her. The staff reduction was carried out with the aim of dismissing her. However, the dismissal did not take into account that she worked for many years at REU, then at MP Santekhservice LLC as a maintenance foreman and has a preferential right to remain at work.

The decision of the court of first instance rejected the claims.

In overturning the court's decision, the judicial panel for civil cases indicated the following. It is not clear from the case materials that when and by whom was the issue of pre-emptive right to leave on work in relation to D., who was given preference and on what grounds. D.’s arguments that the reduction at the enterprise concerned only the plaintiff were left without attention or verification.

As follows from the order to reduce staff, the company is reducing the number of 1 unit of maintenance technician. By the same order, only foreman D. was warned about the upcoming dismissal, despite the presence at the enterprise of two more positions of maintenance foreman (Information bulletin of the Belgorod regional court, 2005, No. 9).

4. Compliance with notice periods for dismissal

4.1. In accordance with Part 2 of Art. 180 of the Labor Code of the Russian Federation about upcoming dismissal due to a reduction in the number or staff of the organization, employees are warned personally and against signature at least 2 months before dismissal.

The maximum period for warning an employee about an upcoming dismissal has not been established.

4.2. The warning does not lose force even after a two-month period, since a longer period in this case does not infringe on the rights of the employee.

An example from the judicial practice of the Chelyabinsk Regional Court

Thus, by decision of the city court, P. was reinstated in her job as production manager at a vocational school. Resolving the dispute on the merits, the court of first instance found that the position of production manager occupied by the plaintiff had been excluded from the staffing table since September 1, 2006; On July 3, 2007, she was warned in writing about her dismissal effective September 4, 2007 due to a reduction in staff; She refused the proposed vacant positions and, by order of October 16, 2007, was dismissed from her job under clause 2 of Art. 81 Labor Code of the Russian Federation.

In overturning the decision of the court of first instance and making a new decision to refuse to satisfy the claim, the judicial panel referred to the incorrect application by the court of first instance of the norms of substantive law.

The court's conclusion about the illegality of dismissal due to the fact that the employee is subject to mandatory dismissal after a two-month period from the date of warning, and if the employee is dismissed after the expiration of a two-month period, the warning loses force, is based on an erroneous interpretation of Part 2 of Art. 180 Labor Code of the Russian Federation.

The circumstances of P.'s late warning about the reduction of his position do not indicate the illegality of the dismissal. P.’s dismissal was carried out if there were grounds and in compliance with the established procedure, and therefore there were no grounds for satisfying the claim ( cassation ruling of the Chelyabinsk Regional Court No. 33-77/2008).

4.3. The law does not prohibit an employer from warning an employee about upcoming dismissal due to a reduction in numbers or staff during the period of his temporary disability or while on vacation. If the notice period for dismissal expires during this time, the employee may be dismissed on the day following the last day of his illness or vacation.

4.4. If the employer fired the employee under clause 2 of Art. 81 of the Labor Code of the Russian Federation, without warning him two months in advance and without receiving written consent to such dismissal, in most cases, such a violation of the dismissal procedure (in the absence of other violations) does not entail the employee’s reinstatement at work. The previously in force Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. 16 (clause 23) provided that “if the employee’s notice of dismissal is not met, if he is not subject to reinstatement on other grounds, the court changes the date of his dismissal in such a way that the employment contract (contract) was terminated upon expiration of the specified notice period. The period for which the employment agreement (contract) is extended due to the postponement of the dismissal date is subject to payment based on his average earnings.” However Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by courts Russian Federation Labor Code of the Russian Federation" Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 22, 1992 No. 16 was cancelled. At the same time, the above approach when resolving issues of an employer’s failure to comply with an employee’s notice period has been used in court practice to this day.

An example from the judicial practice of the Arkhangelsk Regional Court

Thus, Shch. was fired by Bely Medved CJSC without warning of her upcoming dismissal due to staff reduction. At the time of resolution of the dispute, a two-month period had expired from the date of dismissal, therefore the Isakogorsky District Court correctly changed the date of dismissal of the plaintiff and recovered in her favor the average earnings for the period from the date of dismissal to the changed date of dismissal.

5. Offering vacant positions to employees

Dismissal under clause 2 tbsp. 81 Labor Code of the Russian Federation is allowed only if it is impossible to transfer the employee with his consent to another job.

5.1. The employer is obliged to offer the employee all available vacancies in the area

An example from the judicial practice of the Supreme Court of the Russian Federation

The employee filed a claim against the Joint-Stock Commercial Savings Bank of Russia for reinstatement at work, recovery of wages for the period of forced absence, and compensation for moral damage. In support of his demands, he indicated that he was dismissed from the position of senior engineer of one of the divisions of the Central Office of Sberbank of Russia under clause 2 of Art. 81 of the Labor Code of the Russian Federation due to a reduction in the organization’s staff. The plaintiff considered the employer’s actions illegal, since labor laws were violated during the dismissal, including that he was not offered all the vacancies available in the organization.

Refusing to satisfy the stated demands, the court of first instance came to the conclusion that the employee was dismissed in accordance with the requirements of the law: the dismissal procedure was not violated, there were no vacant positions in the Central Office of Sberbank of Russia that corresponded to the plaintiff’s qualifications. The defendant provided the court with information about vacancies in the branches (branches) of Sberbank of Russia in Moscow at the time of staff reduction and at the time of the plaintiff’s dismissal. However, the court of first instance limited itself to examining the circumstances related to the plaintiff’s employment opportunity only in the Central Office of Sberbank of Russia, thereby making an error, which was subsequently corrected by the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation.

By virtue of Art. 20 of the Labor Code of the Russian Federation, the parties to labor relations are the employee and the employer. Employer is an individual or legal entity (organization) that has entered into an employment relationship with an employee. Thus, the party to the employment contract with the plaintiff (respectively, the legal entity and the employer) is the Savings Bank of Russia, which by force of law is entrusted with the obligation to provide vacant positions during the procedure for dismissal of employees due to staff reduction in the same organization, including all its branches and structural units available in the area.

Under this area means the area, located within the boundaries of a populated area according to the existing administrative-territorial division. In the situation under consideration, the employer was obliged to offer the employee all the vacancies available to him in the city of Moscow.

Taking into account the above, the judicial panel established the fact of the plaintiff’s unlawful dismissal and issued a ruling on the plaintiff’s reinstatement to his previous position (Decision of the Supreme Court of the Russian Federation dated November 3, 2006 No. 5-B06-94).

5.2. The requirements for the vacant position are established in Part 3 of Art. 81 Labor Code of the Russian Federation

The Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 (clause 29) explains: “dismissal is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer that meets his qualifications, as well as to a vacant lower-ranking or lower-paid job that the employee can perform taking into account education, qualifications, work experience and health status.”

Thus, the employer is not obliged to offer the employee a job that requires a different education or higher qualifications.

An example from the practice of the Ulyanovsk Regional Court

By the decision of the Sursky District Court, S. was dismissed from the position of lawyer of Sursky Commercial Bank CJSC under clause 2 of Art. 81 of the Labor Code of the Russian Federation, the claim for reinstatement at work was denied. The court proceeded from the fact that when S. was dismissed, labor legislation was not violated. The plaintiff was offered vacancies at the bank. The arguments that he was not offered a vacant position as an accountant were not taken into account by the court due to the fact that, in accordance with Art. 180 of the Labor Code of the Russian Federation, when carrying out measures to reduce the number or staff of an organization’s employees, the employer is obliged to offer the employee another available job (vacant position) in the same organization that corresponds to his qualifications . S. did not have the necessary education and qualifications of an accountant, and therefore, in accordance with the law, the administration was not obliged to offer him this position. Judicial bulletin. 2005. No. 1 (21).

5.3. The employer’s obligation to satisfy the employee’s possible demands for the employer to provide training for the employee in another profession, advanced training, professional retraining, if there are vacancies for which he could be employed only after completing training, has not been established.

5.4. If the employer did not offer the employee a vacant position for which the dismissed employee did not want, does not want and cannot, for example, due to the distance from the place of residence, the location of this job in another region, etc., then the violation committed by the defendant cannot serve grounds for reinstating the plaintiff to his previous job, since it did not entail a real violation of his labor rights.

Examples from judicial practice

1. Thus, when considering the case in Ch.’s claim against the Federal State Unitary Enterprise, the court found that the enterprise had a vacant position of an accountant of the 7th category, which the plaintiff, due to her qualifications, could perform, and which was not offered to her. At the court hearing, Ch. confirmed her desire to continue her employment relationship with the organization, working in the specified position. The Judicial Collegium for Civil Cases, agreeing with the decision of the Kotlas City Court, which satisfied the plaintiff’s demands, indicated the following. When defining the parties to labor relations (Article 20 of the Labor Code of the Russian Federation) and giving the concept of an employment contract (Article 56 of the Labor Code of the Russian Federation), the legislator proceeded from the fact that the employer is understood as a legal entity on whose behalf an employment contract was concluded with an employee. From the case it can be seen that in relation to the plaintiff, the Federal State Unitary Enterprise “Northern Railway” is such, therefore she should have been offered all the vacant positions available during the period of her release in this organization (in the system of the legal entity as a whole) that corresponded to her qualifications, and for which she agreed to go to work. The defendant failed to comply with this legal requirement.

2. In another example, the court found that during the procedures related to the dismissal of the plaintiff, who worked as the deputy general director of an OJSC, the organization had vacant positions as an operator (temporary job), a loader and a driver. The court regarded the fact that these positions were not offered to the plaintiff as part of employment as a violation of the dismissal procedure and reinstated Z. at work. Meanwhile, this violation could be the basis for satisfying the claim only if it entailed a violation of the employee’s rights. These circumstances turned out to be outside the judicial investigation; the court did not find out from the plaintiff his intentions to continue working in positions that were not offered to him. In the same time, there is evidence in the case that the plaintiff was offered positions as a mechanic, electrician, office worker, manager. At the court hearing the plaintiff confirmed his refusal from these positions, citing the fact that they are unequal to the position he previously held, stating that for the same reason he would refuse the position of chief engineer if it were offered to him. These circumstances clearly indicated that the violation committed by the employer did not affect the rights of the plaintiff.

5.5. The position for which the employee is on maternity leave is vacant and must be offered to released employees in the order of employment.

An example from the judicial practice of the Krasnoyarsk Regional Court

The plaintiff filed a claim against the employer for reinstatement at work, recovery of wages for the period of forced absence, and compensation for moral damage. In support of her claims, she indicated that she was dismissed from her position as an advertising manager under clause 2 of Art. 81 of the Labor Code of the Russian Federation due to a reduction in the number of employees of the organization. The plaintiff considered the employer’s actions illegal, since labor laws were violated during the dismissal, including that she was not offered all the vacancies available in the organization. As the representative of the defendant explained, the vacancies were not offered due to their absence. However, the plaintiff presented evidence to the court that at the time of dismissal, the organization had one position for which the employee was on maternity leave.

The employer did not deny the existence of the position, but argued that this position was not vacant, since an employment contract was concluded with the employee on maternity leave, under which the employer agreed to provide her with the work stipulated by the contract. Accordingly, if the employee decided to return from vacation, her position would be occupied, which is a violation of the current legislation and the employment contract with the employee.

Satisfying the stated requirements, the court came to the following conclusions. The employer's arguments that the position for which the employee was on maternity leave is not vacant do not comply with the current labor legislation of the Russian Federation. Maternity leave is provided in accordance with Art. 255 Labor Code of the Russian Federation. At the end of maternity leave, the employee returns to work, to her position. During the period the employee is on maternity leave, the employer has the right to enter into a fixed-term employment contract with another employee for her position (in accordance with Article 59 of the Labor Code of the Russian Federation).

Thus, the position for which the employee was on maternity leave should be recognized as vacant. Consequently, the employer was obliged to offer the plaintiff this position, and she had the right to agree to temporary work or refuse.

As a result, the court decided to reinstate the plaintiff to her previous job in connection with the establishment of the fact of illegal dismissal.

It should be noted that if there is a position for which the employee is on maternity leave, such a position is recognized as vacant.

The regulatory document reflecting the structure of the organization, its staffing and number, in accordance with its charter, is the staffing table. Changes in the staffing table can only be made on the basis of an order to amend the staffing table.

Order to amend the staffing table

The decision to make changes to the staffing table is made by the employer (the head of the organization or individual entrepreneur). This decision must be confirmed by an order to amend the staffing table. The legislation does not provide for a unified form of this order. Consequently, the employer has the right to develop it independently. The signing of an order to change the staffing table is carried out by the head or other authorized person of the organization.

Changes may concern the following provisions of the staffing table:

• exclusion of a vacant position or several positions, divisions in connection with any organizational changes in the work of the employer;
• introduction of new positions if a decision is made to expand production or increase the volume of services provided or work performed;
• reduction of employer staff;
• changes in employee salaries;
• renaming departments and positions.

The employer may also decide on other grounds for changing the staffing table.

Please note that the employer has the obligation to provide monthly information about the availability of vacant positions (clause 3 of Article 25 of the Law of the Russian Federation of April 19, 1991 N 1032-1). Such information is provided to the employment service authorities.

The table below contains information about possible reasons for making changes, as well as the main stages that an employer must go through when deciding to make changes to the staffing table.

How to remove a position from the staffing table

What ways are there to make changes?

Changes to the staffing table are made not only when the employer needs to introduce new professions. It also changes if it is necessary to remove a staff unit from the schedule.

You can do this:

by order;

approval of the new ShR.

Let's look at the order in which a position is assigned.

Exclusion of a specialty from the ShR

If the place is vacant

If necessary, the employer has the right to exclude a specialty or department from the work schedule. For this purpose, an order is issued to exclude positions from the staffing table. There is one nuance here: if the position that is planned to be removed from the document is vacant, then it is not necessary to issue a notice of reduction in headcount or staff.

Due to the reduction

In this case, it is possible to approve a new SR without including the specialties subject to reduction, as well as issue an order to exclude positions subject to reduction from the SR and approve a new document after the date of the upcoming changes. Employees who are subject to staff reductions should be notified of what is happening using a written document signed two months in advance. There is an indication of this in Part 2 of Art. 180 Labor Code of the Russian Federation. According to this rule, the date of entry into force of changes to the work schedule cannot occur earlier than two months after the issuance of the order.

An order to exclude a position from the SR can be drawn up by the employer in any form. There is no need to indicate the rate or salary.

The order should indicate:

information about the event;

date of introduction of planned innovations,

the name of the department, profession and full name of the citizens who will be affected by the reduction;

rights and guarantees of laid-off workers

After issuing the order, the employer must familiarize the laid-off employees with it.

Storing orders

The SR, as well as orders regarding the removal of a position, should be kept at the enterprise permanently. And all proposals regarding its development and changes must be stored in the archives of the enterprise for at least five years. The same storage time is set for staffing projects.

Reduction of positions: creating a new staffing table

Downsizing is too serious a procedure to improvise

Retrenchment of an enterprise's employees is a strictly regulated procedure (Articles 179, 180 of the Labor Code of the Russian Federation). If it is not carried out properly, the court may reinstate the dismissed workers, declaring the reduction invalid. The result of employee reinstatement in the workplace is payment for forced absence in the amount of average earnings (Article 394 of the Labor Code of the Russian Federation).

Downsizing in an organization involves several stages. None of them can be skipped, otherwise the reduction will not take place (for more information on this, see “Staff reduction procedure (step-by-step instructions 2017)”). Please note that the procedure for laying off staff by an individual entrepreneur has its own nuances (for more details, see “The procedure for laying off staff for an individual entrepreneur does not require you to pay severance pay”).

The reduction order must be prepared along with the new staffing table

The new staffing table can be put into effect the next day after the day of dismissal of laid-off employees. This is explained by the fact that occupied positions cannot be removed from the staffing table. Let us remind you that the day of dismissal is the last working day. This means that a new version of the staffing table can be put into effect only the next day after the employee vacates the position.

It may be necessary to release several editions of the “staff”

In practice, it rarely happens that employee reductions take place in one day. Some are on sick leave, others are on pre-planned vacation. Such employees cannot be fired during their absence. The fact that the day of the layoff was announced in advance does not change matters.

An employee dismissed under such circumstances will be reinstated by the court, and the organization will be forced to pay him for his forced absence (Article 394 of the Labor Code of the Russian Federation, appeal ruling of the Bryansk Regional Court dated October 3, 2013 No. 33-3203/2013). In addition, the employee can file a claim for compensation for moral damages.

Therefore, multiple revisions may be required to keep up with staffing changes associated with position reductions.

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Order to change the staffing table

The staffing table (SHR or in common parlance - “shtatka”) contains a list of structural units, the names of positions, specialties, professions indicating qualifications, as well as information on the number of positions (Decree of the State Statistics Committee dated January 5, 2004 No. 1). The same resolution also approved the unified form No. T-3, which is installed in all personnel accounting software products and, as a rule, is used by organizations and entrepreneurs.

Form T-3 for staffing

Please note that it is not mandatory for non-governmental organizations. The Federal Service for Labor and Employment (Rostrud) has repeatedly indicated in its letters that they have the right to use forms of primary accounting documents developed independently.

Approval of staffing

It is approved by an order of the employer, which is signed by the head of the organization or another person authorized by him.

Making changes to the staffing table

The law does not establish the number of such documents, nor specific deadlines or periods for correction. As a rule, in such cases an order is issued to approve the ShR. If the innovations are not large-scale, you can get by with an order to make changes. It approves innovations, and they can be indicated in the text of the document or issued as an appendix. The document is signed by the head of the organization or a person authorized by him. There is no unified form; the employer has the right to develop it independently. The main principle is to record all the adjustments made. You can use our example of an order to change the staffing table.

Amendments are made in the following cases:

• when introducing a new position or a new structural unit;
• when their name changes;
• when the salary or tariff rate changes;
• when eliminating vacant positions and departments;
• when reducing staff or numbers.

Introduction of new staff units

When it is necessary to hire a specialist whose position is not provided for in the staff, or to add an entire unit to the organization, an order is issued to introduce new units. It must contain information about the name of the structural unit, position name, number of rates, salary or tariff rate.

Changing the title of a position or department

Renaming, as a rule, does not entail a correction in the labor function of an employee (or an entire department). If the labor function changes, then renaming cannot be carried out. It is required to formalize the transfer of an employee (or several employees) to a new position. Changing the name will entail making adjustments and additions to the employment contract, the work book and the employee’s personal card. Thus, such innovations not only require notification, but also consent from employees. In case of refusal, the employer should be guided by Art. 74 of the Labor Code of the Russian Federation, without missing the mandatory notification to the employee two months before the adjustments. You can use this sample order to change the staffing table.

Adjustment of salaries or tariff rates

This is a change in the terms of remuneration agreed in the employment contract. Therefore, it requires mandatory agreement with the employee even if the salary increases. In case of refusal of the employee, the employer should be guided by Art. 74 Labor Code of the Russian Federation.

Listing of vacant positions and departments

This procedure does not require agreement with employees. These positions are not filled and therefore can be eliminated at the discretion of the employer.

Important point! If staff reduction is planned, then it is better to remove vacant positions from the ShR before the start of the reduction procedure, and not simultaneously with it.

Staff reduction

These are the most time-consuming innovations and should be prepared in advance. The employer must ensure that vacant positions are removed from the SR and that the new structure meets the needs of the organization. Employees are notified of the upcoming dismissal by the employer personally and against signature at least two months in advance. The corresponding order must also be issued at least 2 months before making adjustments. To make changes to the staffing table, use the sample order below.

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Order and notification: two important documents when reducing the number of employees

The procedure for reducing the number and staff of employees established by the Labor Code of the Russian Federation is mandatory for all employers without exception. Strict compliance with all formalities and requirements of the law is the main condition for its legality.

Legal basis

The Labor Code regulates reductions in the number or staff of employees in articles relating to dismissal issues, as well as providing for compensation and guarantees to employees. The Labor Code of the Russian Federation regulates the reduction of the number or staff of employees in sufficient detail and clearly, but when applying the norms of the code, questions always arise. Judicial practice is of great importance; the Supreme Court often issues clarifications on the procedure for applying articles of the law, for example, this issue is still relevant Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2, in which a lot of attention is paid to the issue of employee reduction.

A reduction in the number of employees occurs at the initiative of the employer; this basis for termination of an employment contract is formulated in Art. 81 Labor Code of the Russian Federation. Art. 178 – 180 are completely devoted to guarantees and compensation for an employee dismissed on such grounds.

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

• if changes in the staffing table lead to a decrease in the number of units of one position, the number is directly reduced;

• if entire structural units or specific positions with people are excluded, the staff is reduced.

Of course, they can be carried out in parallel; this is a common practice. First, management makes a decision, then implements it - dismissal occurs due to a reduction in 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. Less often, 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).

Based on this documented decision, an order is issued and changes are made to the staffing table.

Sample order to reduce the number of employees

The order must contain the following mandatory details:

• an indication of positions, structural divisions or units that are subject to exclusion;

• the date or timing of such exclusion;

• an indication of the persons responsible for the procedure or the creation of a commission authorized to carry out the procedure.

How to lay off an employee due to staff reduction will be discussed below in the article.

Notification

This is a mandatory condition: each employee dismissed on this basis must be personally warned against signature at least two months before the actual date of dismissal.

Sample notice of reduction in the number of employees

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

The employer is also obliged to notify the employment service body in writing about the release of specialists, indicating the positions, profession, specialty, qualification requirements and payment terms. The organization does this two months before the start of implementation of the solution, the individual entrepreneur - two weeks, and in the case of a mass release (parameters) - three.

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) are abolished has a preferential right to remain in the organization ( Art. 179 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 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.

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.

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).

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.

Consequences of errors

Progress does not stand still and human brains are being actively replaced by intellectual technologies, which completely or partially nullify the benefits of humans in some positions. In the article we will talk about the reduction of positions in the staffing table, consider the procedure and reasons.

In addition to progress, there is also a macroeconomic impact, crisis, cost cutting and other factors that can push the employer to optimize the number of workers. Some professions have long been a thing of the past, which means that nowadays any company may face the problem of how to legally eliminate this or that position.

Preparing to reduce positions in the staffing table

It is always very difficult for any manager or employer to inform their subordinates about the prospect of an upcoming layoff. This is connected both with personal (psychological) aspects of the relationship between the manager and the subordinate, and with legal ones. Labor legislation in our country protects the rights and freedoms of working personnel to the maximum extent possible. Therefore, no organization can simply reduce its staff without fulfilling all its obligations stipulated by law.

The procedure for dismissing employees when their position is reduced

If dismissal is inevitable, the employer must follow the entire procedure for reducing positions as accurately as possible. Any violation can only worsen the position of the employer himself. The general algorithm for reducing a position in the staffing table looks like this:

• Notify the employee of the upcoming reduction of his position at least two calendar months before the expected date of actual dismissal. This is due to the fact that the employee is given time to look for another job that will meet his professional and financial requirements. This procedure must be carried out in an official manner, the notification must be in writing and two copies, where the employee must sign that he is aware of the upcoming reduction;
• Create a special commission of employees of this enterprise to confirm the legality of the reduction procedure;
• The employer is obliged to offer the employee to move to another vacancy, and in the event of numerous layoffs of employees, the organization is obliged to notify the organization involved in representing and protecting the rights of employees (trade union), if one exists, as well as notify the labor exchange in order to fully fulfill legal obligations to its staff;
• Issuance of an order to reduce employees with a complete list of employees who are subject to dismissal. Read also the article: → "".
• Payment of all compensation and severance pay, which is calculated from the salary specified in the employment contract concluded between the employee and the organization;
• Dismissal of employees who refused to take a different position in the organization previously offered by the employer.

Employees who have labor advantages over other employees

Russian legislation also provides for a number of legal norms for employees who, for one reason or another, are classified as a preferential category of citizens. This means that, other things being equal, these people should have advantages over other citizens when managers and the labor commission make decisions about when exactly who will be laid off. These preferential categories include:

• An employee who has two or more dependents, a disabled person or an incapacitated family member;
• The employee's salary is the only source of income for the entire family;
• An employee who, during the entire period of work at this enterprise, had work-related injuries or occupational diseases;
• An employee undergoing vocational training without loss of working time;
• Women who have children under three years of age, as well as mothers of many children, and women expecting the birth of a child;
• As well as other preferential categories of citizens: disabled people, combatants, etc.

Reduction in headcount or staff

Before starting the procedure, managers decide how a reduction or change in the existing staffing table will be carried out: as a complete abolition of an existing job position or a reduction of several units for one position.

State	Number
Complete abolition of the position with all staffing units	Reduction of job units by one position
The most optimal procedure for the employer, as it reduces the risks of litigation. And the manager can offer other job positions to employees who show the greatest professional success.	For the employer, this procedure will be quite complicated, because it entails a choice between employees occupying the same position. Advantage will be given to privileged categories of citizens and those who show the greatest professional success, which is quite controversial and can lead to litigation from dismissed employees.

Preparation of necessary documents accompanying the reduction process

Any change within the framework of the organization’s activities must be accompanied by the execution of all appropriate documents.

1. When making changes to the staffing table, and even more so reducing positions, an order must be issued signed by the general director of the company and, in some cases, the head of the human resources department.
2. A notice is issued about the upcoming reduction of positions for employees who will be directly affected by this procedure.
3. An order signed by the General Director on the creation of a labor commission is drawn up;
4. An order is issued to approve the new staffing table and amend existing internal regulations.
5. At the last stage, all necessary documents for transferring an employee to another position or dismissal are drawn up. Read also the article: → "".

Payments due to employees upon redundancy

In order to somehow compensate for the inconvenience caused to the employee in accordance with the reduction of position and subsequent job search, the employer is obliged to pay severance pay in the amount of the average monthly salary, and also maintain his average monthly earnings for the next two months. If an employee contacts the employment service within two weeks from the date of dismissal, he has the right to apply for another compensation in the third month after dismissal if he does not find a job within this period of time.

In some cases, the payment of compensation can be extended up to six months, but such a decision can only be made by the employment service, with which the employee must be registered.

Temporary vacancies for employees whose positions are subject to reduction

In order to resolve the current situation, the employer must offer its employees the currently vacant positions. Of course, it is better if these are permanent positions, but in some cases the manager may offer to fill temporarily vacant vacancies (if the employee is on maternity leave) under a fixed-term employment contract. This is in no way prohibited by law and will give the employee more time to look for work.

Typical mistakes in the employee reduction procedure

Mistake #1. Making mistakes during the procedure for crushing a position

The manager must always remember that if even small technical errors are made in the documents drawn up during the reduction of a position and the subsequent dismissal of an employee, the court will decide in favor of the employee. This means that penalties will be imposed on the organization, they will be required to pay material compensation for moral damage and the employee will be reinstated to the organization’s staff.

Mistake #2. Dismissal of employees on paid leave, sick leave or parental leave.

An employer does not have the right to reduce a position or dismiss an employee who, for objective reasons, is currently absent from his or her workplace. This is a very serious violation of employee rights. After an employee whose rights were violated in this way goes to court, the organization will be obliged to pay moral compensation, reinstatement, and penalties will be imposed on the organization and the general director who signed the dismissal order.

Common questions and answers

Question No. 1. What benefits and preferences exist for workers living and working in the Far North?

In the conditions of the Far North, there are various allowances and coefficients adopted at the legislative level by local authorities that increase the average earnings of such workers. This also applies to payment of compensation upon dismissal of an employee. At the legislative level, the period for paying severance pay has been extended by one month, that is, extended to three months.

Question No. 2. If there were vacant positions in the organization, but the employer did not offer to fill them with the employee whose position is subject to reduction. Is this grounds for going to court?

Yes, any violation of employee rights is grounds for filing a lawsuit. Within two months, the employer is obliged to notify the employee about new vacant positions, and this is not a one-time event, but an ongoing process. Moreover, each such action must be formalized by special acts in which the employee either agrees or refuses to take the position offered to him.

Question No. 3. If the employer fails to give the employee two months' notice, can the employee claim additional compensation?

Yes, the legislation provides for such a scenario. If the employer violates the deadline for which he was required to notify the employee, the organization is obliged to pay additional compensation in the amount of two average monthly wages in addition to what he is entitled to upon layoff.