Responsibility for dismissal of employees of pre-retirement age

Who are pre-retirees?

Starting from 2021, the retirement age in Russia is increasing annually. In 2020, women who were born in the second half of 1964 (55.5 years) and men born in the second half of 1959 (60.5 years) can take a well-deserved retirement. By 2028, the increase in the retirement age will be completed, and men will retire at 65 years old, women at 60 years old.

In order to stabilize the situation a little and support citizens who, under the old rules, could already qualify for pension payments, Russian legislation introduced the concept of “pre-pensioner”.

Important! Pre-retirement age is the age at which 5 or less years remain before retirement. A similar institution was introduced into Russian legislation in accordance with Federal Law No. 350. The 5-year period also applies in the case of early pension, which is assigned in the presence of a certain special length of service.

For example , a man who was born in 1962 will be able to retire in 2026 at the age of 64. However, he will become pre-retirement in 2021 upon reaching 59 years of age and will maintain this status until his 64th birthday.

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

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

This is also important to know:
How to correctly formalize dismissal by agreement of the parties

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

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

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

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

In some cases, additional documents may be required.

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

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

Benefits for persons with pre-retirement status

Persons in pre-retirement status have the right to count on the same social support as pensioners.

The list of available benefits includes:

• free medications;
• discounts on public transport;
• cancellation of property and land taxes;
• discounts on major repairs and more.

In 2021, guarantees for pre-retirees in the field of employment were fixed at the legislative level. In particular, we are talking about establishing administrative and criminal liability for an employer who unlawfully refuses to hire or unreasonably dismisses an employee with pre-retirement status. In addition, the manager is obliged to annually provide a pre-retirement employee with 2 paid days off to undergo a free medical examination.

Note. Any citizen who has less than 5 years left until retirement has the right to receive a certificate confirming his pre-retirement status. To complete the document, you need to contact the local PFR office or create an application online in your personal account on the official website of the Fund.

How to fire a pre-retirement employee?

If a citizen has several years left before retirement, this does not mean that he is untouchable. Pre-retirees are fired on the same grounds as other employees. However, the legislator additionally protects this category from unlawful dismissal due to reaching pre-retirement age.

The general grounds for termination of an employment contract are provided for in Article 77 of the Labor Code of the Russian Federation. In fact, a pre-retirement employee can be fired for any of them. Both the employee and the employer have the right to initiate separation. Let's consider the most common grounds for termination of employment relations in relation to citizens of pre-retirement age.

At your own request

If an employee leaves of his own free will, this means that he voluntarily gives up his position. Typically, this is the most convenient option for the administration, since the employee himself initiates dismissal, which, in principle, minimizes the possibility of a conflict situation arising.

Important! The specifics of termination of an employment contract at the initiative of the employee are enshrined in Art. 80 Labor Code of the Russian Federation.

In practice, such termination of employment relations is carried out as follows:

• the citizen writes a letter of resignation of his own free will;
• the manager approves the request and issues an order;
• the employee receives a paycheck and a work book with the corresponding entry.

Question:

Does a pre-retirement worker need to work 2 weeks when leaving voluntarily?

Answer:

Like any other employee, pre-retirement employees are required to notify the employer of their planned resignation at least 2 weeks before the desired date of dismissal. There is no direct requirement in the law that these 2 weeks must be spent at the workplace. The person being dismissed has the right to notify the manager and then go on vacation or sick leave. In addition, the warning period can be reduced by agreement of both parties.

If an employer forces a person to leave the organization, then forced resignation occurs. Unscrupulous managers often “survive” older workers by asking them to resign “kindly,” that is, supposedly of their own free will. Such behavior is unlawful and is subject to criminal liability. However, proving coercion is not easy, especially if the person himself wrote a letter of resignation.

By agreement of the parties

Another “painless” option for dismissing a pre-retirement employee is by agreement of the parties. According to Art. 78 of the Labor Code of the Russian Federation, an employment contract can be terminated at any time if the parties have agreed on this. Often, an employee who leaves by agreement of the parties has the right to also count on additional compensation. However, the payment of such compensation must also be agreed upon between the administration and the dismissed person.

At the initiative of the employer

The grounds for termination of employment relations at the initiative of the employer are set out in Art. 81 Labor Code of the Russian Federation. A pre-retiree may be dismissed for any of them, for example:

• in connection with the liquidation of the organization or reduction of staff (numbers);
• when establishing the fact that an employee is not suitable for the position held;
• for violation of discipline and committing guilty actions.

The law does not protect a pre-retirement employee from layoffs or from loss of job due to the liquidation of an enterprise. However, the procedure for dismissal in these cases is strictly regulated by the Labor Code of the Russian Federation.

For example, if a person leaves due to staff reduction, the administration is obliged to:

• notify of release 2 months in advance - Part 2 of Art. 180 Labor Code of the Russian Federation;
• offer an alternative position - Part 3 of Art. 81 Labor Code of the Russian Federation;
• check whether the employee has a preferential right to remain at work - Art. 179 Labor Code of the Russian Federation.

Inconsistency with the position held must be confirmed by the results of certification conducted in accordance with labor legislation. Before dismissal, the employee must be offered another position that meets his qualifications, if, of course, there is such a vacancy at the enterprise.

If a pre-retirement employee has committed guilty actions, he is subject to dismissal, like any other hired subject. Violations for which you can lose your job are provided for in paragraphs. 5-11 tbsp. 81 Labor Code of the Russian Federation. The list of types of unacceptable behavior includes absenteeism, repeated failure to perform work duties in the presence of a disciplinary sanction, theft of property, appearing at the workplace in a state of alcohol or drug intoxication, etc.

Note.

If a pre-retirement employee is laid off, he can retire early. But only if the following conditions are met:

• 2 or less years are missing from retirement age;

• the employment center could not find a suitable vacancy;
• the person has the required length of service and the number of pension points.

Other grounds

An employment contract with a pre-retirement employee may also be terminated due to:

• expiration of the contract;
• transfer to another employer;
• the occurrence of circumstances beyond the control of the parties.

Reduction of employees of pre-retirement age in 2021

The dismissal of an employee of pre-retirement age in connection with staff optimization involves a procedure established by law that applies to all employees.

In particular, at the initial stage, the employee should be offered vacant positions that he could occupy, taking into account his existing qualifications and health status. Then the employee must be notified of the upcoming dismissal 2 months in advance, after which an order will be issued.

Also, when carrying out the procedure for laying off an employee of pre-retirement age, the institution must notify the Employment Service, taking into account that it is the specified body that will be involved in the search for work and processing benefits in the absence of a suitable vacancy, not to mention the referral for early retirement.

What you need to know

Not every citizen of pre-retirement age can count on receiving benefits for 36 months from the date of dismissal, because in accordance with Part 1 of Article 32 of Federal Law No. 1032-1, the period for receiving benefits in excess of the norm directly depends on the total length of service.

That is, a worker of pre-retirement age at the time of registration with the Employment Service can only count on annual financial support for 12 months, but further accrual of benefits depends on work experience exceeding the norm of 25 and 20 years.

Thus, in accordance with Article 32 of Federal Law No. 1032-1, for each year of work in excess of the specified norm, a future pensioner can count on payment of benefits for 2 weeks.

For example, if you have 26 years of experience, the benefit will be paid for 12 months and 2 weeks, and if you have 40 years of experience, an additional 7 months and 2 weeks will be added to 12 months.

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Therefore, in the absence of 25 years of experience, a laid-off employee should initially consider the issue of granting an early pension, because the length of service to receive benefits for 3 years may not be enough.

Also, the future pensioner should know that early pension provision can only be granted if several conditions are met, namely:

This is also important to know:
Termination of an employment contract at the initiative of the employee

Liability for wrongful dismissal of a pre-retirement employee

If the termination of the employment contract was carried out in violation of the current labor legislation, then the employer can be brought to administrative liability in accordance with Art. 5.27 Code of Administrative Offences. But in the case when a person lost his job precisely because of his pre-retirement status, we will be talking about a crime.

Criminal liability for the dismissal of pre-retirees is established by Art. 144.1 of the Criminal Code of the Russian Federation. Anyone guilty of unjustified termination of employment relations faces one of the following penalties:

• fine – 200,000 ₽ or in the amount of salary (other income) for 18 months;
• compulsory work – up to 360 hours.

The elements of the crime described in Art. 144.1 of the Criminal Code of the Russian Federation, necessarily provides for the presence of discriminatory motives. The implication is that management fires the employee primarily because of age. In this case, the formal basis for termination of an employment contract can be any - the employee’s own desire, agreement of the parties or the initiative of the employer.