Is it possible to fire an employee with a mortgage loan? Can you be fired if you have a mortgage? They won't drive us away

For many families, the only way to purchase their own home is to take out a mortgage loan. And in this regard, the question of whether borrowers can be fired from work if they have a mortgage is more relevant than ever.

Labor legislation, latest changes

Labor Code Russian Federation- the basic labor law, it spells out the grounds on which they can be asked to leave work and the reasons why an employee can leave on his own. The Code, like any other law, is constantly changing to adapt to the needs of modern life. Some norms are added to it, others that are no longer relevant are excluded. This also applies to the reasons for leaving.

Thus, in December 2018, a bill was introduced into the State Duma proposing to prohibit an employer, on his own initiative, from dismissing subordinates who have taken out a mortgage for the initial acquisition of ownership of residential premises.

Many families with small children make a lot of efforts to purchase their only home on credit for several decades, and after perhaps a few months, borrowers may be laid off and left with huge debts and without an apartment. Therefore, this bill is important and if it is adopted, mortgagers will have certain guarantees and confidence in the future.

True, the ban on dismissal of a person who has taken out a mortgage loan applies only to a few cases:

• inadequacy for the position held.

The manager will be able to use all other reasons for dismissal without risking breaking the law.

Who can't be fired from their job?

The Code still grants certain categories of workers such immunity. But it is a mistake to think that such people cannot be removed under any circumstances. This is wrong!

Category of persons not subject to dismissal	Why can you get fired?
Pregnant woman	It is possible to fire a woman in this position if the employment contract concluded during the absence of another employee has expired, and it is impossible to transfer her to another job.
A woman with a child under three years old. Single mother with a disabled child under 18 years old. Single mother with a child under 14 years old. Another person raising such children without a mother. The sole breadwinner of a child under 3 years of age in a large family, if the other parent does not work. The sole breadwinner of a disabled child under 18 years of age.	Liquidation of the enterprise. Systematic failure to fulfill labor obligations with an existing disciplinary officer. Serious failure to comply with work duties (absenteeism, drunkenness at work, theft, etc.). Loss of trust in the financially responsible person due to misconduct. Conflict of interest. Immoral act, use of methods of education associated with violence (only for employees performing educational functions). Employment using fictitious documents.

When laying off employees, there is a greater chance of retaining a colleague with higher qualifications or labor productivity (179 Labor Code of the Russian Federation), and if for several people these two factors are equivalent, then priority is given to:

1. Married and with two or more dependents.
2. Sole breadwinners (those for whom no one else works in the family).
3. Those who have suffered injury or harm to health while working at the enterprise.
4. Those who received disability in military actions to defend the homeland and the Second World War.
5. Those sent on-the-job to improve their qualifications.

The company’s internal regulations may also provide for other groups of employees who cannot be removed from their positions.

For reference! If the company's employees are laid off, colleagues who have taken out a mortgage will have a priority right to remain in the service on an equal basis with the specified categories of citizens.

But the boss will be forced to choose those who will remain in the service based on the totality of all factors. For example, a family man with two young children and a mortgage will have a greater chance of staying employed than a single citizen with the same loan.

Important nuances of dismissal

Article 83 of the Labor Code of the Russian Federation.

However, if the amendment banning the dismissal of citizens with a mortgage is adopted, such citizens still should not relax.

The employer will be able to dismiss them on his own initiative if such subordinates violate the norms established by labor legislation.

In addition, this amendment will not apply to care for reasons beyond the control of the parties (83 Labor Code of the Russian Federation):

• the former employee was reinstated in the service (by decision of government bodies);
• the decision on reinstatement was canceled;
• were not re-elected to office;
• the court sentenced him to punishment and this makes it impossible to continue working;
• declared incapable of work;
• in case of war, natural disaster, emergency, etc.;
• disqualified or imposed an administrative penalty if this does not allow you to continue working;
• deprived of special rights (carrying weapons, driving, etc.).

An employee can be fired if he himself refuses to continue working for the following reasons (77 Labor Code of the Russian Federation):

• due to a change in the owner of the enterprise;
• changes in the terms of the contract;
• transfer to another position due to illness;
• office relocation;

1. The work involves activities that are contraindicated for health reasons.
2. The employee does not have the educational document required by law for his position.
3. The requirements of the law were violated.
4. The requirements of the court verdict were violated.

The contract may be terminated due to the expiration of the period for which it was concluded, regardless of the presence or absence of a mortgage.

Court Considers disputes no more than a month old. State Labor Inspectorate The application deadline has not been set, but it is better not to delay. Prosecutor's office It is also better to write an application “without delay”, within 2 weeks. There is no legal restriction.

In addition to reinstatement at work and the salary not received during the “rest”, in the event of illegal dismissal, you can demand compensation for moral damages from the boss.

Buying your own home is certainly a significant and responsible event in a person’s life, especially if a large amount of borrowed money is taken to purchase it. And the adoption of an amendment that protects the rights of mortgage borrowers will help reduce risks for both banks and citizens.

A bill prohibiting the dismissal of workers who pay a mortgage for a number of reasons was introduced to the State Duma in 2016 by two deputies from the Liberal Democratic Party of Russia (LDPR). In 2017, the lower house of parliament, having considered the bill in the first reading, rejected it. This means that mortgage holders did not receive any benefits upon dismissal. However, it cannot be ruled out that relief for this category of workers will appear in the future.

Is it possible to fire an employee with a mortgage in 2018?

No law - no ban. In 2018, the labor legislation of the Russian Federation does not provide for benefits for dismissed employees paying a mortgage.

This means that in a situation where the employer is faced with a choice of whom to fire and whom to keep, all other things being equal, the presence of a mortgage can have a decisive influence only if the employer himself considers this factor significant. He does not have any legal obligations for this.

A bill banning the dismissal of mortgage holders was introduced into the State Duma in 2016. But he was never accepted

As for the bill, it represents amendments to Art. 81 of the Labor Code (LC) of the Russian Federation, which lists all the grounds on which the employer has the right to part with the employee, regardless of his consent. The authors of the bill proposed benefits for two categories of mortgagers:

• falling under staff reduction;
• dismissed due to failure to pass certification, if it is mandatory for the position held.

Another condition for the extension of the benefit was the use of a mortgage for the first time.

It is not permitted to dismiss an employee who has obligations under a mortgage agreement on a residential building or apartment for the residential premises he initially purchased as his own, on the grounds provided for in paragraphs 2 or 3 of part one of this article.

Bill No. 27093–7 “On amendments to the Labor Code of the Russian Federation (on providing employees who have obligations under a mortgage agreement for a residential building or apartment with additional guarantees upon dismissal at the initiative of the employer or in connection with a reduction in headcount or staff).”

http://asozd2.duma.gov.ru/main.nsf/(ViewDoc)?OpenAgent&work/dz.nsf/ByID&D0B3611E51810DE04325806D004F09ED

In the explanatory note to the document, deputies indicate that the bill was designed to protect the bulk of consumers of this type of credit product - recent university graduates who often already have children. For them, a mortgage is usually the only opportunity to purchase housing. And there are often situations when these people, within a month or two after taking out a mortgage loan, find themselves on the street and left alone with growing debt.

However, in July 2017, when considering the document in the first reading, deputies rejected it. As of 2018, it is listed in the State Duma’s electronic database as archived.

It cannot be ruled out that the parliament will nevertheless return to consider it or that it will include new version bill on the same topic. But there are no guarantees. And most importantly, labor legislation has not yet undergone changes in favor of mortgage holders.

Which categories of employees already have benefits when staffing is reduced?

In 2018, the set of preferential categories of workers remains relevant, the reduction of which is prohibited by the Labor Code of the Russian Federation. These include:

• single mothers or fathers raising a child under 14 years of age or a disabled minor;
• women who have children up to three years, regardless of the size of the family;
• guardians and adoptive parents of children under three years of age;
• mothers and fathers of many children, if at least one child in the family is under three years old and the second parent does not work, the benefit also applies to guardians and adoptive parents. A family with three or more children is considered to have many children;
• pregnant women;
• women on maternity leave.

It is possible to dismiss an employee belonging to one of these categories only upon liquidation of the company.

The law prohibits layoffs for women who have children under three years of age.

In practice, if the employer has no other choice but to fire the beneficiary, he is offered the option of separation by agreement of the parties. But here it all depends on what compensation the employer offers. After all, the employee is not obliged to agree to its terms and has the right to put forward counter ones. There is a known case when a woman in St. Petersburg signed a resignation agreement and only after that she found out that she was pregnant and withdrew her consent. The employer ignored these circumstances, but the court sided with the dismissed employee.

Two more categories of workers can be laid off only in agreement with the trade union. These are minors, members of the trade union committee, if there is one at the enterprise, and its chairman. If the company does not have a trade union organization, the dismissal of a minor must be agreed upon with the labor inspectorate and guardianship authorities.

Finally, there are several categories of workers who, other things being equal, have the right to expect that in the event of a reduction in staff they will have a preferential right to remain at work:

• having at least two dependents to support, which include not only children, but also elderly relatives, disabled people, etc.;
• the only breadwinners in the family;
• injured, occupational illness or disability in an organization that is reducing staff;
• disabled people of wars, combat operations, liquidators of the consequences of man-made disasters, in particular the Chernobyl accident;
• directed by the employer to improve their qualifications.

Features of the dismissal of military personnel with a military mortgage

A military mortgage is a special case, relevant exclusively for contract military personnel. With the help of this benefit, the state allows them to solve the housing problem with a minimum of their own costs or without them at all. But at the same time it motivates people in uniform to perform impeccable service for a long time.

Participation in military mortgage is implemented according to the following scheme:

1. After signing the first contract, the serviceman receives the right to become a participant in the savings-mortgage system (NIS).
2. From the moment he joins it, an account is opened to which a certain amount is transferred every year. He can only spend this money on purchasing housing or repaying a previously taken mortgage loan.
3. After three years of participation in the NIS, the serviceman receives the right to use the money he has accumulated for its intended purpose. Over three years, the account accumulates approximately a third of the maximum amount that he can count on from the state in the event of long-term impeccable service. The amount is calculated on the basis that by the age of 45 a serviceman becomes the owner of an apartment with an area of ​​54 m2. In 2018, the maximum amount of bank loans that banks can provide under military mortgage programs is 2.4 million rubles. However, you shouldn’t count on such a size: most likely, they will allocate less. If desired, the military man can transfer the amount accumulated to the NIS later, and it will increase every year.
4. As soon as a military man exercises his right to purchase housing with a mortgage, the state makes monthly payments for it. The soldier or officer himself has the right, in addition to these, to make regular contributions from his own funds. They will go towards early repayment of the loan.

The state uses military mortgages as a means of motivating defenders of the Fatherland

The best scenario for it would be to last 20 years. With such experience, upon dismissal from the army for any reason, he does not have to return to the state either the first installment (it is called a targeted housing loan - TSHZ) or monthly payments. But the state doesn’t owe him anything either.

With a service life of 10 to 20 years, the optimal option for a military man would be dismissal for preferential reasons (justifiable reasons). In this case, he not only does not have to return anything to the state, but also receives the right to an additional payment, which he can use to repay the loan. The amount of payment depends on how much time he lacked to reach twenty years of service. It turns out that the less time you serve, the greater the payment. After all, it is understood that if he had served regularly for all the required 20 years, the state would have made monthly payments for him during this period.

Example. The soldier served for 15 years, 2 months and 15 days. What amount will he receive as funds to supplement savings upon dismissal under preferential clauses? Before the onset of twenty years of service, he lacks 4 years, 9 months and 15 days. Accordingly, the amount of additional funds is calculated as follows: 245,880 * (4 + 9/12 + 15/365) = 1,178,034 rubles. The figure 245,880 is the annual savings contribution for 2015.

“Military mortgage and dismissal from service”

http://pravila-deneg.ru/voennaja-ipoteka/voennaja-ipoteka-pri-uvolnenii

Preferential reasons for leaving the army include:

• reaching the age limit for military service;
• health status:
  • recognition as unfit for service (in this case, the length of service does not matter for dismissal);
  • recognition as limited fit for service;
• operational staff activities (in fact, an analogue of staff reductions in civil organizations);
• family circumstances.

If a military mortgagee has served for less than 10 years, he, regardless of the reason for his dismissal, must return to the state within 10 years all the money paid for him - both the first installment (CLC), and monthly payments and interest on them, which are calculated at the refinancing rate. He pays the balance of the mortgage debt to the bank from his own funds, and the encumbrance on the home is removed after returning the entire amount of the debt.

Similar conditions apply to military mortgage holders, regardless of how long they served, dismissed on the following grounds:

• end of contract;
• failure to comply with the terms of the contract;
• at your own request.

One more nuance must be taken into account. When a military mortgagee who has served for more than 10 years is dismissed under preferential terms, the encumbrance on his home is removed only from the bank mortgage. However, from the moment he purchases housing, it is also pledged to the state. If he wants to remove this encumbrance and become a full-fledged owner of the housing purchased with a military mortgage, he must pay the state in full. To do this, you will have to return the CZZ and monthly payments increased by the refinancing rate. However, this is more profitable than buying an apartment yourself with a mortgage taken out from a bank.

It is understood that if a graduate of a military school began service no later than 25 years old, by the age of 45 he should have an apartment at his disposal for which the mortgage has been paid to the bank. At the same time, he has enough time to pay for it and the state. And a soldier can conclude the first contract during the period military service on call. And the state directs her to it from the age of 18.

Military mortgage using a real example (video)

How to protect yourself in case of dismissal while paying off your mortgage

It makes sense for an employee to think about this even before taking on the mortgage burden. After all, trust in God and the state, but don’t make a mistake yourself.

Anyone who has read at least one book or completed financial literacy training is familiar with the term reserve capital. In everyday life, this phenomenon is also known as saving for a rainy day.

Reserve capital (savings for a “rainy day”, financial airbag) is usually called a financial emergency reserve equal to the amount of a person’s monthly expenses for a period from three months to one year. The optimal option is considered to be for six months: practice shows that during this time the problem of replacing a lost source of income is usually solved with a guarantee. In a crisis, three months may not be enough to find a job, and you will have to save up an annual work permit for too long. After all, reserve capital is formed from the funds that you have left after covering all mandatory expenses. If expenses equal income or you have to constantly take out consumer loans because earnings do not cover expenses, then, unfortunately, there is no chance to form reserve capital.

Some financial literacy experts recommend in the long term to aim for savings that cover expenses for two to three years. With such a reserve, in their opinion, it is possible to cover such unforeseen expenses as certain types of expensive treatment.

For example, a person earns an average of 50 thousand rubles a month, of which he spends 40 thousand. The remaining 10 thousand is the fund for forming it reserve capital. To collect the required amount based on the six-month spending limit, you will have to save for exactly two years: 40x6=240, 240/10=24 months. If you reduce expenses or increase income (or even better, both), the period for generating the required amount of savings will be reduced in proportion to the adjustments you make.

Reserve capital can be stored under a pillow or in a stocking. But it’s better to put it in the bank on demand deposit

As monthly mortgage payments become available, your required expenses will increase. This means that your reserve capital must be increased taking this into account before you make the first payment. Numerous mortgage calculators on bank websites and independent financial resources will help you calculate the approximate payment amount based on your wishes for the home you are purchasing and your financial capabilities.

The author of these lines himself was a financially illiterate person for almost his entire adult life and had no reserve savings. When I was laid off at the end of 2008, instead of reserve capital, I had debts on consumer credit and credit card. The search for a job dragged on, and the hour came when there was no money for them on time for the next mandatory payments. Then I managed to escape with little loss, quickly restoring my solvency. But if I still had a mortgage, I wouldn’t have gotten out of it so easily. After all, there are quite a lot of mandatory payments.

Financial security: how to create reserve capital (video)

What should a mortgagee do if he was fired and there is no reserve capital?

In such an unpleasant, but unfortunately common situation, the only way out is immediately, as soon as you lose your job, to contact the bank that provided the mortgage loan and negotiate a debt restructuring. Most often, the result is a reduction in the monthly payment amount to an amount feasible for you while increasing the loan repayment period. For example, the payment is reduced by one and a half times, and the loan repayment period is increased by five years (the figures are purely speculative, the real situation is individual for each case).

If the mortgagee has been fired, it is better for him to start negotiations with the bank himself, without waiting for collectors to pester him

It is also possible to have a credit holiday for a period while you solve your financial problems. But there is no guarantee. In addition, vacations are always provided for a limited period. And if during this time you have not restored your solvency, these are already your personal difficulties.

The result of negotiations with the bank will depend on your credit and client history. The more careful a borrower you have shown yourself to be in more prosperous times, the stronger your bargaining position will be and the more loyal the lender will be to you. In any case, the bank is more interested in receiving money and interest on it than in the hassle of selling the home of a problem mortgagee.

There is a common misconception among mortgage holders that if the housing purchased with the bank’s money is the only one, they will not be evicted from there in any case. But in fact, the prohibition of foreclosure on a single dwelling only applies when this dwelling itself is not the subject of a pledge. A mortgage is provided precisely against the security of the purchased housing.

According to the testimony of a friend of the author of these lines, who worked for many years as a realtor and lawyer specializing in real estate, there are stories when mortgage borrowers or those who took out a loan secured by an existing apartment only find out in the courtroom that they were sorely mistaken regarding the ban on the seizure of their only home to pay off the debt , happen all the time.

Whether the state will prohibit the dismissal of mortgage holders remains anyone's guess. Therefore, it will be safer not to expect favors from him and to rely only on own strength. If the bill is nevertheless passed, it will be good news for mortgage holders and not so good news for their employers, who will have an extra headache.

Can an employee be fired if he has a mortgage? Many employees have obligations to banks. As for the mortgage, this is a long-term loan, which is issued only to those who have a stable and fairly high salary. Naturally, an employee will not voluntarily leave a job that makes it possible to repay the debt to the bank in a timely manner. What are the rights of an employer to terminate the employment relationship with an employee burdened with a mortgage?

Grounds for termination of employment relations

Article 81 of the Labor Code of the Russian Federation.

Article 81 of the Labor Code of the Russian Federation. Continuation.

A bill prohibiting an employer from dismissing an employee who has debt obligations in the form of a mortgage has been considered by the State Duma for several years. However, to date it has not found sufficient support among deputies to put it into effect.

Many supporters of this bill speak out in defense of the employee who, when receiving a mortgage, was confident that he would always have a stable income wages. Opponents of the law say that a mortgage is a voluntary decision for everyone, and it would be wrong to put borrowers on the same level as people who really need social protection.

Article 81 of the Labor Code of the Russian Federation contains a list of grounds under which an employer can terminate an employment relationship with an employee:

1. Reduction of staff or liquidation of an organization
2. Gross violation of labor discipline by an employee.
3. Change of owner of the enterprise, giving the new owner the opportunity to terminate the employment contract with the manager and chief accountant.
4. Inconsistency with the position held due to the fact that the employee, according to the results of the certification commission, does not have sufficient qualifications or due to health reasons cannot continue to work.
5. Violation of labor safety standards, which led to serious consequences.
6. Systematic failure to fulfill one's duties.

As can be seen from the above list, the employer has many reasons for terminating the employment relationship on his own initiative. However, an employee who values ​​his place is unlikely to violate labor discipline, and one can prepare for a professional suitability assessment if it does not concern health status.

The most in a simple way dismissing an employee means reducing the number of staff. But there are exceptions due to which an employer cannot fire a person.

Article 261 of the Labor Code of the Russian Federation contains a list of such persons who cannot be reduced:

1. Pregnant women and those with a child under 3 years of age.
2. Single mothers raising children under 14 years of age or disabled minors.
3. Persons who single-handedly support a large family with children under 3 years of age or a minor child with a disability.

Guardians and trustees raising children without a mother are considered single mothers. This list can be supplemented by internal documents of the organization or, for example, a collective agreement.

If an organization has signed an agreement between the employer and the team, then often the terms of such an agreement contain a ban on dismissal due to staff reduction of people of pre-retirement age, as well as people who have mortgage loans.

What to do if you are fired from your job?

What should a mortgage holder who has been laid off do? When reducing the number of staff, the employer takes into account the professional qualities of the employee, as well as the level of labor productivity. Nevertheless, an important factor for the employer is the personality of the employee. By providing the employer with your arguments and documents about the existence of debt obligations, management can be convinced to meet halfway and keep the borrower at work.

For reference! Many banks provide a deferment of the next payment to borrowers who have lost their jobs due to layoffs.

Having received notice from the employer 2 months before dismissal, the person has time to find a new job in order to fulfill his obligations to the bank. In addition, after dismissal, the employee retains his average monthly earnings for 2 months if he has not yet found a job. Thus, a person who has been laid off has 4 months to find a job without falling behind on his mortgage payment.

Registration of a mortgage and further repayment of current debt requires the debtor to have a sufficient level of profitability. In this regard, the government of the Russian Federation decided to develop a bill that would establish a ban on the dismissal of employees paying a mortgage loan for the initially purchased housing.

Features of the new bill

​The developers of the bill are deputies State Duma Vitaly Pashin and Danil Shilkov made a proposal to prohibit employers from firing employees who have a mortgage loan for their first purchased home. Typically something like this The ban will apply in the following cases:

• reduction in the total number of employees of the enterprise;
• inconsistency of the employee with the position he occupies as a result of professional certification.

In addition, it is planned to provide employees with a mortgage loan with a preferential right to remain in their position under any circumstances. It should be noted that at the moment this right is enjoyed by employees who have high labor productivity and a high level of qualifications. Subject to equal labor productivity indicators, first of all the right to remain in their position is given to employees who:

1. have two or more dependents;
2. are the only breadwinners in the family;
3. suffered a work injury or occupational disease;
4. improve the level of their qualifications in the direct direction of the employer.

The relevance of this innovation

Quite often, situations occur when young families with children purchase housing with a mortgage, while putting a lot of effort into this, they can be fired at the initiative of the employer without significant reasons. In this situation, a person is left without the necessary funds to fully repay the current debt on a mortgage loan. Of course, this can lead not only to the destruction of young families, but also provoke a significant increase in crime in the country.

The direct initiators of the amendments to the bill believe that the adoption of these changes will provide an opportunity for employees who have obligations to mortgage lending, receive additional guarantees and social protection in the event of a difficult situation in the economic sector.