What is a probationary period for? Who is not on probation? What are the benefits of probation

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

The probationary period protects the interests of the employer. During the probationary period, the employer has the opportunity to assess the business qualities of the employee, which means the ability of the employee to perform work duties, taking into account the existing professional and qualification qualities and personal qualities of the employee.

Opinions are expressed that during the probationary period, the employee also determines whether the proposed job suits him. This is only partly correct. Indeed, during the probationary period, the employee has certain benefits, namely, he has the right to warn about the upcoming dismissal 3 days in advance, and not 2 weeks in advance, as general rules. However, it seems that this "benefit" is imaginary. In the end, 2 weeks or 3 days - the difference is not very big, given that we are talking about a warning, and not about "working off". The employer is not required to actually work. But the employer has the right to "create" evidence that the employee could not stand probation and offer. I doubt that there will be many who want to defend their rights in court.

How is the trial period set?

The normative substantiation of the position is as follows. According to employment contracts, they cannot contain conditions that restrict the rights or reduce the level of guarantees for 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 rights of the employee, therefore the employee and the employer have the right to conclude supplementary agreement to the employment contract and reduce the duration of the probationary period.

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

Voluntary dismissal of an employee during the probationary period

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

The result of the test for employment

During the probationary period, the employee may come

Based on the results of the test for employment, 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, then the parties employment contract waiting for the end of the trial period. After the test period has expired, no further action is required. 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 dismissal of an employee who has not passed the test and the procedure for dismissing an employee who has not passed the test.

Grounds for dismissal of an employee as having failed the test

First, it must be established whether the probation 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.

Second, evidence must be obtained that the worker failed the test. This is very important, because when an employee disputes the legality of a dismissal, it is the employer's responsibility to provide evidence that the employee has not passed the test.

Evidence that the results of the test are unsatisfactory may include complaints from customers, other employees, the immediate supervisor, acts of violation labor discipline, orders to bring to disciplinary responsibility, explanatory worker, conclusion of a mentor, etc.

In the absence of evidence that the worker has not passed the test, the worker 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, in case of an unsatisfactory test result, the employer has the right to terminate the employment contract with the employee before the expiration of the test period, warning him of 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.

From this rule it follows that it is possible to dismiss an employee only before the expiration of the probationary period. You must start the dismissal procedure 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, then 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 recognized as having 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 indicates 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».

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

An entry is made in the work book about the dismissal as follows: "The employment contract was terminated due to the unsatisfactory test result, 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 very badly and you want to dismiss him as having failed the test, then first of all you need to offer him to quit 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 the probationary period

The selection and hiring of a new employee in a company is often a long and laborious process. As a rule, the applicant goes through several stages of the interview, 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 a new employee meets the requirements of the company, it is advisable to set a probationary period when hiring a new employee. In order to be able to evaluate a new employee and terminate labor Relations in case of an unsatisfactory assessment of his work, it is necessary not only to stipulate, but also legally competently formalize the passage of the probationary period. Consider legal framework probationary period established by the Labor Code (Articles 70, 71 of the Labor Code of the Russian Federation), and the most common errors in their application in practice.

Set up a trial period

The probationary period is set to verify the suitability of the employee for the work assigned to him, while the following is important:

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

A probationary period can only be established before the employee has started work. If the employer considers it necessary to provide for a test 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 test condition, or a separate agreement providing for the application of a probationary period. Otherwise, the probationary condition will not have legal force;

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

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

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, the probationary period is established only by agreement of the parties, and the document reflecting the mutual expression of will is precisely the employment contract. If the condition on the probationary period is contained only in the order for employment, then this is a violation of labor legislation, and, in the event of a dispute, the court will recognize the condition of the probation as invalid.

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

The absence of a test clause in the employment contract, as well as factual assumption to work without prior execution of a probation agreement means that the employee is hired without probation.

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

Organizations often conclude a fixed-term employment contract with an employee they hire instead of an open-ended contract with a probationary period. Many employers believe that by entering into a fixed-term employment contract, for example, for three months, they simplify the situation for themselves in case the employee does not cope with the proposed work. That is fixed-term contract ends and the employee is forced to leave.

However, the Labor Code of 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 avoid granting the rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period.” The Plenum of the Supreme Court of the Russian Federation in its resolution of December 28, 2006 No. 63 recommended that the courts apply Special attention to comply with these guarantees.

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Thus, if the employee goes to court or the relevant labor inspection, the contract can be recognized as concluded on indefinite time, and without a test condition.

Probationary workers have the same rights as regular workers.

During the probation 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. In practice, the application of this rule is expressed as follows:

the establishment in an employment contract of a lower remuneration of an employee for 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 in court will be able to receive the amount of underpayment.

So, in Torgovaya Kompaniya LLC, a note was made to the staff list, which indicated that for the period of the probationary period, the manager has the right to reduce the official salary, since the employee has low labor productivity or lacks 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, for the period of probation, all provisions and norms of the Labor Code of the Russian Federation apply to the employee. Therefore, during this period, the employee in his own way legal status is no different from other employees and the grounds for reducing him for this period official salary no. In addition, the principle of equal pay for work of equal value (Article 22 of the Labor Code of the Russian Federation) must not be violated. After all, the employee will perform the same work both during the probationary period and after it ends. By paying differently for these periods, the employer violates this principle.

From the position of the employer, 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 accept in the organization a provision on bonuses (additional payments), the amount of which is set depending on the length of service in the company;

during the probationary period, the employee is subject, among other things, to the norms 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 additional grounds for dismissal during the probationary period that are not provided for by law, such as the possibility of dismissal due to "expediency or at the discretion of management. Such language is often included in employment contracts, but is contrary to the law;

the period of probation is included in the length of service, giving the right to annual basic paid leave. When an employee is dismissed after the probationary period (or before its expiration), despite the fact that the employee has not worked in 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 have graduated from state-accredited educational institutions of primary, secondary and higher vocational education and for the first time come to work in their specialty within one year from the date of graduation from the educational institution;

persons elected to elective office for paid work;

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

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

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

Probationary period

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

If you conclude 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 disability 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 that established by law.

In practice, the employer often extends the probation period during the period the employee passes the test agreed upon at the conclusion of the employment contract. This is against the law. And, if the employer does not make a decision 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.

It should be noted 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 for employment

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 probation and subsequent termination of the employment contract is allowed only for common grounds". That is, if the employer considers the employee to be appropriate for the position for which he was hired, then no registration is required. additional documents- 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 drawn up in writing in two copies: one for the employee, the second for the employer, and announced to the employee under a personal signature.

What 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 an appropriate act in the presence of several employees of this organization. Employees-witnesses will confirm with their signatures in this act the fact that the notification was delivered to the employee, as well as his refusal to certify this fact in writing. A copy of the notice may be sent to the employee's home address by registered mail with acknowledgment of receipt. 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 with a notice of dismissal must be submitted to the postal authority at least three days before the expiration of the probation period set for the employee. The date of posting is determined by the date on the postmark imprint on the receipt and the notice of receipt of the letter returned to the employer. Notice of termination of the contract during the probationary period must have all necessary features document, namely: date, outgoing number, signature of the person authorized to sign the relevant documents, as well as an imprint of the seal intended for processing documents of this organization;

in the notice given to the employee, it is necessary to correctly and legally correctly formulate the reason for the dismissal. The wording should be based on documents confirming the validity of the decision made by the employer;

judicial practice shows that when considering disputes about dismissal due to an unsatisfactory test result, the courts require the employer to confirm the fact that the employee is not suitable for the position held.

To confirm the inconsistency of the employee with the position held, moments should be recorded when the employee did not cope with the work assigned to him or committed other violations (for example, labor regulations, etc.). These circumstances must be documented (recorded), if possible, indicating the reasons. In addition, it is necessary to demand written explanations from the employee about the reasons for the violations committed by him. 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 incompatibility with the position held is necessary. And if an employee violated labor discipline during the probationary period (for example, made absenteeism or otherwise demonstrated an unfair attitude to work), then he must be dismissed on the basis of the relevant paragraph of Article 81 of the Labor Code of the Russian Federation.

As documents confirming the validity of the dismissal, the following can be accepted: an act of committing a disciplinary offense, a document confirming the discrepancy between the quality of the work of the test subject and the standards of production and time standards adopted in the organization, an explanatory note from the employee about the reasons for the poor performance of the job assignment, written complaints from customers.

Citizen I. filed a lawsuit against kindergarten about reinstatement at work as a teacher, payment of time forced absenteeism, compensation for non-pecuniary damage, referring to the fact that she was hired on the basis of an employment contract with a probationary period of 2 months and unreasonably dismissed as not having passed the probationary period.

The court denied the claim. The Judicial Board upheld the decision of the court.

In accordance with Article 70 of the Labor Code of the Russian Federation, when concluding an employment contract, an agreement between the parties may stipulate a test of an employee in order to verify his compliance with the assigned work. The test condition 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, notifying him in writing no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as not having passed the test.

In the case, it was established that citizen I. was hired as an educator with a trial period of 2 months, an employment contract was concluded with her in writing. The grounds for dismissal were a written warning, reports from the parents of the children, kindergarten employees, acts on the kindergarten, a collective statement from the parents junior group, minutes of the meeting of the Council of the kindergarten.

From the materials of the case it was seen that a written warning about her dismissal had been drawn up. The warning indicates the reasons that served as the basis for recognizing the plaintiff as not having passed the probationary period. The plaintiff refused to accept the warning, about which an act was drawn up.

Evaluation of business qualities and how an employee copes with the work assigned to him directly depends on the sphere 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. So, in the production sphere, where the result of labor is a specific materialized result, one can clearly determine how well the work is done; in the service sector, one can take into account the number of customer complaints about the quality of the provision of a particular service. The situation is more complicated when the work is connected with intellectual labor. AT this case the quality of execution of the instructions of the head, compliance with the deadlines for the execution of tasks, the performance by the employee of the total volume of the proposed work, and the compliance of the employee with professional and qualification requirements should be analyzed. The direct supervisor of the new employee should draw up the relevant documents and send them to the head of the company.

As you can see, the procedure for dismissing an employee based on the results of the test requires a certain formalism from the employer. In addition, the law in any case gives the employee the right to appeal the decision of the employer in court.

It is also necessary to say about the employee’s right to terminate the employment contract: “If during the probation period the employee comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract at his own request, notifying the employer in writing for three days". This norm is important for the employee, since many potential employers it is fundamentally important to know why the applicant left his previous job so quickly.

* * *

The author believes that with the help of a probationary period, the employer can see the accepted employee "in action", and the employee, in turn, can assess the compliance of the proposed work with his interests and expectations. The legislation clearly defines the conditions for the application of 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 employees during 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 decision of the employer to dismiss him based on the results of the test. In this case, the court will check the legality of establishing a probationary period, the correctness of registration required documents and compliance by the employer with all legal aspects. Based on this, both the employee and the employer have the right to decide for themselves on the appropriateness of the application and the conditions for passing the probationary period.

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

2 Decree 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 Para. 11 of the Review judicial practice RF Armed Forces for the third quarter of 2005 on civil cases. The text has not been officially published.

The probationary period is set for newly hired employees for up to 3 months (in some cases it can be extended up to 6 months). According to the labor code, the reduction wages during the probationary period, the employer is not eligible.

The nuances of the preliminary testing of employees are indicated in Art. 70 of the Labor Code of the Russian Federation. According to the Law, any employer reserves the right to establish a certain period during which the employee has the opportunity to show their positive traits in the professional field, and then find a job on a permanent basis.

Probationary period for employment: features and differences

essence trial period lies in the fact that the employer can learn about the positive and negative professional qualities of a new employee during this time. If an agreement is concluded between the parties that does not contain a note on testing his knowledge and skills for a certain period of time, then the employee is automatically considered accepted without testing.

When there is no contract between the employer and his subordinate, but the latter has already started work, the test can only be if an agreement was concluded before the start of work.

acc. from Art. 70 of the Labor Code of the Russian Federation, a probationary period is not established for the following persons:

For those who came to work on a competitive basis.
For minors, pregnant women and women with children under the age of 2 years.
For those who have received higher or secondary vocational education accredited by the state educational programs less than a year ago in the same specialty in which they are employed.
For persons applying for an elective paid position (winning by voting results).
When transferring from one place of work to another, if this was agreed by both managers.
If the employment contract is concluded for a period not exceeding two months.
When concluding a student agreement with an organization: at the end of its validity, only registration without preliminary tests is possible.

How does the recruitment process work with a preliminary test:

An order for employment is issued over the signature of the head.
New employee familiarizes himself with the order and puts his signature.
An entry is made in the work book about the conclusion of an employment contract indicating the number of the order and the corresponding article of the Labor Code of the Russian Federation.
All data is placed in the card or personal file of the trainee.

Salary during trial period

The accepted employee is subject to all internal regulations and acts, as well as the provisions of labor legislation - i.e. a new person in the team has the same rights as everyone else, so the reduction in wages in this case is unlawful.

The employer can only indicate a lower salary in the employment contract, and if the professional skills of the subordinate suit him, an additional agreement is concluded with the condition of increasing the basic rate.

Length of probationary period for employment

The lower limits are not limited by law, but the maximum probationary period when hiring cannot exceed three months for ordinary employees, and six months for management and their deputies in organizations and branches; accountants and their substitutes.

If the employment contract is concluded for less than six months, the probation cannot last more than two weeks. Any extensions in all of the above cases are prohibited, and when the time expires, but the employee continues labor activity- it is considered to have passed the test, and the contract can be terminated only on a general basis.

During the test period, sick leave, absenteeism and other circumstances due to which the employee was unable to work or actually absent from the workplace are not counted.

Dismissal at the initiative of the employer

If the employee during the verification period did not observe labor discipline, skipped or behaved incorrectly in relation to the team, the manager has the right to notify him of the upcoming dismissal in writing 3 days before the dismissal. The work book will indicate “at the initiative of the employer” as the reason.

Features of dismissal of an employee on probation

If desired, any employee undergoing probation must submit a letter of resignation to the manager three days before the proposed dismissal or end of the period, but is not required to explain the reasons. In the future, the corresponding column indicates "on the initiative of the employee."

When an employer does not have the right to fire an employee during the probationary period

There are several reasons why a manager cannot fire a tested subordinate:

Sick leave.
personal motives.

An exception is the suspension of the company's activities, when an appropriate order is issued.

The process of dismissing an employee who did not pass the test:

The employer prepares evidence confirming the incompetence of the employee: memos, information about absenteeism, explanatory or previously drawn up complaints.
A written notice of the desire to terminate the contract is issued. It indicates the reasons, and it is also recorded in the log.
An appropriate order is drawn up, which is signed by the dismissed person, and then the document is registered in the journal.

If fired illegally

It is not uncommon for a manager to force them to write a letter of resignation of their own free will, but the employee himself does not want to do this. If such a situation arises, it is necessary to contact the labor inspectorate or the prosecutor's office with a written complaint. Despite the fact that the employee is on probation, he has the same rights as long-term colleagues, and this situation is no exception.

Employee risks during the probationary period

Of course, employees registered with a trial period have certain risks, the main of which is the non-renewal of the contract. More details can be found in the video:

Finding a job, like recruiting staff, is a labor-intensive process. Even if the professional qualities of the candidate meet the requirements of the vacancy, and the proposed work is fully suitable for the specialist, this does not mean that the cooperation will be long and successful.

To determine further cooperation allows a trial period when applying for a job.

Probationary period according to the Labor Code of the Russian Federation

According to article 70 of the Labor Code of the Russian Federation, the trial period can last for different cases:

no more than two weeks;
no more than 3 months;
no more than six months;

The shortest probationary period is provided for when concluding a fixed-term employment contract of up to 6 months. The same rule applies to seasonal workers.

The usual probationary period does not exceed 3 months. By agreement of the parties, it may end earlier, but not later.

A six-month probationary period may be established for the chief accountant, head of the company, its branch, representative office, as well as their deputies.

The longest probationary period of up to a year is set upon admission to the civil civil service. If an employee is transferred from one government agency to another, then the maximum test is six months.

The Labor Code of the Russian Federation spells out categories of workers for whom it is impossible to set a trial period:

If the candidate entered the job on a competitive basis.
Pregnant women.
Employees with whom a contract is concluded for two or less months.
Candidates under 18 years of age.
Former students who received primary, secondary or higher education, and for the first time went to work in the specialty they received.
Disabled persons sent to work based on the recommendations of a medical examination.
Specialists invited in the order of transfer to work for another employer.
If the candidate has been elected to an elective office.
Persons who were transferred to the reserve from service (military, alternative).

Why is there a probationary period when hiring a new employee?

When taking office, a probationary period is introduced not only for the employee, but also for the employer. During this period, both parties have the opportunity to carefully look at each other and draw appropriate conclusions whether it is worth continuing cooperation or not.

During the testing period, the employer assesses the employee's abilities, business qualities, sociability, compliance with the assigned position, the ability to competently carry out instructions, observe discipline and the rules established in the company.

During the probationary period, the employee draws conclusions about the company as a whole, about his position, responsibilities, wages, team and management.

Pay during the trial period

An employee who is in the probationary stage is fully covered labor law. Therefore, if the company decided to stipulate in the contract that the trial period would not be paid, then this is a clear violation of the law.

Moreover, many employers deliberately set the testee a lower salary, promising to increase it after the probationary period.

Firstly, it is impossible to limit the remuneration of an employee who is on probation. The size of his bet must not be less than the rate provided for in staffing for this position.

Secondly, the reduction of the salary during the test falls under the article of discrimination. For example, in the staffing of a company there are 2 rates. One position is occupied by an old employee, and a new person with a probationary period has been hired for another. So, a newcomer from the first day of his work should have the same salary as an employee who has been working in a similar position for several years.

But, nevertheless, almost all companies set workers on probation a lower salary. This can be done quite legally, for example, by changing the salary for the novice position in the staffing table. At the same time, it is worth remembering that the salary should not be less than the minimum wage.

The tested specialist may be paid a bonus and other incentive payments prescribed in the regulation on bonuses and remuneration. Also, the employer is obliged to pay the test subjects a certificate of incapacity for work, overtime hours, going to work on weekends and holidays.

How is it issued

The probationary period is subject to mandatory registration. Is concluded with the employee labor contract, and on the basis of it, an order for employment is issued. These documents record the duration of the test period. Information about the probationary period, but only a record of employment.

Can an employee's probationary period be extended?

It is not forbidden to increase the trial period, but only if its duration does not exceed the norms established by law.

For example, when the probation period of an employee is one month, but after this time the employer has doubts about the professional qualities of the candidate, the probationary period can be extended to three months or up to six months, if we are talking about the position of chief accountant, branch manager.

It is impossible to increase the length of the probationary period without the consent of the employee. Therefore, the task of the employer is to justify their decision to extend the test.

It is necessary to document the employee's mistakes, untimely execution of tasks, violation of labor discipline, attach memos of managers, if any. Documented facts are transferred to the employee for review against signature.

If the candidate agrees with his shortcomings in the work, then an additional agreement is made to the employment contract to increase the probation period.

In the event that the employee considers the claims unfounded and does not agree to an increase in the probation period, then dismissal is allowed on the basis of irrefutable written evidence.

What are the rights and obligations of the employee during the probationary period?

The rights and obligations of the tested employee are no different from the rights and obligations of other employees working in the company.

What rights does an employee have during the probationary period?

receive wages, overtime allowances, bonuses, other incentive payments;
take a sick leave and receive insurance payments for the time of disability;
take at your own expense or at the expense of a future vacation. However, the employer may legally refuse to leave, if this does not contradict Article 128 of the Labor Code of the Russian Federation. For example, if an employee has a child, then the employer is obliged to give him time off without pay for up to 5 days;
quit for own initiative without waiting for the completion of the trial period.

Employee Responsibilities:

comply with the terms of the employment contract;
observe labor, fire discipline, internal regulations;
perform their duties in accordance with the job description.

The procedure for the dismissal of an employee who has not passed the probationary period

Dismissal of those who did not pass the probationary period, step-by-step instruction:

Step 1. Prepare a notice in writing for the employee in advance, indicating the reasons why further cooperation is impossible.

These reasons must be documented. This may be a memorandum of the head, an act on non-fulfillment of labor duties, an act on disciplinary action, written complaints from clients with whom the specialist worked, minutes of the meeting of the commission to determine the outcome of the probationary period, etc.

The notice also indicates the date of the planned dismissal and the date the document was drawn up. The notice is drawn up in 2 copies for each of the parties.

Step 2. Give the notice to the employee no later than 3, and preferably 4 days before the end of the trial period, or the date of the planned dismissal, if the decision to terminate cooperation was made much earlier than the end of the trial period.

If this is not done in time, then the employee is automatically considered to have passed the test.

Step 3. The employee reads the notice and signs for its receipt, indicating the date. If the employee refuses to sign the notice, the employer draws up an act signed by at least two witnesses.

Step 4. A dismissal order is issued. An entry is made in the work book corresponding to the article of dismissal.

Step 5. On the day of dismissal, the employee receives a work book, salary for the days worked and compensation for unused vacation (if any).

In cases where the specialist himself decides to terminate the employment relationship without waiting for the end of the test, he must notify the employer 3 days in advance. At the same time, he writes a letter of resignation on his own initiative, and resigns precisely under this article.

It should be noted that the dismissal of employees who have not passed the test period is equated to dismissal at the initiative of the employer. Therefore, you should familiarize yourself with Article 81 of the Labor Code of the Russian Federation before removing a specialist from his position.

For example, you cannot fire a pregnant woman, or a woman raising a child under three years old. If an employee is on vacation or temporarily unable to work, then it is also prohibited to dismiss him.

Who benefits from it

The trial period is beneficial to both parties. Thanks to this period, the employer will be able to verify the professionalism of the candidate or start an immediate search for a new specialist.

And the specialist, in turn, will be happy new job or start looking at job openings from other employers. Thus, neither the specialist nor the employer will waste time looking for a new candidate or another job.

Video - rules, procedure for establishing and formalizing a probationary period when hiring a new employee:

Discussion (19 )

In our organization, all employees are accepted with a probationary period. I, as an assistant personnel officer, had problems with the dismissal of such candidates. Especially when a person disappears without taking his work book. There are many nuances here, the main thing is to clearly observe the deadlines for submitting documents for dismissal. This requires a clear coordination of the actions of the head and the personnel department. It often happens when managers need to immediately fire a person on probation, and under the law such actions are illegal. The main thing is to clearly and competently draw up documents from the very beginning of employment, discussing with the person all the nuances of his employment contract.

Yes, the staff turnover in our company is also high, now the demand in the labor market is many times greater than the supply, so the managers are pissed off as best they can. About the fact that they do not give bonuses during the trial period - this is a separate issue. Although I personally read in the Regulations on Bonuses that everyone should be paid - both newcomers and part-time workers (both internal and external)

We set a trial period for the chief accountant for a period of 6 months. The salary is full, after the probationary period, bonuses are added to the salary. So the accountant turned out to be not qualified, albeit with extensive experience. Separated. And thanks to the trial period, painless. I think that not all positions need it, but somewhere it is still necessary. And the employer is not always to blame, sometimes employees do not meet the requirements.

When I came to work after graduation, I was given a standard trial period of 3 months with a reduced salary. And words could not be said about it.

We have experience in withdrawing an employee from the state for a probationary period. At this time, he officially settled in recruitment agency with whom we cooperate Usually it is 6 months. Then admission to the state with a trial period of three months. Thus, both the employee and the company have 9 months to see the results of cooperation and decide. This is important when the result of a specialist's work is tied to long-term projects.

Often, employers catch the trick “so as not to spoil your work, we will not fix the probationary period”, and then they simply part with an employee who has worked for a month with a payment of 10 thousand rubles.

Tell me what to do. They set me a trial period of 3 months, and I have been working in the company for 5 months. I don't know where to turn and how to resolve this issue.

A fairly common practice is when an employee who is actually accepted with a probationary period is drawn up for a fixed-term employment contract (2-3 months). If the vacancy is interesting enough to the employee, then he will agree to such conditions and agree that the contract will include work for which it is impossible to draw up a contract for an indefinite period (not those that the employee actually performs). This is beneficial, of course, to the employer - an employee who does not approach is fired without unnecessary formalities.

I have my own construction company, and when hiring employees, both engineers and workers, the probation period is great importance. During this time, you will find out who is capable of what. Many complain that the employer fires employees at the end of the probationary period. But judge for yourself, a person joined the team, began to work fruitfully, and then he was fired. This is not good for the employer. After all, in order for an employee to start working at 100%, one and a half to two months are needed. And compliance with the Labor Code is on the conscience of the employer. Therefore, a trial period is vital.

I want to comment on the article from the point of view of the employer. My store has five salespeople, all of whom I hired for a three-month trial period. During the operation of the store, two candidates did not pass the probationary period, I parted ways with them without conflicts, because the design was clear, the girls were warned.
For me, it is important not only professional suitability, but also the attitude of the candidate in the team. I paid the same salary to everyone, bonuses too, no infringement due to the probationary period.
She broke up with one of the candidates literally a month later due to outright theft, and if she were registered on an ongoing basis, it would be more difficult to fire her, the girl could work for another 15 days, she absolutely did not want to see her.
I think that there is nothing offensive for the candidate in the practice of probationary period. Believe in my experience, an entrepreneur will never part with a smart employee who is still to be looked for.

Very often, employers abuse the norms of the Labor Code, which allow them to hire workers with a probationary period. It's not a secret for anyone that during a probationary period the salary is an order of magnitude lower than that of those who work under an indefinite employment contract. As a rule, this is a bare salary, without bonuses and allowances. There are many large enterprises, accepting workers for work with a probationary period of 3 months. They are paid the minimum wage, and then they are fired as they have not passed the test, and new ones are immediately recruited. This is practiced on a large scale, people are hired and fired in shifts, but legally everything is clean, all these people allegedly did not pass the test when applying for a job. Therefore, such a legal phenomenon as "trial period" has an ambiguous meaning. On the one hand, it allows the employer to select the best personnel for himself, on the other hand, it sharply increases the possibility of arbitrariness on the part of the employer. And if “white-collar” workers can somehow apply for a job, since it is not easy to find a highly qualified specialist, then “blue-collar”, and even more so “black-collar” workers are in a much more disadvantageous position. They can simply be fired in batches after 3 months, without explaining anything.

At the job where I now work (as an accountant), the issue of payment during the trial period was resolved as follows: I receive only a salary, and after it ends, I will also receive a bonus. At the same time, the employment contract states that the bonus is accrued based on the results of work and by decision of the authorities.

I have a lot of work experience on a trial period, just at one time I could not find a job that would suit me, so everywhere I was paid much less during the trial period than regular employees or just the minimum wage was paid, this is about 4500 thousand, and when it came time to formalize it, they delayed this process in every possible way, especially individual entrepreneurs

The trial period has the status of a high necessity when applying for a job! How else? How to understand whether the professional qualities of a person are suitable and are they comparable with the declared data? That's why both the employer and the potential employee and the applicant for a potential job are eyeing. If everything suits everyone, then the person is formalized according to labor code with all the consequences. If not, then the search continues, and there are no obligations to the person. In my opinion, everything is correct and fair!
Most importantly, both parties must know and comply with labor laws. Because sometimes, with ignorance, a person is hired and subsequently not formalized due to a long probationary period. In the end, when it is convenient for the employer to get rid of you, he will easily do this, and without infringing on your rights. So, of course, it is necessary to monitor the legality of the acts committed at the enterprise, this will be useful for everyone)))
It is very good that the rights of the subject are equated with the rights of a full-fledged worker. First of all, this is a guarantee and some kind of concern for a person as a socially significant unit in our country!

I had to work in an organization where the employer underestimated wages for the probationary period. This is a clear violation. And this is found in many places. We had a trial period of three months, they could put us out the door not long before the end of the trial period. Apparently, they saved on salaries.
The question is, why does no one turn to the labor inspectorate?

I agree with Yana. "Experienced" employers often use the probationary system for illegal reasons. Usually students, young people (without work experience) suffer from unscrupulous companies. They agree to all conditions and are unfamiliar with TK. Learn from your own mistakes very quickly! But, often, having not received payment, compensation, they do not apply to the judicial authorities, which is very sad, because there would be an order of magnitude fewer deceivers.
By law, the probationary period cannot exceed 6 months. And employers like to use this period to the fullest, if not to cheat, then to cut costs (in the form of wages).

I have great experience work in different organizations - large and not very large, and I have never seen full compliance with the rules for dismissing an employee who has not passed the probationary period. Usually this process is simplified - the employer notifies the employee orally that the probationary period has not passed and the employee is fired at his own request.
AT recent times there are a lot of complaints against employers - they accept an employee for a position on a trial period with a lower salary, a person works from a month to three, then he is told that he has not passed the trial period. Recruit employees again - and all in a circle. Thus, the company saves on wages. Naturally, this applies to more unskilled workers.

Quite often, when hiring, employers use a probationary period as a test of a person. Even with the seeming ideality of the employee, you still need to evaluate his ability for future work. It is for this that the possibility of appointing an employee on a probationary period is provided. This right granted to them has many nuances in application, which are worth considering in more detail.

What is a "trial period"? Why is it installed?

probationary period a certain time period is called during which the employer must decide whether a person is suitable for this activity or not. Its regulation is contained in Art. 70 - 71 of the Labor Code of the Russian Federation.

The selection of a new employee is not only a long, but also a painstaking process. Often, it consists of several stages, which may include interviews and special tests. But even such a careful selection does not exclude the possibility of hiring an incompetent worker. To avoid this oversight, the employer is given the right to appoint a test in relation to a potential employee. During this period, it is possible to identify the compliance of the applicant for the position with the existing requirements, evaluate his work, determine the level of qualification and attitude to the activities performed. If he is not competent enough or negligently performs his duties, such an “employee” can be abandoned.

But in order to avoid adverse consequences for themselves, the employer must be able to competently draw up and execute the very passage of the probationary period.

Essential when hiring or firing an employee.

About payment maternity leave: when they go on vacation, for how long the amount of the allowance is paid.

Who can be placed on probation?

In the Labor Code of the Russian Federation, two articles are devoted to the probationary period: 70 and 71. They indicate that the test is an optional condition. The employer cannot impose it on the applicant. That is, if the job seeker refuses to pass the term, he is either offered to start his activity without a probationary period, or they simply say goodbye to him. In practice, the second option is most often encountered.

Art. 70 of the Labor Code of the Russian Federation establishes a list of those citizens for whom a probationary period is not established:

Persons who are elected by competition (should be held in the manner established by the Labor Code of the Russian Federation and other acts) to fill the relevant position;
Women during pregnancy, as well as those women who have children whose age is up to 1.5 years;
Citizens under the age of 18;
Citizens who have either secondary vocational or higher education in those educational programs that have state accreditation. Such citizens must be employed for the first time in their profession within a year from the day they received the appropriate education;
Citizens who are elected to an elective position to perform paid activities;
Citizens who were invited to work by transfer from another employer upon agreement between employers;
Citizens whose employment contract has a period of two months;
Other citizens, if it is provided for by the Labor Code of the Russian Federation, other federal laws or a collective agreement.

Remember that the test can only be established upon hiring. This means that if an already working employee is assigned to a vacancy (in the case of promotion, transfer, etc.), the test is not assigned.

Accordingly, all other categories of citizens can be accepted for a trial period.

Establishing a probationary period: what needs to be done?

So, if the applicant is a person in respect of whom a probationary period can be established, then this condition is included in the employment contract with him. Most of employers is limited to this point only. But in the case of such registration, the probationary period will be useless, since it will be almost impossible to dismiss an employee as someone who has not passed the test. But for an employee, such registration for a job for a trial period will also be beneficial in that he can use this record if, for example, he finds a more profitable job and wishes to quit quickly. After all, his working out on a trial period will not be two weeks, but some three days (see article 71 of the Labor Code of the Russian Federation).

Remember: The probationary period is not formalized only by an entry in the employment contract.

What documents do the employer need to issue?

The condition about the test itself and its duration must be indicated in the order for employment.

REMEMBER: For most job applicants, the maximum probation period is three months. The employer also has the right to set a period less than this. But if a test for a period of two months is fixed in the employment contract and the order itself, then it will not be possible to extend it to three months without the consent of the employee himself. This is because the test condition refers to essential conditions employment contract, which can be changed only as a result of the agreement of the parties.

The next stage of the appointment of the test is the preparation of tasks for the period of the probationary period, as well as the development of those conditions that will allow the applicant to be considered as having passed the test. Such documents must either be announced or handed over to the employee. This must be done under signature. It must be remembered that tasks and conditions cannot allow ambiguity and subjectivity. They need to be formulated accurately and clearly.

During the entire period of probation, the employer must strictly monitor the performance of these tasks by the employee. If they are performed poorly or out of time, then these facts should be recorded (for example, in reports or memos). It is worth clearly indicating what task was given, and what exactly was not done, etc. It will not be superfluous to attach the task itself.

In the event that the employee was given any additional tasks, this must also be indicated in writing. It is better to give the task under the signature that the task has been received and is clear.

The correct design of the test is quite complicated and has many nuances. Each action must be recorded in writing. This will allow in the future to have evidence that the employee did not pass the test, which means that he can be fired.

Duration and extension of probation

As mentioned earlier, the trial period cannot be more than three months. But if we talk about the head of the organization or his deputy, as well as the chief accountant and his deputy, the head of a branch and other separate structural unit of the organization, then the test cannot last more than six months (unless otherwise determined by federal law).

It should be noted that if an employment contract for a trial period is drawn up for a period of two to six months, then the trial cannot be more than two weeks. The trial period does not include periods of temporary disability of the employee and other periods when he was actually absent from the workplace. The duration of the test is set by agreement of the parties, but be longer statutory can not.

Considering the practice, it is worth noting that the employer often extends the test already during the probationary period, which was agreed upon when drawing up the employment contract. This is directly against the law. This means that if before the end of the probationary period, which is contained in the contract, a decision is not made to dismiss the employee, then he will be considered to have passed the test.

It is worth saying that the law establishes for some cases a longer duration of the test in comparison with that established in Art. 70 of the Labor Code of the Russian Federation. An example can be civil servants (Article 27 of the Federal Law No. 79-FZ “On Civil Service”).

Dismissal of those who have not passed the probationary period: or how not to miss the moment

If, as a result of the test, it is revealed that the employee is not suitable, then the employer has the right to dismiss him.

It is worth noting that the law establishes a requirement for the employer that the employee must be warned of such dismissal in writing, and no later than seven calendar days before the dismissal. This provision is contained in Art. 71 of the Labor Code.

Dismissal should be carried out on the last day of the test. This is due to the fact that if the employee continues to carry out his activities after the end of the test, then he is considered to have passed the test. From this we can conclude that the very fact of passing the probationary period does not need to be formalized by any separate document.

This means that the employer must keep a good eye on deadlines. If a decision is made to dismiss after the probationary period, a notice of this must be given to the employee no later than 4 working days in advance.

Such notice must include the following information:

The reasons due to which the employee is considered not to have passed the test;
Documents confirming them;
Date of dismissal.

This document must be handed over to the employee without fail for signature. It should also indicate the date of delivery. It is worth saying that it is better not only to list the reasons for dismissal, but also to make a link to the documents that confirm them. It is best to make copies of them and attach them to this notice. Then the employee will understand exactly what violations he committed during the test period.

The employee does not want to accept the notice? Here it is worth doing the following. The employer must draw up a statement about this. When compiling, some of the employees of the organization must be present. They, as witnesses, will certify with their signatures that the notification was handed to the employee, and also confirm his refusal to accept. A copy of the notification should be sent by mail to the employee at home by registered mail (this is due to the presence of a notification of delivery). In this case, the deadlines must also be observed. Such a letter must be sent to the post office no later than three days before the end of the probationary period. The date of such transfer is determined by the postmark on the receipt.

Upon dismissal as not having passed the probationary period, an order is issued in the form No. T-8 (for one employee) and No. T-8a (for several). On the day of dismissal, an entry is made in the work book with reference to the relevant norm of the Labor Code of the Russian Federation. Employment history returned to the employee.

If the test is passed...

Art. 71 of the Labor Code of the Russian Federation establishes that if the probationary period has ended, and the employee still continues to carry out work activities, then he is considered to have passed the test. From this provision it follows that if the test is passed, the employer may not notify the employee about this. But in practice it would be better to notify the employee. Such a notice will undoubtedly set the employee up for the further successful implementation of his activities. And for the employer good opportunity harmlessly indicate what points in the work should be given more attention.

Payment during the trial period: how to pay?

Art. 70 of the Labor Code of the Russian Federation says that during the probationary period, the employee is subject to all the provisions of labor legislation and other acts. What does this mean for the employer? This excludes the establishment of lower wages than the established one. The staff list shows all the rates for each available position. And the salary for the trial period cannot be less than the specified one. Its underestimation is illegal.

But there are ways to set lower wages. An example would be the indexation of wages after the probationary period, the transfer of an employee to a different position in the staffing table.

Withdrawals during the probationary period

As already noted, during the probationary period, all provisions of labor legislation apply equally to the employee. That is, this means that it is possible for such an employee to apply measures of disciplinary liability for any disciplinary offenses during this period. Collection must be made in accordance with Art. 246-248 of the Labor Code of the Russian Federation, and bringing to full liability is carried out in accordance with Art. 242-244 of the Labor Code of the Russian Federation.

Thus, the trial period is an opportunity for the employer not only to get acquainted with a potential employee, but also to understand whether they will succeed in further cooperation.