Who should not be placed on probation for employment. Probationary period of an employee upon employment

The trial period is important time adaptation in the company, as well as the opportunity to check whether the position suits you and whether you are suitable for it. During this period, the candidate is looking at a new job and the manager checks the professional qualities of the employee. Therefore, it is useful for both management and employees. An employee who is employed in a new place for himself, who has to go through a probationary period, must know some legal subtleties.

In the Labor Code Russian Federation Articles 70 and 71 are devoted to probation. According to these articles, the establishment of a probationary period is not a mandatory condition. You can be hired without a test. Thus, the term is set only by agreement of the parties. If you do not want, then the employer does not have the right to test you. And then either he hires you without a probationary period, or you leave the company and go looking for work again. But more often than not, if you refuse to sign a contract that has a probationary period, then you simply do not get a job.

The Labor Code also lists all categories of workers who are not supposed to establish a probationary period in principle. These include women with children under the age of one and a half years, pregnant women, minors (under 18), as well as young professionals. As regards young specialists, the law operates with reservations that they must receive education at a school, university, and similar institutions with state accreditation and for the first time go to work in their specialty, and only within a year after graduation. Since this is a direct indication of the law, even if you signed an agreement in which the trial period is set for you, the contract in this paragraph is not valid.

The trial period shall not exceed three months. At least one day less - you can, but more - you can’t. However, chief accountants and their deputies and managers can set a trial period of up to six months, since the work is responsible. A specific period is set for you, and it must be specified in the employment contract. It is also necessary to take into account the fact that the time that you spent on sick leave is not included in the probationary period. If you have been ill for three weeks, then they are added to the deadline. However, the probationary period, at the discretion of the employer, may be reduced. But to increase it, he has no right.

The employer has the right to terminate the contract with you during the trial period if he is not satisfied with your work. To do this, you need to follow certain conditions: the contract is terminated before the expiration of the probationary period, and you should have been warned of the dismissal in writing no later than three days in advance, indicating all the reasons. For example, if the employer considers that you did poor quality work, missed deadlines or were late for work, then all this should be spelled out. The employer does not have the right to take your mistakes out of your head. He needs to document them. For example, in case of your being late, there should be an explanatory and memo. You can appeal the dismissal decision in court if you believe that you were dismissed without cause. From the point of view of the law, such popular formulations as: “during the trial period, the salary is 20 thousand rubles, and after 30 thousand rubles” are not legitimate. Under the law, it is impossible to establish a lower salary during the probationary period. However, the manual has a workaround. In the contract, one salary is set for you, and they verbally inform you that after the probationary period, it will be increased to you. All conscientious employers keep the promise, and after successfully passing the test period, you are invited to conclude an additional agreement, which indicates the promised amount. But unscrupulous people are unlikely to do this, so you can only focus on the good reputation of the company.

The contract should clearly state the responsibilities that fall on the employee. For example, if you hold the position of an accountant, then the area of ​​\u200b\u200bwork should be clearly specified, for example, accounting. warehouse accounting, payroll or tax accounting. That is, everything that the employee is obliged to perform during the probationary period. Such a document must be submitted to the employee for signature.

If all the conditions of your test are prescribed only in the order for employment, and there is not a word about them in the contract, then in this case the probationary period is considered illegal. In this case, this means that the employee is hired without a probationary period. If your probationary period has come to an end, and the employer is silent, it means that you passed it with honor and are now a full-fledged employee of the company. References to forgetfulness are not accepted.

If you have not been presented with claims to professionalism, then nothing else can be a reason for dismissal. Of course, personality traits should not be taken into account. However, in practice it is often different. For many positions, it's hard to separate the professional from the personal.

If you are applying for a trial period, remember that you will always have difficult moments and periods of getting used to (our recruitment managers will always warn you about the trial period). It will be very difficult in the first weeks, and you should not make hasty decisions during this period. But already after the first month of work, you may well decide whether you like this kind of work or not, and how comfortable it will be for you to work in the workplace.

In order to verify the suitability of an employee for the assigned work, the employer may provide for a probation clause in the employment contract. About how long such a test can be and about persons for whom a probationary period cannot be established, we will tell in our consultation.

Probation period for employment

The maximum probationary period under the Labor Code is 6 months. But a test of such duration may not be established for all employees, but only for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of the organization. In other cases, the maximum total testing period for employees is 3 months (part 5, article 70 of the Labor Code of the Russian Federation).

A special probation period is established for employees with whom an employment contract is concluded for a period of 2 to 6 months. The maximum duration of the probationary period for employment in this case is 2 weeks (part 6 of article 70 of the Labor Code of the Russian Federation).

Please note that if the employment contract does not contain a probation clause, it is considered that the employee has been hired without probation.

And if the employee was actually allowed to work without registration employment contract? Recall that when the employee is actually admitted to work, the employer is obliged to draw up an employment contract with him in writing no later than 3 working days (part 2 of article 67 of the Labor Code of the Russian Federation). In this case, it is possible to include a test condition in the employment contract only if the parties have drawn it up in the form of a separate agreement before starting work (part 2 of article 70 of the Labor Code of the Russian Federation).

If an employee does not want to undergo a probationary period, which the employer insists on, then an employment contract with such an employee is not concluded.

Please note that even with the consent of the employee, the employer does not have the right to establish a trial period of a longer duration than is allowed by the Labor Code of the Russian Federation and federal laws. On the other hand, within the maximum duration of the probationary period, the employer may set any period or refuse to test the employee at all.

How is the probationary period calculated?

The period for which the employee is put on probation is calculated from the day the work began and includes only the periods during which the employee actually worked. If the employee was absent from work (for example, he was on sick leave or on vacation at his own expense), the specified time does not count towards the test period (part 7 of article 70 of the Labor Code of the Russian Federation). That is, in fact, the probationary period is extended.

Who is not eligible for probation?

The employer is not entitled to establish a probationary period, in particular, for the following categories of persons (part 4 of article 70, part 1 of article 207 of the Labor Code of the Russian Federation):

• pregnant women;
• women with children under the age of 1.5;
• persons invited to work in the order of transfer from another employer;
• persons who have received secondary vocational education or higher education according to state-accredited educational programs and for the first time coming to work in the received specialty within 1 year from the date of graduation;
• persons who have successfully completed apprenticeship, when concluding an employment contract with the employer, under the contract with which they were trained;
• persons under the age of 18;
• persons concluding an employment contract for a period of up to 2 months;
• persons elected by competition to fill the relevant position.

Recall that the employee who is being tested is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations of the employer (

The probationary period is currently not set for employees only by a lazy employer. Even if its use is unlawful, the employer, just in case, prefers not to remove it from the standard form of the employment contract. At the same time, only a few have learned to correctly use this condition for parting with employees.

The ability to establish a test for employment is provided for by Art. 70 of the Labor Code of the Russian Federation. Under the test, according to this article, is understood the verification of the employee for his compliance with the assigned work.

Basics of establishing a test

When fixing the condition of a probationary period in an employment contract, one should remember about the restrictions and prohibitions determined by the Labor Code of the Russian Federation. So, a test for employment is not established for (part 4 of article 70 of the Labor Code of the Russian Federation):

- persons elected on the basis of a competition for the corresponding position held in accordance with the procedure established by labor legislation and other regulatory legal acts containing labor law norms;

- pregnant women and women with children under the age of one and a half years;

- persons under the age of eighteen;

- persons who have received secondary vocational education or higher education in educational programs that have state accreditation and for the first time come to work in the specialty they have received within one year from the date of receipt vocational education appropriate level;

- persons elected to an elective position for paid work;

- persons invited to work in the order of transfer from another employer as agreed between employers;

- persons concluding an employment contract for a period of up to two months;

- other persons in cases provided for by the Labor Code of the Russian Federation, other federal laws, a collective agreement.

If the probationary period, in violation of the prohibition, is established by the employment contract, then it should be borne in mind that the probation condition will not apply, and the dismissal of the employee on the basis of an unsatisfactory test result (part 1 of article 71 of the Labor Code of the Russian Federation) in the described situation will be recognized by the court illegal.

In addition, it should be remembered that the law establishes restrictive (maximum) test periods (parts 5 and 6 of article 70 of the Labor Code of the Russian Federation):

- three months for all employees,

- six months for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations (unless otherwise established by federal law),

- two weeks - when concluding an employment contract for a period of two to six months.

At the same time, the period of temporary disability of the employee and other periods when he was actually absent from work are not included in the probationary period.

The absence of a test clause in the employment contract means that the employee was hired without a test (part 2 of article 70 of the Labor Code of the Russian Federation). In the case when the employee is actually allowed to work without drawing up an employment contract (part 2 of article 67 of the Labor Code of the Russian Federation), the test condition can be included in the employment contract only if the parties have drawn it up in the form of a separate agreement before starting work. The literal interpretation of this norm does not allow the employer, who “forgot” to establish a probationary period, to establish it by an additional agreement to the employment contract already in the process of labor relations.

Note.During the probation period, the employee is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations (part 3 of article 70 of the Labor Code of the Russian Federation). A literal interpretation allows us to draw an unambiguous conclusion: the amount of wages cannot be reduced for the probationary period. In fact, the violation this rule accepted by most employers.

Making a test condition

The execution of the test condition itself does not present any particular difficulties. The text of the employee's employment contract should include the following provision: "... The employee is set a probationary period of three months."

For both parties to the employment relationship, the inclusion of this phrase in the employment contract gives certain advantages. This allows the employer to terminate the employment contract with the employee before the expiration of the test period if the test result is unsatisfactory in the manner prescribed by Part 1 of Art. 71 of the Labor Code of the Russian Federation.

Note.During the probationary period, the employee is subject to all the norms of the Labor Code of the Russian Federation, including any grounds for dismissal provided for by the Labor Code of the Russian Federation and suitable for a particular situation. That is, an employee can be dismissed both for absenteeism (subparagraph “a”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation), and for downsizing (paragraph 2, part 1, article 81 of the Labor Code of the Russian Federation), and for other reasons .

The employee, if there is a test clause in the employment contract, will be able to warn the employer of his dismissal within a shortened period. So, if during the trial period he comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract according to own will, warning the employer about this in writing three days in advance (and not two weeks in advance, as required by Article 80 of the Labor Code of the Russian Federation upon dismissal of one's own free will).

Note that the reason in the letter of resignation indicates the general - "of one's own free will." The fact that the work did not meet the expectations of the employee can be silent. In any case, a notice period of three days, rather than two weeks, will apply.

Registration of termination of the employment contract

With the registration of dismissal on the grounds provided for in Part 1 of Art. 71 of the Labor Code of the Russian Federation - as a result of an unsatisfactory test, many employers have problems. To minimize the risk of recognizing the dismissal on the named grounds as illegal, we will go through all the stages of this procedure together.

For convenience, consider the following situation.

A new employee has been hired at the enterprise, and on February 17, 2014, an employment contract was concluded with him. According to the terms of the employment contract, it is from this day that the employee must start work. The employment contract provides for a trial period of three months. According to the immediate supervisor of the new employee, the level of knowledge, skills, and attitude to work do not meet the requirements of the employer. This official reported this to the director of the enterprise at the planning meeting on April 30, 2014 and suggested initiating the dismissal procedure as a result of an unsatisfactory test result. At the same time, the head of the employee explained that the new employee was absent from work from 03/13/2014 to 03/17/2014 due to illness (a certificate of incapacity for work was submitted).

1. We consider terms

First you need to find out the end date of the probationary period. Under the terms of the situation under consideration, the last day of the probationary period falls on 04/12/2014. However, due to the absence of the employee at work from 03/13/2014 to 03/17/2014, the probationary period should be extended by five calendar days, that is, until 04/17/2014.

Having set the end date of the probationary period, we determine the last date on which the notice of the unsatisfactory test result should be given to the employee. In accordance with Part 1 of Art. 71 of the Labor Code of the Russian Federation, the notification must be sent no later than three days before the end of the probationary period.

According to Art. 14 of the Labor Code of the Russian Federation, the period with which the Labor Code of the Russian Federation connects the emergence of labor rights and obligations begins from the calendar date on which the beginning of the emergence of these rights and obligations is determined. The period with which the Labor Code of the Russian Federation connects the termination of labor rights and obligations begins the next day after the calendar date that determines the end of the employment relationship. Terms calculated in years, months, weeks expire on the corresponding date last year, month or week term. Non-working days are also included in the period calculated in calendar weeks or days. If the last day of the term falls on a non-working day, the expiration date of the term shall be the next working day following it.

In our situation, the last day for the notice of the upcoming dismissal will be 04/14/2014.

Question. Is it possible to start the procedure for dismissing an employee before the end of the probationary period, if the employer comes to the conclusion that the employee has not passed the probationary period?

Start the dismissal procedure under Part 1 of Art. 71 of the Labor Code of the Russian Federation as a result of an unsatisfactory test result, you can at any time. However, it should be borne in mind that by that time a sufficient amount of documented evidence should have already been collected that the employee did not pass the test.

2. We collect evidence of an unsatisfactory test result

Reporting / office notes of the head and other services, acts of official investigations of the employee's misconduct, acts of inspections that record the erroneous actions of the employee, and other written evidence.

3. We issue a notification

The notification should clearly and comprehensibly describe the reasons why the test result was found to be unsatisfactory (Example 2).

delivery

JSC "Speed ​​Delivery"

N. A. Kozlov

Moscow, st. Pirogova, d. 7, apt. 24

Notification

Dear Nikolai Alexandrovich!

We notify you that the test result established by clause 2.5 of the employment contract concluded between you and Fast Delivery OJSC on February 17, 2014 (N TD-14) was recognized by the employer as unsatisfactory for the reasons set out below.

In accordance with the act official investigation dated 03/25/2014, based on the results of the inspection during your work from 02/17/2014 to 03/24/2014, a violation of clauses 4.1 and 4.1.2 of the Rules for the delivery of items to addressees approved by order No. 417 of 07/10/2011, and clause 3.1 job description the leading specialist of the delivery department, approved on 10/30/2012, namely: the departure of 02/25/2014 N 41 was delivered to the addressee late at 14:00, the departure of 02/26/2014 N 54 was delivered 2 hours late, the departure of 03/06/2014 N 62 was delivered 4 hours late.

In connection with the unsatisfactory result of the test, the management of JSC "Speed ​​Delivery" decided to terminate the employment contract with you dated February 17, 2014 N TD-14 under part 1 of Art. 71 Labor Code RF (with an unsatisfactory test result) 05/16/2014.

I notify you that until the date of dismissal (05/16/2014) you retain the right to terminate the employment contract at your own request.

Director of JSC "Speed ​​Delivery" Smirnov N. A. Smirnov

If the employee refused to sign on receipt of the notification (or refused to read it), it is necessary to draw up an act about this (Example 3).

Open Joint Stock Company "Speed ​​Delivery"

Act

Moscow

On the refusal to put down a signature in the familiarization

We, the undersigned: director Smirnov N. A., deputy director Tkachev E. N., chief accountant Nosov N. S., head of the personnel department Ivanova N. K., have drawn up this act as follows:

Today, May 12, 2014, N.A. Kozlov, the leading specialist of Express Delivery OJSC, at 12:30 in the office of the director of Express Delivery OJSC, N.A. 2014 N 45 on the unsatisfactory test result. After familiarization Kozlov N. A. in the presence of all the undersigned officials He refused to sign on receipt of the said notice and to sign on familiarization with it.

Smirnov N. A. Smirnov

Tkachev E. N. Tkachev

Nosov N. S. Nosov

Ivanova N. K. Ivanova

4. We give the employee a choice

In most cases, having received such a notice, employees write a letter of resignation of their own free will. The law does not prohibit, if there are several grounds for dismissal, to choose one of them, including dismissing an employee on his own initiative.

Question. The worker was served with a notice of unsatisfactory test result on the verge of deadlines. Immediately after reading it, he wrote a letter of resignation of his own free will, but with a deadline for dismissal in two weeks, as provided Art. 80 TK RF. However, the date of dismissal will already go beyond the probationary period. How to protect yourself from the risk of an employee withdrawing his letter of resignation immediately after the end of the probationary period?

You can only protect yourself from such a cunning turn of the situation:

- by asking the employee to rewrite the application indicating the date of dismissal, which is included in the probationary period;

– by terminating the employment contract by agreement of the parties on the “required” date;

- by terminating the employment contract on a previously planned basis, provided for in Part 1 of Art. 71 of the Labor Code of the Russian Federation, on the date specified in the notification, despite the presence of the employee's application for dismissal.

5. We issue a dismissal

The procedure for dismissal in this case is standard.

Step 1. On the day of dismissal, it is necessary to issue a dismissal order (the project can also be prepared in advance).

Note.You have the right to use the unified form N T-8, approved by the Decree of the State Statistics Committee of the Russian Federation of 01/05/2004 N 1 "On approval of unified forms of primary accounting documentation for accounting for labor and its payment." Despite the fact that since 01/01/2013 the unified forms have ceased to be mandatory for use, they provide the most information and for many employers remain the most convenient due to their versatility and familiarity. However, do not forget that they must be approved by order for the company.

Step 2. Then the employee must be familiarized with the order under a personal signature or make an appropriate entry on the order (instruction) in the case when the order to terminate the employment contract cannot be brought to the attention of the employee or the employee refuses to read it under the signature (part 1 of article 84.1 TC RF).

Step 3. Make a full settlement with the employee in accordance with the settlement note (Article 140 of the Labor Code of the Russian Federation).

Step 4. Issue copies of documents to the employee, including a 2-NDFL certificate, if there is an application for this, a certificate of the amount of earnings for the two calendar years preceding the year of termination of work (clause 3, part 2, article 4.1 of the Federal Law of December 29 .2006 N 255-FZ "On compulsory social insurance in case of temporary disability and in connection with motherhood"). The form of the certificate was approved by order of the Ministry of Labor of Russia dated April 30, 2013 N 182n.

Step 5. Make a record of dismissal in the work book. According to Art. 84.1 of the Labor Code of the Russian Federation, an entry in the work book on the basis and reason for the termination of the employment contract must be made in strict accordance with the wording of the Labor Code of the Russian Federation or other federal law and with reference to the relevant article, part of the article, paragraph of the article of the Labor Code of the Russian Federation or other federal law.

Step 6. Issue the remaining personnel documents for accounting of labor relations:

- employee's personal card (most employers continue to use the unified form N T-2). It is necessary to obtain the signatures of the employee on the card in some places provided for by the form;

- notice of termination of the employment contract (dismissal), sent to the military registration and enlistment office within two weeks from the date of dismissal. The signature of the employee is not required on it ( Guidelines on maintaining military records in organizations approved by the General Staff of the Armed Forces of the Russian Federation of 11.04.2008).

Step 7. Issue a work book to an employee. Issuance is to be made under the personal signature of the employee with the date of receipt in the register of the movement of work books and inserts in them (Example 5). The form was approved by the Decree of the Ministry of Labor of Russia dated 10.10.2003 N 69 "On approval of the Instructions for filling out work books."

Appendix No. 3

To Decree Ministry of Labor of Russia dated 10.10.2003 N 69

Book of accounting for the movement of work books and inserts in them

In the event that it is impossible to issue a work book to an employee on the day of termination of the employment contract due to his absence or refusal to receive it, the employer is obliged to send a notification to the employee about the need to appear for it or agree to send it by mail. From the date of sending the said notification, the employer is released from liability for the delay in issuing a work book (Article 84.1 of the Labor Code of the Russian Federation).

Errors when terminating an employment contract

An analysis of practice showed that the main mistakes in dismissal on this basis are:

1) failure to comply with the warning period or the absence of a warning at all. The employer must notify the employee of the termination of the employment contract on this basis no later than three days in advance;

2) failure to comply with the written form of warning;

3) ignoring the requirement of the legislator to indicate the reasons that served as the basis for recognizing this employee as having failed the test. The employer's statement about the unsatisfactory test result cannot be unfounded, it must be documented;

4) incorrect qualification of action/inaction as the reason for the unsatisfactory test result of the employee. For example, if you hired a driver without including washing the entrusted car in his duties, then his failure to perform this function in no case can be regarded as evidence of an unsatisfactory test result;

5) termination of the employment contract on the named basis after the expiration of the probationary period.

All of these requirements for registration are provided for in Part 1 of Art. 71 of the Labor Code of the Russian Federation. Despite this, the number of employers forced to reinstate workers fired in violation of these requirements is not decreasing.

Arbitrage practice. An employee dismissed under Part 1 of Art. 71 of the Labor Code of the Russian Federation, was reinstated by the court in her position. Considering the case, the court came to the conclusion that the defendant did not follow the dismissal procedure, did not indicate the specific reasons that served as the basis for recognizing the employee as not having passed the test, which is a gross violation of labor legislation. The right to assess the results of the employee's test belongs to the employer, who, during the probationary period, must find out the business and professional qualities of the employee. Therefore, when an employee is dismissed as having failed the test, the obligation to prove the fact of his unsatisfactory work rests with the employer.

However, the defendant did not provide sufficient and convincing evidence to support the facts set forth in the appendix to the employee's notice of the unsatisfactory test result. From the evidence presented, it does not follow how the level of professionalism of the plaintiff, the quality of her performance of her duties was assessed. In the opinion of the court, the defendant did not provide evidence convincingly testifying to the plaintiff's improper performance of her official duties. Thus, the court came to the correct conclusion that there were no grounds for recognizing the results of the employee’s test as unsatisfactory (determination of the St. Petersburg City Court of October 14, 2013 N 33-15722).

* * *

It should be remembered that upon dismissal under Part 1 of Art. 71 of the Labor Code of the Russian Federation, the most important thing is to comply with the dismissal procedure. Moreover, it will be legal only if there is evidence of unsatisfactory results of the employee's test.

Even if the employer tries to comply with all the requirements of the law, as practice shows, he is not immune from the reinstatement of the employee. When the court establishes specific circumstances, the court may conclude that the employer violated the dismissal procedure, despite the fact that the employee’s actions may show signs of abuse of the right (for example, silence about the presence of a disease and an open sick leave).

A. Polyanina, Leading Legal Counsel of the Sberbank of the Russian Federation, post-graduate student of the RSSU

The search for a job, like the search for a suitable employee by an enterprise, is a long and complex process that requires a responsible approach from a potential employer and employee. Choosing the right place to work and hiring qualified staff involves a certain amount of risk on both sides. The possibility of establishing a probationary period, regulated by labor legislation, is designed to help the employer determine how the new employee meets the requirements of the company, and the employee, in turn, assess the compliance of the proposed job with his interests and expectations and, if the result is negative, quit by warning the employer three days in advance, and not two weeks to general rule.

Therefore, in order to avoid misconceptions, it is especially important to consider the establishment of a probationary period only as a right for both the employer and the employee. The implementation of this right is associated with a large number of mandatory formalities, legal subtleties, as well as not quite accurate wording of the law itself. Thus, it would be advisable to indicate in the article of the Labor Code not only the verification of the compliance of the employee with the assigned work, but also the compliance of the "work" with the requirements of the employee as the main goal of establishing a probationary period.

Views on the application of the probationary period have changed relatively little since the days of Soviet legislation. The timing of the test has been changed; a circle of persons not subject to the establishment of a probationary period for them. The novelty of the Labor Code of the Russian Federation is also the right of the employee during the probationary period to terminate the employment contract of his own free will with a three-day warning to the employer. According to Soviet labor legislation (which was in force from 1971 to 2002, the Code of Labor Laws), a probationary period is a check of the compliance of a worker or employee with the work assigned to him, determined by agreement of the parties when concluding an employment contract. The trial period could not exceed 1 week for workers, 2 weeks for employees (except for responsible employees) and 1 month for responsible employees.

When hiring employees subject to certification in research, design, design, technology organizations and research departments of universities, a test for up to 3 months, and in some cases up to 6 months, may be established. The Labor Code excluded the establishment of a test, along with other categories of citizens, also for the disabled Patriotic War designed to work at the expense of special armor. The sole purpose of the test when applying for a job was to identify the compliance of the professional training and business qualities of the employee with the requirements of the position.

Meanwhile, the provisions of modern labor legislation on tests for employment are fraught with many uncertainties, problems and barely visible nuances. The establishment, passage and results of the probationary period require not only competent execution from the employer, but also considerable legal awareness of the hired employee in order to prevent the use of his labor for personal gain. This, of course, requires a careful reading of the relevant articles of the Labor Code.

Article 70

When concluding an employment contract, by agreement of the parties, it may provide for a condition on testing the employee in order to verify his compliance with the assigned work.

The absence of a test clause in the employment contract means that the employee is hired without a test. In the case when an employee is actually allowed to work without drawing up an employment contract (part two of Article 67 of this Code), a test condition can be included in the employment contract only if the parties have drawn it up in the form of a separate agreement before starting work.

During the probation period, the employee is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations.
A test for employment is not established for:
- persons elected by competition to fill the relevant position, conducted in the manner prescribed by labor legislation and other regulatory legal acts containing labor law norms;
- pregnant women and women with children under the age of one and a half years;
- persons under the age of eighteen;
- persons who graduated from state-accredited educational institutions of primary, secondary and higher vocational education and for the first time come to work in their specialty within one year from the date of graduation educational institution;
- persons elected to an elective position for paid work;
- persons invited to work in the order of transfer from another employer as agreed between employers;
– persons concluding an employment contract for a period of up to two months;
- other persons in cases provided for by this Code, other federal laws, a collective agreement.

The probation period may not exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations - six months, unless otherwise established by federal law.

When concluding an employment contract for a period of two to six months, the probation may not exceed two weeks.
The period of temporary disability of the employee and other periods when he was actually absent from work are not included in the probationary period.

Article 71
In case of an unsatisfactory test result, the employer has the right to terminate the employment contract with the employee before the expiration of the test period, notifying him in writing no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as not having passed the test. The employee has the right to appeal against the decision of the employer in court.

(as amended by Federal Law No. 90-FZ of June 30, 2006)
If the result of the test is unsatisfactory, the termination of the employment contract is carried out without taking into account the opinion of the relevant trade union body and without paying severance pay.

If the probation period has expired, and the employee continues to work, then he is considered to have passed the probation, and the subsequent termination of the employment contract is allowed only on a general basis.

If during the trial period the employee comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract at his own request, notifying the employer in writing three days in advance.

Among the obvious, understandable and familiar to any personnel officer, the provisions of the law regarding the probationary period are the following.

Firstly, the test is established only by agreement of the parties with the mandatory inclusion in the text of the employment contract. Secondly, this period should not exceed three months. An exception is made only for heads of organizations, chief accountants and their deputies, as well as for heads of branches, representative offices and other separate structural divisions. The test of business and professional qualities of these workers can last up to six months. In some cases, a longer probationary period is established, in particular for civil servants (Federal Law of July 27, 2004 No. based on the results of a competition of documents, or for a civil servant when transferred to a public position of another group or other specialization, the test is set for a period of 3 to 6 months, that is, not less than 3 and not more than 6 months).

Thirdly, there is a circle of persons to whom the employer does not even have the right to offer a probationary period. These are pregnant women, women with children under one and a half years old, persons under the age of 18, employees invited to work by transfer from another employer, as well as young specialists who first enter a job in their specialty within one year from the date of graduation from the educational institutions, persons elected on the basis of a competition for the relevant position held in accordance with the procedure established by labor legislation and other regulatory legal acts containing labor law norms, persons who have concluded an employment contract for a period of up to two months. Fourthly, if the professional qualities of an employee turn out to be unsatisfactory, the organization has the right, after warning three days in advance, to terminate the employment contract with him without taking into account the opinion of the trade union and without paying severance pay. Fifth, periods of absence, including vacation, temporary disability, and others, do not count towards the probationary period.

However, not everyone who is in one way or another related to the rules on probation, delve into their understanding. There are some difficulties in applying these norms in practice, which leads to the emergence conflict situations. It is imperative to pay attention to moments often hidden from "non-professional" eyes.

1. It is known that a probationary period can be established only with mutual expression of will, therefore, the most important circumstance should be recognized as the consent of the employer and employee when concluding an agreement on a probationary period or an employment contract that stipulates the conditions for passing a probationary period. The inclusion of probationary provisions in the order for employment in no case cancels, but supplements the employment contract or probation agreement. But at the same time, the absence in the order (instruction) on hiring an indication of establishing a probationary period for the employee indicates a unilateral refusal of the employer to establish a test. The publication of this order is allowed by labor legislation, since this improves the position of the employee in comparison with the concluded contract.

2. If an employee refuses to test his professional qualities (and this is quite possible from the point of view of the law), no one has the right to oblige him equally and refuse to hire him. Otherwise, this may be considered as an unreasonable refusal to hire, and the applicant has a reason to go to court.

3. It is especially important that an employment contract with the condition of establishing a probationary period be concluded before the actual admission of the hired employee to work. The entry of the worker to his job responsibilities the terms of the employment contract are implemented (even without its practical preparation) between him and the employer, which does not contain a probationary provision.

When employment on the basis of the employee's application and the order for employment with a probationary period, the employee is considered to be hired without a probationary period, since the employee did not agree to the establishment of the test when hiring. Consequently, the employee is considered hired without a test, and the employer can dismiss him only on a general basis.

4. The employment contract must contain clear indications of the duration of the probationary period. Their absence deprives the condition of a trial period of force, since the very concept of a period implies a certain period of time.

5. The probationary period is set only before the start of the work, and not any period the employer wants.

An extension of the trial period agreed at the outset is not permitted.

6. The salary of an employee during the probationary period should not be reduced. Article 135 of the Labor Code of the Russian Federation emphasizes that the conditions of remuneration determined by an employment contract cannot be worsened in comparison with the current legislation. The probationary period should be used to test the qualifications of the worker, and not as a means of saving the enterprise labor costs.

7. The law defines the circle of persons for whom the employer is not entitled to establish a probationary period even if they express their voluntary will. An obstacle to the establishment of a probationary period is, firstly, the act of electing an employee through a competition held only on the basis of a federal or regional law, and not any other act. It is assumed that in case of unsatisfactory performance, such an employee can simply be re-elected by the meeting of participants. Secondly, a medical document confirming the presence of pregnancy, which can also be submitted during the probationary period. In the latter case, he is obliged to issue an order to release the employee from passing the probationary period. A document confirming that the employee has a child under the age of one and a half years (passport, birth certificate). Thirdly, the minority of the accepted employee. Fourthly, a document on primary, secondary or higher vocational education and admission to a job corresponding to the received vocational education for the first time within one year from the moment of graduation.

Fifth, documents confirming the election to an elective paid position. Sixth, an invitation to new job, which is confirmed by a letter from the employer with a request to release the employee to another job in the order of transfer, as well as an entry in the work book of the employee about his dismissal under paragraph 5 of Article 77 of the Labor Code of the Russian Federation in connection with the transfer to another employer and / or an order to dismiss him in case of loss of employment books. Seventh, an employment contract for up to two months.

The list of these cases is not exhaustive and can be supplemented by adopting a collective agreement indicating additional categories of citizens who are prohibited from establishing a probationary period.

8. A trial period of up to 6 months, except for the head of the organization, his deputies, the chief accountant and his deputies, may also be set for the head of a branch, representative office or other separate structural unit.

So, in accordance with civil law (Article 55 of the Civil Code), separate structural units are branches and representative offices legal entity. This means that a trial period of up to 6 months can be set for the heads of only these structural divisions, and not for the head of a workshop, department, sector and other similar structural divisions.

9. The test is set only for hired employees, and not already working in the enterprise, for example, when transferring to a higher position.

10. The entire period of the probationary period is included in the length of service, giving the right to the annual basic paid leave. That is, when an employee is dismissed during the probationary period, the employee is paid compensation for unused vacation in proportion to the time worked in the company.

11. The most common mistake is not understanding the essence of unsatisfactory test results, both on the part of employees and employers.

Labor legislation provides for a probationary period as a test of the employee's professionalism, and the decision to dismiss, accordingly, must be reasoned, correct, objective and have a clear evidence base.

Thus, the level of theoretical and practical knowledge and skills in the relevant profession, specialty, qualifications, ability to work with clients and other professional knowledge and skills necessary to perform this work are tested, and non-personal qualities, discipline and compliance with the so-called corporate culture. The moments when the employee did not cope with the assigned work, the facts of improper performance of the labor function, non-fulfillment of production standards, non-compliance with time standards must be necessarily recorded. In addition to the fact that these circumstances are documented, recorded, written explanations should be requested from the employee himself about the reasons for the violations committed by him. The justification for dismissal due to unsatisfactory results of the probationary period can be: a document confirming the non-compliance of work with production standards and time standards, marriage certificates, written complaints from customers, counterparties, employee explanations, witness testimony.

The text of the employment contract cannot include the condition of dismissal at the discretion of the employer, this is contrary to the law. It is especially important to note that the employer does not have the opportunity to dismiss an employee due to a violation labor discipline, because it does not reflect the conclusion about his professionalism. In this case, he must be dismissed on the basis of the relevant norm of the Labor Code of the Russian Federation. It is understood that with a conscientious attitude to work and the absence of guilt on the part of the employee, he is not able to fully fulfill his labor duties.

During the probation period, the employee must be provided with all the necessary conditions for normal work and safe working conditions (serviceable equipment, provision of raw materials, transport, telephone), otherwise all references to improper business qualities of the employee will have no force. In the event of a dispute, the employer will be required to document such arguments.

In any case, when making claims against an employee regarding the performance of his duties, he must be familiarized (against signature) with the contents of the job description and other local regulations.

12. The employer has the right to make a decision on the non-compliance of the employee with the assigned work only during the probationary period. However, very often there is a failure to comply with the deadline and form of warning the employee about the upcoming dismissal.

By law, a notice of an unsatisfactory test result must be drawn up in writing in two copies: one for the employee, the second for the employer, and announced to the employee under a personal signature three days in advance.

At the same time, it must be remembered that the period associated with the termination of labor rights and obligations begins the day after the calendar date that determines the end of labor relations (Article 14 of the Labor Code of the Russian Federation). Dismissal of an employee cannot be made earlier than the fourth day from the date of delivery of the notification to him. Samo written warning must contain a clearly stated reason for dismissal based on documents, date, outgoing number, signature of an authorized person, seal imprint.

13. In case of refusal to familiarize with the notification, an appropriate act is drawn up. Otherwise, the employer will not have evidence that at a certain time, in a certain place and in the presence of certain persons, the employee was asked to familiarize himself with the notice of the results of the probationary period. The act must contain the specific circumstances of both the provision of the notification itself and the drawing up of the act: place (office address, office number, etc.); time (date, hour, minutes).

Such an act must be signed by employees, preferably uninterested, for example, from various departments of the enterprise, and not immediate superiors or subordinates of the employee, with mandatory decoding and indication of positions. A copy of the notice may be sent to the worker's home address by certified mail with acknowledgment of receipt.

The letter must be submitted to the postal authority at least three days before the expiration of the probationary period set for the employee, which is confirmed by a postmark imprint on the receipt and a notice of receipt of the letter returned to the employer.

14. During the probationary period, the employee is subject to all provisions federal laws, other regulatory legal acts, local acts, as well as collective agreements and contracts, provided that they contain labor law norms, including norms and guarantees regarding the grounds for dismissal at the initiative of the employer.

For example, if an employee hired on probation is subject to dismissal due to a reduction in the number or staff of employees with a severance pay and two months' notice, or in connection with disciplinary action dismissal must be made in accordance with the relevant articles of the Labor Code of the Russian Federation.

The methods of fixing the test results are determined by the characteristics of a particular production and the nature of the work of the worker himself. For some organizations, it may be recommended to use the test plan for the employee, which is compiled by his immediate supervisor. It sets out each work task, deadlines and order of implementation, evaluates the actions of the employee. Subsequently, a reasonable review is given on the results of the probationary period. All this makes it easier to justify the decision of the employer.

It should be noted that dismissal due to an unsatisfactory test result has a number of difficulties and uncertainties regarding both evidence of the employee’s inconsistency with the work performed, and the procedure and timing of completion. There is a need for a legislative regulation of the procedure for dismissal on this basis for best use these standards in practice.

Nevertheless, the establishment of a test when accepting a job for each of the parties to the employment relationship allows you to find out in the shortest possible time and without too much formalism how much they correspond to the expectations and capabilities of each other.

Today, it is very rare to find firms that do not establish a probationary period for new employees to test their professional suitability. However, often neither the employee nor even the employer fully understands the meaning of the probationary period and the consequences of its establishment. Therefore, further we will talk about the cases in which a probationary period can be established, what are the procedure and consequences of its establishment, and we will describe the main features associated with the probationary period.

When and in what order can a probationary period be established

In accordance with Art. 70 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), a test for employment is established by agreement of the parties to verify the compliance of the employee with the work assigned. Thus, the probationary period can only be fixed in the agreement of the parties. which is usually an employment contract. The test condition cannot be established by order of the employer and cannot be fixed in the local acts of the organization, which are introduced to the employee after hiring.

If, upon hiring, the employee “was not registered”, in other words, an employment contract was not concluded with him, then by virtue of Art. 16 of the Labor Code of the Russian Federation, as a general rule, such an employee, however, is considered accepted and has all the rights in accordance with the Labor Code of the Russian Federation. Since in this case there is no employment contract, there is also no agreement on the establishment of a probationary period. Therefore, the employee is considered accepted without testing.

Since the probationary period is set only upon hiring, it cannot be set later, even by agreement of the parties. Therefore, if there is no record of probation in the employment contract concluded for employment, it will no longer be possible to introduce a probationary period by legal methods.

Please note that the Labor Code of the Russian Federation does not speak of a probationary period, but uses the term "test". Therefore, in order to avoid disputes between the employee and the employer, the employment contract should specify the establishment of a test, and not a probationary period.

In Art. 70 and some other articles of the Labor Code of the Russian Federation are indicated persons who cannot be placed on probation. Most often, this restriction applies to the following categories of persons:

• pregnant women and women with children under the age of one and a half years;
• persons who graduated from state-accredited educational institutions of primary, secondary and higher vocational education and for the first time come to work in their specialty within one year from the date of graduation from the educational institution (we are talking about young specialists who graduated from the university);
• persons invited to work in the order of transfer from another employer as agreed between employers.

Thus, even if the employment contract concluded with these persons contains a probationary condition, this condition will be invalid, as contrary to the law. For these persons, the test is fundamentally unacceptable.

As a general rule, the probationary period cannot exceed three months.. For the heads of the organization, chief accountants and their deputies - 6 months. It is important to note that the probationary period does not include the time when the employee was actually absent from work, for example, he was sick.

Consequences of probation

The main consequence of establishing a probationary period is the possibility of simplified termination of the employment contract both for the employee and the employer.

The simplified procedure is expressed in the fact that an “unsatisfactory test result” is enough to dismiss an employee during the trial period. Although it is important to note that unsatisfactory results must be confirmed and must relate precisely to the business qualities of the employee. In other words, it is impossible to dismiss an employee if there were no claims against him on the business side, but "did not agree on the characters." In the latter case, the dismissal will be declared illegal. The procedure for an employee to act upon illegal dismissal is described in a separate article.

The main evidence of an unsatisfactory test result can be:

• disciplinary orders,
• memorandums of the immediate superior on the unsatisfactory quality of the work of the subordinate,
• explanatory notes the employee himself on the facts of committed violations,
• an act drawn up based on the results of an internal audit, etc.

It is very important for the employer to have evidence that the employee did not cope with his work. If an employee is late or absentee, it is necessary to follow the entire procedure for bringing to disciplinary responsibility. If an employee swears obscenely with his colleagues, it is necessary to appoint an internal check, collect explanatory notes and draw up an act based on the results. And this should be done in every situation when the actions of the employee are not satisfied. In court in a dispute over illegal dismissal simple words about perfect absenteeism and an irresponsible approach to work will not be enough.

Before dismissing an employee, the employer is obliged to notify him of the upcoming dismissal no later than three days in advance. The notice must indicate the reasons why the employer concluded that the test result was unsatisfactory. Only after three days from the date of notification, the employer can issue an order to terminate the employment contract, otherwise the dismissal may be declared illegal due to non-compliance with the established procedure. The dismissal order must be issued within the probationary period.

An employee can also terminate an employment contract in a simplified manner. If usually, upon dismissal of his own free will, the employee is obliged to notify the employer two weeks in advance, then while on probation, the employee must notify the employer of the dismissal in just three days.

By and large, other consequences, except for the simplified procedure for terminating an employment contract, the establishment of a probationary period does not entail. Therefore, the employee during the trial period is endowed with the same rights as the rest of the employees of the organization.. In connection with the test, he cannot be assigned a smaller wage, long running time, etc. The only difference between such an employee is that he can be dismissed in a simplified manner. In all other respects, he has the same rights and bears the same duties as his colleagues.