Why do you need a probationary period when hiring? Important design features. Probationary period according to the Labor Code of the Russian Federation when hiring (nuances)

Selecting and hiring a new employee for a company is often a long and labor-intensive process. As a rule, the applicant goes through several stages of interviews, often professional tests. However, even the most painstaking selection does not exclude the risk for the employer that the new employee will be insufficiently qualified or will simply be negligent in his duties. To determine how well a new employee meets the company's requirements, when hiring a new employee, it is advisable to establish a probationary period. In order to be able to evaluate a new employee and terminate the employment relationship in the event of an unsatisfactory assessment of his work, it is necessary not only to stipulate, but also to legally formalize the completion of a probationary period. Let's consider the legal basis of the probationary period established by the Labor Code (Articles 70, 71 of the Labor Code of the Russian Federation), and the most common errors when applying them in practice.

We set a probationary period

The probationary period is established to verify the employee’s suitability for the work assigned to him, and the following is important:

A probationary period can only be established for newly hired employees, that is, those who have not previously worked for the company. A probationary period cannot be established, for example, for an employee already working in the company and appointed to a higher position;

a probationary period can only be established before the employee starts work. If the employer considers it necessary to provide a trial for the hired employee, then before the employee begins to perform his duties, one of the documents should be drawn up - an employment contract containing a condition on the trial, or a separate agreement providing for the use of a probationary period. Otherwise, the probationary period condition will not have legal force;

the condition for a probationary period must be contained in the employment contract, as well as in the employment order.

Moreover, the employee must confirm with his signature the fact that he has read these documents. It is not necessary to put a mark in the work book indicating the establishment of a probationary period.

It is important to consider that the main document confirming the existence of a probationary period is an employment contract. In accordance with the Labor Code, a probationary period is established only by agreement of the parties, and the document reflecting the mutual expression of will is the employment contract. If the probationary period condition is contained only in the employment order, then this is a violation labor legislation, and, in the event of a dispute, the court will invalidate the test condition.

In addition to the employment contract, the employee’s consent to a probationary period can be expressed, for example, in a job application:

The absence of a probationary clause in the employment contract, as well as actual admission to work without preliminary execution of a probationary agreement, means that the employee was hired without a trial.

The employer is obliged not only to include a probationary clause in the relevant documents, but also to familiarize the new employee with his job responsibilities, job description and internal labor regulations. The employee confirms the fact of familiarization with his signature. This is especially important when hiring probationary period, since in the event of dismissal of an employee who has not completed the probationary period, the fact that he is familiar with his job responsibilities will be important to confirm the non-compliance with the assigned work.

Often, organizations enter into a fixed-term employment contract with the hired employee instead of a permanent one. fixed-term contract subject to a probationary period. Many employers believe that by concluding a fixed-term employment contract, for example, for three months, they simplify the situation for themselves in case the employee cannot cope with the proposed work. That is, the fixed-term contract will end and the employee will be forced to leave.

However Labor Code The Russian Federation establishes that a fixed-term employment contract can be concluded only in cases expressly provided for by law (Articles 58, 59 of the Labor Code of the Russian Federation). In accordance with Article 58 of the Labor Code of the Russian Federation, “it is prohibited to conclude fixed-term employment contracts in order to evade the provision of rights and guarantees provided to employees with whom an employment contract is concluded for an indefinite period.” Plenum Supreme Court The Russian Federation, in Resolution No. 63 of December 28, 2006, recommended that courts apply Special attention to comply with these guarantees.

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Thus, if the employee goes to court or the relevant labor inspectorate, the contract can be recognized as concluded for an indefinite period, and without the condition of probation.

Test workers have the same rights as permanent workers

During the probationary period, the employee is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, and local regulations. In practice, the application of this norm is expressed as follows:

the establishment in an employment contract of a lower remuneration for an employee during the probationary period is recognized as inconsistent with the law, since the Labor Code of the Russian Federation does not provide that the remuneration of an employee during the probationary period has any specifics. In the event of a conflict, the employee will be able to obtain the amount of underpayment in court.

Thus, at Trading Company LLC, a note was made to the staffing table, which indicated that during the probationary period, the manager has the right to reduce the official salary, since the employee has underestimated labor productivity or does not have enough experience and qualifications.

The labor inspector conducted an inspection and pointed out this circumstance as a violation of labor legislation. At the same time, the following was noted: in accordance with Article 70 of the Labor Code of the Russian Federation, during the probationary period, the employee is subject to all provisions and norms of the Labor Code of the Russian Federation. Consequently, during this period, the employee’s legal status is no different from other employees and there are no grounds for reducing his official salary for this period. In addition, the principle of equal pay for work of equal value cannot be violated (Article 22 of the Labor Code of the Russian Federation). After all, the employee will perform the same work both during the probationary period and after its end. By paying differently for these periods, the employer violates this principle.

From the employer’s position, this issue can be resolved different ways. For example, when concluding an employment contract with an employee, you can indicate in it as a permanent amount of payment agreed upon for the probationary period. At the end of the probationary period, sign an additional agreement with the employee to increase the amount of payment. Or adopt a provision in the organization on bonuses (additional payments), the amount of which is established depending on the length of service in the company;

During the probationary period, the employee is subject, among other things, to the rules and guarantees regarding the grounds for dismissal at the initiative of the employer. During the probationary period, an employee may be dismissed at the initiative of the administration on the grounds provided for in Article 81 of the Labor Code of the Russian Federation, but cannot be included in the employment contract additional reasons dismissals during the probationary period not provided for by law, such as the possibility of dismissal for reasons of “expediency” or at the discretion of management. Such language is often included in employment contracts, but is contrary to the law;

the probationary period is included in the length of service giving the right to annual basic paid leave. If an employee is dismissed after the expiration of the probationary period (or before its expiration), despite the fact that the employee has not worked for the company for six months, the employee is paid compensation for unused vacation in proportion to the time worked in the company.

Special cases

When concluding an employment contract with an employee, it is important to remember that the Labor Code of the Russian Federation excludes the possibility of establishing a probationary period for:

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 education vocational education and those entering work for the first time in their specialty within one year from the date of graduation educational institution;

persons elected to elective positions for paid work;

persons invited to work by way of transfer from another employer as agreed between employers;

persons concluding an employment contract for a period of up to two months, and in other cases.

If you establish a probationary period for the above categories of employees, then this provision of the employment contract will not have legal force.

Duration of probationary period

The probationary period cannot 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.

If you enter into an employment contract with an employee for a period of two to six months, then the probationary period cannot exceed two weeks. The probationary period does not include the period of temporary incapacity for work of the employee and other periods when he was actually absent from work. The duration of the probationary period is set at the discretion of the parties, but cannot be longer than established by law.

In practice, the employer often extends the probationary period during the period the employee undergoes the test agreed upon when concluding the employment contract. This is against the law. And, if the employer does not decide to dismiss the employee before the expiration of the period specified in the employment contract, the employee will be considered to have passed the test.

Let us note that the legislation in some cases establishes a longer probationary period compared to that established by the Labor Code, in particular for civil servants (Article 27 Federal Law dated July 27, 2004 No. 79-FZ “On State civil service Russian Federation»).

Result of the pre-employment test

The Labor Code of the Russian Federation establishes: “If the probation period has expired and the employee continues to work, then he is considered to have passed the test and subsequent termination of the employment contract is allowed only on a general basis.” That is, if the employer considers the employee suitable for the position for which he was hired, then no additional documents are required - the employee continues to work on a general basis.

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If the employer decides to dismiss a new employee, then a certain procedure must be strictly followed and the necessary documents must be drawn up:

notification of an unsatisfactory test result must be made in writing in two copies: one for the employee, the second for the employer, and announced to the employee under his personal signature.

What to do if the employee refuses to accept the notice? In such a situation, the employer can take the following actions. It is necessary to draw up a corresponding act in the presence of several employees of this organization. Employee-witnesses will confirm with their signatures in this act the fact of delivery of the notice to the employee, as well as his refusal to certify this fact in writing. A copy of the notice can be sent to the employee’s home address by registered mail with return receipt requested. At the same time, it is important to comply with the deadlines established by Article 71 of the Labor Code of the Russian Federation - a letter of notice of dismissal must be submitted to the postal authority at least three days before the expiration of the probationary period established for the employee. date postal item determined by the date on the postmark on the receipt and the notification of delivery of the letter returned to the employer. The notice of termination of the contract during the probationary period must have all the necessary characteristics of a document, namely: date, reference number, signature of the person authorized to sign the relevant documents, as well as a seal intended for registration of documents of this organization;

In the notice given to the employee, the reason for dismissal must be correctly and legally formulated. The wording must be based on documents confirming the validity of the decision made by the employer;

arbitrage practice shows that when considering disputes about dismissal due to unsatisfactory test results, the courts require the employer to confirm the fact that the employee is unsuitable for the position held.

To confirm the employee’s inadequacy for the position held, moments when the employee did not cope with the work assigned to him or committed other violations (for example, labor regulations, etc.) must be recorded. These circumstances must be documented (recorded), if possible, indicating the reasons. In addition, it is necessary to require from the employee written explanations about the reasons for his violations. From the point of view of a number of specialists, when dismissal under Article 71 of the Labor Code of the Russian Federation (due to an unsatisfactory test result), proof of the employee’s professional inadequacy for the position held is required. And if an employee violated labor discipline during the probationary period (for example, committed absenteeism or otherwise demonstrated an unfair attitude towards work), then he must be dismissed on the basis of the corresponding paragraph of Article 81 of the Labor Code of the Russian Federation.

The following documents may be accepted as documents confirming the validity of dismissal: an act of committing a disciplinary offense, a document confirming the non-compliance of the quality of the subject’s work with the production standards and time standards adopted in the organization, explanatory letter employee about the reasons for poor quality performance of work assignments, written complaints from clients.

Citizen I. filed a lawsuit against kindergarten for reinstatement as a teacher, payment for forced absence time, compensation for moral damage, citing the fact that she was hired on the basis of an employment contract with a probationary period of 2 months and was unreasonably dismissed as having failed to complete the probationary period.

The court rejected the claim. The panel of judges left the court's decision unchanged.

In accordance with Article 70 of the Labor Code of the Russian Federation, when concluding an employment contract, the agreement of the parties may stipulate the testing of the employee in order to verify his compliance with the assigned work. The probationary clause must be specified in the employment contract. According to Article 71 of the Labor Code of the Russian Federation, if the test result is unsatisfactory, the employer has the right to terminate the employment contract with the employee before the expiration of the test period, warning him about this in writing no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as having failed the test.

In the case, it was established that citizen I. was hired as a teacher with a probationary period of 2 months, and an employment contract was concluded with her in writing. The grounds for dismissal included a written warning, reports from the children's parents, kindergarten employees, kindergarten reports, and a collective statement from parents. junior group, minutes of the meeting of the kindergarten council.

From the case materials it was clear that a written warning about her dismissal was drawn up. The warning indicates the reasons that served as the basis for recognizing the plaintiff as having failed the probationary period. The plaintiff refused to accept the warning, about which a report was drawn up.

The assessment of business qualities and how well an employee copes with the work assigned to him directly depends on the field of work and the specifics of the work performed. Based on the specifics of the work, the conclusion about the test result can be based on various data. Thus, in the production sphere, where the result of labor is a specific materialized result, it is possible to clearly determine how well the work is performed; in the service sector, you can take into account the number of customer complaints about the quality of a particular service. The situation is more complicated when the work involves intellectual work. IN in this case the quality of execution of the manager’s instructions, compliance with deadlines for completing tasks, the employee’s fulfillment of the total amount of proposed work, and the employee’s compliance with professional and qualification requirements should be analyzed. The new employee’s immediate supervisor must complete the relevant documents and send them to the head of the company.

As you can see, the procedure for dismissing an employee based on test results requires a certain formality from the employer. In addition, the legislation in any case provides the employee with the right to appeal the employer’s decision in court.

It is also necessary to say about the employee’s right to terminate the employment contract: “If during the probationary period the employee comes to the conclusion that the work offered to him is not suitable for him, then he has the right to terminate the employment contract according to at will, warning the employer about this in writing three days in advance.” This standard is important for the employee, since it is fundamentally important for many potential employers to know why the applicant left his previous job so quickly.

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The author believes that with the help of a probationary period, the employer can see the hired employee “in action,” and the employee, in turn, can evaluate the compliance of the proposed job with his interests and expectations. The legislation clearly defines the conditions for applying the probationary period. And since the employee in labor relations is a socially unprotected party, the Labor Code of the Russian Federation establishes a number of guarantees for workers when passing the test, and the procedure for dismissing an employee due to an unsatisfactory test result is quite formalized.

The legislation gives the employee the right to appeal in court the employer’s decision to dismiss based on the results of the test. In this case, the court will check the legality of establishing a probationary period, the correctness of execution necessary documents and employer compliance with all legal aspects. Based on this, both the employee and the employer have the right to decide for themselves on the advisability of applying and the conditions for completing the probationary period.

1 See article by A.A. Atateva “Fixed-term employment contract in a new way” on page 23 of magazine No. 2` 2007.

2 Resolution of the Plenum of the Supreme Court of the Russian Federation No. 63 of December 28, 2006 “On introducing amendments and additions to the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation.”

3 Clause 11 of the Review of Judicial Practice of the RF Armed Forces for the third quarter of 2005 civil cases. The text was not officially published.

The Labor Code indicates that the employer has the right to assign an applicant a test when hiring. This is necessary to check the professional qualities of the future employee. This does not mean that the employer is obliged to establish a probationary period.
indicate that a probationary period can be established for an employee only by agreement of the parties. However, in practice this is not the case. The employer confronts the job seeker with the fact that there is a probationary period, and the salary during this period is set somewhat lower than after it.

When hiring, even if there is a probationary period, the employer enters into an employment contract with the employee. The contract must indicate that the employee is hired “with a probationary period of ....”. The salary that the employer is going to pay the employee during the trial must also be specified in the contract. If there is no provision in the employment contract about assigning a test to the applicant when hiring, this means that the employee was hired for a vacant position without a probationary period.

Article 70 of the Labor Code of the Russian Federation states that the duration of the probationary period cannot exceed 3 months. If the head of the organization, his deputy, Chief Accountant or his deputy, the trial period is increased to 6 months. If a fixed-term employment contract is concluded with an applicant for a vacant position for a period of 2 to 6 months, then the probationary period cannot exceed 2 weeks. If the employee was sick or actually absent from the workplace for other reasons, these periods are deducted from the probationary period.

persons who occupy a vacant position as a result of a competition;
pregnant women;
women who have a child under 3 years of age;
underage workers;
persons holding an elected position;
persons occupying a vacant position as a result of a transfer from another employer;
applicants who enter into an employment contract for a period of less than 2 months;
to other persons, if this is provided for by local regulations or collective agreements.

The employee must understand that if there is a test, then there must be its results. They can be both positive and negative.

If the employee passes the test, then there is no need to conclude a new employment contract with him. He continues to work under the conditions specified in the employment contract concluded upon acceptance. If the results of the test, in the opinion of the employer, are negative, then he can terminate the employment contract with the employee before the end of the probationary period.
To do this, he must warn the employee in writing about the upcoming dismissal 3 days in advance. The notice of termination must also detail the reasons. The employer must justify its decision regarding negative test results.
If the employee does not agree with the results of the test, he must also notify the employer about this. If he considers his dismissal illegal, he has the right to appeal to the labor inspectorate or to court. The opinion of the trade union is not taken into account in this case. The employee also has the right to terminate the employment contract with the employer if, during the test, he decides that this work It doesn't suit him for a number of reasons. To do this, he must notify the employer in writing 3 days in advance.

Probation period according to the labor code

According to established practice, a probationary period is a certain period of time during which the employer checks the suitability of the employee being hired for the position for which he is being hired.
Establishing the period required for probation is the right of the employer, but not his obligation. Therefore, if he believes that the applicant is suitable for the vacant position, he can hire him without passing the test.

The employer has the right to apply a probationary period to one or another applicant for a vacant position, regardless of the organizational and legal form of the enterprise and the goals of economic activity.

The appointment of a probationary period is regulated by Art. 70 Labor Code of the Russian Federation and Art. 71 Labor Code of the Russian Federation. But this does not mean that he works on preferential or special terms. Absolutely all norms of the current labor legislation, as well as other regulations containing labor law norms, apply to it. That is, he has all labor rights and must perform all labor duties, and can also be held accountable for violating the norms of the Labor Code of the Russian Federation.
A probationary period can only be established by agreement of the parties. That is, if one party (usually a future employee) did not know about the establishment of the test or was not properly notified, this is considered a gross violation of the norms of the Labor Code of the Russian Federation.
Therefore, the employer must notify his future employee that he intends to set a certain period for checking his professional suitability. The duration of the period must be announced. The applicant does not have to agree! But he may offer the future employer another term. When the parties come to a mutual agreement, they sign an employment contract, which specifies the duration of the tests for a specific applicant.

The length of the probationary period is not essential condition employment contract, that is, without this clause the contract will be valid. Moreover, if during labor relations the parties have agreed that the test period needs to be changed, then they can sign an additional agreement and include this provision in it.
Based on a signed employment contract or additional agreement, an order is issued, which also reflects the duration of the probationary period. If such conditions are absent, the employee is considered accepted without a probationary period.

Working conditions during the probationary period should not be worse than after its completion. This right to the employee is guaranteed by Art. 70 Labor Code of the Russian Federation. In addition, a real employment contract is immediately concluded with the employee, and not for the duration of the test. An employer cannot conclude a fixed-term contract on such a basis as during the probationary period, since this is not the basis for concluding a fixed-term contract. This is a violation of current legislation.

The same situation applies to wages. It should not be less than what other employees receive in a similar position and with the same work experience as the new employee. That is, the employer does not have the right to stipulate in the employment contract one amount of remuneration for the duration of the trial, and then another amount.

But employers found a way out of this situation without violating the norms of the Labor Code of the Russian Federation. They set low salaries for all employees, regardless of position, qualifications and work experience. And then they pay their employees monthly bonuses, taking these facts into account. Therefore, an employee on a probationary period, as a rule, receives less than other employees.
It is possible to carry out dismissal during a probationary period according to a simplified scheme, regardless of who is the initiator - the employee or the employer. If one of the parties comes to the conclusion that this employment relationship is impossible, then the employment contract is terminated without the participation of the trade union organization and payment of severance pay.

To whom the probationary period does not apply

The law establishes a certain circle of persons to whom a probationary period cannot be applied as a measure of professionalism. The circle of such workers is defined in Art. 70 Labor Code of the Russian Federation. These include:

applicants who are accepted for a vacant position based on the results of a competition;
pregnant women, with the appropriate certificate, and persons who have a child under the age of 1.5 years;
minor applicants;
applicants who are university graduates and who get a job for the first time within 1 year after graduation educational institution;
applicants who are intentionally selected for this position;
employees with whom an employment contract is concluded due to a transfer from another employer, if there is an appropriate agreement between these employers;
applicants who enter into an employment contract for a period not exceeding 2 months;
applicants of other categories, which are prescribed in other, more “narrow” regulations.

In relation to these employees, the employer does not have the right to apply tests when applying for a job.

Exceeding the probationary period

The maximum duration of the probationary period, according to current legislation, is 3 months. That is, the employer does not have the right to check the professionalism of his employee beyond this period.
But there are several categories of employees for whom the probationary period should not exceed the time limit strictly established by law. Therefore, the employer must first determine whether his new employee belongs to this category or not, and only then set tests for him for a certain period.

A probationary period of no more than 6 months is established for:

the head of the enterprise, as well as for his deputy;
head of a branch, representative office, structural unit;
chief accountant and his deputy.

The probationary period cannot exceed more than 2 weeks for applicants:

concluding an employment contract for a period of 2 months to six months;
working in seasonal jobs.

Tests for a period of 3 to 6 months are established:

for civil servants who are hired for the first time;
for persons who are transferred to the public service for the first time.

In more “narrow” regulations governing the activities of various categories of workers, other testing periods may be established. Therefore, if an employer, in order to conduct its activities, is guided by such regulations, then he must take this into account when hiring new employees.

If the probationary period is specified in the employment contract and does not exceed the duration established by law, then it can be changed. The manager has the right to shorten the probationary period of his employee without compelling reasons, but he has no right to increase it.
However, there are periods of work that are not included in the employee’s probationary period, that is, they actually increase the probationary period for a particular employee. These are time periods such as:

a period of illness, that is, the employee can justify his absence with a certificate of incapacity for work;
administrative leave, that is, leave when the employee does not retain his salary;
study leave, that is, absence from work due to training;
the employee's presence at community service or the performance of public duties;
absence of an employee from his/her workplace for other valid reasons.

In effect, these periods extend the probationary period of a particular employee, although there are no changes to the employment contract.

The probationary period applies to a fixed-term employment contract

You can conclude either a fixed-term employment contract with an employee or a contract with a specified duration. This point is reached by agreement of the parties. The duration of the employment relationship must be specified in the employment contract. A probationary period can also be applied to such an employee, but with some nuances.

A fixed-term employment contract can only be concluded in certain cases. These are cases such as:

for a period of no more than 5 years;
a worker is hired to perform a certain amount of work when the exact date The completion of such work cannot be determined. This should be stated in the employment contract;
temporary absence of another employee. An often common case is an employee’s maternity leave;
performing seasonal work. For example, harvesting or sowing.

In other cases, the employment contract is concluded for an indefinite period.

In a fixed-term employment contract, the duration of the trial is also established by agreement of the parties, as in the case of open-ended contract. Apply General terms purpose of the test. The period for checking a new employee cannot exceed 3 months. But if new employee is issued for a period of 2 months to six months, then the employer cannot set a verification period of more than 2 weeks. This situation arises when an employee, for example, is hired to perform seasonal work.
If an employee is hired for a period that does not exceed 2 months, then the employer does not have the right to set a probationary period. If the employer insists on this, then he violates the basic labor rights of this employee.

By general rule, the probationary period cannot 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.

If an employment contract is concluded with an employee for a period of two to six months, then the probationary period cannot exceed two weeks. The probationary period does not include the period of temporary incapacity for work of the employee and other periods when he was actually absent from work. The duration of the probationary period is set at the discretion of the parties, but cannot be longer than established by law.

Note that the legislation in some cases establishes a longer probationary period compared to the established Labor Code, in particular for civil servants (Article 27 of the Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation”).

The result of the test when hiring is established in the Labor Code of the Russian Federation: “If the test period has expired and the employee continues to work, then he is considered to have passed the test and subsequent termination of the employment contract is allowed only on a general basis.” That is, if the employer considers the employee suitable for the position for which he was hired, then no additional documents are required - the employee continues to work on a general basis.

According to Art. 71 of the Labor Code of the Russian Federation “If the test result is unsatisfactory, the employer has the right, before the expiration of the test period, to terminate the employment contract with the employee, warning him about this in writing no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as having failed the test. The employee has the right to appeal the employer’s decision in court.”

If the test result is unsatisfactory, the employment contract is terminated without taking into account the opinion of the relevant trade union body and no severance pay.

If the employer decides to dismiss a new employee, then a certain procedure must be strictly followed and the necessary documents must be drawn up:

1) notification of an unsatisfactory test result must be drawn up in writing in two copies: one for the employee, the second for the employer;

2) announced to the employee under his personal signature.

What to do if the employee refuses to accept the notice? In such a situation, the employer can take the following actions. It is necessary to draw up a corresponding act in the presence of several employees of this organization. Employee-witnesses will confirm with their signatures in this act the fact of delivery of the notice to the employee, as well as his refusal to certify this fact in writing. A copy of the notice can be sent to the employee’s home address by registered mail with return receipt requested. At the same time, it is important to comply with the deadlines established by Article 71 of the Labor Code of the Russian Federation - a letter of notice of dismissal must be submitted to the postal authority at least three days before the expiration of the probationary period established for the employee. The date of mailing is determined by the date on the postmark on the receipt and the notification of delivery of the letter returned to the employer. A notice of termination of a contract during the probationary period must have all the necessary features of a document, namely:

1) date, reference number, signature of the person authorized to sign the relevant documents, as well as the stamp of the seal intended for the execution of documents of this organization;

2) in the notice given to the employee, the reason for dismissal must be correctly and legally formulated. The wording must be based on documents confirming the validity of the decision made by the employer;

3) judicial practice shows that when considering disputes about dismissal due to unsatisfactory test results, the courts require the employer to confirm the fact that the employee is unsuitable for the position held.

To confirm the employee’s inadequacy for the position held, moments when the employee did not cope with the work assigned to him or committed other violations (for example, labor regulations, etc.) must be recorded. These circumstances must be documented (recorded), if possible, indicating the reasons. In addition, it is necessary to require written explanations from the employee about the reasons for the violations he committed. From the point of view of a number of specialists, upon dismissal under Article 71 of the Labor Code of the Russian Federation (due to an unsatisfactory test result), proof of the employee’s professional inadequacy for the position held is required (Appendix 1). And if an employee violated labor discipline during the probationary period (for example, committed absenteeism or otherwise demonstrated an unfair attitude towards work), then he must be dismissed on the basis of the corresponding paragraph of Article 81 of the Labor Code of the Russian Federation.

The following may be accepted as documents confirming the validity of dismissal:

1) act of committing a disciplinary offense;

2) a document confirming the non-compliance of the quality of the subject’s work with the production standards and time standards adopted in the organization; probationary period employer employment contract

3) an explanatory note from the employee about the reasons for the poor quality of the work assignment, written complaints from clients.

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, as well as non-personal qualities, discipline and compliance with the so-called corporate culture.

Thus, citizen M. filed a claim with the Simonovsky Court of Moscow for reinstatement at work, recovery of wages for the period of forced absence and compensation for moral damages in connection with illegal dismissal under Art. 71 Labor Code of the Russian Federation. In support of his claims, M. indicated that he was hired by the defendant’s organization as a leading specialist with a probationary period of 6 months and at the end of the probationary period, M. was fired under Art. 71 of the Labor Code of the Russian Federation as having not passed the probationary period.

During the court hearing, questions were discussed about confirming the fact of inadequacy for the position held and the validity of the dismissal.

M.'s demands were partially satisfied, namely, he was reinstated at work, wages were collected for the period of forced absence and moral damages were compensated.

An analysis of this case and the decision made allows us to draw some conclusions that may be useful to both the employer and employees hired on a probationary period.

Upon confirmation of the fact of non-compliance and the validity of his dismissal as having failed the test under Art. 71 of the Labor Code of the Russian Federation, the defendant was unable to prove that the plaintiff did not comply with the work assigned. It should be noted that this happened as a result of improper registration of those cases when the plaintiff could not cope with the work assigned to him or was negligent in his duties.

The court considered it insufficient to confirm the fact of inadequacy for the position held and dismissal under Art. 71 of the Labor Code of the Russian Federation order to reprimand M. for negligent attitude towards his official duties and failure to fulfill official assignments and testimony of witnesses who confirmed that M. did not always competently perform the assigned work. To avoid such situations, it is necessary to draw up acts and protocols recording the actual failure by the employee to complete the work assigned to him, indicating the reasons. IN mandatory in all such cases, it is necessary to take written explanations from the employee about the violations he committed.

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

However, establishing 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 unnecessary formalism how well they correspond to each other’s expectations and capabilities.

Hiring personnel carries certain risks for the organization, because success, in general, depends on the experience, knowledge and skills of an individual staffing unit. The trial period allows you to minimize them. According to the Labor Code of the Russian Federation, it is a right, not an obligation, of the employer and is usually established within three months.

Basic regulatory framework

The pre-employment test is designed for the employer to evaluate the business and professional quality employee, and the employee has determined for himself whether the assigned work is suitable for him or not (Part 1 of Article 70, Part 4 of Article 71 of the Labor Code of the Russian Federation).

Labor Code of the Russian Federation:

Art. 70 – concept and limitations;
Art. 71 – results of passing;
Art. 289 – with a fixed-term contract.

Federal Law on Civil Service No. 79-FZ

Federal Law on Service in the Department of Internal Affairs No. 342-FZ

The probationary condition (including the period) is established exclusively upon hiring (Parts 1, 2, Article 70 of the Labor Code of the Russian Federation).

Different approach

The Labor Code does not contain the term “probationary period,” but Article 70 mentions “test when hiring.” Experts consider these concepts to be equivalent and attribute them to the elements of the agreement concluded between the employer and the applicant. If the document does not contain a condition on the probationary period, the law recognizes it as unspecified; The employee is automatically added to the staff.

Detailed information about the probationary period under the Labor Code of the Russian Federation in 2018 is presented in the table.

Categories of citizens	Maximum test duration	Link to document
Employees who have entered into a contract for 2–6 months	14 days	part 6 art. 70 Labor Code of the Russian Federation
Signing a contract for up to 2 months	absent	Part 4 Art. 70 Labor Code of the Russian Federation, art. 289 Labor Code of the Russian Federation
Applicants for management positions - chief accountant, middle manager, deputy director, etc.	6 months	Part 5 Art. 70 Labor Code of the Russian Federation
Starting a career in the civil service	12 months	Art. 27 of Law No. 79-FZ
Police officer	6 months	Art. 24 Law No. 342-FZ
Other employees (signing an open-ended contract)	3 months	Part 5 Art. 70 Labor Code of the Russian Federation

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But the Labor Code of the Russian Federation prohibits socially protected citizens from establishing a probationary period. They have the right to employment without undergoing a background check. These include:

pregnant employees;
minors;
employees transferred from another organization;
received a position on a competitive basis;
women raising children under 1.5 years of age.

What the Labor Code says about dismissal during a probationary period

The result of passing the test is assessed by the employer, whose decision affects the future fate of the employee. When the allotted time has expired and nothing has changed - that is, all assigned tasks have been completed successfully - he is automatically accepted into the company. Additional design not required.

If the applicant has not demonstrated the necessary professional qualities or has committed a serious violation of discipline, dismissal under the article of the Labor Code of the Russian Federation is allowed during the probationary period at the initiative of the employer (Article 71). Then three important conditions must be met:

Promptly inform the employee about the decision taken by providing written notice. Deadline – no later than three days before the expected date of termination of the contract.
Prepare documents confirming incompetence. The interests of employees, including those undergoing a probationary period, are fully protected by the Labor Code. Therefore, the reason for dismissal must be significant and justified. If rights are infringed, undesirable consequences are guaranteed for the organization.
Correctly draw up the procedure for terminating an employment contract, observing certain order actions. Please note: if there is an error in the documents, consequences such as reinstatement of the employee with a demand for monetary compensation from the employer cannot be ruled out. Also see "".

If the level of qualifications suits the employer, he has the right to shorten the probationary period provided for by law and hire the employee on staff.

Important nuances

Firstly, regarding salary and compensation. Officially registered and verified candidates have the rights of permanent employees. The Labor Code does not provide for them special conditions, therefore they are calculated in the general manner.

According to our information, in this year There are no plans to change the procedure for regulating labor relations between the employer and the applicant during the probationary period. The Labor Code for 2018 remains relevant and its provisions are valid.

Searching for a job, as well as recruiting personnel, is a labor-intensive process. Even if the requirements of the vacancy are met by the professional qualities of the candidate, and to this specialist The proposed work is completely suitable, there are no guarantees that the cooperation will necessarily be successful and long-lasting.

What deadline can be set?

Hiring for a probationary period allows you to determine opportunities for further cooperation. According to this period, different cases be different. The following options exist:

No more than 2 weeks;

Probation period 3 months (or less);

Up to six months;

Up to one year.

At the same time, the shortest duration is provided when a fixed-term contract is concluded (up to six months). This also applies to seasonal workers. A probationary period of 2 weeks may be established for them, but no more.

However, it usually lasts longer. In most cases, the probationary period lasts up to 3 months. The Labor Code of the Russian Federation indicates that it can end by agreement of the parties or earlier, but not later. A period of 6 months can be set, for example, for the head of the company, its representative office, branch, chief accountant, as well as their deputies.

In what cases is hiring carried out for a probationary period for the longest period of time? For example, when an employee enters the civil service. How long does the probationary period last in this case? Up to one year. However, if an employee is transferred to a new place from one government agency in another, the maximum time is six months.

Categories of employees for whom a probationary period cannot be established

The rules listed above do not apply to all potential employees. There are categories of employees for whom a probationary period cannot be established (the Labor Code of the Russian Federation indicates relevant cases). These are pregnant women, candidates under 18 years of age, employees with whom the contract is concluded for 2 months or less. Another case is if a candidate was hired through a competition. In addition, this category includes former students who received higher, secondary or elementary education and those who first began to perform positions in the specialty they received. Also, hiring for a probationary period is impossible for disabled people who were assigned to this position based on the results of a medical examination. Another category is specialists who were invited to this position as a result of transfer to another employer. The last two cases are if a candidate is elected to an elective position, and also if he retires from service (alternative, military).

Why is a probationary period needed?

Hiring for a probationary period upon taking up a position is introduced not only for the future employee, but also for the employer. During this period, both parties have the opportunity to take a closer look at each other and understand whether cooperation should continue. During the test, the employer evaluates business qualities, the employee’s abilities, his communication skills, the ability to carry out assignments efficiently, suitability for the position held, his compliance with the rules established in the company, as well as discipline. During this period, the employee draws a conclusion about the company, his position, salary, responsibilities, management and team.

How is work paid during the probationary period?

The employee who is at the probationary stage is fully covered. Therefore, if the company stipulated in the contract that this period will not be paid, this is a clear violation of Russian law. In addition, many employers nowadays deliberately set a lower salary for the test subject, promising to increase it later. The following can be said about this.

Firstly, an employee who is at the probationary stage cannot be limited in wages. His rate must be no less than that stipulated for the given position in staffing table. Secondly, a company that reduces the salary during the probationary period falls under an article such as discrimination. In the staffing table of a company, for example, there are two positions for a purchasing manager. The first was occupied by an old employee, and the second was invited to a new person with a probationary period. In this case, from the first day of work, the newcomer must have a salary no less than that of an employee who has been working for several years in a similar position.

Legal way to set a lower salary during the probationary period

Nevertheless, almost all companies pay lower salaries to employees during the probationary period. This can be done quite legally by changing, for example, the salary of employees for a newbie position in the staffing table. However, it should be remembered that its size should not be lower than the minimum wage.

A specialist on a probationary period may be paid a bonus, as well as other incentive payments that are specified in the regulations on remuneration and bonuses. The employer is also obliged to pay the subjects overtime, certificate of incapacity for work, going to work on holidays and weekends.

Registration of a probationary period

A probationary period is required. It is necessary to conclude with the employee labor contract, and the order to hire an employee is issued on the basis of it. These documents indicate the duration of the test period. IN work book they do not make the entry “accepted for a probationary period”; it only indicates that the employee was hired.

Extension of probationary period

It is not prohibited to increase it, but only if the duration of the probationary period does not exceed the norms established by law. For example, if initially it is 1 month, and after this period the employer still has doubts about the candidate’s suitability for this position, trial period can be extended to 3 or 6 months if we are talking about the vacancy of a branch manager or chief accountant.

It is impossible to increase its duration without the employee’s consent. Therefore, the employer must justify the decision to extend the probationary period.

The need for written recording of facts of violation of labor discipline by an employee

Late performance of tasks by an employee, his mistakes, violation labor discipline should be documented, and if there are managers, then they should be attached as well. Facts certified in this way should be handed over to the employee for review. To confirm, he must sign. If the employee agrees with the shortcomings in the work, then it is done to employment contract, and the probationary period increases. If the employee believes that the claims against him are unfounded and does not give his consent to an additional period, dismissal is allowed, which must be based on written irrefutable evidence.

Rights and obligations that an employee has during the probationary period

They are no different from those that other employees working in this company have. A specialist registered for a probationary period has the following rights:

Receive a salary, bonuses, salary supplements for overtime work, as well as other incentive payments;

Take sick leave, on the basis of which to receive insurance payments during incapacity;

Resign at any time on your own initiative (it is not necessary to wait until the end of the probationary period);

Take a weekend at your own expense or towards a future vacation; however, the employer in this case can refuse leave on legal grounds, if this does not contradict the Labor Code of the Russian Federation, Article 128: for example, if an employee has a child, then he should be given time off without pay for up to five days.

The employee's responsibilities are as follows:

Observe internal regulations, fire and labor discipline;

Comply with the terms of the contract;

Perform job duties in accordance with the job description.

Dismissal of an employee who has not passed the test period

First of all, you should in writing prepare a notice for the employee in advance, in which you need to indicate the reasons why further cooperation is impossible. They must be documented. This could be an act of disciplinary action, about the employee’s failure to comply labor responsibilities, written complaints from clients who interacted with a specialist, or, for example, minutes of a commission meeting in which the outcome of the probationary period was determined, etc. The notice also indicates the date of the planned dismissal and the preparation of the document. It is made in two copies (for the employee and for the employer).

The next step is to deliver this notice to the employee no later than three days (preferably 4) before the end of the probationary period or the date of his planned dismissal (if the decision to terminate the contract was made much earlier than the end of the probationary period). Please note that if this is not done on time, the employee will automatically be considered to have passed the test.

The next step is for employees to familiarize themselves with the notice and sign it with the date. If those who have not completed the probationary period refuse to sign, the employer draws up a special act. It must be signed by at least 2 witnesses.

The next step is that on the day of dismissal, the employee receives a salary for the days he worked, a work book and compensation for unused vacation, if any.

Termination of the contract by decision of the employee

If a specialist independently decides to terminate the contract before the end of the probationary period, the employer should be notified about this. He must write a letter of resignation, indicating the reason “on his own initiative,” and then the contract is terminated under this article. If employees who have already completed their probationary period are required to notify their employer of their desire to resign two weeks in advance, then an employee undergoing probation must notify him only three days in advance.

Cases in which dismissal is not possible

It should be noted that the dismissal of employees who have not completed the probationary period is equivalent to their dismissal precisely at the initiative of the employer. Therefore, it is necessary to familiarize yourself with the Labor Code of the Russian Federation before removing a specialist undergoing a probationary period from his position (Article 81). For example, an employer does not have the right to fire a woman who is pregnant or raising a child under 3 years of age. If he is incapacitated or is on vacation, he is also prohibited from being removed from his position.

Who benefits from a probationary period?

It benefits both the employer and the employee. Thanks to the probationary period, the company can make sure that the candidate has professionalism, or start looking for another specialist. And the employee, in turn, will be satisfied with his new place or will begin to look for another. Thus, neither the company nor the specialist will waste additional time looking for another candidate or a new job.