Upon reaching retirement age, a working citizen is classified as a socially unprotected category. The rules for dismissal are prescribed in the Labor Code of the Russian Federation. To avoid violations of the law, it is recommended that both parties know the nuances.
Employers are required to take into account a number of features that do not apply to other categories of citizens except pensioners. Termination of work for them means deprivation of additional income, which is necessary for living. Is it legal for an employer to fire a pensioner? Is age a basis for deprivation of work?
Dismissal of a pensioner in 2021: could retirement age be the main reason?
Every pensioner has the right to stop working. However, a worker can continue to work if there is health and need. Starting from 2021, women will retire at the age of 60, and men at the age of 65. Reaching the age limit is not at all a reason for the employer to say goodbye to the worker.
The conditions for retirement are stated in:
- Federal Law No. 400 dated December 28, 2013 “On insurance pensions”;
- Federal Law of December 17, 2001 No. 173 “On labor pensions in the Russian Federation.”
If an employer deprives a pensioner of work upon reaching the above age (in Russia, such an action is called “age discrimination”), he violates the law of the Russian Federation and may be held accountable.
Possibility of transfer to another position
Typically, a pensioner is not fired from the company, but transferred to a position with less responsibility.
But this can be done subject to the following conditions:
- An employee can be transferred to another department for another position. But in this case, his full consent is necessary.
- If the employee agrees, the transfer to a new place of work is formalized.
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You can fire an employee from his current position and then employ him with a new employment contract.
To transfer a specialist to another position, it is important to fulfill a number of actions and conditions:
- It will be necessary to draw up a new employment contract, which specifies the job characteristics. It also stipulates other important conditions.
- An order for transfer to a new place of work is issued.
- Information about the completed transfer is entered into the work book.
- A corresponding entry is made in the specialist’s personal card.
If you plan to dismiss an employee from a company, the reason for leaving must be indicated in his work record book.
Typically, a pensioner is not fired from the company, but transferred to a smaller position
Rights of a working pensioner under the Labor Code of the Russian Federation
A working pensioner is endowed with equal rights as other age groups according to the Labor Code of the Russian Federation. In addition, the pensioner has the right:
- receive additional leave for two weeks;
- choose your own time for rest (if you are a WWII participant);
- not paying property taxes;
- receive preferences in case of issuing travel tickets to vacation spots, boarding houses, and sanatoriums;
- do not work for two weeks in case of dismissal due to retirement.
Does an employer have the right to fire without his consent?
The employer has the right to dismiss employees without their consent if one of the following points is detected:
- upon liquidation of an enterprise;
- upon detection of a gross violation on the part of an employee
- for inadequacy of the position;
- when staffing is reduced;
- for theft and embezzlement of enterprise/company property;
- for appearing while intoxicated.
It is important to comply with formalities when preparing documentation; the evidence must be irrefutable.
How to write a statement correctly
A pensioner has the right to write a letter of resignation of his own free will; this is the best way to part with an employee. A worker has the right to write a document after reaching the age limit.
How to properly quit a job in order to receive benefits
If labor activity is not terminated voluntarily, the employee has the right to claim additional payments - benefits.
You can count on them, for example, if an employee is fired during a staff reduction. The amount of cash benefit should not be less than the monthly salary received by the pensioner. This payment is not a one-time payment. It is done at least twice before official employment. A dismissed pensioner has the right to count on additional payments if:
- has a disability group;
- works in closed institutions or in the Far North.
Application for self-employed worker, sample
It must be written addressed to the general director of the company or manager in a single copy, indicating personal data and the reason for dismissal, the text must be certified with a personal signature. It should be recorded in accounting. After the boss’s signature appears, the employee is given a workaround sheet.
For an employer: how to fire in 2021 according to the law
According to the law, dismissal is possible in case of his own desire to stop working, by agreement of the parties, in case of staff reduction, obvious violations on the part of the employee, due to appearing drunk.
At your own request
After 65 years of age, a person has the right not to work. You must prepare a statement and inform your employer of your intention to leave your position.
Rights of a pensioner upon dismissal of his own free will
The worker should submit an application indicating the position, details of the head of the organization, the contents of the document, date and signature.
After receiving the document, the manager is obliged to prepare an order containing all the detailed information about the employee: data, reason for termination of the employment contract, position held by him, date, signature, as well as the internal number of the contract under which he was listed in all company documents. You don't need to work for two weeks. It is necessary to have the worker’s signature confirming his familiarization with the order.
After the order comes into force, the employer is obliged to pay the employee and issue the necessary documents. The ex-employee signs the journal for recording the movement of internal documents, thereby recording the fact of their receipt.
What is the procedure for voluntary dismissal without work?
Termination of labor obligations due to retirement involves the dismissal of an employee without two weeks of work. In all other cases, the pensioner is obliged to notify the management team of his intentions to leave his position 14 calendar days in advance.
At the initiative of the employer
The employer has the right to say goodbye to the employee without his consent, and to do so in accordance with the law. Below are articles according to which it is possible to lay off an employee.
Is it possible to lay off at the initiative of the employer?
To fire a person without his consent, the employer must have reasons. In accordance with Article 81 of the Labor Code of the Russian Federation, these include:
- absenteeism;
- failure to comply with job descriptions;
- mismatch of qualifications;
- actions that led to administrative or criminal liability.
How to lay off a pensioner without his desire according to the law
If retraining is not completed or is not confirmed, the employee may be fired or laid off.
He is obliged to vacate his position. If he agrees to take another position, options are offered; if he refuses, the employer has the right to dismiss the working pensioner.
By agreement of the parties
Termination of contractual relations occurs by agreement of the two parties. The employee informs of his intention to stop working and asks for the employer's consent to dismissal.
In order to subsequently withdraw such a statement, permission from the other party is required.
Step-by-step instructions for downsizing
The employer is required to notify about the intention to reduce staff at least two months in advance. Moreover, open vacancies are offered to everyone who is likely to be deprived of work. Receive a written agreement to transfer to another position or refuse it and only after that draw up a dismissal order.
The calculation is made on the pensioner’s last working day.
By old age
An employer does not have the right to fire an employee simply because he has reached retirement age. Otherwise, he will face punishment for age discrimination against workers.
Features of dismissal at will
There are many companies whose management considers it possible to fire a person when he reaches retirement age. The initiative in most cases comes from the employee.
Please note: if an employee decides to resign, he has an obligation to notify the employer 2 weeks before the upcoming event. The employer may require work during this entire period.
This period is necessary so that the employer has the opportunity to select a replacement. If you do not want to work the allotted time, you can try to reach an agreement with the employer on less work or dismissal without it. But in this situation, the decision will be made by the company's management.
Dismissal upon retirement
If an employee has the opportunity to resign due to his retirement, the employer cannot keep him at work for another 2 weeks. The application must be drawn up accordingly - it must indicate “retirement” as the reason. As a result, the employee can independently choose the date of his dismissal.
There is an opinion that on this basis a person can quit only once. If the employee subsequently gets another job, he will subsequently be dismissed on a general basis. But this point is not properly spelled out in the legislation. For this reason, the specialist formally retains the right to use the retirement language more than once. But the company's HR department does not always allow this.
Pensioners have the right to resign without compulsory service
Dismissal by agreement of the parties
This method is considered one of the best, but has many features. According to Art. 78 of the Labor Code of the Russian Federation, the contract can be canceled by agreement of the two parties and at any time. Thus, there are no obstacles to breaking the working relationship, including from the trade union.
A corresponding application is made through the manager’s office with a proposal to terminate relations with the employee. When the two parties come to agreement on this point, it is necessary to submit an application for cancellation of the contract. It is important to indicate in it all the agreements reached.
Not many people draw up such a document, but it can protect both parties from possible negative consequences.
Please note: it is possible to dismiss a pensioner by agreement of the parties with payment of compensation. In this case, compensation should be documented if the employer agrees to it.
According to the law, additional payments are not provided, and an order is printed based on the application.
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If you are laid off, what payments are due?
A pensioner may be dismissed due to staff reduction or liquidation of the enterprise. He has the right to count on cash payments - severance pay.
Severance pay
An employee who has been laid off is paid a benefit in the form of average monthly earnings. It persists for another two months.
Is severance pay paid in case of staff reduction or liquidation of an enterprise?
The benefit is paid on the day of dismissal in the form of average monthly earnings and income for the entire period of employment. The amount does not exceed the salary until the day of dismissal.
Severance pay upon voluntary dismissal from a permanent job
Dismissal at one's own request involves financial payments in accordance with Article 178 of the Labor Code of the Russian Federation. The amount is equal to the average monthly salary.
Lump sum payment due to retirement
The payments that a pensioner receives after dismissal are identical to those received by citizens of a different age category. These include:
- salary for the period worked (Article 140 of the Labor Code of the Russian Federation);
- compensation for unused vacation days (Articles 126-127 of the Labor Code of the Russian Federation).
Additional payments
Persons of retirement age can count on:
- bonus payments if this is provided for in the employment contract and there have been special labor merits;
- premiums for complexity (Article 129 of the Labor Code of the Russian Federation).
Rules for providing benefits and compensation upon dismissal
After retirement, government employees have the right to retain benefits for travel on public transport, purchasing a voucher to a sanatorium, etc.
When working in hazardous conditions, according to Article 126 of the Labor Code of the Russian Federation, unused additional leave is reimbursed.
Payments due to a pensioner upon dismissal
Dismissal of a pensioner can also occur on a general basis:
- At your own request.
- At the initiative of the employer (this includes staff reduction or other reasons for such a decision).
As for voluntary dismissal, it is equivalent, in the case of pensioners, to retirement, i.e. there is no legal difference between these dismissals. As in the case of the dismissal of a pensioner at his own request, the basis for dismissal upon retirement will be a written application from the person addressed to his employer.
It is worth noting that a person can only use retirement as a reason for leaving once. If his work record book already contains a record that he quit for this reason, then re-dismissal for it is impossible.
Articles on the topic (click to view)
- What to do and where to go if you are not paid upon dismissal
- What to do if you are laid off at work
- What to do if the employer does not want to fire at his own request
- What to do if the date of the dismissal order is later than the date of dismissal
- What to do if the employer does not give the work book after dismissal
- What to do if you didn’t work officially, you were fired, you didn’t get paid
- What is the employer obliged to give the employee on the day of dismissal?
This is important to know: Deadline for appealing a dismissal order
These payments are controlled by current legislation, so their execution is mandatory. However, in addition to this, additional cash payments upon dismissal may be prescribed in a separate enterprise. Naturally, they are part of the corporate policy of a particular organization, and therefore are not regulated by law.
If the reason for dismissal was, say, a reduction in staff, then in addition to the mandatory payments listed above, severance pay is added. According to the Labor Code, the amount of this benefit must be at least one monthly salary that the pensioner received in this particular organization. At the same time, payment of this benefit will be made for at least two months from the date of dismissal until the person finds a job. However, even if the pensioner was unable to find a new place, this period is still the same 2 months.
Here we need to make a little reservation. According to the law, there are categories of pensioners who can count on severance pay paid over a longer period of time:
- Pensioners with a disability group that allows a person to continue working.
- Pensioners working in the Far North, as well as employees of certain closed institutions.
In the latter case, the payment period can be extended to six months, in case of temporary difficulties with employment of these persons.
Current issues
The employer is obliged to comply with the Labor Code of the Russian Federation in relation to employees, in particular those who have reached retirement age. Pensioners who are about to reach this age limit are extremely worried. After all, there are sometimes many more questions regarding their future fate than answers.
Will there be a reduction in 2021?
There have been no changes in legislation regarding the need to dismiss pensioners. The reasons for terminating a contract with a person of retirement age are:
- application at your own request or in connection with retirement;
- reduction of the company's staff;
- liquidation of the enterprise.
When is it more profitable for a working pensioner to quit?
Since 2015, monthly payments to retired workers are not subject to indexation (annually on February 1), which means that the pension will be paid in an increased amount, taking into account missed indexations.
This will happen three months after dismissal. This is the amount of time the state gives the employer to provide up-to-date information.
Both the pensioner and the employer should know the nuances of dismissal. The employee needs to decide whether to continue working or rest. The employer is obliged to prepare documents in accordance with the Labor Code of the Russian Federation and make appropriate entries in the employment document. And in case of settlement, understand what payments have to be made.
Processing payments upon dismissal
Payments due to a pensioner upon his dismissal are formed only after the procedure for dismissing the employee has begun. Step by step it looks like this:
- Drawing up a resignation letter by a pensioner.
- Issue of order for dismissal.
- Formation and payment of due funds.
- Making the necessary entries in the pensioner’s work book.
Let's look at each point in more detail.
Employee statement
The application must be made in writing addressed to your immediate superior. It indicates the reason for dismissal - either of one’s own free will, if the person wants to find another job, or in connection with retirement, if the person does not want to continue working. The reason is important, because working out the required period will depend on this - if a person retires, then he is exempt from this working period.
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Here you need to take into account the following nuances:
- The application must be officially recorded in the accounting department, where a corresponding note about this is made.
- You need to make a copy of the application, which has an accounting mark, as well as the signature of your superiors, saying that he does not object to the dismissal.
- A bypass sheet may be issued.
Drawing up an order
The order must contain the following information:
- Serial number of the employment agreement.
- Date of proposed dismissal.
As for terminology, there is one small nuance:
- If a person retires or is dismissed by agreement of the parties, then the employment contract is terminated.
- If a person quits for other reasons, then the employment contract is terminated.
Formation of payments
A person of retirement age, if he resigns of his own free will, is entitled to payment of monetary compensation for unused vacation, as well as the remaining wages for the current pay period.
Expert opinion
Lebedev Sergey Fedorovich
Practitioner lawyer with 7 years of experience. Specialization: civil law. Extensive experience in defense in court.
It is calculated by calculating the average earnings that a pensioner receives in one day, the total number of days worked in a year, as well as his annual salary. Based on these data, the amount of this payment is calculated.
