Illegal denial of employment. What are the reasons for refusing to hire and how to issue a written refusal

Each organization is faced with the need to recruit qualified personnel. On the one hand, the employer is free to choose personnel and can select candidates for vacant positions that best suit the characteristics of the job for which they are hired. Thus, in the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts Russian Federation of the Labor Code of the Russian Federation, it is noted that the employer has the right to independently, under his own responsibility, make personnel decisions in order to effectively economic activity and rational property management (namely, to carry out the selection of personnel, its placement, dismissal). The conclusion of an employment contract with a specific person is a right, not an obligation of the employer, and the Labor Code of the Russian Federation does not contain rules obliging the employer to fill vacant positions or jobs immediately as they arise.

On the other hand, the Constitution of the Russian Federation and the Labor Code of the Russian Federation proclaim the principle of freedom of labor, which means that everyone has the right to freely dispose of their abilities for work, choose their occupation and profession (Article 37 of the Constitution of the Russian Federation, Article 2 of the Labor Code of the Russian Federation). At the same time, one of the main guarantees aimed at the implementation of this principle is prohibition of unreasonable refusal to conclude an employment contract. In addition, the Supreme Court of the Russian Federation, in its decision of the Plenum of March 17, 2004, notes that when considering disputes related to refusal to hire, it must be borne in mind that everyone has equal opportunities when concluding an employment contract without any discrimination.

Thus, in order to protect the worker as more weak side labor relations, the current legislation establishes certain restrictions on the freedom of the employer to hire, namely, the prohibition of unreasonable refusal to conclude an employment contract.

In particular, the prohibition of unjustified refusal to conclude an employment contract is provided for by Article 64 of the Labor Code of the Russian Federation, according to which any direct or indirect restriction of rights or the establishment of advantages when concluding an employment contract depending on gender, race, skin color, nationality, language, origin, property , social and official status, place of residence (including the presence or absence of registration at the place of residence or stay), as well as other circumstances, not related to the business qualities of employees, not permitted, except as provided by federal law.

The listed restrictions or advantages are recognized as discrimination in the sphere of labor (Article 1 of the ILO Convention No. 111 “On Discrimination in the Field of Employment and Occupation”, 1958, ratified by Decree of the Presidium of the Supreme Soviet of the USSR of January 31, 1961, Article 19 of the Constitution of the Russian Federation, Art. 3 of the Labor Code of the Russian Federation).

Thus, based on the content of Article 64 of the Labor Code of the Russian Federation, it is unreasonable to refuse to conclude an employment contract that is not related to the business qualities of the employee (except for cases provided for by federal laws). In addition, Article 64 of the Labor Code of the Russian Federation provides for two more unconditional cases when it is impossible to refuse employment: women for reasons related to pregnancy or the presence of children, as well as persons invited to writing to work in the order of transfer from another employer, within one month from the date of dismissal from the previous place of work.

You can't refuse a job!

So, according to Article 64 of the Labor Code of the Russian Federation, it is impossible to refuse to conclude an employment contract:

    for reasons of a discriminatory nature and not related to the business qualities of the employee (part 2 of article 64 of the Labor Code of the Russian Federation).
    As already noted, such reasons include denial of employment due to circumstances due to gender, race, skin color, nationality, etc. The current Labor Code of the Russian Federation, in comparison with the Labor Code, significantly expands the list of discriminatory circumstances. So, at present, restrictions on rights or the establishment of advantages when concluding an employment contract are recognized as discriminatory, depending on the color of the skin, social and official position. It is noteworthy that the Federal Law of June 30, 2006 No. 90-FZ added the age of the candidate to the list of circumstances for which it is not allowed to establish benefits when concluding an employment contract. Very often, one of the requirements of the employer when looking for a candidate for a vacant position is the presence of permanent or temporary registration in the region where the employer operates. Labor legislation clearly classifies such a requirement as discriminatory. Refusal to hire a citizen of the Russian Federation due to the lack of registration at the place of residence or stay is illegal, as it violates the right to freedom of movement, choice of place of stay and residence. In addition to Article 64 of the Labor Code of the Russian Federation, the inadmissibility of refusal on this basis is also noted in paragraph 11 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004;

    women for reasons related to pregnancy or the presence of children (part 3 of article 64 of the Labor Code of the Russian Federation).
    This norm of the Labor Code of the Russian Federation does not mean that the employer is obliged to conclude an employment contract with all pregnant women or women with children who apply to him. In this case, as with all other candidates, the business and professional qualities of a woman are subject to evaluation. It will be illegal to refuse to hire, due precisely to the woman's pregnancy or the presence of children, and not the lack of necessary business qualities;

    employees invited in writing to work by transfer from another employer, within one month from the date of dismissal from their previous place of work (part 4 of article 64 of the Labor Code of the Russian Federation).
    Such a strict requirement established by the Labor Code of the Russian Federation for the employer who invited the employee seems to be quite logical, since in this situation the employee who agreed to work for another employer loses his former job, and it is the new employer who must take some responsibility for his employment.
    It should be noted that the prohibition of refusal to hire is limited to a period of one month from the date of dismissal of the employee. At the same time, the Labor Code of the Russian Federation does not provide for any possibility of extending the specified period automatically, depending on the availability good reasons(diseases of the employee himself, members of his family, etc.). After the expiration of this period, the conclusion of an employment contract with such an employee is the right, but not the obligation of the employer. However, by agreement of the parties month can be increased (for example, if the employee needs time to move to another area).

Accountant of Teplotekhnika LLC Sidorov A.A. was dismissed by way of transfer to another organization at the written invitation of Service Plus OJSC. Due to illness Sidorov A.A. appeared at Service Plus OJSC only a month and a half after his dismissal. He was refused an employment contract, and by that time a new accountant had already been hired for his position. The question arises: is the employer's actions legal?

In accordance with paragraph 5 of Article 77 of the Labor Code of the Russian Federation, the transfer of an employee at his request or with his consent to another employer is the basis for terminating the employment contract with the former employer. The day of dismissal is the last day of his work. According to Article 64 of the Labor Code of the Russian Federation, it is prohibited to refuse to hire such an employee within one month from the date of dismissal from the previous place of work, there is no break during this period. Thus, the failure of OJSC “Service Plus” Sidorov A.A. in concluding an employment contract with him fully comply with applicable law.

In accordance with Article 72.1 of the Labor Code of the Russian Federation, the transfer of an employee to a permanent job with another employer is carried out, as a rule, by agreement between the heads of the organization with the written consent (or request) of the employee himself and on the basis of a written request for transfer.

When deciding on the obligation of the employer to conclude an employment contract with an employee invited as a transfer, the question often arises of a written invitation from the employer, namely, who should sign this invitation. Courts assume that the invitation must be signed only by the proper person, that is a person with the right to hire and dismiss an employee. As noted in paragraph 12 of the decision of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004, the proper representative of the employer is a person who, in accordance with the law, other regulatory legal acts, founding documents organizations, local regulatory legal acts or by virtue of an employment contract concluded with him, is empowered to hire employees. Accordingly, in the event of litigation, it is necessary to confirm the authority of the person to hire.

When accepting an employee invited as a transfer, please note that, in accordance with Art. 70 of the Labor Code of the Russian Federation does not establish a test for employment for persons invited to work in the order of transfer from another employer as agreed between employers. An employment contract with such an employee is concluded from the first working day following the day of dismissal from the previous job (unless otherwise provided by agreement of the parties). By the way, according to Part 4 of Article 80 of the Labor Code of the Russian Federation, an employee who has submitted a letter of resignation of his own free will is not entitled to withdraw it if another employee is invited to his place (position) in the order of transfer from another employer in writing.

In addition to the cases directly indicated in Article 64 of the Labor Code of the Russian Federation, based on the provisions of the Labor Code of the Russian Federation, a number of situations can be distinguished when the employer does not have the right to refuse employment:

    by virtue of a court decision obliging the employer to conclude an employment contract (Articles 16, 391 of the Labor Code of the Russian Federation);

    in case of election (election) to the position of this person (Articles 16, 17 of the Labor Code of the Russian Federation);

Or is it still possible?

According to article 64 of the Labor Code of the Russian Federation, a refusal to hire is possible in cases where the employer:

  • referred to the condition stipulated by federal law,
  • He justified his refusal by the applicant's lack of the necessary business qualities.

Refusal with reference to the conditions provided for by federal law

We note which conditions can be referred to when refusing to conclude an employment contract:

    failure of a person entering a job to reach the age at which the conclusion of an employment contract is allowed (Article 63 of the Labor Code of the Russian Federation). By general rule, the conclusion of an employment contract is possible with an employee who has reached the age of 16 years. In some cases, an employment contract can be concluded in more early age(parts 2, 3, 4 of article 63 of the Labor Code of the Russian Federation);

    non-submission by a person entering a job of documents that, according to the Labor Code of the Russian Federation, must be provided when concluding an employment contract (Article 65 of the Labor Code of the Russian Federation);

    non-compliance of the category of the applicant due to physical or mental reasons with the nature of the proposed work. Thus, according to article 253 of the Labor Code of the Russian Federation, it is forbidden to hire women for work related to lifting and manually moving weights that exceed the maximum allowable norms for them. And Article 265 of the Labor Code of the Russian Federation defines jobs where it is prohibited to use the labor of persons under the age of 18;

    non-compliance by a person entering a job with the requirements established by the Labor Code of the Russian Federation. For example, the refusal of a minor from a mandatory medical examination when concluding an employment contract (Article 266 of the Labor Code of the Russian Federation);

    availability in work book a person entering a job, a record that, as a punishment, this person has been deprived of the right to occupy certain positions or engage in certain activities for a specified period (subparagraph “b”, part 1, article 44 and article 47 of the Criminal Code of the Russian Federation).

In addition, they are not allowed to pedagogical activity in educational institutions, persons to whom it is prohibited by a court verdict or for medical reasons, as well as persons who have an unexpunged or outstanding conviction for intentional grave and especially grave crimes (Article 53 of the Law of the Russian Federation of July 10, 1992 No. 3266-1 “On Education ").

for leadership positions in executive body management legal entity persons subjected to administrative punishment in the form of disqualification cannot be appointed (Article 3.11 of the Code of Administrative Offenses of the Russian Federation).

Certain restrictions on the conclusion of an employment contract are provided for by the Federal Law of the Russian Federation of May 27, 2003 No. 58-FZ “On the System public service Russian Federation". In particular, knowledge of the Russian (state) language is a prerequisite for employment in the civil service.

There are also a number of additional regulations that restrict hiring. For example, Decree of the Government of the Russian Federation of October 11, 2002 No. 755 approved the List of objects and organizations in which foreign citizens do not have the right to be employed. Decree of the Government of the Russian Federation of August 6, 1998 No. 892 defines a list of persons who are not allowed to work with narcotic drugs and psychotropic substances. Decree of the Government of the Russian Federation of April 28, 1993 No. 377 approved the List of medical psychiatric contraindications for implementation certain types professional activities and activities associated with a source of increased danger.

Refusal due to the business qualities of the employee

Assume that the applicant is not a good fit for your organization, and the reference to the conditions established by federal laws in this case is impossible, then the refusal to conclude an employment contract can only be due to the business qualities of the applicant for the vacancy.

The Labor Code of the Russian Federation does not establish what exactly refers to the business qualities of an employee. The definition of this concept is given in the resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004. Thus, the business qualities of an employee should be understood as the ability individual perform certain labor functions, taking into account his professional qualifications (for example, the presence of a certain profession, specialty, qualifications), personal qualities of the employee (for example, the state of health, the presence of a certain level of education, work experience in the specialty in this industry). If the court finds that the employer refused to hire due to circumstances related to the business qualities of the employee, then such a refusal will be justified

According to a number of experts, the definition of business qualities given in the resolution of the Plenum of the Armed Forces of the Russian Federation is not entirely successful, needs to be specified, and it is more expedient to establish only the criteria by which these qualities will be evaluated. However, it should be recognized that a rather broad definition of the concept of "business qualities of an employee" primarily serves the interests of the employer, and today law enforcement practice proceeds precisely from this definition.

You can get an idea of ​​the applicant's business qualities different ways. For example, a document on education contains information about professional knowledge, entries in a work book indicate practical work experience in a specialty, about previous work. In practice, other ways to get an idea of ​​the business qualities of an employee are common - testing, interviews, business games, etc.

In addition, the employer has the right to present to a person applying for a vacant position or job, and other requirements that are mandatory for concluding an employment contract by virtue of a direct prescription of federal law (for example, the presence of Russian citizenship, which is a prerequisite for admission to the civil service, unless otherwise provided for by an international treaty of the Russian Federation), or necessary in addition to typical or typical professional qualification requirements due to the specifics of a particular job (for example, possession of one or more foreign languages, computer skills).

One of the novelties of the Labor Code of the Russian Federation is a rule providing that, refusing to conclude an employment contract with a specific applicant, the employer is obliged to explain to him the reason for the refusal and, at the request of the applicant, state it in writing (Article 64 of the Labor Code of the Russian Federation). This norm is mandatory, therefore, any applicant who has applied to the employer has the right to demand a written explanation of the reasons for the refusal to conclude an employment contract with him, and the employer, in turn, if there is a specified requirement, is obliged to provide this explanation.

Job denial controversy

If, in the opinion of the applicant, the refusal to hire is unreasonable, he has the right to appeal against it in court (part 6 of article 64 of the Labor Code of the Russian Federation). Moreover, in accordance with Article 3 of the Labor Code of the Russian Federation, a person who believes that he was discriminated against when concluding an employment contract has the right to demand in court the elimination of discrimination against him, compensation for the damage caused and compensation for moral damage. Since the current legislation contains only an approximate list of reasons why an employer does not have the right to refuse to hire a person, job seeker, then the question of whether there was discrimination in the refusal to conclude an employment contract is decided in court when considering a specific case (paragraph 10 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004).

In accordance with Articles 381 and 391 of the Labor Code of the Russian Federation, an individual labor dispute on refusal to hire is considered directly in the courts and falls within the competence of justices of the peace, since a labor dispute between an employer and a person who has expressed a desire to conclude an employment contract is not a dispute on reinstatement, since it arises between the employer and the person who has expressed a desire to conclude an employment contract, and not between the employer and the person who previously had labor relations with him (clause 1 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).

According to Article 28 of the Code of Civil Procedure of the Russian Federation, a claim against an organization is brought at its location. And since the civil process is adversarial, the employee must prove the circumstances that are of legal significance for this dispute. But the employer, participating in the case as a defendant, also presents his objections. So, a citizen who applied to the court must prove that this refusal does not comply with the current labor legislation, and the employer must prove the legality of the refusal to hire, in particular, that the applicant’s business qualities do not meet the employer’s requirements for candidates applying for this vacancy.

Since the conclusion of an employment contract with a specific person is the right, and not the obligation of the employer, and the employer does not have to immediately fill vacant positions, the Plenum of the Supreme Court of the Russian Federation clarified that, when considering cases of refusal to hire, the courts need to check whether the employer made an offer about available vacancies (for example, a message about vacancies was submitted to the employment service, placed in a newspaper, announced on the radio, announced during a speech to graduates educational institutions, posted on the bulletin board), whether there were negotiations for employment with this person and on what grounds was he refused to conclude an employment contract(Clause 10 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004).

Thus, even if the vacancy announcement was brought to potential applicants by all possible ways, the main thing is to correctly formulate the basis for refusing to hire.

Although the employee is vested with the right to appeal in court unreasonable, in his opinion, refusal to hire, labor legislation does not provide for a specific legal mechanism for the implementation of this right. For example, the legal consequences of recognizing the refusal to conclude an employment contract as unreasonable have not been established.

There are different points of view as to what the court's decision on the claims of employees can be. A number of experts believe that in the case of a proven case of unreasonable refusal to conclude an employment contract, the court makes a decision obliging the employer to conclude an employment contract with the employee from the date of applying for work. According to another point of view, the Labor Code of the Russian Federation does not contain relevant norms, and the rules obliging the employer to conclude an employment contract contradict the principle of freedom of an employment contract.

At the same time, according to the clarifications given in the resolution of the Plenum of the Supreme Court of the Russian Federation of December 19, 2003 No. 23 “On the Judgment”, the operative part of the decision should clearly state what exactly the court ruled on the claim, as well as what specific actions should produce the defendant (in our case, the employer) in order to restore the violated rights of the plaintiff (a person who was illegally denied employment).

The decision of the justice of the peace to satisfy the requirements for concluding an employment contract, stated by the plaintiff, is the basis for the emergence of labor relations (part 2 of article 16 of the Labor Code of the Russian Federation). If the claim is satisfied, the judge recognizes the refusal to conclude an employment contract as unreasonable (illegal), obliges the employer to conclude an employment contract with registration of employment in the manner prescribed by Art. 68 of the Labor Code of the Russian Federation. In particular, it is indicated from what date the employee should start work.

It should be borne in mind that when considering disputes about the refusal of employment, the advantage is on the side of the employer. This is due to a number of factors:

    a broad definition of the employee's business qualities, which makes it possible to argue the reason for the refusal by their absence;

    the lack of fixing in the current labor legislation of a clear procedure for applying for jobseekers for employment, the procedure for registering and reviewing documents on concluding an employment contract, the procedure for making a decision on concluding a contract.

For example, considering that the state of his health is also attributed to the business qualities of an employee, if there is evidence chronic diseases, undergoing periodic treatment, disability, the courts do not make a decision on the forced conclusion of an employment contract with an employee.

In his statement of claim an employee can make a claim such as payment of time forced absenteeism. But the Labor Code of the Russian Federation provides for satisfaction monetary claims only illegally dismissed workers or transferred to another job. And since this person did not have an employment relationship with the employer before the date the employment contract came into force, there are no legal grounds for paying a period of time to a person who was illegally refused to conclude an employment contract with him.

Disputes about unjustified refusal to hire must be distinguished from those cases when the employment contract was not executed in the proper manner, and the employee has already started work. So, in accordance with Article 16 of the Labor Code of the Russian Federation, in the case when the employment contract was not properly executed, labor Relations between the employee and the employer arise on the basis of actual assumption employee to work with the knowledge or on behalf of the employer or his representative. When an employee is actually admitted to work, the employer is obliged to draw up an employment contract with him in writing no later than three working days from the date of the actual admission to work (Article 67 of the Labor Code of the Russian Federation).

Responsibility of the employer for unjustified refusal to hire

Persons guilty of unreasonable refusal to conclude an employment contract may be subject to disciplinary, administrative and criminal liability. In particular, the employer may apply the following to guilty officials: disciplinary action: remark, reprimand, dismissal (Article 192 of the Labor Code of the Russian Federation).

In addition, according to article 5.27 of the Code of Administrative Offenses of the Russian Federation, violation of labor and labor protection legislation entails the imposition of an administrative fine on officials in the amount of up to 5,000 rubles. Repeated commission of this violation by a person who was previously subjected to administrative punishment for a similar administrative offense entails disqualification for a period of one to three years.

Thus, there is no really serious liability for an unjustified refusal to hire. An exception is the refusal to conclude an employment contract with a pregnant woman and a woman with children under the age of 3 years. In accordance with article 145 of the Criminal Code of the Russian Federation, officials with the right to hire and dismiss from work can be held criminally liable for unjustified refusal to conclude an employment contract with a pregnant woman and a woman with children under the age of 3 years. They may be fined up to 200 thousand rubles. or in size wages or other income of the convicted person for a period of up to 18 months, or in the form of compulsory works for a period of 120 to 180 hours.

* * *

As can be seen, the freedom of the employer in concluding an employment contract with the applicant for a vacant workplace somewhat limited. But at the same time, there is also no legal obligation to hire any applicant. The golden mean in this case is the legitimate behavior of the employer, which consists in observing the norms of labor legislation aimed at preventing unreasonable refusal to conclude an employment contract. When refusing to hire, it is necessary to inform the reason for the refusal, justify your refusal by the lack of necessary business qualities of the applicant or their inconsistency with the characteristics of the vacant position, and if the applicant has a corresponding request, give him a written explanation of the reason for the refusal. Compliance with these rules will reduce the likelihood of possible disputes about the legality of refusal to hire.

1 See the article by E.N. Niko-laeva “Alternatives of personnel search” on page 92 of the magazine No. 8` 2007


Often, after going through a whole range of interviews and tests when applying for a job, the applicant, even with very high level qualifications and clearly suitable for a vacant position, you have to hear “We will call you back” or immediately “You are not suitable for us”.

This is due to some points that applicants do not take into account when providing information about themselves in interviews with HR managers. recruitment agencies or companies.

Let's define most common reasons for job denial specialists formally suitable for the declared vacancy.

1. Refusal may follow after answering the traditional question about salary expectations. An applicant is unambiguously screened out at this stage if, with a low level of qualification, amount of knowledge and skills, he requires a clearly overestimated level of payment. It is also alarming when a very highly qualified specialist agrees to work with a low level of profitability. In this case, the first reaction will be such that the applicant hid essential information about himself, exaggerated the level of his competence, and all his data should be carefully checked. Even if it doesn't show up visible reasons any “blemish” of the candidate, then when deciding whether to select him for a vacant position, they are still guided by the assumption that working in a lower position or with a lower level of pay than the candidate worked before is a temporary forced stage of his life and will soon time he will try to change it. Thus, the first reason for refusal is inadequate salary expectations and the willingness to take a position at a lower level than the candidate previously held.

In the case of clearly inflated salary requirements, you can prepare a serious justification for this approach, at the same time indicate that you are ready to revise the required level of payment, depending on certain conditions. And maybe they will hear you. For example, in the region, the salary in your specialty varies from 20-30 thousand rubles, and you require 60 thousand rubles. Naturally, no one will offer you such an amount, and with your application you will immediately cross yourself out of the list of candidates, especially if your professional data is below the level of those candidates who agree to work at a standard salary level. You will show yourself as a specialist who is not able to adequately evaluate himself. What should be emphasized in your justification: on your uniqueness in a professional approach (for example, everyone works according to a template, and you are an innovator who comprehensively investigates the problem, developing your own methodology; You have the ability to solve any problems as painlessly as possible for the company and in the shortest possible time deadlines, for this you have a serious baggage of useful contacts, you have “connections” in various business-important structures, you have knowledge and experience in the technology of compiling various documents, including the courts; You have additional skills that you are ready to actively use for the benefit of the company (for example, you understand computer hardware, you can independently build local network, eliminate PC-related emergencies or write talented texts that can be used for advertising purposes or for articles on the corporate portal; know a foreign language; you can fix the car)), proactive attitude (state that everyone else will just work their 8 hours, but you are rooting for the cause and are ready to devote all your time to it), state that “You know what you can give the company for this money” and that this is far from comparable to what an employer will receive from a simple hired employee who will monotonously perform his functional duties day after day, let me feel your indispensability. In practice, it often turns out that a specialist with 30 years of experience and higher education, with large quantity certificates knows and can do much less than a university graduate who has worked for 2 years, and as a result, total mistakes are often made in the selection according to formal requirements.

If you agree to a lower level of pay and to a lower position than you previously held and you really have a strong motivation to take this vacant position, then it is in your interests to disclose the subject of your motivation at the interview and convince you that it is for You is very strong. Example: You worked as the chief accountant of a holding and suddenly apply for the position of an accountant in one person of a company - a small business entity. Disturbing? Yes. How to explain? Work in a large holding implies the presence of the most difficult accounting situations, holdings have separate divisions in the country, reports on which are submitted, including at their location, all this is a huge amount of document flow and involves constant checks of various levels, as well as a very high level of responsibility of the chief accountant (tax, administrative, criminal), which leads to a state of constant tension and chronic stress, to a life of work only. Say that working in the holding was a stage in your life that you had to go through, and now you have consciously come to the desire to rebuild your life, devote more time to your family, enter a quiet life by moving to work in a small company, and the proposed level of payment in this company is sufficient for you to provide for yourself and support your family.

2. As common causes refusal is also called the presence of the applicant underqualification or overqualification

3. Poor preparation for the interview and improper behavior of the applicant

This may include ignorance of the vacancy, unwillingness to answer standard questions (reason for looking for a job, etc.), dismissive attitude, tactlessness, lack of loyalty to the former employer, unsuitable appearance etc.

4. False information on resume

In this case, there is only one advice: always provide reliable data, since information about you is not so difficult to verify

5.The factor of personal perception very difficult to overcome.

6. Lack of motivation

If at the interview you demonstrate insufficient motivation to take a vacant position, then even if you are ideally suited according to the formal requirements, you will most likely be refused.

Do not show a dismissive attitude, the behavior of “came by chance”, “I don’t know, maybe I can try.” Demonstrate your interest in the vacancy, your knowledge of the company, if possible. Ask questions about the company, position, working conditions. Tell us what attracted you to the job offer. Show willingness to cooperate.

Recommendations can be received not only from the persons whom you indicate during the interview and who will initially speak in a positive way, but also from other employees of the company where you worked, including the manager, so it is not uncommon for the recommendations to be negative.

Usually, this reason is not indicated as a reason for refusal, which reduces your chances of counteracting the negative, but if you are nevertheless informed about this, then your main actions should be aimed at describing the situation in connection with which the interviewed respondents were biased in regarding you. For example, if you leave the company of your own free will, say, because you are looking for a job with a higher level of pay, then when you call your former employer for your reference, it is unlikely that anyone will hear that you were a good employee; an order for such recalls may be given to other employees of the company. And in the end, you were undeservedly denigrated and all the doors are closed to you. And by the way, this is the most common situation.

In this regard, we believe that the technology for selecting candidates based on recommendations is not only outdated, but also absurd and inefficient. For example, who should recommend a top manager? His subordinates? This is not only ridiculous, but also humiliating for the candidate. Nevertheless, this practice is still continued by desks that consider themselves geniuses of the hr-industry, while missing out on really valuable and worthy candidates. However, we should pay tribute to the fact that there are not so few and progressively thinking, really professional staffing / recruiting agencies that have long ceased to base the selection of candidates on this approach.

In case of unjustified refusal to hire We recommend asking your employer written explanation of the reasons for refusal and seek protection of their rights in court.

There are great chances to win the case if a candidate with a lower professional level than yours ( less experience, skills, there is no relevant education or the level of education is lower (for example, you have a university, and the person hired has only a college)). Sample Application for Clarification of the Reasons for Rejection of Employment of a Suitable Candidate cm. .

More materials:

Judicial practice testifies to frequent cases of refusals to hire an applicant for reasons not related to his official qualities. A rejected applicant may apply to the court (part 6 of article 64 of the Labor Code). This may be fraught with administrative, and in some situations - criminal liability imposed on the employer. Therefore, it is necessary to use the correct wording when writing a refusal, excluding the possibility of turning them against the employer.

Turning to the employer with a claim for the recognition of illegal refusal to hire in accordance with Art. 56 Code of Civil Procedure of the Russian Federation, the employee must prove that the fact of applying to the employer on the issue of employment actually took place.

This can be confirmed by a written application to the employer for employment, a statement explaining the reasons for refusal to hire, other acceptable and reliable evidence.

In light of this, it is worth considering the preparation of job descriptions more carefully, taking care of more full description they include skills, education, length of service and, possibly, any additional knowledge required for a particular position. It is to this document that a recruiter can subsequently refer, making up a reasoned refusal to an applicant who does not meet the specified requirements.

Wrong Reasons for Rejection

A direct violation of the current legislation (part 2 of article 64 of the Labor Code) will be the selection of applicants according to the following criteria:

  • sex, age, nationality;
  • the place of permanent or temporary registration, as well as, in fact, its presence;
  • marital status(lack of small children);
  • social status;
  • degree of material security;
  • the presence of influential relatives;
  • religious beliefs;
  • belonging to any public organizations;
  • the absence of HIV infection (Article 17 of the Federal Law No. 38 of 30.03.95).

From this it is clear that the requirements for the age and registration of the applicant, which have already become standard, are usually indicated in the announcements, contradict the Post. No. 2 and Art. 64 TK. In addition, the legislation punishes the refusal to provide a job to the following applicants:

  1. Women carrying a child (part 3 of article 64 of the Labor Code).
  2. People with disabilities who are referred to an enterprise in accordance with established quotas (clauses 1, 2, article 13 of Regulation No. 1032-1 of 04/19/91; article 16 of the Labor Code).
  3. Finalists of the competitive selection for an open vacancy (Articles 16, 18, 332 of the Labor Code).
  4. Specialists who have received a written invitation to take the specified position, within a month from the date of termination of the contract with the previous employer (part 4 of article 64 of the Labor Code).
  5. Employees in whose favor a court decision was made to admit them to the organization (Articles 16, 391 of the Labor Code).

Also, the court may consider illegal and other motives that led to the rejection of the applicant.

About what are the reasons for refusing to hire, see the video

Situations in which refusal is in accordance with the law

To put it simply, there are two possible ways to refuse a candidate for a job without violating the law:

  1. In relation to persons prohibited from being hired for certain types of work.
  2. In case of non-compliance of the applicant with the requirements established by the desired position.

When refusal is prescribed by law

Additional Information

Please note that the requirements so often found in job advertisements regarding the age of the employee, as well as the presence of permanent or temporary registration in the city where the vacancy is open, are discriminatory reasons (Article 64 of the Labor Code of the Russian Federation; Decree No. 2) .

Responsibility may arise not only for an unreasonable refusal, but also for hiring a certain category of applicants. Therefore, the screening of unsuitable candidates should begin not even with an assessment and comparison of their business qualities, but from the point of view of belonging to the list of banned persons. The most common ones are:

  1. Persons under the age of 16. It is allowed to hire for positions that require the performance of simple duties that do not harm health and fall on free time from study, if this does not lead to a deterioration in academic performance (Articles 63, 348.8 of the Labor Code; paragraphs 2, 3, 4, paragraph 6 of Resolution No. 1 dated 01/28/14).
  2. Applicants under the age of eighteen. It is allowed to conclude an employment contract with them only after passing a medical examination (Articles 69, 266 of the Labor Code).
    Cannot be attracted to labor activity:
    • combined with another position (part 5 of article 282 of the Labor Code);
    • according to the shift schedule (Article 298 of the Labor Code);
    • underground;
    • characterized by increased risk;
    • consisting in the transfer and movement of goods, the weight of which exceeds the established boundaries (Article 265 of the Labor Code);
    • providing access to drugs, psychotropic substances and precursors (clause 4 of Resolution No. 892 of 08/06/98);
    • harmful to physical and moral health - in:
      • nightclubs;
      • establishments with slot machines and gambling;
      • organizations producing or selling goods containing alcohol, nicotine, toxic substances, erotic materials;
    • consisting in the use of money and valuable property, for which the employee is responsible in accordance with the concluded agreement (part 1 of article 244 of the Labor Code).
  3. Women. It is unacceptable to hire:
    • where you need to manually lift and carry heavy objects, the weight of which is beyond the permitted limits (part 2 of article 253 of the Labor Code; Resolution No. 105 of February 6, 1993);
    • underground - in relation to physical labor, excluding cleaning duties (part 1 of article 253 of the Labor Code; Resolution No. 162 of February 25, 2000)

There are cases when employment is guaranteed by law and the employer cannot refuse to hire an applicant and conclude an employment contract. Such situations include:

  • an invitation in the order of transfer from another employer (part 4 of article 64 of the Labor Code of the Russian Federation);
  • assignment to work at the expense of the established quota of jobs (Article 13 of the Law of April 19, 1991 No. 1032-1 “On Employment in the Russian Federation”);
  • election to a position (Articles 16, 17 of the Labor Code of the Russian Federation);
  • election by competition to fill the relevant position (Articles 16, 18, 332 of the Labor Code of the Russian Federation).

Job inconsistency

According to Decree No. 2 of March 17, 2004, the employer has the right, when choosing a candidate, to be guided by the interests of the company, the goals of increasing the quality and productivity of labor. In this regard, the following reasons can serve as grounds for refusal:

  1. The applicant does not have sufficient qualifications and work experience in this field, specified in the job description, there are medical contraindications (clause 10 of Resolution No. 2).
  2. Applicant does not respond additional requirements presented by the desired position, such as: knowledge of computer programs, knowledge of foreign languages ​​and others (Resolution No. 2).
  3. The company gave preference to another applicant and the vacancy was filled. In the absence of a job description in the organization, the employer may refer to Qualification guide No. 37 of August 21, 1998 or other similar documents.

Details on how to refuse a job are described in the video

How to write a waiver

The waiver must be written on company letterhead and signed by the director. The head of the personnel department, hiring specialist or other official receives the right to sign this document if such authority was specified in the job description or transferred to them in accordance with the director's order. The standard form of the document is not established and is left to the discretion of the employer. The waiver must contain:

  1. Name and address of the organization.
  2. Reasons for refusal, supported by the articles of the law, job description or other reasons, consisting in unsatisfactory test results or the absence of vacancies.

It is advisable to draw up a document according to the following plan:

  1. Express gratitude for participating in the interview.
  2. Carefully formulate the reasons for the rejection of the applicant's candidacy.
  3. Wish the candidate further self-improvement and successful interviewing in the future.

fines

The need to draw up a written refusal arises when an unhired applicant who does not agree with the decision of the employer sends him a letter by mail asking him to explain the reason. Since July 11, 2015, it has become impossible to ignore such a request due to the entry into force of the amendment made to Part 5 of Art. 64 of the Labor Code in accordance with Federal Law No. 200 of June 29, 2015. If after a week the unsuccessful applicant does not wait for an answer, the refusal will be considered unreasonable and the employer will face various kinds of penalties.

Penalties for illegal refusal.

Administrative

Criminal

If you have any questions regarding the refusal of a candidate for employment, leave in the comments

When refusing to accept a job, the employer must be prepared to provide a reasoned response containing the reasons for such refusal and the rationale for the impossibility of hiring the applicant for the position. Labor Code The Russian Federation, while giving the employer freedom in personnel decisions, at the same time severely limits the latter in the legal grounds for refusing a candidate. The right to refuse can be based only on the business qualities of the applicant, as well as the legal requirements for the candidate and the work performed (part 2 of article 64 of the Labor Code of the Russian Federation). In no way should the reasons for refusal be discriminatory by sex, age, religion, the presence of children, etc.

Employer refusal to hire

Law enforcement practice has formulated a legal approach to solving the personnel issue - independently and under one's own responsibility. Therefore, for the employer, the conclusion of an employment contract is a right, not an obligation (part 2, clause 10 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2).

Based on this, the employer has the right and may refuse to employ the applicant. The reasons may be different, but they are all united by the inconsistency of the candidate in terms of business qualities with the requirements that the organization imposes on the future employee. Such reasons may be the inability of the candidate to perform certain work due to the education and / or specialty received, work experience, for health reasons (part 6, clause 10 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2).

For the applicant, this means that in case of disagreement with the reasons for the refusal, if the court finds that the employer refused to hire for reasons related to business qualities, such a refusal is recognized as justified and the court refuses to satisfy the applicant's claims. claims.

In this regard, in order to minimize the occurrence of disputes between the applicant and the employer and to prevent discrimination of candidates, the HR employee needs to specify detailed qualification requirements for the position, the level of education of the candidate, his experience, etc. in the vacancy announcement.

A candidate's lack of merit is not the only legitimate reason for refusing a job. Denial of employment will be lawful and motivated:

  • if the employer is not presented with the documents required for employment in accordance with the list in Art. 65 of the Labor Code of the Russian Federation;
  • if the candidate has not reached the age to start working (Article 63 of the Labor Code of the Russian Federation);
  • if a vacancy with a shift work mode is submitted by a woman with children under the age of three (or a pregnant woman), or by a person who has contraindications to work, or by a person under 18 years of age (part 5 of article 282, article 298 of the Labor Code of the Russian Federation);
  • it will be legal to refuse a woman in case of employment for work related to lifting and manually moving weights that exceed the maximum allowable norms for her (part 2 of article 253 of the Labor Code of the Russian Federation);
  • for work related to the direct maintenance / use of monetary, commodity values ​​and requiring the conclusion of an agreement on full liability, a person under the age of 18 cannot be accepted (part 1 of article 244 of the Labor Code of the Russian Federation);
  • on other grounds expressly provided by law.
  • by sex, age, property or marital status, religion, nationality, the presence or absence of registration at the place of residence, the presence of children or pregnancy, etc. All these motives are united by a sign of discrimination against a candidate (parts 2 and 3 of article 64 of the Labor Code of the Russian Federation);
  • refusal to an employee invited by way of transfer (part 4 of article 64 of the Labor Code of the Russian Federation);
  • non-execution of a court decision that has entered into legal force, obliging the employer to conclude an employment contract with the candidate (paragraph 6, part 2, article 16, article 391 of the Labor Code of the Russian Federation);
  • on other grounds provided by law.

This list of reasons is not exhaustive. For the applicant, this means that in case of disagreement with the reasons for the refusal, he has the right to go to court. In this case, the court is obliged to investigate and evaluate the compliance of the refusal with the law and the presence or absence of discriminatory grounds (

When applying to an employer for employment, a citizen must be prepared to refuse. The reasons for refusal to hire are related to the lack of the required business qualities of the candidate. The age criterion, the presence of a criminal record, the state of health are taken into account.

Discrimination is not allowed on a number of grounds: gender, race, language, nationality, belonging to social groups, political parties, social movements. The Labor Code expressly states a ban on refusing to work due to the lack of permanent and temporary registration.

The main reasons for refusing a job

The reasons may be related to the lack of the necessary practical skills of the employee. The criteria are explained by the Supreme Court of the Russian Federation in Decree No. 2 of March 17, 2004. Business qualities provide for the ability of a person to perform work functions. The following professional qualifications are taken into account:

  • presence of a profession, specialty and work experience;
  • required level of education;
  • health status;
  • sociability, resistance to stressful situations;

The requirements for the business qualities of an employee are authorized to be established by the employer, in compliance with the norms of labor legislation. The head of the company has the right to set conditions - so that the employee is technically literate: he owns office equipment, knows how to work with computer programs He was fluent in foreign languages.

For educators, there are criteria, inconsistency with which excludes the possibility of a career in an educational institution. They are listed in Art. 331 of the Labor Code of the Russian Federation. Future teachers are prohibited from having a criminal record or being previously convicted of grave and especially grave crimes. They must have a pedagogical education. If it is impossible to comply with the requirements of the norms of the Labor Code, a citizen is denied employment on a legal basis.

The list of documents required for concluding an employment contract is specified in Art. 65 of the Labor Code of the Russian Federation. If the applicant does not have a valid Russian passport, insurance certificate, document of education or qualifications, it will be the reason for refusal to work.

It can also be refused if the work for harmful conditions addressed by a woman. The ban on certain professions is contained in Government Decree No. 162 of February 25, 2000. The impossibility of getting a job is explained by the inadmissibility of significant physical exertion on the woman's body, the need to preserve her reproductive system.

Lack of work experience is not considered a discriminatory ground. The employer has the right to require that the employee has a well-established practice of performing a labor function. The conclusion of an employment contract is considered a right, not an obligation of the employer. Exceptions are allowed if employment is mandatory by court order.

A minor and a woman who wants to get a job on a rotational basis can be denied employment if there is a child under the age of three.

You can not refuse to work if the employee practically performs job function. At the request of the employee, such relations may be recognized by the court as labor relations. employment contract a civil law contract is recognized - when the requirements for this are declared in court and the transaction contains signs of employment and personal labor.

Illegal Reasons for Denying a Job

The employer strives to ensure that the employee is competent and suitable for the job on the basis of personal qualities. If a person was unpleasant to him during the interview, then the vacancy is denied, despite the high professional level. The problem lies in the fact that an employer can bring illegal reasons (hidden discrimination) under formal legal criteria, which are specified in the Labor Code of the Russian Federation and other regulations.

Hidden discrimination in work is surmountable, but it will take time to prove it. A job applicant may apply labor inspection, including sending documents through it if it wants to recognize relations under a civil law contract as labor.

Illegal reasons for not hiring are common for employees with any qualification or when a vacancy is highly competitive and the employer is driven by personal motives in giving preference to one or another candidate. The factor of personal discretion of the management of the organization is essential in the question.

At the request of the applicant, a denial of admission to a vacant position must be provided in writing, within seven days after the request is made. Failure to comply with this rule will result in administrative penalty under Art. 5. 27 of the Code of Administrative Offenses of the Russian Federation. Disagreements are resolved in court. State duty for labor disputes from the plaintiff - an individual is not charged.

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