Dismissal of a pensioner in 2021: rights of employee and employer

Is retirement age a reason for dismissal?

There is a common point of view that reaching retirement age is a reason for dismissing an employee “for a well-deserved rest,” but this is not at all true. According to Russian legislation, for men the retirement period in 2021 is 60 years, for women - 5 years less (at the same time, early assignment of such social payments is possible), but nothing prohibits them from continuing to work. If an employer tries to dismiss a pensioner without his consent, explaining this by age, then the labor inspectorate will quickly restore justice.

According to legislative norms, the dismissal of a pensioner in 2018 is no different from the termination of contractual relations with other categories of employees. After reaching retirement age, a working person continues to be subject to all the norms of the Labor Code of the Russian Federation (LC RF), but at the same time, the state provides a number of concessions that facilitate the process of work and retirement. For example, guaranteed extraordinary leave of up to 14 days without pay and dismissal without two weeks of work.

Is it time for retirees to retire?

This news is really interesting and deserves close attention. First of all, because there are no reasons for mass layoffs. There must be serious reasons and compelling justifications, and such cases must be in the media. But there is nothing.

We found several articles related to this topic. All provide information that if pensioners do not resign by November of this year, they will lose their pension payments for three years.

New laws from November 1, 2021. Who will be affected by the changes?

They write on the Internet that a new legislative project has been presented, as a result of which working retired citizens will not receive all the pension points that they have accumulated for the period from January 1, 2021 to January 1, 2021. Because of this, working pensioners must urgently quit .

This is the rationale for mass layoffs.

Regulatory framework

In order for the dismissal of a pensioner in 2021 to take place without violations, the employer needs to be well aware of the legal requirements. Depending on the specific situation, these rules will be regulated by:

• Federal Law of December 28, 2013 No. 400-FZ “On Insurance Pensions”;
• Federal Law of December 17, 2001 No. 173-FZ “On Labor Pensions in the Russian Federation”;
• Articles 80, 81 of the Labor Code of the Russian Federation.

Conclusion of fixed-term contracts

This type of working relationship has a clearly defined time frame (up to 5 years according to Article 59 of the Labor Code of the Russian Federation), determined by the period established in the contract. Such an agreement is convenient for the employer, because it simplifies the procedure for terminating the employment relationship, does not require payment of severance pay, and is easily used as a means of age discrimination.

When applying for a job, a person is interested in establishing long-term working relationships. Concluding a fixed-term contract will be a convenient way to get rid of a retired employee who will not be well protected socially and legally, which is why this form of labor relations is permissible only with the voluntary consent of the person taking the job. At the same time, the employer should be aware that the unlawful conclusion of a fixed-term contract can easily be appealed in court, based on Article 77 of the Labor Code of the Russian Federation.

How much will a working pensioner receive if he quits in 2021?

The rule on suspending pension indexation is still in effect for those who receive an insurance pension and are officially employed.

Therefore, in the event of dismissal, such a pensioner is entitled to an additional payment (due to the restoration of indexation). Let's consider how much a pensioner will receive if he resigns in 2021.

For the first time, the indexation of insurance pensions without the participation of working pensioners occurred in February 2021. And the more time passes since then, the more they lose - since pensions are indexed annually.

If we take into account 2021, a total of six indexations have already been missed:

— February 2021
— by 1.04, fixed payment — 4,558.93 rubles, pension point cost — 74.27 rubles

— February 2021
— 1.054, fixed payment — 4,805.11 rubles, pension point cost — 78.28 rubles

— April 2021
— 1.004 (pension points only), fixed payment — 4,805.11 rubles, pension point cost — 78.58 rubles

— January 2021
— 1,037, fixed payment — 4,982.90 rubles, pension point cost — 81.49 rubles

— January 2021
— 1.0705, fixed payment — 5,334.19 rubles, pension point cost — 87.24 rubles

— January 2021
— 1,066, fixed payment — 5,686.25 rubles, pension point cost — 93 rubles

To calculate what your pension should be after dismissal, you can use two options:

1) Multiply your pension by the appropriate indexation coefficients

(don’t forget that every year points were added to the pension based on the August adjustment).

For example: an insurance pension has been assigned since January 2021 in the amount of 11,524 rubles 59 kopecks (100 pension points of 71.41 rubles and a fixed payment of 4,383.59 rubles).

We index the insurance pension:

— 7,141 x 1.04 x 1.054 x 1.004 x 1.037 x 1.0705 x 1.066 = 9,300 rubles

We index the fixed payment:

— 4,383.59 x 1.04 x 1.054 x 1.037 x 1.0705 x 1.066 = 5,686.25 rubles

Let’s index the adjustment (let’s take three points annually for good measure):

— (3 points x 3 years) x 93 rubles (point cost for 2020) = 837 rubles

Adding up all the obtained values, we get the new pension amount taking into account indexation - this is 15,823 rubles 25 kopecks.

2) If you know how many pension points a citizen has as of the date of dismissal, you can calculate the increase much easier

.

The size of the pension consists of two components: a fixed payment and pension points. It is already known what the amount of the fixed payment and the cost of the pension point will be from 2021 (5,686.25 rubles and 93 rubles, respectively).

By substituting a known number of pension points into this formula, you can get a new pension amount, taking into account all missed indexations (as of 2021):

— 5,686.25 + 93 x Number of pension points.

Let's return to our pensioner, who was assigned an insurance pension in January 2021. Taking into account adjustments over 3 years, by 2020 he will have accumulated 109 points.

This means that if he is fired in 2021, he will receive a pension in the amount of:

— 5,686.25 + 93 x 109 = 15,823 rubles 25 kopecks.

That is, in this example, the pension after dismissal will increase by 3,655 rubles 97 kopecks (when compared with the last pension amount after adjustment in August 2021).

The pensioner’s Personal Account on the Pension Fund website now provides up-to-date information on what the pension amount will be after dismissal. You can compare it with the results of your calculations.

Indexation is restored from the 1st day of the month following the month of dismissal of the pensioner.

However, the payment of the increase does not occur immediately after dismissal, but approximately 3 months later - when the employer submits a report on the dismissal of the pensioner, and the Pension Fund of the Russian Federation processes this report and adds additional indexation. So far, this mechanism, alas, has not changed.

Legal subtleties

Rights of a working pensioner

According to Russian legislation, an employee of retirement age is not limited in any way in his rights compared to other employees; on the contrary, he has a certain superiority, which must be taken into account when leaving. Such advantages include the absence of working hours and the possibility of receiving pension benefits while continuing to work.

Benefits and Benefits

In accordance with current legislation, a working pensioner has more opportunities compared to his colleagues. These are benefits such as:

• The possibility of terminating the contract without notifying the employer two weeks in advance if the reason is retirement. This is determined by Article 137 of the Labor Code of the Russian Federation and removes questions like “Can a pensioner quit without working?” that may arise from the HR department of an enterprise.
• The right to receive a pension (but while a person is working, this category of payments is not subject to annual indexation).
• Receiving an additional 14 days of vacation at your own expense.

What happened

From 2021, pensions of working pensioners are not indexed.
In order for the Pension Fund to determine the status of a pensioner, all employers submit information using the SZV-M form. As soon as a pensioner stops working, his pension is indexed. However, until recently this process was slow.

For example, a pensioner retired in July 2021. In August 2017, the Pension Fund received a report from the employer, in which the pensioner was still listed as working. In September, SZV-M entered the Pension Fund without a pensioner.

The decision to pay the indexed insurance pension is made by the Pension Fund of Russia in the next month after receiving the employer’s report, that is, in October. Such a pension begins to be paid in the month following the one in which the decision was made. In this case - from November 1.

But that was before. Since 2021, the situation has changed.

How to fire a pensioner in 2021

For a personnel service employee, the dismissal of a pensioner in 2021, just like in previous years, must be based on legislative norms. At the same time, termination of employment relations with infringement of the employee’s rights due to his age is not allowed - this will be considered by the court as discrimination. In accordance with current Russian legislation, the following options for terminating relations are possible:

• at your own request;
• at the initiative of the employer;
• by agreement of the parties.

At your own request

The voluntary departure of an employee of retirement age is no different from the termination of working relationships with other employees, except that such an employee is spared two weeks of work. To do this, the prepared statement must contain an indication that the employment relationship is being terminated due to retirement. If a person of retirement age later gets a job again, then the next time the relationship with the employer is terminated, this benefit will no longer be available to him - according to the Labor Code of the Russian Federation, it is provided only once.

The dismissal of a pensioner in 2021 has its own characteristics for financially responsible persons. Termination of work activity in this case implies an inventory and transfer of entrusted property to a successor or employer, and the resigning person must notify the manager in advance (two weeks). This is done using a statement.

At the initiative of the employer

Although the law does not allow the dismissal of a pensioner in 2018 due to reaching the appropriate age, there are other options for terminating a working relationship at the initiative of the employer. Legally permitted cases include termination of a contract:

• due to the liquidation of an enterprise or termination of the activities of an individual entrepreneur;
• due to staff reduction;
• if the employee is not suitable for the position held;
• in case of violation of internal regulations or theft of property.

The first two reasons are the most common. If there is a desire/necessity to lay off an employee at the initiative of the employer or dismiss him due to the liquidation of the organization, the HR department is obliged to notify the employee about this two months in advance. Termination of a contract for reduction involves a change in the staffing table of the organization, where the previous position should not be available. The employer needs to know that staff reduction cannot be used as a way to get rid of pensioners - directors may be held administratively liable for this.

Another mandatory condition is that when a pensioner is dismissed in 2018 due to staff reduction or liquidation of the enterprise, the accounting department is obliged to make all payments required by law to the employee. This includes payment of two months' salary and compensation for unused vacation. Alternatively, if there is a reduction in staff, the employee is offered another position. If the employee agrees, he does not resign, but is transferred to this specialty.

If the dismissal of a working pensioner in 2021 occurs due to inadequacy for the position held, then this decision must be supported by appropriate documentation. This includes:

• conclusion of a medical commission on a change in health status, excluding the possibility of performing work duties (a medical examination is necessary regardless of whether the employee is disabled or not);
• documented low level of qualifications discovered during professional recertification.

Violation of internal regulations (for example, showing up at work drunk) or material damage to the organization (for example, theft of property) are legally considered reasons for terminating an employment contract. In this case, the incident must be documented accordingly - a report must be prepared and written explanations must be received from the guilty employee. Based on these documents, the director must make a decision and issue an appropriate order.

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By agreement of the parties

The dismissal of a pensioner in 2021 by agreement of the parties must occur in accordance with Article 77 of the Labor Code of the Russian Federation, and the initiator can be either the employer or the employee himself. Depending on the reasons, the advantages of this form of termination of employment include:

• the possibility that the application does not contain a reason for termination of the employment relationship;
• a favorable alternative to terminating an employment contract due to the fault of an employee, an “unspoiled” work book;
• extension of continuous service for another 1 month;
• the possibility of obtaining more acceptable conditions (amount of compensation, etc.) than in case of dismissal “at one's own request”.

Is it possible to fire a pensioner due to age?

The legislation of the Russian Federation does not provide for the employee’s retirement age as a reason for dismissal. According to Art. 3 of the Federal Law of the Russian Federation (hereinafter referred to as the Federal Law of the Russian Federation) “Labor Code of the Russian Federation” (hereinafter referred to as the Labor Code of the Russian Federation) dated December 30, 2001 No. 197-FZ, the severance of labor relations with a pensioner due to advanced age on the initiative of the management of the organization that hired him is a violation civil rights.

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The organization has the right to dismiss a pensioner on the general grounds regulated by law:

• at one's own request - Art. 80 Labor Code of the Russian Federation;
• by mutual agreement of the parties - Art. 78 Labor Code of the Russian Federation;
• in connection with the liquidation of the enterprise - Art. 180 Labor Code of the Russian Federation;
• according to Art. 81 of the Labor Code of the Russian Federation under the following circumstances:
  violation of official duties;
• low qualifications;
• staff reduction;
• absenteeism;
• serious complaints from the company management: embezzlement, theft, being under the influence of alcohol/drugs at work, negligent/criminal actions.

In what cases is training mandatory?

Although, according to Russian legislation (Article 80 of the Labor Code of the Russian Federation), the dismissal of a pensioner in 2021 does not provide for two weeks of work, there are exceptional cases. These include situations where the working relationship ends:

• by agreement of the parties, when it is necessary to find a new employee to fill a vacant position;
• if a retired employee leaving on vacation is a financially responsible person, and an inventory with the transfer of affairs is required;
• when the employee has already once exercised the right to preferential dismissal without working off.

Dismissal “without working for two weeks”: is it possible or not?

In practice, dismissal of a pensioner at his own request “without service” usually occurs on the date indicated in the application. The Labor Code does not establish time limits, but the director of the company cannot detain such workers (many court decisions confirm this).

The government often considers increasing the retirement age, since many continue to work. The company is also not interested in the loss of able-bodied people with valuable experience and knowledge. Dismissal of a pensioner at his own request “without service” is possible if two conditions are met:

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The procedure for dismissing pensioners at their own request

Although this form of termination of employment is the most common case among employers, the dismissal of a pensioner requires attention from both the personnel services of the enterprise and the employee himself. In order to properly go on vacation, an employee needs:

1. Determine the date of termination of the employment relationship and write a statement indicating the end date of work and the wording - “in connection with retirement.” The situation may require working out (for example, for inventory), this must be taken into account when making calculations so that the additional time at work does not come as a surprise.
2. The application is handed to the employer (preferably with a signature confirming receipt on the second copy of the document). The director may require that a copy of documents (for example, a pension certificate) be attached to the application - labor legislation nowhere speaks of such an obligation for a resigning employee, so fulfilling this requirement remains at his discretion.
3. The director must issue an appropriate order terminating the employment relationship from the specified date.
4. By the time the employment relationship is terminated, the accounting department calculates all necessary payments.
5. On the last day of work, the resigning employee receives a paycheck and a work book. In some cases, money may not be transferred on the last day, but a little later - when other employees receive their salaries.

How to write an application correctly

Although there is no legally established application form, it must reflect certain points. These include:

• Last name and initials of the head of the organization and his position.
• Last name and initials of the applicant, his position indicating the department.
• The word "Statement" is in the center.
• Text indicating the date of termination of the employment relationship.
• If an employee applies for a benefit - absence of two weeks of work, then he must indicate the reason for termination of the employment relationship - “in connection with retirement.”
• The application ends with the date of writing and signature.

What payments are due?

When a pensioner is dismissed in 2021, he is entitled to a number of payments and compensations - some of them are mandatory by law, but there are also payments that depend entirely on the employer. When terminating an employment relationship, an employee is required to receive:

• salary for hours worked without debt on the part of the employer;
• compensation for unused vacation (calculated by accounting based on average daily income).

Right to additional payments

In addition to transfers required by law, payments upon retirement can be established by the employer himself (for example, this includes an additional benefit for retirement, the amount of which is not regulated by law). But there are also additional payments established by the Labor Code of the Russian Federation, which an employee receives upon dismissal due to staff reduction or liquidation of an organization - this is a benefit in the amount of two monthly salaries (if the employee was engaged in seasonal work, the compensation payment will be less).

Payments upon dismissal

On the last day of work, a citizen of retirement age receives not only the main list of documents, but also a full payment, namely:

• Payment for the period worked.
• Vacation pay.
• Payments within two months after dismissal. Compensation can also be assigned for the third month if the relevant decision is made by the Employment Center. An important condition for continued payments is that the pensioner registered 2 weeks after dismissal and has not yet been employed in a new job.

After a decision has been made by the Employment Center to extend payments, the pensioner transfers the information to the employer, who, for his part, can apply to the judicial authorities to cancel this benefit. However, the court does not always make a decision in favor of the working pensioner.

It is important to know! Why do you need SNILS?

The only group of pensioners who can qualify for one more month of payments are the disabled.

Personal income tax is not withheld from these payments.

Not all managers conscientiously fulfill their obligations to dismissed persons. In the absence of the above payments, the elderly person has the right to send a claim to the manager. The form should indicate the main requirements on the part of the injured person and the future consequences that the manager may face if these requirements are not met.

If the letter has not received due attention, the pensioner has the right to go to court, where it is necessary to provide a statement of claim and a copy of the above claim.

Most working pensioners, faced with a similar situation, are unaware of their own rights. Consequently, many employers use illegal methods when firing older people. To avoid getting into trouble, pensioners should be aware of their rights when downsizing, which you can read about in detail in our article.

Rules for dismissal of pensioners during staff reduction in 2018

When an enterprise downsizes, people of retirement age are laid off on a general basis. At the same time, an imaginary reduction aimed at formalizing the departure of a pensioner with the least loss for the organization is not legal - the previous position must be removed from the staffing table so that a new employee cannot be hired for this position. The director must adhere to the following procedure:

1. Announcement to the employee (against signature) about changes in the staffing table two months before dismissal.
2. Preparation of an order to change the staffing table due to the reduction of certain positions.
3. Determining whether the employee can occupy other available positions at the enterprise (in some cases, this is stated in the employment contract as a benefit, if he has a long period of work at the enterprise). If the employee agrees, the dismissal procedure is replaced by a transfer to a new position. An offer for a new job is made in writing - if the conditions do not suit the employee, he can refuse them, which returns the process to the formalization of the dismissal procedure.
4. Calculation of all payments necessary for the employee in accordance with the Labor Code of the Russian Federation (salaries, compensation for unused vacation, benefits in the amount of two months’ salary). If the organization has additional benefits for those retiring, they are also added to the total amount.

Benefits and compensation according to the Labor Code of the Russian Federation

Retirement implies full settlement with the employee. On the last working day when staffing is reduced, he must be paid:

• Wages for hours worked in the current month.
• If there is unused vacation, compensation for it.
• Benefit in the amount of two months' salary. In some cases, payment is made for the third month (for example, with the assistance of the labor exchange - according to Letter of the Ministry of Finance No. 03-03-04/1/123 dated November 30, 2005, employment centers do not have the right to refuse to issue certificates of absence to persons of retirement age required vacancies).
• Additional benefits not provided for by the Labor Code of the Russian Federation - their payment will be regulated by internal regulations.

In what cases is the amount of compensation benefit equal to 2 weeks' earnings?

In certain cases, labor legislation provides for a reduced amount of compensation payments upon dismissal. A benefit in the amount of two weeks' salary is paid in the following situations:

• if the employee’s work was seasonal;
• if on his part there is a refusal to transfer to another organization by agreement between employers.

Features of payment of compensation to workers of the Far North

Article 318 of the Labor Code of the Russian Federation declares state guarantees for workers in the Far North (and equivalent territories of closed administrative entities and regions from a special list) in the event of dismissal due to staff reduction or liquidation of the organization. In this case, dismissed employees are entitled to payments in the amount of salary for the period of employment, but not more than six months.

Payments and compensations in accordance with the Labor Code of the Russian Federation

After termination of the employment contract, the employer is obliged to transfer the material resources due to the resigning person:

Labor Code of the Russian Federation dismissal of a pensioner

The parties to an employment contract have mutual rights and obligations: by virtue of the provisions of Articles 22, 70, 71, 80, 189, 292 of the Labor Code of the Russian Federation: the employer has the right to demand that the employee fulfill his labor duties; labor discipline - obedience to the rules of conduct is obligatory for all employees; the employee, if the employment contract is not concluded for a period of up to two months, the probationary period has expired, has the right to terminate the employment contract by notifying the employer in writing no later than two weeks in advance. . The code does not contain any conditions shortening the period, including for pensioners, with the exception of the agreement of the parties and the moments specified in Article 80 of the code, namely: when an employee’s application for dismissal on his initiative is due to the impossibility of continuing his work, as well as in cases of established violation by the employer of labor legislation. .

No one is obliged to work off; there is no such thing in the Labor Code. But you MUST WARN the employer in writing no later than 2 weeks in advance about the intention to terminate the employment contract with him. And then, as he sees it, maybe he’ll fire you right away. And the service pension has nothing to do with it.

Is it possible to quit without working?

• It is possible to quit without working for various reasons related to circumstances in the family or personal life. The laws allow such possibilities, but they will have to be documented, which may cause difficulties.
• The reason for an early termination of work may be the relocation of a spouse for an extended period of time to another region or country. A common case is a long business trip for a husband or wife, which entails the relocation of the entire family. This is a very compelling reason that may be asked to be documented.
• Undoubtedly, the legislation considers all cases of deterioration in the employee’s health to be valid, which entail the need to leave the given region with confirmation of this fact by a medical report. An illness that prevents an employee from performing his official duties is also included in the list of cases that do not require two weeks of work.
• Having children will help you quit as quickly as possible. We are talking about families with children and adolescents under 14 years of age. Any parent of a large family who has three or more dependent children under 16 years of age can demand early termination of an employment contract. Or the children in such a family have not reached their 18th birthday, provided that all of them are students of general education institutions.
• A good reason is caring for a disabled child or a sick family member, as well as a disabled person of the 1st group, which, as you might guess, must be confirmed by a medical report.
• Pregnant women are exempt from compulsory service.

This version is very real for an employee of a small private company if he does not need to complete a certain amount of work. If you have direct access to the person making such decisions, then it is worth talking directly. A one-on-one conversation, in which the employee can explain the reasons for an early separation, can evoke understanding from the manager, who will meet the employee halfway. Once you have received a signature on your resignation letter of your own free will, you can begin to say goodbye to your colleagues and forget the way to the office the next morning.

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