Trial period of three months at work. Probationary workers have the same rights as regular workers. Video: work with a trial period

1. Article 70 of the Labor Code of the Russian Federation states that the purpose of the test when hiring is to verify the compliance of the employee with the work assigned to him. The test agreement is one of additional conditions employment contract. Therefore, it must be indicated in the employment contract itself, if the parties have agreed on such a condition. It is the employment contract that is the basis for issuing an order for employment with a probationary period. If the test condition was not specified at the conclusion of the employment contract and is not provided for in it, it is considered that the employee was hired without a test. The employer does not have the right to set a probationary period for an employee by an order for employment, if the labor contract does not provide for a probationary condition.

An exception to this general rule is when an employee is actually admitted to work without an employment contract. In such a situation, upon subsequent execution of an employment contract in writing it may include a condition on a probationary period, but only if, before the start of work, the parties agreed that the employee is hired with a probationary period, and formalized this agreement in a separate agreement (i.e. in writing). Thus, this exception does not shake general principle establishing a probationary period for an employee, i.e. by agreement of the parties.

2. During the period of probation, the provisions of the legislation and other regulatory legal acts containing the norms labor law, agreements and the collective agreement, if adopted in the organization. During this period, the employee is obliged to obey the internal labor regulations, he has the right to pay wages in full, for temporary disability benefits, etc.

In turn, the employer has the right to demand from the employee the fulfillment of all obligations stipulated by the employment contract, as well as, on his own initiative, terminate the employment contract with the employee during the probationary period for any reason provided for by the Labor Code in compliance with all established conditions.

So, if an employee hired on a probationary period is subject to dismissal from work before the expiration of the probationary period due to a reduction in the number or staff of employees, the dismissal must be carried out in compliance with all the conditions provided for employees dismissed on this basis (see commentary to articles 81, 178, 180).

3. Part 4 of Art. 70 of the Labor Code of the Russian Federation defines the category of persons for whom a test cannot be established for employment.

The list of these persons provided by the commented article is not exhaustive. The Labor Code, federal laws and the collective agreement may also establish other cases when a probationary period is not established upon employment.

If the test condition was provided for a person who, in accordance with Part 4 of Article 70 of the Labor Code of the Russian Federation, cannot be tested for employment, it should not be applied, even if this person does not object to such a condition.

This provision is based on Art. 9 of the Labor Code, according to which collective agreements, agreements, labor contracts 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. If such conditions are included in collective agreement, agreement or employment contract, they are not subject to application.

4. Part 5 of this article establishes the deadlines for probation for employment. How general rule, it cannot exceed 3 months. A trial period of longer duration, but not more than 6 months, may be set for the head of the organization, his deputies, the chief accountant and his deputies, the head of a branch, representative office or other separate structural unit. A different period of probation for employment for these workers may be established by federal law.

Since, from the point of view of civil law, separate structural divisions are branches and representative offices legal entity and only, it should be assumed that a trial period lasting more than 3 (up to 6) months can be set for the heads of only these structural divisions (see Article 55 of the Civil Code). In this regard, a test period of up to 6 months cannot be established, for example, for the head of a workshop, department, sector and other similar structural units, regardless of the degree of their isolation.

Others may be established by the Labor Code and other federal laws, incl. minimum or maximum, test periods. So, according to part 6 of the commented article, when concluding an employment contract for a period of 2 to 6 months, the test cannot exceed 2 weeks. In accordance with Art. 27 of the Law on the State Civil Service, civil servants may be placed on probation for a period of 3 months to one year.

Within deadlines the parties to the employment contract themselves determine its specific duration.

5. The trial period begins to run from the first day of work. In accordance with part 7 of article 70 of the Labor Code of the Russian Federation, all periods when the employee was actually absent from work are not included in the probationary period. These can be periods of temporary disability, being on short-term leave without pay or on leave in connection with training, performing state or public duties, etc. After a break, the probationary period continues. The total duration of the probationary period before and after the break should not exceed the period stipulated in the employment contract.

Within the meaning of the commented article, the probationary period should not include any periods when the employee was actually absent from work, incl. and without good reasons(for example, a period of absenteeism).

However, it should be borne in mind that a violation labor discipline during the probationary period, the measures provided for by the Labor Code may be applied to the employee disciplinary action, incl. dismissal (see comments to article 81).

Almost all employees are put on probation by their employers when they are hired. What are the characteristics of a probationary period? What is its duration in 2018? Who is not eligible for probation? This will be discussed in this article.

What is included in the concept of "Probationary period for employment"?

Probation stipulated by labor law Art. 70 of the Labor Code of the Russian Federation). This period is necessary for both the employer and the employee:

The trial period is determined at the conclusion of the employment contract by agreement of the parties.

What is the duration of the probationary period for employment?

According to labor legislation (Article 70 of the Labor Code of the Russian Federation), maximum size probationary period, but no minimum is defined. Given this fact, the employer has the right to establish any size of the probationary period within the maximum:

Example:

Employee Mikhailova M.M. hired on 10/15/2017, having concluded an employment contract for a period until 12/14/2017. not provided.

Features in determining the duration of the probationary period

In addition to the probationary period norms specified in the labor legislation, there are norms that determine the duration of the probationary period for other categories of citizens:

Categories of workers	Maximum probationary period	Normative act
Citizen or civil servant upon appointment to a position in the civil service, appointment to and dismissal from which are carried out by the President Russian Federation or the Government of the Russian Federation	from 1 month to 1 year	Article 27 Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation” (as amended)
A citizen or civil servant, upon appointment to a position in the civil service, who has previously public service Russian Federation	1 to 6 months
Citizen or civil servant upon appointment to a civil service position in the order of transfer from another government agency	1 to 6 months
Persons recruited for the first time into the service of the prosecution authorities, with the exception of persons recruited for the first time into the service of the prosecution authorities within one year from the date of graduation from the educational organization	6 months	Art. 40.3 of the Federal Law of January 17, 1992 No. 2202-1 "On the Prosecutor's Office of the Russian Federation"

Thus, when hiring and determining the probationary period, not only the term of the employment contract is taken into account, but also the status of the position held.

Employees who are not subject to a probationary period when hiring

According to Article 70 of the Tax Code of the Russian Federation, a test for employment is not established for:

persons elected on the basis of a competition for the corresponding position held in accordance with the procedure established by labor legislation and other regulatory legal acts containing labor law norms;
pregnant women and women with children under the age of one and a half years;
persons under the age of eighteen;
persons who have received secondary vocational education or higher education in state-accredited educational programs and for the first time come to work in their specialty within one year from the date of receiving professional education of the appropriate level;
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.

What can affect the length of the probationary period?

If during the probationary period the employee was absent from work, the probationary period is extended by the number of days when the employee was not at the workplace. The reasons for extending the probationary period may be the following:

period of temporary disability;
leave without pay;
suspension from work

Dismissal during the probationary period

In accordance with Art. 71 of the Labor Code of the Russian Federation, both the employee and the employer can unilaterally terminate an employment contract during the probationary period:

Reason for termination of employment contract	The mechanism for terminating an employment contract
If the test result is unsatisfactory, the employee	Before the expiration of the test period, the employer shall notify the employee of the termination of the employment contract 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. Termination of the employment contract is made without taking into account the opinion of the relevant trade union body and without payment of severance pay.
During the trial period, the employee came to the conclusion that the job offered to him was not suitable for him.	The employee has the right to terminate the employment contract own will by notifying the employer in writing three days in advance

Example:

Employee Mikhailova M.M. hired on 10/15/2017. During the period of work, the employee realized that the work did not suit her and decided to quit during the probationary period, the duration of which was 3 months. November 15, 2017 Mikhailova M.M. wrote a letter of resignation from 11/18/2017. The employer does not have the right to force an employee who is on probation to work for 2 weeks.

If, at the end of the probationary period, the employee continues his labor activity- the trial period can be considered successfully completed.

Questions and answers

Employer said he didn't plan to continue with me labor relations after probation but my probation ends in 2 days. Do I understand correctly that after 3 days I can not go to work?

Answer: According to Article 71 of the Labor Code of the Russian Federation, the employer can terminate the employment contract with you before the expiration of the probationary period, but his duty is to notify the employee of the termination of the employment contract in writing no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as not passed the test. In your case, there is only an oral discussion, so you will have to go to work after 3 days without fail in order to avoid trouble in terms of violation of labor laws with subsequent disciplinary action.

I made the decision to quit during my probationary period. Can I qualify for severance pay?

Answer: In accordance with Art. 71 of the Labor Code of the Russian Federation, termination of an employment contract during the probationary period is carried out without taking into account the opinion of the relevant trade union body and without paying severance pay. Based on this regulation, you will not have to count on the payment of severance pay.

I am planning a transfer from one department to another within the same organization. Will I be placed on probation again?

Answer: No, in the case of a transfer from one department to another within the same organization, a probationary period will not be assigned. Even in the case of a transfer from one employer to another, within the framework of an agreement between employers, a probationary period is also not assigned.

If you are offered to pass a test when applying for a job, do not rush to refuse, fearing that they want to use your skills for free. Learn about the pros and cons of this period, the legal nuances of its passage.

When selecting a promising employee for a vacant position, the head of the enterprise has the right to set a test period for the newcomer, during which the applicant must prove that he can cope with the assigned duties.

The employer will learn skills that can not always be identified during the interview:

professional suitability;
discipline;
teamwork skills;
the ability to self-organize;
initiative.

What does the hired person get? It turns out there are a lot:

adaptation in the team;
time for familiarization with job responsibilities;
choice - stay or leave;
practical experience, especially valuable for young professionals who do not have experience.

To prevent a few weeks from turning into bad memories, it is enough to know the basic legislative principles. The Labor Code of the Russian Federation clearly regulates the rules for registration trial period(Art. 70, 71, 72). Let's consider them further.

Employment contract for a trial period

Perhaps it will be news to you that the employer does not single-handedly appoint the verification period - only with the consent of both parties. The decision is fixed in the employment contract or supplementary agreement.

An order for an enterprise to register an employee must also contain an indication of acceptance for a test period (with start and end dates). If the decision is not reflected in one of these documents, it means that the term has not been legally established!

Sample registration of a probationary period in an urgent TD

It is also considered unlawful to include a clause on the verification time in the document of the main or additional agreement already when the hired person has started work.

Remember, a contract for a given period of time is mandatory! But an entry about him in the work book is not made.

Maximum probationary period for employment

The minimum for which a trial period can be concluded is not legally defined. The maximum varies depending on the position and the duration of the relationship with the employer.

The standard experimental term when concluding a contract for more than six months or indefinitely is 3 months.
With an agreement from 2 to 6 months. - no more than 14 days.
For management and accountants, the verification time is 6 months. The same term is established for employees transferred from one state body to another.
The maximum trial period (up to 1 year) is allowed by law to be established for applicants entering the civil civil service.

But the trial period for (up to 2 months) is not established.

Interestingly, on its own initiative, the employer can reduce the number of test days by designating a separate item in the company's charter, but not increase it. But there are nuances that allow to officially extend the test. More about them.

Probation period extension

The manager can extend the verification period if the trainee:

took time off at his own expense;
went on sick leave;
took advantage of the vacation.

In these cases, the extension is documented by a separate order. It prescribes the reason for the prolongation, indicates the new end date.

If during the interval allotted for verification, the employee was transferred to another position, the test for him continues until the date specified in the agreement.

Remember, time off, sick leave, and vacation during the approbation period do not count! But there is good news for citizens who are interested in the question of whether the probationary period is included in the vacation. Yes, this period is taken into account.

Paying an employee

The rights and obligations do not differ from other employees - to comply with the charter of the enterprise, comply with job descriptions and not violate internal order.

The employer provides the subordinate with a social package and guarantees. Has the right to reward or fine the subject, to issue reprimands or thanks.

Sick leave, overtime and work at the request of management on weekends and holidays are required to be paid.

Often, interns complain that during the test they receive less wages than other employees in a similar position, and some even share their bitter experience that they were not given money and were fired after working off.

Salary during the probationary period should not be less than that of persons with the same responsibilities. Although the employer has the right to introduce at the enterprise additional position trainee - then the salary is set not lower than the minimum wage according to the laws of the Russian Federation.

All disagreements and conflict situations, including, can be challenged in court.

Termination, interruption of labor relations

The best option is the approval of the job applicant. If the trial period has ended and the trainee continues to work, he is considered to be enrolled in the state for common grounds(Article 71 of the Labor Code of the Russian Federation).

What if something didn't work?

Termination of the employment contract is possible at the initiative of one of the parties. The period of familiarization with the position does not end ahead of schedule, the condition for its termination is the end of the term. That is, you can’t just say: “You don’t suit us!” Everything must be documented.

The relevant party must confirm the notice of refusal to provide a workplace in a written application three days before leaving. The employee does not work for two weeks.

The manager dismissing the subject must present to the latter the facts of inconsistency with the declared position (indicated in the notification). The signature of an employee familiar with the reasons is required.

The notification document also indicates the date of the planned dismissal and compilation. There should be two copies - for each side.
Now the employer has three days to pay wages and compensation for unused vacation.

To avoid disputes arising from time frames, the employer must know the following:

If you do not notify the employee of your unwillingness to continue cooperation 2 days before the end of the trial period, then it will automatically be considered successfully completed.
, is equated to a similar one at the initiative of the employer. Study article 81 of the Labor Code of the Russian Federation before announcing the decision to a specialist.
If an employee is unable to work or is on vacation, dismissal is not possible.

In case of refusal to sign the notification, the employer draws up an act and certifies with the signatures of two witnesses. Disagreement with the conclusions of the head and the dismissal of the subject can prove in court or labor inspectorate by submitting an appropriate application.

Who does not apply

The law prohibits the appointment of a probationary period for the following groups of employees:

pregnant women;
transferred to a new position within the enterprise;
women raising children under 1.5 years old;
minors;
passed through the competition;
young applicants employed within a period of up to 1 year from the date of graduation;
employees transferred to a similar vacancy from other enterprises, accepted for an elective position (in the state apparatus or bodies local government) per bet.

By the way, the employer is not entitled to not hire, as well as to fire a pregnant woman or the mother of a child under the age of one and a half years - but more on that in.

Experts recommend that even if a person at first glance is ideally suited for any position, 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 constitutes a probationary period for an employee.

General information

The Labor Code with comments to the articles quite clearly regulates the procedure for registering a person for a particular position. Recruitment is often a 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 the risk to the employer. The new person may be insufficiently qualified or disciplined as a result. To assess how he meets the requirements of the enterprise, it is advisable to establish a probationary period for the employee. To implement this, it is necessary not only to stipulate, but legally correctly draw up an agreement. The Labor Code with comments to the articles establishes legal framework employment under such conditions. However, you need to know some nuances in order to avoid mistakes in practice.

Principles for establishing a probationary period at work

As mentioned above, this period is necessary to check the professional and some personal qualities of a person. Employment 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 before the moment a person begins to perform his duties. This means that an appropriate agreement must be drawn up at the enterprise before starting activities. It is a contract for a trial period (a separate annex) or these conditions fit into the general contract. Otherwise legal effect this agreement does not.

It should be noted that the condition on the application of the probationary period must be present not only directly in the contract of employment, but also in the order for enrolling a person in the state. At the same time, 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. Terms of registration must be documented. The main document is an employment contract with a trial 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 can be reflected directly in his application for a request for appointment to a particular position. It should be said that the obligations of the employer include not only legal competent design contract and other documents, but also familiarization of the future employee with labor duties, internal regulations at the enterprise, job description. This fact the employee certifies with his signature. It has special meaning if the person has not passed the probationary period. If the employer is forced to dismiss an employee who has not endured the established period, the fact of his familiarization with the duties is used to confirm his inadequacy for the assigned position.

Alternative option

Quite often, employers instead of demons fixed-term contract with a trial period enter into a fixed-term agreement. In their opinion, such a design of an employee greatly simplifies the situation when a person has not coped with the tasks set and should be fired. The term 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 in order to evade the provision of guarantees and rights provided for employees for whom an open-ended contract should be used is prohibited. To comply with these conditions, it is recommended to apply Special attention courts in dealing with violations.

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

If, during the consideration of a dispute on the legality of drawing up a fixed-term agreement, it is revealed that it was concluded by an employee involuntarily, then the court applies the rules of the contract for an indefinite period. If a person applied to a legal authority or to the relevant inspection, then the contract may 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 the legislation and other acts, which contain the norms established law, collective agreement, contract, local documents.

Salary

It is considered a violation of the law to establish a lower remuneration for an employee's activities for the period of probation in an employment contract. The norms do not provide that the salary of a specialist in this case is different. In the event of a conflict situation, the employee has the right to receive underpayment in court. On the part of the employer, this moment 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 with a specialist signs supplementary agreement, which sets the payout increase. Also, the company may adopt a provision on bonuses. The amount of these additional payments can be established in accordance with the length of service.

Dismissal procedure

During the probation period, the employee is also subject to guarantees and norms related to the grounds for the employer to refuse the employee's services on his own initiative. They are provided for in Article 81. An employment contract cannot include additional grounds that are not established by law. These, for example, include reasons for "expediency" or "at the discretion of management." These terms are often found in contracts. However, they do not comply with the law.

Vacation

The probationary period is included in the length of service of the employee. 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 is entitled to compensation for the unused vacation period. It is appointed in proportion to the period of his stay 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:

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

Period length

A trial 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 subdivisions- six months, unless otherwise provided by the 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 the days when the employee was actually absent from the enterprise. This may be temporary disability due to illness, for example. In practice, employers often resort to extending the probation period specified in the contract. These actions are against the law. If at the end of the term the employer has not decided to dismiss, the employee is considered to have passed the test. In some cases, a longer period is provided. It is regulated by Art. 27 of the Federal Law No. 79 and applies to civil servants.

End of probation

Often, after the expiration of the period, the employee continues to work in 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 does not correspond to the position, then additional paperwork is not required. In other words, the employee continues to work on a common basis.

Article 71

In the event of an unsatisfactory test result, the tenant has the right to terminate the contract before its expiration. At the same time, he should warn the employee about this three days before the termination of the contract. The warning should contain reasons why the employer admits that the person is not suitable for the position and has not passed the test. The employee can appeal this decision in a court. In the event of an unsatisfactory result, the termination of the contract is carried out without taking into account the opinion of the trade union body and without paying severance pay. If the employer decides to fire a new employee, then in this case it is necessary to follow a certain procedure and draw up the relevant documents. In particular, a notification of an unsatisfactory result is drawn up. It must be in two copies - for the employee and the head. The document is handed over to the employee for signature.

Actions of the employer in case of refusal to accept the notification

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

In this case, it is very important to comply with the deadline established in article 71: a letter with a notice of 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 return receipt returned to the employer. The termination document must contain all necessary signs: date and outgoing number, signature of an authorized person, seal imprint, which is intended for registration of such papers.

Legally correct wording of the reasons for dismissal

It should be based on documents that confirm the validity accepted by the employer solutions. As shows arbitrage practice, in the process of considering dismissal disputes due to an unsatisfactory test result, the employer is required to confirm the fact that the employee does not fit the position. To do this, moments should be recorded when a person did not cope with the task or allowed other violations (for example, job description, internal regulations, etc.).

These circumstances must be documented (recorded), if possible, indicating the reasons. At the same time, a written explanation of his actions should be required from the employee. Experts believe that upon dismissal under article 71, it is necessary to provide evidence of the employee's professional incompatibility with the position held. If he violates internal discipline (he skipped or in some other way showed a negligent attitude towards the activities of the enterprise), then he should be dismissed under the relevant paragraph of Article 81. The documents by which the employer confirms the validity of the dismissal may be:

Discipline Act.
A document confirming the non-compliance of the quality of work with the requirements and standards of production and time accepted at the enterprise.
Explanatory notes of an employee on the reasons for non-fulfillment of tasks.
Written customer complaints.

Evaluation of business qualities

It is directly dependent on the specifics and scope of the enterprise. Based on this, conclusions about the results of the test can be based on various data. For example, in the field of production, in which the subject (product) acts as the result of the activity, it is possible to determine the level of quality quite clearly. If the company is engaged in the provision of services, then the assessment of the business qualities of the employee is carried out in accordance with the number of customer complaints.

Certain difficulties are present in the field of intellectual activity. In this case, to evaluate the results, the quality of the execution of instructions, compliance with the established deadlines, the execution of the total volume of tasks, and compliance with professional qualification standards are recorded. The immediate supervisor of the new employee is responsible for preparing and sending these documents. The procedure for dismissing an employee, therefore, requires a certain formalism from the employer. However, the employee may legally appeal the decision in any case.

Employee's right to terminate the contract

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

Finally

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

In such cases executive agency will carry out a thorough check of the legality of establishing a probationary period, legal literacy of registration necessary documentation. Of no small importance will be the compliance by the management of the enterprise with all legal aspects within these relationships. Based on this, both the employer and the applicant himself have the right to personally determine the appropriateness of the application and the conditions for passing the probationary period at the enterprise. As practice shows, cases of conflict situations are less common where the selection is carried out based on the results of several stages of the interview.

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 Labor Code RF.

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 as soon as possible. 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. In the event of a decision 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. AT staffing all rates for each available position are indicated. 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, it means that it is possible to apply measures of disciplinary liability for any disciplinary offenses to such an employee 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 probationary 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.