Probation(Article 70 of the Labor Code of the Russian Federation) is a period of time established by an employment contract during which the employer evaluates the employee’s business qualities and has the right to dismiss him if the employee does not pass the test. From a legal perspective, the correct term is “employment test.”

The probationary period protects the interests of the employer. During the probationary period, the employer has the opportunity to evaluate the employee’s business qualities, which means the employee’s ability to perform job duties, taking into account the employee’s existing professional qualifications and personal qualities.

There are opinions that during the probationary period the employee also determines whether the proposed job is suitable for him. This is only partly correct. Indeed, during the probationary period, the employee has certain benefits, namely, the right to notify about the upcoming dismissal 3 days in advance, and not 2 weeks in advance as according to the general rules. However, it seems that this “benefit” is imaginary. In the end, 2 weeks or 3 days is not a very big difference, considering that we're talking about about warning, not about “working off”. The employer is not required to actually work. But the employer has the right to “create” evidence that the employee did not complete the probationary period and offer. I doubt that there will be many people willing to defend their rights in court.

How is the probationary period established?

The regulatory justification for the position is as follows. According to employment contracts, they cannot contain conditions that limit the rights or reduce the level of guarantees of employees in comparison with those established by labor legislation and other regulatory legal acts containing labor law norms, and the possibility of extending the probationary period is not provided for by law.

Reducing the duration of the probationary period does not violate the employee’s rights, therefore the employee and the employer have the right to enter into an additional agreement to the employment contract and reduce the duration of the probationary period.

In principle, reducing the length of the probationary period for the employer is meaningless. I recommend that you always specify the maximum duration of the probationary period in your employment contract.

Dismissal of an employee at his own request during the probationary period

During the probationary period, the employee has the right to resign for at will. But to quit, you need to notify the employer not two weeks, but three days in advance. This is provided for in Part 4 of Art. 71 Labor Code of the Russian Federation.

Result of the pre-employment test

During the probationary period, the employee may come

Based on the results of the pre-employment test, the employer can come to two conclusions: the test results are satisfactory and the test results are unsatisfactory.

If the results are satisfactory and the employee is satisfied with the employer, the parties to the employment contract await the end of the probationary period. After the test period has expired, no additional actions need to be taken. Additional documents are not issued.

Everything is much more interesting if the test results are unsatisfactory. In this case, the employer has the right to dismiss the employee as having failed the test. Next, I will talk about the grounds for dismissing an employee who failed the test and the procedure for dismissing an employee who failed the test.

Grounds for dismissing an employee as having failed the test

Firstly, it must be established whether the probationary clause is legally included in the employment contract and whether the employee belongs to the category of workers for whom a probationary period is not established.

Secondly, evidence must be obtained that the employee failed the test. This is very important because when an employee challenges the legality of dismissal, the obligation to provide evidence that the employee did not pass the test lies with the employer.

Evidence that the test results are unsatisfactory may include complaints from clients, other employees, immediate supervisors, acts of violation of labor discipline, orders for disciplinary action, employee explanatory notes, conclusions of a mentor, etc.

If there is no evidence that the employee failed the test, the employee will be reinstated.

The procedure for dismissing an employee as having failed the test

According to Part 1 of 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.

It follows from this rule that an employee can be fired only before the probationary period expires. The dismissal procedure must begin no later than three days before the end date of the test. If you start the dismissal procedure on the last day of the test, you will not be able to comply with the dismissal procedure. Although there are certain tricks that can help.

The employee must be notified of the upcoming dismissal in writing and no later than three days before the date of the upcoming dismissal. The warning must indicate the reasons why the employee was found to have failed the test.

After the warning and the expiration of three days from the date of the warning, a dismissal order can be issued.

The order specifies the following wording of the grounds for termination of the employment contract: “unsatisfactory test result, part one of Article 71 of the Labor Code Russian Federation».

Next, the order indicates the grounds for dismissal: the clause of the employment contract that established the test for hiring, and also lists the documents that confirm the fact that the employee did not pass the test.

An entry about dismissal is made in the work book as follows: “The employment contract was terminated due to unsatisfactory test results, part one of Article 71 of the Labor Code of the Russian Federation.”

Otherwise, the dismissal procedure does not differ from the general rules for dismissing an employee.

An alternative to dismissing an employee as having failed the test

If an employee works extremely poorly and you want to dismiss him as having failed the test, then first of all you need to invite him to resign of his own free will or by agreement of the parties. These grounds for dismissal are more beneficial for the employee and more “reliable” for the employer.

You can watch a video with my participation, which discusses the problems of probation

Almost every capable Russian will one day have to find a job new job. Most newly hired employees find a clause in their employment contract requiring them to undergo a probationary period. Labor legislation also provides for some exceptions. The hiring company is, in principle, deprived of the right to arrange test periods for certain categories of citizens. Unfortunately, not all working citizens are familiar with their rights in the world of work and know how to use and defend them. Such situations lead to abuse by unscrupulous employers.

What is a probationary period

The concept of a probationary period is regulated by Articles 70 and 71 of the Labor Code of the Russian Federation. The probationary period is the time allotted for the employer to practically evaluate professional skills and personal qualities newly accepted candidate. The length of the probationary period may vary and depends on the level of the position for which the employee was hired, as well as on the nature of the work performed. Condition for a probationary period when hiring in mandatory is prescribed in the employment contract with the citizen being hired. In turn, the employee also has the right to use this period of test work in order to assess factors that are significant to him, for example, working conditions, the mood in the work team, the characteristics of colleagues and his immediate superior. If one of the parties finds that something does not suit her, the employment contract can be terminated. The initiator of termination of the contract can be either the employee or the employer.

Video: probationary period during employment

Is the probationary period included in the length of service?

The probationary period is included in the length of service, and the entry in the work book that the employee has started work for a probationary period is not made. After signing the employment contract at the enterprise, a corresponding order is issued, on the basis of which work book a standard entry for employment in a specific position is performed.

In order for a newly hired employee to avoid unnecessary worry about whether a probationary period is included in the length of service in each particular case or not, he is recommended to make all necessary efforts to obtain a signed employment contract within the first days in a new place.

How is a probationary period different from an internship?

The difference between an internship and a probationary period lies in the period of conclusion of the employment contract. In the case of a probationary period, the employment contract is concluded before the start of direct work. labor activity, and the internship implies that the employment contract will or will not be signed by the parties based on the results of the internship. If specialists of any level, up to directors and top managers, can undergo a probationary period, then internships, as a rule, involve recent graduates who are employed for the first time. There are also internships for employees who have radically changed their field of activity and do not yet have sufficient qualifications in the new type of activity.

The Labor Code of the Russian Federation reports that the employer is required to conclude a fixed-term employment contract with the intern. Otherwise, the procedure for completing an internship, as well as its content and the conditions under which the internship is considered successfully completed, are determined individually in each organization. The corresponding rules are fixed in the local documentation of the enterprise.

Video: what is an internship

Duration of probationary period

Length of period entrance examinations may vary depending on the position held, the nature of the work, as well as other internal conditions at the enterprise where the employee is employed.

Maximum and minimum probationary period

In most cases, for ordinary positions, the probationary period cannot last longer than three months. Employees hired for management positions are subject to close management scrutiny for a six-month period. If a condition for completing a probationary period is included in a fixed-term contract lasting from two to six months, such a probationary period cannot last longer than two weeks. Periods of temporary incapacity for work for any reason, as well as days during which the employee was absent from the workplace, are not taken into account towards the probationary period.

Is it possible to extend the probationary period?

In some cases, the employer may take the initiative to increase the length of the probationary period. From the employer’s point of view, the need to extend the trial period for a new employee may arise if, after the agreed period of work, the employer was unable to verify that the candidate’s skill level meets the requirements, or if the employer is not sure that the adaptation of the new employee to the team was successful. There are two opposing opinions regarding the legality of extending the test period of work.

Supporters of the ban on extending the period under review include, in particular, the Federal Service for Labor and Employment. Such an addition to an already concluded agreement will be considered void, since it will mean a worsening of the employee’s situation compared to previously agreed conditions (see Letter of Rostrud dated 03/02/2011 N 520–6-1 and). However, federal laws allow some exceptions to this rule. Thus, in accordance with the provisions of the Federal Law of January 17, 1992 N 2202–1 “On the Prosecutor’s Office,” citizens who entered service in the prosecutor’s office can receive an extension of the probationary period within six calendar months by agreement of the parties. In this case, the additionally assigned trial period must also be documented and with the consent of both parties to the transaction. Most often, an additional agreement to the main contract is used for this.

Labor law specialists who consider the extension of the trial period to be legitimate argue their position as follows. General rule, set out in Article 72 of the Labor Code of the Russian Federation, allows for changes to certain terms of the employment contract by mutual agreement of the parties. At the same time, for each category of workers, the maximum duration of labor tests is legally established. Thus, if the employer has received the employee’s consent to extend the probationary period, they can enter into an additional agreement to the main employment contract. The main condition of this agreement will be that the extended trial period will not exceed the periods specified in the legislation for this category of employees.

Early termination of the trial period

Early termination of the probationary period is possible when the employer wants to reward the hired employee for special successes during testing. As with the extension of the trial period, its early termination requires appropriate documentation and consent of both parties. The employer and employee enter into an agreement on the early termination of the probationary period (see explanation by the Federal Service for Labor and Employment N 1329-6-1 of May 17, 2011).

In addition, there are a number of other reasons for early termination of trials. These reasons are not related to the direct results of the employee’s activities in the workplace:

• the employee was accepted to study at a higher educational institution;
• the employee has a relative who needs constant care;
• the newly hired employee provided documents about pregnancy or the presence of a child under the age of one and a half years.

Features of setting up and passing a probationary period for certain categories of workers

For some categories of citizens, there are some peculiarities in determining the procedure for completing the probationary period. These categories include, in particular, state civil servants, seasonal workers, and people working part-time.

The specifics of organizing the probationary period for civil servants are regulated by Article 27 of the Federal Law “On the State Civil Service of the Russian Federation”. When a citizen is hired for the first time into the civil service, the duration of the test period for him can vary from one to twelve months. For specialists who already have experience working in government agencies and are appointed to a new position by transfer from another government organization, a probationary period of one to six months is provided. An employee appointed to such a public position, the decision to accept and release from it can only be made by the President or the Government of the Russian Federation, may also be subject to probation from one to twelve months. If the employer finds the test results unsatisfactory, the service contract with the employee may be terminated. The employee must receive the appropriate written notice indicating the reasons for termination no later than three days before the date of termination of the contract.

Employment contracts for seasonal workers are most often short in duration. For a contract lasting from two to six months, the period for checking the employee’s competencies cannot exceed two weeks. If the contract is concluded for a period of no more than two months, a probationary period cannot be established in principle.

For persons working part-time, it is possible various situations when the appointment of a probationary period is regulated general rules, as well as when the appointment of a probationary period is in principle illegal. In particular, if an employee is employed part-time in a company that is not his main employer, this company may assign him a probationary period on a general basis. If the employee plans to combine two similar types of activities at one enterprise, the appointment of a probationary period will be illegal, since the employee has already proven his competence.

Video: labor rights of pregnant women

Probationary period regulations

The law does not require the creation of a separate provision on the probationary period, however, many companies practice issuing such a local regulation. This document describes in as much detail as possible the procedure for organizing a probationary period for newly hired employees. In particular, from it you can find out who is obliged to draw up an assignment for the probationary period, who, in what time frame and by what principles evaluates the success of the candidate’s completion of the probationary period, and so on. Below is a sample probationary period clause.

Probationary period provisions. Sample.

1. GENERAL PROVISIONS.

1.1. The probationary period is the last stage of assessing the professional suitability of a candidate for a vacant position.

1.2. The purpose of the probationary period is to verify the specialist’s compliance with the activities assigned to him directly in the work environment.

1.3. The probationary period lasts no more than three months.

1.4. The duration of the probationary period is indicated in the employment contract and in the employment order (Articles 68, 70 of the Labor Code of the Russian Federation).

1.5. The probationary period does not count the period of temporary disability and other periods when the employee was absent from work for valid reasons (Article 70 of the Labor Code of the Russian Federation).

1.6. The probationary period may be reduced to a duration of at least 1 month. The basis for reducing the probationary period is the decision of the Rector (or First Vice-Rector) of the university, confirmed by satisfactory test results.

1.7. If the test result is unsatisfactory, the employee is dismissed on the initiative of the university administration without the consent of the trade union body and without payment of severance pay, with the wording “as someone who failed the test” (Article 71 of the Labor Code of the Russian Federation).

1.8. If the probationary period has expired and the employee continues to work, he is considered to have passed the test. Subsequent termination of the employment contract is carried out only on a general basis (Article 71 of the Labor Code of the Russian Federation).

2. PROCEDURE FOR COMPLETING THE PROBATIONAL PERIOD.

2.1. On the first day after a newly hired employee returns to work, the immediate supervisor:

2.1.1. Conducts an informational conversation about the conditions professional activity(Appendix 3);

2.1.2. Introduces the new employee to the job description. The employee certifies with his signature that he has read the job description and agrees to perform the functional duties listed in it. The job description is issued to the employee. A copy signed by the employee remains with the immediate supervisor;

2.1.3. Introduces the employee to the Regulations on the unit and other local acts regulating the activities of the unit and the activities of the employee.

2.1.4. Appoints a supervisor - an employee of the unit who has worked in this position for at least six months or the most qualified employee of the unit, and in the absence of one, supervision is assigned to the immediate superior or head of the unit;

2.1.5. If a probationary period is established for an employee hired to the position of head of a structural unit or vice-rector, then the most qualified employee of this unit or another senior manager, the immediate superior and the head of the unit - the dean of the faculty, the vice-rector according to affiliation, or the rector of the university can be appointed as the supervisor.

2.2. Organization of probationary period.

2.2.1. The probationary period can be completed in one (if, if successful work during the first month of the probationary period, the latter was reduced to 1 month) or two stages (if the probationary period was not shortened).

2.2.2. Direct supervisor with a new employee during the first three days upon returning to work, they draw up a work plan in accordance with the job description for the first month of the probationary period (Appendix 1). The new employee’s work plan is approved by the head of the unit, signed by the employee and agreed with the vice-rector according to affiliation (rector or chief accountant). The employee and immediate supervisor must have a plan.

2.2.3. Three days before the end of the first month of the probationary period, the immediate supervisor, supervisor and employee discuss the compliance of the specific results achieved with the set goals (work plan).

2.2.4. No later than one day before the end of the first month of the probationary period, the immediate supervisor draws up an information and analytical note on the results achieved by the employee (Appendix 2) for the first month of the probationary period and gives the conclusion “passed the test and the probationary period can be reduced to 1 month” or “failed the test, leave the probationary period the same.” If the probationary period does not exceed one month, then the conclusion “passed the test” or “failed the test” is given. The conclusion is agreed upon with the head of the unit and the vice-rector according to the affiliation (rector or chief accountant) and transferred to the human resources department for further work.

2.2.5. If the probationary period has not been reduced to 1 month, then at the beginning of the next stage a work plan for the employee for the remaining period is also drawn up in accordance with clause 2.2.2. of this provision. No later than 7 days before the end of the probationary period, the immediate supervisor, supervisor and employee discuss the compliance of the specific results achieved with the work plan. The immediate supervisor draws up an information and analytical note about the results achieved by the employee during the next stage of the test, and gives a conclusion “passed the test” or “failed the test.” The conclusion is agreed upon with the head of the unit and the vice-rector of the affiliation and transferred to the human resources department for further work no later than 5 days before the end of the probationary period.

2.2.6. The originals of plans for completing the probationary period and information and analytical notes are transferred to the personnel department and are stored in the employee’s personal file.

Applications:

1. Appendix 1. “Work plan for the employee during the probationary period.”

2.Appendix 2. “Information and analytical note on the results of the probationary period.”

3. Appendix 3. “Matrix for determining levels of functional responsibilities.”

4. Appendix 4. “Scheme of an interview with an employee at the time of going to work.”

AGREED:

First Vice-Rector __________________________

Head of HR Department ______________________

Lawyer _____________________________________

Chairman of the trade union committee of employees _______________

Annex 1.

“AGREED” “APPROVED”

Vice-rector Head of department

_______________________ ________________________

"___"_______________200__g. "___"______________200__g.

Who should not be given a probationary period?

According to the Labor Code of the Russian Federation, for some categories of working citizens a probationary period cannot be established in principle (see part 4 of Article 70 of the Labor Code of the Russian Federation). Such preferential categories include, in particular, the following:

• Persons selected to fill a vacant position through a competition held in accordance with the requirements of legislation or local regulations of the enterprise. The appointment of a probationary period under such circumstances may provoke the emergence of labor disputes.
• Women who are pregnant or raising one or more children under the age of one and a half years, and the children can be either natural or adopted.
• Workers whose age does not exceed eighteen years.
• Citizens entering their first job after graduation vocational education within a year from the date of graduation.
• Citizens elected to elective positions for paid work.
• Citizens moving to a new job by transfer from another employer as agreed between company managers.
• Citizens with whom an employment contract has been concluded for a period of no more than two months.

The legislation also provides for other cases of categories of beneficiaries:

• citizens who have successfully completed their training and enter into an employment contract with the employer from whom they were trained;
• citizens employed in alternative civil service;
• civil servants appointed to a new position through a transfer caused by the liquidation or reorganization of the previous employing organization.

If the employer has unknowingly established a probationary period for an employee belonging to one of the preferential categories, that is, for an employee for whom a probationary period cannot be established in principle, it is necessary, immediately, as soon as the fact of belonging to the benefit recipients is revealed, to draw up an additional agreement to the agreement on employment, in which to state a condition that cancels the clause on the probationary period. This can be done, for example, if a newly hired employee is pregnant. Employers must remember that for violating the provisions of the Labor Code of the Russian Federation they face administrative, and in some cases, criminal liability.

Registration of an employee for a probationary period

When hiring an employee with the condition of mandatory completion of a probationary period, the employer must correctly prepare all the necessary documents and include in the employment contract, including a clause on the availability of preliminary tests for the newly hired employee. Otherwise, labor disputes and litigation may arise.

How to draw up an employment contract with a probationary period

The employment contract must necessarily contain a clause stating that the employee will have to undergo a probationary period to confirm his qualifications. There cannot be separate contracts for the probationary period. Some employers offer to sign an internship agreement first. Such behavior is a sign of the employer's dishonesty. According to the law, an employment contract must be prepared no later than three days from the date of starting work. A sample employment contract with a three-month probationary period can be easily downloaded from the link.

Video: popular questions about the probationary period

Liability agreement for the probationary period

During the probationary period, the employee is subject to the provisions of the Labor Code of the Russian Federation and other regulations defining labor law standards. Accordingly, an agreement on financial liability can be concluded with an employee already during the probationary period, if there is such a need and the position is included in the list of positions for which the conclusion of such an agreement is mandatory.

Probationary assignment

A probationary assignment serves several purposes. First of all, a specifically formulated task helps a newly hired employee better understand his tasks in a new place and get up to speed. On the other hand, the company uses this task to assess the level of professionalism of the newly hired specialist. The fact is that it is impossible to dismiss an employee who has failed to complete the test period without a clear evidence base and documentary evidence of his incompetence, therefore the employer company should approach the evaluation of the employee’s performance during the probationary period very seriously.

The content of the test task may vary depending on the nature of the work. Such a task may include both a requirement to comply with the most detailed instructions, for example, for working with cash register, and leave room for creativity. In general, it is recommended to include in the task the most significant points for the given position and for the company as a whole. A sample assignment for the trial period is shown in the illustration below.

The task for the probationary period may include those items, the implementation of which is most important for management

Features of establishing a probationary period when transferring to another position

When transferring to another position, a probationary period may be established if the duties that will be performed by the employee in this new position, are fundamentally different from his previous activities within the company. Unfortunately, a common situation is when an employee is asked to undergo a probationary period when being transferred to a higher position. It is important to know that such behavior by the employer is not legal. The probationary period, according to the Labor Code of the Russian Federation, is not mandatory and can only be assigned to new employees. An employee who has received a promotion can be returned to his previous position or fired if it is revealed that he is not suitable for the new position.

The result of the probationary period and its personnel registration

After the parties sign an employment agreement, which states that the employee is accepted subject to a probationary period, the personnel service of the enterprise issues a corresponding order. At the end of the probationary period, the enterprise issues special documents confirming the success or failure of the test period by the new employee.

Probation period report

Many enterprises today have adopted the practice of creating a final report on the completion of the probationary period by the employee undergoing probation. In such a report, the employee reveals the following questions:

1. the difficulties and problems that the employee encountered during his working life, the ways in which he tried to solve them;
2. which tasks the employee was able to complete;
3. what tasks the employee was unable to cope with during work and for what reasons;
4. What new did the employee learn during his work?

A detailed report will help both the employee and his immediate supervisor to better analyze the work. It is recommended to prepare the report not on the last day of the probationary period, but in advance. In this case, you can detect weaknesses in the work and have time to eliminate them before making a decision. The illustration below shows an example of a report on work during the test period.

Reports can be generated in various ways

Characteristics of the employee after the verification period

The employee's characteristics are compiled by the immediate supervisor or mentor who worked with the new employee during the trial period. This document indicates what the specialist knew and was able to do at the time of taking up the position, what tasks were assigned to him during the trial period, how he showed himself during the performance of work tasks, what strengths and weak sides personality demonstrated. The characterization ends with general conclusions, forecasts and recommendations.

Conclusion on passing the probationary period

Some companies have adopted the practice of collegial decision-making on completing a probationary period. An assessment of the employee’s qualifications and his achievements is requested from all specialists and managers with whom he dealt during the test. The final decision is made by the immediate supervisor, but this practice allows you to take into account the entire range of opinions and create a complete picture about the new employee. The documented decision is called a conclusion on completion of the probationary period.

The conclusion can be drawn up in the form that is customary at a particular enterprise

Order to end the probationary period upon successful completion

The issuance of an order to end the probationary period upon successful completion is not mandatory. The employee simply continues to work at the enterprise.

Actions of the employer if the employee fails to complete the probationary period

The reasons for failing to complete the probationary period may vary. An employee, from the employer’s point of view, may not confirm his level of qualifications, may not find a common language with colleagues, may violate labor discipline or provoke the emergence of some unpleasant situations for business. In any case, an employer cannot fire an employee simply because he doesn’t like him for something. Dismissal during the probationary period must be supported by objective facts and documentary evidence confirming that the employee really cannot cope with the activities assigned to him. Such documentary evidence may include a plan of tasks for the probationary period, a report on the completion of the probationary period, memos from the immediate supervisor, reviews from colleagues and clients. It is very important not only to explain to the employee why the probationary period was not recognized as completed, but to obtain his agreement with these explanations. Otherwise, the dismissed employee may file a claim with the court. If the company cannot correctly justify the decision to dismiss, the employee will have to be hired back, and all expenses incurred by him will be compensated, including lost wages for the period when the employee was considered dismissed.

If dismissed due to a negative test result, the employee receives appropriate notice three days before dismissal. In some cases, by agreement with the employer, dismissal can occur on the same day, that is, without any work.

Video: dismissal if the probationary period is not completed

What rights and responsibilities does an employee have during the probationary period?

The rights and obligations of an employee hired under the condition of completing a probationary period are regulated by the Labor Code of the Russian Federation and are no different from the rights and obligations of other working citizens. The probationary employee is entitled to the following preferences:

• timely payments wages, bonuses, overtime allowances, as well as other incentive payments, if provided for by the terms of the contract;
• going on sick leave and receiving insurance payments during a period of temporary disability.
• using unpaid leave at your own expense or using days towards future leave, while the employer has the right to refuse to provide leave in accordance with the law (if the decision does not contradict Article 128 of the Labor Code of the Russian Federation);
• receiving up to five unpaid days off at the birth of a child;
• voluntary dismissal at any time before the end of the probationary period.

The responsibilities of the newly hired employee include:

• fulfillment of the terms of the employment contract;
• fulfillment of work obligations in accordance with the job description;
• compliance with labor discipline requirements and internal regulations the hiring company, as well as fire safety requirements.

Is it possible to take sick leave or vacation during the probationary period?

An employee on probation has the right to go on sick leave during a period of temporary incapacity. With the permission of the manager, during the probationary period you can take leave at your own expense, as well as leave on account of future paid leave. This time is not included in the probationary period and upon return to workplace The countdown of the days of the test period is resumed.

The amount of sick leave pay is determined based on the employee’s length of service and the average daily earnings. The accounting department can find out the work experience from the work book, and earnings are affected by both the salary at the current job and payments at the previous place, which can be easily assessed using the 2-NDFL certificate.

An employee who is on sick leave and wants to leave the probationary period must first close sick leave. Dismissing an employee while he is on sick leave is illegal. In addition, the employer is obliged to pay employee sick leave within another 30 days from the date of dismissal, provided that the employee has not found a new job during this time.

Is it possible to fire a pregnant employee during a probationary period?

The dismissal of an employee who, during the probationary period, discovered that she was expecting the birth of a child, is illegal if it occurs at the initiative of the employer. A pregnant woman can only be fired at her own request. Moreover, the very appointment of a probationary period to a pregnant employee is illegitimate. If the fact of pregnancy is confirmed, the probationary period must be canceled by an additional agreement to the concluded employment contract.

Salary during probationary period

An employee on a probationary period is entitled to a salary, from which the employer is obliged to pay all mandatory taxes to the budget, including income tax. Many Russian enterprises are trying to evade paying taxes by offering only part of their salary payments in “white” money with official registration. Unfortunately, employees often agree to such unfavorable conditions for them. Many employers also offer a reduced salary for a trial period with the promise of a salary increase when successful completion test period. From the point of view of the Labor Code of the Russian Federation, such a proposal is also not legitimate, but rarely does any employee decide to enter into conflict with the employer for this reason.

Video: salary during probationary period

Pros and cons of a probationary period for the employee and for the employer

A probationary period is provided by law so that both parties involved in concluding an employment contract have the opportunity to evaluate each other and, if such a need arises, part with minimal losses. This opportunity can be considered an absolute advantage for both the employee and the employer. When leaving a probationary period, an employee is not required to work for two weeks, and the employer has the opportunity to evaluate the candidate’s qualities not only from his words at the interview, but also in practice.

Among the disadvantages for the employee is the fact that many employers offer a reduced salary for remuneration during the probationary period. On the other hand, the employer bears an increased burden caused by the need to allocate additional resources to introduce a new employee to the position and test his skills.

When working in test mode, an employee may experience some psychological discomfort, since the result of his actions determines his future in this job. The employing company, when concluding an agreement with a new employee, always runs the risk of legal proceedings upon dismissal under Article 71 of the Labor Code of the Russian Federation.

In general, the balance of positive and negative aspects The use of a probationary period allows both parties to use it with the greatest benefit for themselves.

The requirement to undergo a mandatory probationary period when applying for employment in Russian companies is not mandatory. from the point of view of the Labor Code of the Russian Federation. However, many employers are happy to use this opportunity to thoroughly study a new employee, as well as save some money on his salary, at least in the first months of his work. Employees accept this requirement as a given and do not try to dictate their terms to the employer. Thus, the very concept of a probationary period has become firmly established in work practice and is actively used throughout Russia.

Searching for a job, as well as recruiting personnel, is a labor-intensive process. Even if the candidate’s professional qualities meet the requirements of the vacancy, and the proposed job is completely suitable for this specialist, there is no guarantee 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, it may be different in different cases. 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 the employee’s business qualities, abilities, communication skills, ability to carry out assignments efficiently, suitability for the position held, 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 required to pay the subjects overtime, sick leave, and time off work on holidays and weekends.

Registration of a probationary period

A probationary period is required. An employment contract must be concluded with the employee, and an order to hire the employee is issued on the basis of it. These documents indicate the duration of the test period. The work book does not include the entry “hired for a probationary period”; it only notes 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, the 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

An employee’s failure to complete tasks in a timely manner, his mistakes, or violation of labor discipline should be documented, and if there are managers, then they should be included 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 the employment contract is added, and the probationary period is increased. 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 a sick leave certificate, on the basis of which you can receive insurance payments during your period of 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:

Comply with 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 prepare a notice in writing 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, an employee’s failure to fulfill job duties, 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 drawing up a 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.

Only lazy employers do not currently establish a probationary period for employees. 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 possibility of establishing a test when hiring is provided for in Art. 70 Labor Code of the Russian Federation. Testing, according to this article, means checking an employee to determine his compliance with the assigned work.

Test Establishment Basics

When fixing the condition of a probationary period in an employment contract, you should remember the restrictions and prohibitions defined by the Labor Code of the Russian Federation. Thus, a hiring test is not established for (Part 4 of Article 70 of the Labor Code of the Russian Federation):

— persons elected through a competition to fill the relevant position, conducted in the manner 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 according to those who have state accreditation educational programs and those entering work for the first time in the acquired specialty within one year from the date of receiving professional education at the appropriate level;

— persons elected to an elective position 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;

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

If a probationary period, in violation of the prohibition, is established by an employment contract, then it should be borne in mind that the probationary condition will not be applied, and the dismissal of an 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 probationary clause in the employment contract means that the employee was hired without a trial (Part 2 of Article 70 of the Labor Code of the Russian Federation). In the case where an 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 probationary condition can be included in the employment contract only if the parties formalized it in the form of a separate agreement before the start of work. The literal interpretation of this norm does not allow an employer who “forgot” to establish a probationary period to establish it by an additional agreement to the employment contract already in the process labor relations.

For your information.During the probationary period, the employee is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, collective agreement, agreements, local regulations (Part 3 of Article 70 of the Labor Code of the Russian Federation). The literal interpretation allows us to draw an unambiguous conclusion: the amount of wages cannot be reduced during the probationary period. In fact, violation of this rule is allowed by most employers.

Registration of test conditions

Drawing up the test conditions itself does not present any particular difficulties. The text of the employee’s employment contract should include the following provision: “...The employee is given a probationary period of three months.”

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

For your information.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 the specific current situation. That is, an employee can be fired for absenteeism (subclause “a”, clause 6, part 1, article 81 of the Labor Code of the Russian Federation), and due to staff reduction (clause 2, part 1, article 81 of the Labor Code of the Russian Federation), and for other reasons .

An employee, if there is a probationary clause in the employment contract, will be able to notify the employer of his dismissal within a shortened period. So, if during the probationary period he 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 at his own request, warning the employer about this in writing three days in advance (and not two weeks in advance, as This is required by Article 80 of the Labor Code of the Russian Federation upon dismissal at one’s own request).

Please note that the reason given in the resignation letter is general – “at one’s own request.” The fact that the work did not meet the employee’s expectations can be kept silent. In any case, a notice period of three days rather than two weeks will apply.

Registration of termination of an employment contract

With registration of dismissal on the basis 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 dismissal being declared illegal on the above grounds, we will go through all the stages of this procedure together.

For convenience, consider the following situation.

A new employee was hired at the company, and an employment contract was concluded with him on February 17, 2014. According to the terms of the employment contract, the employee must begin work on this day. The employment contract provides for a probationary period of three months. According to the new employee’s immediate supervisor, the level of knowledge, skills, and attitude to work do not meet the employer’s requirements. This official reported this to the director of the enterprise at a planning meeting on April 30, 2014 and proposed to initiate a dismissal procedure as a result of an unsatisfactory test result. At the same time, the employee’s manager 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 count the deadlines

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

Having established the end date of the probationary period, we determine last date, in which the employee must be given notice of an unsatisfactory test result. In accordance with Part 1 of Art. 71 of the Labor Code of the Russian Federation, notification should be submitted 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 of time with which the Labor Code of the Russian Federation associates the emergence of labor rights and obligations begins with the calendar date that determines the beginning of the occurrence of these rights and obligations. The period of time with which the Labor Code of the Russian Federation associates the termination of labor rights and obligations begins the next day after the calendar date that determines the end of the labor relationship. Terms calculated in years, months, weeks expire on the corresponding date last year, month or week period. The period calculated in calendar weeks or days includes non-working days. If the last day of the period falls on a non-working day, then the end of the period is considered to be the next working day following it.

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

Question. Is it possible to begin the procedure for dismissing an employee before the end of the probationary period if the employer comes to the conclusion that the employee did not complete 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, it is possible at any time. However, it should be borne in mind that by that time a sufficient amount of documented evidence should have been collected that the employee did not pass the test.

2. We collect evidence of an unsatisfactory test result

Such grounds may include reports / office notes manager and other services, acts of internal investigations of employee misconduct, acts of inspections recording erroneous actions of the employee, and other written evidence.

3. We issue a notification

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

delivery

JSC "Speed ​​Delivery"

N. A. Kozlova

Moscow, st. Pirogova, 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 OJSC “Speed ​​Delivery” on February 17, 2014 (No. TD-14) was recognized by the employer as unsatisfactory for the reasons stated below.

In accordance with the official investigation report dated March 25, 2014, based on the results of an inspection during the period of your work from February 17, 2014 to March 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 dated October 7, 2011 N 417, was revealed, and clause 3.1 of the job description of the leading specialist of the delivery department, approved on October 30, 2012, namely: the shipment dated February 25, 2014 N 41 was delivered to the addressee 14 hours late, the shipment dated February 26, 2014 N 54 was delivered 2 hours late, departure dated 03/06/2014 N 62 was delivered 4 hours late.

Due to the unsatisfactory result of the test, the management of High-Speed ​​Delivery OJSC made a decision to terminate your employment contract dated February 17, 2014 No. TD-14 under Part 1 of Art. 71 of the Labor Code of the Russian Federation (if the test result is unsatisfactory) 05/16/2014.

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

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

If the employee refuses to sign the receipt of the notification (or refuses to read it), it is necessary to draw up a report about this (Example 3).

Open Joint-Stock Company"Fast delivery"

Act

12.05.2014

N 15

Moscow

On refusal to put a signature on the acquaintance

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 on the following:

Today, May 12, 2014, at 12:30 p.m. in the office of the director of High-Speed ​​Delivery OJSC, N.A. Smirnov, the leading specialist of High-Speed ​​Delivery OJSC, N.A. Kozlov, was presented with a notice dated 12.05 for review and signing upon receipt. 2014 N 45 about unsatisfactory test results. After familiarization, Kozlov N.A., in the presence of all the undersigned officials, signed in receipt of the specified notification and refused to sign for 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, upon receiving such notice, employees write a letter of resignation of their own free will. The law does not prohibit, if there are several grounds for dismissal, choosing one of them, including dismissing an employee on his own initiative.

Question. The employee was given 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 indicating the deadline for dismissal in two weeks, as provided Art. 80 Labor Code of the Russian Federation. However, the date of dismissal will already go beyond the probationary period. How to protect yourself from the risk of an employee withdrawing his application for dismissal immediately after the end of the probationary period?

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

- 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 notice, despite the presence of the employee’s resignation letter.

5. Formalize your dismissal

The dismissal procedure in this case is standard.

Step 1. On the day of dismissal, you must issue a dismissal order (the project can be prepared in advance).

For your information.You have the right to use the unified form N T-8, approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 N 1 “On approval of unified forms of primary accounting documentation for labor accounting and its payment.” Despite the fact that from 01/01/2013 the unified forms are no longer mandatory for use, they provide the greatest information content 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 of the company.

Step 2. Then the employee needs to be familiarized with the order under personal signature or make an appropriate entry on the order (instruction) in the case where the order to terminate the employment contract cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it under signature (Part 1 of Article 84.1 of the Labor Code of the Russian Federation).

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. Provide the employee with copies of documents, including a 2-NDFL certificate, if there is his application, a certificate of the amount of earnings for 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 Mandatory social insurance in case of temporary disability and in connection with maternity"). The certificate form was approved by order of the Ministry of Labor of Russia dated April 30, 2013 N 182n.

Step 5. Record the dismissal in the work book. According to Art. 84.1 of the Labor Code of the Russian Federation, an entry in the work book about the basis and reason for 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. Complete the remaining personnel documents to record labor relations:

— employee’s personal card (most employers continue to use the unified form N T-2). It is necessary to obtain the employee's signatures on the card in certain places provided on 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 employee’s signature is not required on it (Methodological recommendations for maintaining military records in organizations, approved General Staff Armed Forces of the Russian Federation dated April 11, 2008).

Step 7. Issue a work book to the employee. The issuance is carried out under the personal signature of the employee with the date of receipt in the logbook recording the movement of work books and inserts in them (Example 5). The form was approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 N 69 “On approval of the Instructions for filling out work books.”

Appendix No. 3

TO Resolution Ministry of Labor of Russia dated October 10, 2003 N 69

Book of movement of work books and inserts in them

N p/p	Date of hiring, completion of the work book or insert in it	Last name, first name and patronymic of the owner of the work book	Series and number of the work book or its insert	Position, profession, specialty of the employee who handed over the work book or for whom the work book or insert in it was filled out	Name of the place of work (indicating the structural unit) where the employee was hired	Date and number of the order (instruction) or other decision of the employer on the basis of which the employee was hired	Signature of the responsible person who accepted or filled out the work book	Received for completed work books or inserts in them (rub.)	Date of issue of the work book upon dismissal (termination of the employment contract)	Employee's signature when receiving a work book
Number	Month	Year
1	2	3	4	5	6	7	8	9	10	11	12	13
1	09	01	2014	Kulikov Anton Vladimirovich	Series - TK-IV, N 2457454	Specialist		09.01.2014	Signature
2	09	01	2014	Nazaridze Turam Davidovich	Series - TK-II, N 5574322	Leading Specialist	JSC "Speed ​​Delivery", delivery service	09.01.2014	Signature
3	17	02	2014	Kozlov Nikolay Alexandrovich	Series - TK-IV, N 8604301	Leading Specialist	JSC "Speed ​​Delivery", delivery service	17.02.2014	Signature	150	16.05.2014	Kozlov

If 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 the employee a notice of the need to appear for it or agree to send it by mail. From the date of sending the specified notification, the employer is released from liability for the delay in issuing the work book (Article 84.1 of the Labor Code of the Russian Federation).

Mistakes when terminating an employment contract

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

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

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

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

4) incorrect classification of actions/inactions as the reason for the employee’s unsatisfactory test result. For example, if you hired a driver without including in his duties washing the entrusted car, 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 above grounds after the expiration of the probationary period.

All specified requirements for registration are provided for in Part 1 of Art. 71 Labor Code of the Russian Federation. Despite this, the number of employers forced to reinstate employees dismissed 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. Considering the case, the court came to the conclusion that the defendant did not comply with the dismissal procedure, and did not indicate specific reasons that served as the basis for recognizing the employee as having failed the test, which is a gross violation of labor legislation. The right to evaluate the employee’s test results belongs to the employer, who, during the probationary period, must determine the employee’s business and professional qualities. Therefore, when dismissing an employee 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 confirm the facts set out in the annex to the employee’s notification about the unsatisfactory test result. It does not follow from the evidence presented how the plaintiff’s level of professionalism and the quality of her performance of her duties were assessed. According to the court, the defendant did not provide evidence convincingly indicating that the plaintiff was improperly fulfilling her official duties. Thus, the court came to correct conclusion about the absence of grounds for recognizing the employee’s test results as unsatisfactory (ruling of the St. Petersburg City Court dated 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 compliance with the dismissal procedure. Moreover, it will be legal only if there is evidence of unsatisfactory test results for the employee.

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. If 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 rights (for example, silence about the presence of an illness and open sick leave).

Experts recommend, even if a person at first glance is ideally suited for a position, to conclude an employment contract with him with a probationary period. In this case, it will be possible to evaluate his professional qualities and terminate the contract if he does not suit the employer. Next, let's take a closer look at what an employee's probationary period is.

General information

The Labor Code with comments to the articles quite clearly regulates the procedure for registering a person for a particular position. Personnel selection is often a fairly lengthy process. Typically, hiring is based on the results of an interview. Often, when hiring, he is offered professional tests.

However, even the most careful selection of personnel does not eliminate risk for the employer. The new person may end up being underqualified or underdisciplined. To assess how well he meets the requirements set by the enterprise, it is advisable to establish a probationary period for the employee. To implement this, it is necessary not only to stipulate, but to legally formalize the agreement correctly. The Labor Code with comments to the articles establishes the legal basis for employment with such conditions. However, you need to know some nuances in order to avoid mistakes in practice.

Principles by which a probationary period at work is established

As mentioned above, this period is necessary to test the professional and some personal qualities of a person. Hiring in this case is subject to a number of conditions. These include, in particular:

• A probationary period is established for hired people who have not previously held any position in the enterprise. For example, this applies to cases when a specialist is transferred to a higher position or to another department.
• The probationary period is established until the person begins to perform his duties. This means that before starting activities at the enterprise, an appropriate agreement must be drawn up. It can be a probationary agreement (as a separate appendix) or these conditions are included in the general contract. Otherwise, this agreement has no legal force.

It should be noted that the condition on the application of a probationary period must be present not only directly in the employment contract, but also in the order to enroll a person on the staff. In this case, the future employee must confirm with his signature the fact of familiarization and agreement with these facts. It is not necessary to put a mark on the appointment of a probationary period in the work book.

Legal registration

As stated in the Labor Code, the probationary period is applied only in accordance with the agreement of the parties. The conditions for registration must be documented. The main document is an employment contract with a probationary period. If the conditions are fixed only in the order, then this is considered a violation of the law. In this case, the judicial authority recognizes the conditions for the appointment of the test as invalid.

In addition to the main contract and order, the procedure for registering an employee may be reflected directly in his application for appointment to a particular position. It should be said that the employer’s responsibilities include not only legally competent execution of the contract and other documents, but also familiarization of the future employee with job responsibilities, internal rules of the enterprise, and job description. The employee certifies this fact with his signature. This is of particular importance if the person has not completed the probation period. If the employer is forced to dismiss an employee who has not completed the established period, the fact that he is familiar with the duties is used to confirm his inadequacy for the assigned position.

Alternative option

Quite often, instead of an open-ended contract with a trial period, employers enter into a fixed-term agreement. In their opinion, such registration of an employee significantly simplifies the situation when a person has not coped with the assigned tasks and should be fired. The period of the fixed-term contract will end and the employee will leave on his own. However, the law establishes certain conditions for concluding such an agreement. Thus, according to Article 58 of the Labor Code, the execution of a fixed-term contract for the purpose of evading the guarantees and rights provided for employees for whom an open-ended contract should be used is prohibited. It is recommended to ensure compliance with these conditions Special attention courts when dealing with violations.

Resolution of the Plenum of the Supreme Court (Supreme Court) No. 63 (dated December 28, 2006), paragraph 13

If, during the consideration of a dispute about the legality of drawing up a fixed-term agreement, it is revealed that the employee was forced to conclude it, then the court applies the rules of a contract for an indefinite period. If a person applies to a legal authority or the relevant inspection, then the agreement can be recognized as concluded for an indefinite period. In this case, no probationary period is assigned. During the probationary period, a person is subject to the relevant provisions of legislation and other acts that contain the norms of established law, collective agreement, contract, local documents.

Salary

It is considered a violation of the law to establish lower remuneration for an employee during the probationary period in an employment contract. The norms do not stipulate that the salary of a specialist in this case is different. If a conflict situation arises, the employee has the right to receive underpayment in court. On the part of the employer, this point can be decided different ways. In particular, when drawing up an employment contract, the amount of payment for the trial period is indicated as permanent. At the end of the period, an additional agreement is signed with the specialist, which establishes an increase in payment. Also, the enterprise may adopt a provision on bonuses. The amount of these additional payments may be determined in accordance with length of service.

Dismissal procedure

During the probationary period, the employee is also subject to guarantees and standards related to the grounds for the employer’s refusal, on his initiative, to refuse the employee’s services. They are provided for in Article 81. An employment contract cannot include additional grounds not established by law. These include, for example, reasons of “expediency” or “at the discretion of management.” These statements are often found in contracts. However, they do not comply with the law.

Vacation

The probationary period is included in the employee's length of service. It gives the right to basic annual paid leave. In case of dismissal during the probationary period or after its completion, despite the fact that the person did not fulfill his duties at the enterprise for six months, he has the right to compensation for the unused vacation period. It is assigned in proportion to the period of his presence at the enterprise as an employee.

Special cases

When drawing up an employment contract, you need to know that the law excludes the possibility of applying a probationary period to a number of categories of persons. These include:

• Those elected through a competition for filling a particular position, conducted in accordance with the procedure established by law or other regulations.
• Women who are pregnant or have dependent children under one and a half years old.
• Persons under 18 years of age.
• Invited to work by way of transfer from another employer as agreed between the management of the enterprises.
• Persons applying for work under a contract for a period of less than two months and others.

Length of period

A probationary period of 3 months is established in general cases. For managers, chief accountants and their deputies, directors of representative offices, branches and other structural separate divisions - six months, unless otherwise provided by Federal Law. When drawing up an employment contract for 3-6 months, the probationary period is no more than two weeks.

This period does not include days when the employee was actually absent from the enterprise. This could be temporary disability due to illness, for example. In practice, employers often resort to extending the probationary period specified in the contract. These actions are contrary to the law. If at the end of the period the employer does not make a decision to dismiss, the employee is considered to have passed the test. In some cases it is provided long duration period. It is regulated by Art. 27 Federal Law No. 79 and concerns civil servants.

End of probationary period

Often, after the period expires, the employee continues to work for the enterprise. In this case, he is considered to have passed the test, and further termination of the employment contract is carried out on a general basis. If the employer believes that the person is not suitable for the position, then no additional paperwork is required. In other words, the employee continues to work on a general basis.

Article 71

If the test result is unsatisfactory, the employer has the right to terminate the contract before its expiration. In this case, he should notify the employee about this three days before terminating the contract. The warning must contain the reasons why the employer finds that the person is unsuitable for the position and has failed the test. The employee can appeal this decision in a court. In case of unsatisfactory results, the contract is terminated without taking into account the opinion of the trade union body and without paying severance pay. If an employer decides to fire a new employee, then in this case it is necessary to follow a certain procedure and prepare the relevant documents. In particular, a notice of unsatisfactory result is drawn up. It must be in two copies - for the employee and the manager. The document is handed over to the employee against signature.

Actions of the employer in case of refusal to accept notice

The employee may refuse to accept the paper. In this case, the employer must take certain actions. In particular, a corresponding act is drawn up in the presence of several employees of the enterprise. Employee-witnesses confirm with their signatures the fact of delivery of the document and refusal to accept it. A copy of the notice may be sent by mail to the employee's home address. Sending is carried out by registered mail. It must also come with a receipt.

In this case, it is very important to comply with the deadline established in Article 71: a letter notifying about dismissal must reach the post office no later than three days before the completion of the test assigned to the employee. The date of departure is determined by the stamp on the receipt and the delivery receipt returned to the employer. The document on termination of the contract must contain all the necessary characteristics: date and reference number, signature of an authorized person, stamp of the seal that is intended for issuing such papers.

Legally correct formulation of the reasons for dismissal

It must be based on documents that confirm the validity of the decision made by the employer. As judicial practice shows, in the process of considering disputes about dismissal due to unsatisfactory test results, the employer is required to confirm the fact that the employee is not suitable for the position. To do this, moments when a person failed to cope with the task or committed other violations (for example, job descriptions, internal regulations, etc.) must be recorded.

These circumstances must be documented (protocoled), indicating the reasons if possible. At the same time, the employee should be required to provide written explanations of his actions. Experts believe that when dismissing under Article 71, it is necessary to provide evidence of the employee’s professional inadequacy for the position held. If he violates internal discipline (played truant or in some other way showed a negligent attitude towards activities at the enterprise), he should be dismissed under the relevant paragraph of Article 81. The documents with which the employer confirms the validity of the dismissal may be:

• Act on violation of discipline.
• A document confirming the non-compliance of the quality of work with the requirements and production and time standards adopted at the enterprise.
• Explanatory notes from the employee about the reasons for non-fulfillment of tasks.
• Customer complaints in writing.

Assessment of business qualities

It has a direct dependence on the specifics and scope of the enterprise. Based on this, conclusions about the test results can be based on various data. For example, in the field of production, in which the result of activity is an object (product), the level of quality can be determined quite clearly. If the company is engaged in the provision of services, then the assessment of the employee’s business qualities is carried out in accordance with the number of customer complaints.

There are certain difficulties in the field of intellectual activity. In this case, to evaluate the results, the quality of execution of assignments, compliance with established deadlines, fulfillment of the total scope of tasks, and compliance with professional qualification standards are recorded. The new employee’s immediate supervisor is responsible for preparing and sending these documents. The procedure for dismissing an employee, therefore, requires a certain formality from the employer. However, the employee can legally appeal the decision in any case.

Employee's right to terminate the contract

An employee can use it if during the test he understands that the proposed activity is not suitable for him. He must notify management of his decision three days in advance. The notification must be in writing. This rule is of particular importance for employees. This is because potential employers would like to know the reasons why the applicant left his previous employer so quickly.

Finally

The legislation quite precisely defines the conditions under which the application of a probationary period is allowed. Due to the fact that a new employee is often considered a party without social protection within the framework of these relations, the rules of law establish certain guarantees for him. At the same time, the procedure for dismissing an employee due to unsatisfactory results of the trial period is quite formalized. The legislation defines the right of an employee to appeal the decision of the management of the enterprise in court.

In such cases, the executive body will carefully check the legality of establishing a probationary period and the legal literacy of the necessary documentation. Of no small importance will be compliance by the management of the enterprise with all legal aspects within the framework of these relations. Based on this, both the employer and the applicant himself have the right to personally determine for themselves the feasibility of applying and the conditions for passing a probationary period at the enterprise. As practice shows, cases conflict situations are noted less frequently where selection is carried out based on the results of several stages of interviews.