A company has launched a redundancy process and given employees the legally required two months’ notice. But there is no work for them — responsibilities have been redistributed or transferred. The company does not want to pay full salaries for employees who are simply sitting at their desks, but it also cannot afford to break the law. Can it declare a period of downtime (prostoy) for the employees being made redundant?
What the New Case Law Says
Ruling of the Third Cassation Court of General Jurisdiction (KCGJ), 05.11.2025, No. 88-17156/2025
The court sided with the employer: declaring a period of downtime during the redundancy notice period was found to be lawful.
The court’s reasoning:
- During the two-month notice period, a company may genuinely be unable to provide the employee with any work — this constitutes an economic or organisational reason for downtime under Article 72.2(3) of the Labour Code.
- Article 180 of the Labour Code, which protects employees during redundancy, contains no prohibition on introducing downtime during the notice period.
Important Caveat: There Is No Unified Case Law
This is one circuit court’s precedent — not a Supreme Court position. The Seventh KCGJ has previously taken the opposite view (Ruling of 02.03.2023, No. 88-3667/2023), finding that introducing downtime during the notice period reduces the guaranteed payments owed to employees and is therefore unlawful.
The conflict between circuits persists. If your case falls within the jurisdiction of the Seventh KCGJ (Siberian circuit), the outcome may be different.
How to Declare Downtime Correctly
If you decide to introduce downtime for employees under redundancy notice, document it as carefully as possible.
1. Substantiate the reason The downtime order must clearly state the economic or technological reason: “in connection with the reorganisation of the production process and the redistribution of functions as part of the workforce reduction procedure.”
2. Apply the correct pay rate
| Cause of Downtime | Pay Rate |
|---|---|
| Employer’s fault | Not less than 2/3 of average earnings |
| Cause beyond either party’s control | Not less than 2/3 of the tariff rate / basic salary |
Downtime arising from “economic reasons” is typically classified as being the employer’s fault → 2/3 of average earnings.
3. Continue offering vacancies Throughout the downtime period (and up to the date of dismissal), you must continue to offer the employee all suitable vacancies within the company. This obligation under Article 180 of the Labour Code is not suspended by downtime.
4. Do not confuse downtime with suspension from duties Downtime (prostoy) is a temporary inability to provide work, with pay. Suspension from duties (Article 76 of the Labour Code) applies on different grounds and has different legal consequences. Do not substitute one for the other.
Risks and How to Mitigate Them
Risk 1: Disputes over the pay amount The employee may argue that the downtime was unlawfully declared and that full salary is owed. The more thoroughly the downtime order is reasoned, the harder it is to challenge.
Risk 2: A different circuit court If you have facilities in multiple regions, be aware that cassation practice varies between circuits.
Risk 3: Failure to offer vacancies Downtime does not relieve the employer of the obligation to continue offering alternative positions. If this is not done, the redundancy itself becomes vulnerable to challenge.
Conclusion
Placing employees on downtime during the two-month redundancy notice period is permissible — the Third Cassation Court confirmed this in November 2025. However, the step is legally safe only if the downtime order is properly substantiated and the correct pay rate is applied. Bear in mind that the case law on this issue remains unsettled.
Frequently Asked Questions
How much is paid during downtime? Downtime caused by the employer is paid at not less than two-thirds of average earnings (Article 157 of the Labour Code). Downtime caused by factors beyond either party’s control is paid at not less than two-thirds of the tariff rate or basic salary. Paying nothing during downtime is unlawful.
Does downtime count towards length of service? Yes. Downtime is not absenteeism or unpaid leave; it counts towards length of service and does not interrupt it.
Can the employer shorten the two-month notice period? Yes, with the employee’s written consent. The employee receives an additional lump-sum payment equal to average earnings for the remaining portion of the notice period (Article 180 of the Labour Code).
If a court finds the downtime unlawful, what am I entitled to? The difference between what was actually paid and full wages for the entire downtime period, plus compensation for non-pecuniary harm (moral damages).
Read Also
- Redundancy: Vacancies Must Be Offered Throughout Notice
- Dismissal for Absenteeism: Where Employers Go Wrong in 2025–2026
- Employment Contract vs. Contractor Agreement
Every redundancy procedure is unique: company size, industry, and employee categories all affect what steps are available. It is far better to have a lawyer review the plan before the procedure starts than to defend against claims from dismissed employees afterwards.