Liability for dismissal of pre-pension age people has just come into being in Russia
On October 03, 2018, the President of Russia signed a law[1] amending the Criminal Code by adding a new article (Article 1441) on liability for unfair dismissal and refusal to hire people on grounds of their pre-pension age[2]. The law provides the following penalties for such offense:
- A fine of up to RUB 200,000, or
- A fine in the amount of the offender’s salary/other income for up to 18 months, or
- Community service for up to 360 hours.
Company officers entitled to make decisions about employee hiring and dismissal are those intended to be brought to criminal liability for unfair dismissal. CEOs and HR directors are usually among those officers.
The purpose of this law is to guarantee that jobs will be kept for older people who, in keeping with the pension reform, will have to work much longer. An identical rule on criminal liability for unfair rejection or dismissal of pregnant women and women with small children is already provided in Article 145 of the Criminal Code. The application of this rule in practice shows that to avoid such liability employers do their utmost not to hire this particular category of the population. And if they did, then employers have an extensive arsenal of arguments to “justify” the termination of employment contracts up to forced resignation which is extremely difficult for an employee to prove in court.
It seems that this new Article 1441 of the Criminal Code could be used by people of pre-pension age to pressurize employers who have not hired or who have dismissed them. We therefore recommend devising preventive measures already now, including:
- Ensuring that a formal procedure for selecting and evaluating candidates based on their business skills is in place in your company[3]. To this end, we recommend specifying in job descriptions detailed and comprehensive qualification requirements for candidates as well as putting interview results in writing as well as skills assessment, especially when a candidate of pre-pension age is rejected. This will allow avoiding groundless rejection and pressure from opportunistic candidates;
- Ensuring that the grounds for termination of employment with pre-pension age and younger employees are thoroughly analyzed and documented. Such measures will make it easier to resolve disputes with employees in the favor of your company and, as a result, minimize the risk of criminal liability under Article 1441 of the Criminal Code.
We would be pleased to provide detailed practical recommendations on measures that will allow you and your company to minimize the risk of liability for labor law violations.
If you have any questions or would like to discuss this matter further, please write to Anna Yakovleva.
Yours truly,
[1] http://sozd.parliament.gov.ru/bill/544570-7
[2] Pre-pension age is 5 years prior the age at which people are eligible for pension, i.e. 55 for women and 60 for men.
[3] Article 64 Russian Labor Code. An employee’s business qualities should be understood, in particular, as the ability for an individual to perform a certain function taking into account his/her professional qualifications (for example, a certain profession, trade, skills), his/her personal qualities (for example, health, certain education level, work experience in a particular professional field, in a given industry) (Item 10 Supreme Court Ruling No. 2 dated March 17, 2004 (as amended on November 24, 2015) On application of the Russian Labor Code by courts of the Russian Federation