This summary of age discrimination law in Russia has been prepared by ALRUD, the Ius Laboris member for Russia: www.alrud.com.
The Constitution of Russia prohibits discrimination on grounds such as sex, race, nationality, language, origin, property status or job position, residence, attitude towards religion, views, (non) membership in social associations and other circumstances. Though age discrimination is not explicitly indicated, we presume it is implied by “other circumstances”. Age discrimination in employment is explicitly prohibited by the Russian Labour Code.
Certain age-based variations in employment conditions, limitations, preferences, etc. are established by the Labour Code or other federal laws in view of the job requirements and workplace conditions.
The above regulations cover all individuals working under an employment contract. Self-employed individuals are not covered by these regulations; however, the employer should note that engaging self-employed individuals under civil contracts may in some cases be qualified by the court as hiring them (subject to the character of the work done/performed under the contract). Thus, the employer in engaging a self-employed individual of a prohibited age group should be sure that his/her work qualifies as the provision of services rather than as employment. Agency workers in Russia are regarded as employees of the agency, thus they are covered by the common legislative requirements.
WHAT ENFORCEMENT/REMEDIES EXIST?
Age discrimination can be a civil or criminal offence.
Civil liability for non-compliance can apply both to the company’s official and to the company itself as a legal entity. Claims relating to administrative offences can be brought in a district court (which is court of general jurisdiction) or to the Federal Labour Inspection. The latter can also detect the violations in the course of inspection performed at its own initiative or at the request of an employee.
The sanctions for violating the labour law (which prohibits age discrimination) are administrative fines for the company and/or its officials (plus possible disqualification for officials for repeated similar offence).
However, in terms of criminal liability, the Criminal Code does not expressly include age discrimination. Theoretically, such discrimination could also qualify as criminal offence. The sanction varies from a fine to imprisonment of up to 5 years. An alleged victim must file a complaint with the local police office, which is then further considered by the district court. Despite this, there is currently no available precedent on the application of the criminal liability for age discrimination.
The employee can also claim damages caused to him/her (including moral damage) from the company. The amount of such damage is calculated depending on the case.
HOW COMMON ARE CLAIMS?
In the sphere of employment law, the number of discrimination claims is rather small compared to for example, claims for unfair dismissal on other grounds. However, within this group, age discrimination claims are noticeable. Some claims arise as a result of questioning the compliance of federal laws (which establishes, for example, a compulsory retirement age for a specific profession) like the Russian Constitution. Such disputes are resolved by the Constitutional Court of Russia and the decisions form part of the Russian legislation due to their precedential value (precedents of other courts are formally not recognised as law).
WHAT CLAIMS ARE MOST COMMON AND WHAT ARE TRICKIEST ISSUES FOR EMPLOYERS?
In our opinion, the most common claims are filed by state civil servants, military men, educational workers at state or municipal institutions, for whom the federal laws establish the age of compulsory retirement and who object to retirement for such ground as non-constitutional.
Private companies, in order to avoid possible age discriminations disputes, should ensure that:
no job refusal is based on age reasons (unless the job is prohibited by law to a certain age group);
questions at the interview should not give rise to the inference of age discrimination;
employees of specific age groups are not engaged in jobs that are prohibited to them by law;
employees under 18 are given all the statutory guarantees they are entitled to; and
the employer does not misuse its right to sign fixed-term employment contracts with individuals who have reached the retirement age.
Under the Labour Code, employers may enter into fixed-term contracts with a new employee who has reached the retirement age, However, employers should also be cautious that signing several consequent fixed-term contracts for the same role may be deemed unjustified and be deemed an indefinite contract.
ARE THERE ANY SPECIFIC EXCEPTIONS IN YOUR LAWS?
Under the Russian Labour Code, an individual may be employed upon turning 16 years old (exceptions exist for children of any age who perform at theatres, circuses, etc.). However, Specific rules apply for employees under 18 years old. Certain jobs are prohibited in this age group. This includes work in harmful or hazardous conditions; underground work and work that might impair their health or moral development (work at gambling business, night clubs, production, transportation, sale of alcoholic beverages, tobacco products, etc.). Every employee under 18 should every year submit to a medical examination. Employees under 18 are also given additional guarantees such as a larger holiday entitlement and fewer lawful grounds for dismissal.
The law defines a list of jobs prohibited to individuals who have reached the retirement age (mostly state civil servants, military men, etc.).
The current retirement age in Russia is 60 for men and 55 for women. However, on October 03, 2018, the Russian President signed the Law which will come into effect on January 01, 2019, increasing the retirement ages. Under the Law, the retirement age will be increased every year, until it reaches 65 for men and 63 for women.
For certain jobs (e.g. those involving underground work, harmful environment, etc.) the retirement age can be 5-10 years less (e.g. 60 for men and 58 for women completing certain jobs in the aviation sector). However, in general reaching the retirement age does not mean an employee will have to quit his job. The individual may at his/her discretion decide to continue working, and receive state pension.
Generally, an employer cannot force an employee to retire upon reaching a certain age or to move to another position (though there are exceptions in relation to state civil servants, rectors of state higher educational institutions, etc.). However, when hiring a new employee close to or above retirement age the employer can suggest signing a fixed-term employment contract and dismiss the employee once the contract expires.
On October 03, 2018 the Russian President signed the Law on liability for unjustified denial in employment and dismissal of a person of pre-retirement age (i.e. 5 years prior to reaching the retirement age) based on the fact of reaching the pre-retirement age by this person. The Law comes into force on October 14, 2018. Based on literal wording of the law, dismissal of a person of pre- retirement age can be recognised as unjustified, if such person proves that his/her dismissal is connected with his/her age.