Given the difficult economic situation in the country, staff reductions are not a rare occurrence. Even highly qualified employees are not immune from it, but some have preferential rights. From this article you will find out who gets laid off first, who is given preference at equal skill levels, and who cannot be fired at all on this basis.

What is an abbreviation

There are 2 concepts - downsizing and downsizing. In Art. 81 of the Labor Code of the Russian Federation does not spell out the differences between them. In practice, the difference is also insignificant. In the event of a reduction in numbers, the position is retained staffing table, but the number of people occupying it is decreasing. When staffing is reduced, the position is eliminated.

The reasons for downsizing at an enterprise are:

1. Difficult economic situation in the country.
2. Merger, reorganization or accession of companies.
3. Internal optimization.

Who gets laid off first and why?

Interesting information

Not only specific positions, but also entire divisions, divisions, and departments may be subject to staff reductions. The employer has every right to do this. However, in both cases, during layoffs, respect for the rights of workers is mandatory, and those who are not allowed to be fired must remain at the enterprise. If entire departments are going to be cut, then employees who have “special” rights should be transferred to other departments.

Let's look at who gets laid off first at work and on what basis. The employer determines preferential rights, and a certain algorithm is provided for this:

1. From all candidates for dismissal, employees who are prohibited by law from being laid off are excluded. According to Art. 261 of the Labor Code of the Russian Federation, these include pregnant workers, mothers of children under 3 years of age, single parents with children under 14 years of age or disabled children under 18 years of age, as well as some others. It is prohibited to dismiss employees in connection with layoffs. maternity leave(Part 4 of Article 256 of the Labor Code of the Russian Federation and Part 6 of Article 81 of the Labor Code of the Russian Federation).
2. The remaining workers are assessed on their skill levels and productivity. The comparison is made between employees who occupy the same positions created within the same structural unit. Correctly evaluate the qualifications of two leading accountants working in the same department. It is incorrect to compare a leading specialist and a category 2 accountant - this is indicated in the appeal ruling of the Moscow City Court No. 33-27711/2015 dated 08/06/2015. Similar rules apply to the assessment of labor productivity.
3. If the comparison reveals equal levels of qualifications and labor productivity, then the family circumstances and other benefits when an employee is laid off. There is one exception. If a position is abolished or all staff positions in one position are reduced, then preferential rights are not taken into account. This is indicated in the appeal ruling of the Moscow City Court No. 33-1708 dated January 22, 2015.

What are preemptive rights and who has them?

Given equal levels of qualifications and labor productivity of employees, preference is given to those who have advantages in the reduction of staff. According to Art. 179 of the Labor Code of the Russian Federation, the following categories of workers can apply for job retention:

• family people who have two or more dependents (minor children, other disabled family members who are fully supported by the employee or regularly receive assistance from him, representing their permanent and main source of livelihood);
• the only “breadwinners” in the family are employees whose families do not have other people with a regular income;
• employees with injuries and occupational diseases received while working in this organization;
• workers who are this moment improve their qualifications as directed by the employer.

If you were illegally fired due to layoffs, you need to contact several authorities. First, send a written application to the organization's trade union. The union must consider the complaint within a week. This case may also be considered by the Federal Labor Inspectorate and the prosecutor's office. If the trade union and the labor inspectorate do not reveal any violations, then a lawsuit must be filed.

• military spouses;
• military personnel transferred to the reserve;
• authors of inventions;
• disabled people of the Second World War and combat operations;
• persons affected by radiation;
• and some others.

Preferential rights to remain at work may also be provided for by internal collective agreements in company.

How employees are compared

Some facts

Upon termination of an employment contract in connection with the liquidation of the enterprise, or a reduction in the number or staff of the company's employees, the dismissed employee must be paid severance pay according to average monthly earnings. For a dismissed employee, the average monthly salary is recorded for the duration of the job search for 2 months from the date of dismissal.

The law does not describe specific requirements for the procedure for identifying the preferential rights of employees. Practice shows that courts place more trust in the decisions of commissions when recording the results in writing.
Here are the main nuances that should be taken into account when comparing candidates for reduction:

1. It is recommended that the commission include heads of departments where staff reductions are planned, as well as members of the trade union organization and specialists from other structural divisions (lawyers, personnel officers, those responsible for quality control, etc.).
2. An order should be issued to organize the commission, defining the competence of each of its members. Personnel officers may be responsible for providing information about penalties and incentives imposed. Department heads should be entrusted with the generation of work reports, compilation of characteristics, etc.
3. It is advisable to draw up summary tables that reflect the results of comparing the qualifications and labor productivity of workers according to a number of criteria.
4. The commission's findings should be recorded in the official minutes of the meetings.
5. The commission must make its conclusions based on the results of comparing the labor productivity of each employee, taking into account the entire set of criteria. The decision that one employee has higher qualifications because the second has less experience is considered illegal by the court.
6. If candidates for layoff are registered in a trade union and regularly pay membership dues, the employer is obliged to take into account the opinion of this organization on the advisability of dismissing a particular employee. This is the requirement of Part 2 of Art. 82 Labor Code of the Russian Federation.

Watch a video that will tell you about the categories of workers who are prohibited from being laid off

List of persons who cannot be dismissed due to reduction

The list of those who cannot be laid off by law includes the following categories of workers:

• temporarily disabled persons;
• employees on leave (including student leave and unpaid leave);
• mothers of small children under 3 years of age;
• women and men raising alone a child under 14 years of age or a minor child with a disability;
• members of the trade union organization.

Those who cannot be laid off from work also include pregnant employees and women on maternity leave. If an employee from the “untouchable” category is nevertheless fired due to staff reduction, he will be reinstated at work automatically by court decision.

We are ready to answer any questions you may have - ask them in the comments

A brief guide to action in the event of a threat of layoffs. What rights do workers have and what categories fall under the reduction can be found in the article.

In view of the current “crisis” situation in the economy, downsizing has become an integral part of many companies. And since this is a rather painful topic that can affect even seemingly very successful employees, let’s try to figure out how to avoid this.

Who is not being laid off in Russia?

Not every employer follows legal rules when making redundancies. Therefore, it is very important to know whether the manager has the right to “cut” you from the staff. Categories not subject to reduction include:

1. Disabled workers or, that is, on sick leave (Part 6 of Article 81 of the Labor Code of the Russian Federation)
2. Mothers on parental leave with the right to retain their jobs (Part 4 of Article 256 of the Labor Code of the Russian Federation)
3. Employees on educational leave, mainly at their own expense
4. Pregnant employees (Article 261 of the Labor Code of the Russian Federation)
5. Single mothers who are raising children under 14 years of age or a disabled child, and other guardian parents (Article 261 of the Labor Code of the Russian Federation)
6. Members of trade unions (clauses 2, 3 and 5 of Article 81 of the Labor Code of the Russian Federation)

Who is the first to be laid off by law?

If, during a layoff, there is a choice between two positions of the same rank and similar obligations, then employees need to know their rights in accordance with Article 179 of the Labor Code of the Russian Federation. The following categories have the privileges of not being laid off from two similar positions:

1. Employees who have two or more dependents in their family
2. Workers who are the main breadwinner
3. Employees who may have received an occupational injury or illness at this enterprise
4. Employees who improve their skills without interruption from working hours
5. Disabled combatants

What to do to avoid getting laid off?

• The main criteria by which the decision to make redundancies is made are the employee’s education, labor productivity, level of competence and personal suitability. And if the threat of losing your job is in the air, be prepared to reconsider your working skills in a new and qualitative way as soon as the first preconditions arise.
• Be prepared to retrain or take on additional responsibilities. Given the current trend towards combining the responsibilities of several employees into one, this is very important. The number of overtime hours may also need to be increased. Thus, demonstrating your desire to maintain your job
• Have a healthy corporate spirit. Be happy with your place, don't gossip or escalate the situation. In any case, even the most biased manager will choose a person with a positive attitude towards work and success.
  The ability to maneuver through life’s obstacles is an important quality. And even if you are faced with the threat of losing your job, a bit of optimism and knowledge of your rights and qualities will always help you
• Stock up on your health for future use. It's time to get involved in sports and learn more about healthy eating. No sick days will be welcome during the frenzied race against cuts. If you do get sick, be prepared to show management your desire to complete the work plan at home or as soon as possible

What to do if you are laid off?

• Start calling all companies that might be interested in your position. Don't get tired of sending out resumes and be persistent. Despite the crisis, many companies need qualified workers
• Don’t waste time and be sure to register with the Employment Center. In addition to financial compensation, you can get retraining there or simply meet your new employer
• Meet people anywhere and everywhere. Collect new contacts and don’t forget to tell about yourself and what a wonderful specialist you are. Tell your friends and family. That you are looking for a job. The world is full of kind people and help can come from anywhere.
• Consider other ways to earn money. There are many freelance job vacancies on the Internet. If you are an accountant or other specialist who can provide services remotely or via the Internet, then take advantage of this opportunity

Are mothers of minor children subject to layoffs?

• A parent who is the sole breadwinner of a child under three years of age in a family raising three or more young children, if the other parent does not work, is not subject to reduction
• If an employee has a dependent child who is 12 years old or 4 years old and is not his sole breadwinner, then this list does not include
• Thus, the employer has the right to dismiss, due to a reduction in the number (staff) of the organization’s employees, a woman who has a dependent child of 12 years or 4 years, subject to the dismissal procedure provided for by law on this basis

Got laid off while on maternity leave?

An employer does not have the right to lay off a mother who is on maternity leave to care for a child. During the period of parental leave, the employee retains his place of work (position) (Part 4 of Article 256 of the Labor Code of the Russian Federation).

A pregnant woman was laid off. What to do?

Article 261. The Labor Code provides guarantees to pregnant women. Unjustified dismissal of a woman on the grounds of her pregnancy is punishable by a fine of up to two hundred thousand rubles or in the amount wages Art. 145, “Criminal Code Russian Federation» dated June 13, 1996 N 63-FZ (as amended on June 5, 2012)

Pensioners who were laid off. There was a year left until retirement and they were laid off. What to do?

• In this case, it will be possible to issue an early pension on the basis of Article 32 of the Law. RF “On employment in the Russian Federation”
• Citizens who have not reached the age of 60 years for men and 55 years for women and have an insurance period of at least 25 and 20 years for men and women, respectively, as well as the necessary length of service in the relevant types of work, giving them the right to early assignment of an old-age pension , provided for in Articles 27 and 28 of the Federal Law “On Labor Pensions in the Russian Federation”, the duration of the period for paying unemployment benefits increases beyond the established 12 months by two calendar weeks for each year of work exceeding the insurance period of the specified duration
• At the same time, periods of work and other activities are included in the insurance period and other periods established in Articles 10 and 11 of the said Federal Law are counted.
• The total period of payment of unemployment benefits cannot exceed 24 calendar months in total for 36 calendar months

Are pensioners who are working laid off?

All working pensioners are subject to the general conditions of reduction and payment of compensation in accordance with Article 180 of Chapter 27 of the Labor Code on guarantees and compensation to employees and the liquidation of an organization, reduction in the number or staff of an organization's employees.

Notice of layoff. Order of reduction

Here are the main stages of the reduction procedure:

• Issuance of a reduction order
• Notifying employees and offering them other available work
• Notification of the trade union and employment service
• Dismissal of employees

After making a decision to reduce, each manager must issue an order. This document must indicate the dates of reduction and changes that will be made to the staffing table.
After issuing the order, the manager is obliged to notify all employees about the upcoming reduction and no later than two months before the dismissal. The notice is drawn up for each employee and handed over personally to him against his signature.

The notice usually lists the positions offered to the employee, which is precisely the essence of Art. 180 of the Labor Code of the Russian Federation obliges the employer to offer those being laid off another available job (if available).

IMPORTANT: The employer must offer vacancies as they become available until the day of dismissal.

A record of dismissal is made in the work books of employees dismissed due to staff reduction with reference to clause 2, part 1, art. 81 TK.

Sign up for work book upon dismissal due to reduction, it may look like this: “The employment contract was terminated due to a reduction in the number of employees of the organization, paragraph 2 of part one of Article 81 of the Labor Code of the Russian Federation.”

Dismissal due to staff reduction. What do you need to know?

Not all employers play fair, and unfortunately not all employees know their rights when being made redundant. For example, when the number of staff is reduced, a fairly significant package of payments and guarantees is provided to the employee.


Notice of reduction must be received at least two months before the date of dismissal due to staff reduction. In case of layoff, the employee is required to pay a penalty in the amount of salary for the next two months after dismissal.

IMPORTANT: When writing an application for layoff, you must ensure that you are provided with a sample of a layoff, and not a voluntary dismissal.

When a laid-off employee registers with the Employment Center, he is required to look for work according to his skill level. If such work is not provided to him within two months, the employer is obliged to pay compensation in the amount of salary for another two months.

Video: What rights does an employee have when being made redundant?

Dismissal due to downsizing is a complex and controversial procedure. If you fire someone who cannot be made redundant, the employer will face trial and cash payments. We will look at who cannot be fired due to staff reduction in 2017 in this article.

From the article you will learn:

Which employees cannot be laid off according to law?

Question from practice:

What is the difference between downsizing and downsizing?

When staffing is reduced, all employees occupying the same position are dismissed. For example, a company has 5 accountants, and the employment contracts of all five employees are terminated.

When reducing numbers, one or more employees of one position are fired, but not all. For example, a company has 3 HR specialists, 1 employee is retained, and 2 are fired. In this case, it is necessary to take into account which of the dismissed employees has a preferential right to remain at work.

Let's take a closer look at who cannot be cut when reduction state. This list includes:

• pregnant women;
• women with children under 3 years of age who are either working or on parental leave;
• single mothers who are raising young children under 14 years of age, a disabled child under 18 years of age, or other persons raising these children without mothers;
• a parent or other legal representative who is the sole breadwinner of a disabled child under 18 years of age;
• a parent or other legal representative who is the sole breadwinner of a child under 3 years of age in a family raising 3 or more young children, provided that the second parent or other legal representative is not in an employment relationship.

If the company has such categories of employees, that is, those who cannot be laid off when reducing staff, then they cannot be fired on this basis. Often, when deciding who should not be laid off, controversial situations arise. For example, what to do if a pregnant woman reduction didn’t inform her employer about her pregnancy and her employment contract was terminated? In this case, the dismissal is unlawful and, if the employee goes to court, she will most likely be reinstated at work. Therefore, if an employee declares pregnancy after dismissal, the employer must reinstate her at work.

What awaits the employer if he fires an employee who cannot be fired due to staff reduction?

If the employee belongs to the category who cannot be laid off, and the employer terminated the employment contract with him under clause 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation, then if you go to court, the employee will be reinstated at work. Table 1 shows the consequences of illegal dismissal of a category of workers who cannot be laid off by law.

Table 1. Who cannot be laid off: consequences of wrongful dismissal

In situations where the company's activities are accompanied by a deterioration in its financial position and it is necessary to reduce costs, management may often decide to reduce personnel. Despite the possibility of dismissal provided by law due to unfavorable economic conditions in the organization, there is a certain category of workers whose termination employment contracts with which it is unlawful. Let's consider who cannot be fired due to staff reduction.

Who cannot be laid off: Labor Code

When we're talking about about reduction, they operate with two concepts - job reduction and staff reduction.

If a company expects to reduce the number of employees occupying the same positions, it is customary to talk about job reduction.

Situations may arise where entire positions or departments in an organization need to be eliminated. We are talking about staff reduction.

Its position regarding categories of working citizens not subject to reduction labor legislation formed quite clearly.

In order to answer the question of who cannot be laid off according to the law, it is necessary to refer to Art. 261 Labor Code of the Russian Federation. In accordance with this document, the following groups of employees are not subject to reduction:

• single mothers raising disabled minors;
• single mothers raising children under 14 years of age;
• women with children under 3 years of age;
• a parent or representative who is the sole breadwinner of a disabled minor child if the other parent does not work;
• pregnant women;
• a parent or representative who is the sole breadwinner of a child (children) under 3 years of age, as well as those with three or more children, if the second parent does not work;
• employees on sick leave.

Who does not have the right to be laid off: unlawful actions of the employer

There is a certain procedure for the employer, if violated, we can talk about illegal layoffs.

Based on the requirements of Art. 180 of the Labor Code of the Russian Federation, the employer has the obligation to notify staff of the upcoming layoff at least two months in advance. Notify the employee at mandatory should be signed.

The employee may refuse to sign the notice. In this situation, you should read this message in the presence of witnesses and record the refusal to sign on the document.

Labor law provides for another category of employees who are not subject to layoffs - employees who have transferred to alternative positions in the company. If the company has any vacant jobs, they should be offered to employees who have been laid off. At the same time, vacant positions can either correspond to the employee’s qualifications or be lower paid and inferior.

If there are no such jobs in the company, dismissal is formalized in accordance with the procedure established by law.

What does the employer face in the event of unlawful dismissal?

Every employee has the right to challenge dismissal in court. If it is proven that the unlawful reduction of those categories of workers who cannot be reduced in accordance with the requirements of the law is proven, the employer will be obliged to pay compensation for wages and moral damage to the injured employee, and in some cases, to reinstate the dismissed employee in his position.

Also, in this situation, the company being inspected cannot avoid inspection by the labor inspectorate. Based on the results of the inspection, the organization may be assigned administrative liability in the form of a fine, the amount of which will vary depending on legal status employer.

Sometimes downsizing is inevitable. But even in this case, the employer does not have the right to lay off some employees. Who, when and why has special rights and “privileges” during staff reductions?

Some employees have special “privileges” when staffing or staffing is reduced. Simply put, the employer does not have the right to fire them due to staff reduction. True, the workers themselves often do not even suspect that they have any special rights. Therefore, before you get upset about the upcoming layoff, you must first make sure that you really do not have any benefits, and the employer has the right to lay you off.

Of course, each case is individual, and sometimes it is more profitable to “cut down”, look for new job and at the same time receive financial compensation from the previous employer. But situations are different, and knowing your rights is, in any case, useful.

So, which employees are considered according to Russian laws"irreducible"? All of them are listed in the Labor Code.

Staff reduction: “non-redundant” employees

By the way, not only individual positions, but also entire divisions, divisions, and departments may be subject to staff reductions. The employer has every right to do this. But, in any case, when laying off workers, the rights of workers must be respected, and those who cannot be laid off must remain in the company. If it is planned to reduce an entire division, then “non-redundant” employees must be transferred to other departments of the organization.

The employer does not have the right to dismiss the following categories of employees due to staff reduction:

Employees who are temporarily disabled - Part 6 of Article 81 of the Labor Code of the Russian Federation (medical certificates will be required to confirm disability);

Employees who are guaranteed job security during their absence. For example, this includes women on maternity leave (Part 4 of Article 256 of the Labor Code of the Russian Federation), as well as other employees on leave (this includes the most different types vacations: study, main leave, additional, leave without pay);

Pregnant women (the exception is the case when the entire enterprise is completely liquidated) - on the basis of Article 261 of the Labor Code of the Russian Federation;

Women raising children under three years of age; single mothers raising a child under 14 years of age or a disabled child under 18 years of age, and other persons (this includes guardians, foster parents, etc.) who are raising such children without a mother (an exception to this rule is, again same, liquidation of an enterprise or the commission of guilty actions by these persons) - on the basis of Article 261 of the Labor Code of the Russian Federation;

Members of trade unions (their rights are described in paragraphs 2, 3 and 5 of Article 81 of the Labor Code of the Russian Federation);

Employee representatives who conduct collective bargaining;

Participants in the resolution of collective disputes.

If an employee belongs to any of these categories and was nevertheless dismissed due to redundancy, restoration through the court occurs easily, one might say, almost “automatically”.

Staff reduction: workers with “privileges”

In addition to workers who cannot be laid off, there are also workers who have advantages over their colleagues. First of all, this applies to a situation where an employer is forced to lay off one of two identical positions. For example, out of two accountants working with the “bank, cash desk” section, only one should remain. Who to choose for redundancy? It would seem that the choice depends entirely on the employer. But it is not so.

Labor Code prescribes to the employer who he should “sacrifice” last. This information is contained in Article 179 of the Labor Code of the Russian Federation. If there are two identical positions, then employees with higher labor productivity and higher qualifications should be retained in the company.

What if the productivity and qualifications of employees are equal? In this case, the employer must take other factors into account. Of the two employees, one of whom is subject to dismissal, the right to remain in the organization has:

Employees who have a family with two or more dependents;

Employees in whose family there are no other self-employed workers;

Employees who received a work injury or occupational disease while working for this employer;

Employees who improve their skills at the direction of the employer without interruption from work;

Disabled combatants in defense of the Fatherland.

So, the Labor Code does not assume that “in the face of layoffs” all workers are equal. There are employees who should not be laid off, as well as those who should be laid off only as a last resort. If you fall into one of these categories, you should remember your rights.

Editorial “Work&Salary”