The maximum period of probation when concluding an employment contract. Video: dismissal if the probationary period is not passed. Dismissal on probation

These days, the process of recruiting and hiring new employees in an organization is very time consuming. A candidate for a vacancy is interviewed, which is often very difficult psychologically. In addition, an interview can be set up by the employer more than once, and a person has to go through it in several stages. All this does not give a 100% guarantee that the employee will be suitable, therefore, in many organizations, a probationary period is established for new employees according to the labor code. The conditions of the probationary period are stipulated in Articles 70 and 71 of the Labor Code of the Russian Federation.

Why is this measure needed?

A probationary period is established for checking workers according to the Labor Code

Many are interested in why the probationary period is established. This is done to determine if a the new employee to fulfill the duties assigned to him. The duration of the trial is determined by the internal requirements of the company, but the period for non-management positions cannot be longer than three months.

An employee test allows the employer to assess the professional capabilities of a new employee, and in case of unsatisfactory work, terminate the contract with him.

Who determines hiring on special grounds?

The question of who sets the probationary period is decided by the direct management of the company and is agreed with the hiring department. Together, the management structures of the company decide on the advisability of establishing a trial period, the period of its validity, and the conditions for its termination.

The company's management conducts a test check of the candidate in order to identify his suitability for the position held. In this case, the following must be taken into account:

Probation is established only for those employees who are re-employed. It cannot be established for those employees who already work in this company, but are transferred to another position and to another department, even to a higher position.
Even before the employee starts to perform duties, he must be notified of the test period. An employment contract must be concluded with the employee in writing, containing its conditions in the column on the probationary period. Terms can also be formalized in a separate agreement. If the probationary period is not formalized by an official document, then the conditions for its fulfillment have no legal force.
The presence of a probationary period must be indicated not only in the employment contract, but also in the order for employment.
The employee is obliged to confirm with his signature the fact of familiarization with the documents, while it is not necessary to put a mark on the assignment of a probationary period in the work book.
In accordance with the Labor Code of the Russian Federation, a probationary period is negotiated between both parties. A mark of mutual expression of will in the employment contract is mandatory. If the condition for testing an employee is spelled out only in the order that the employee is accepted, then this is already a violation of human labor rights law. In this case, the conditions of the probationary period have no legal basis, and therefore are invalid.
If there is no information about the probationary period in the employment contract, and the employee is already admitted to work, it means that he was accepted without a trial.
It is prohibited by law to extend the term of probation, which is specified in the employment contract. However, the days when the employee was absent due to illness are not included in the probationary period.
After the expiration of the probationary period, if the employee remains in place, he is considered accepted into the organization's staff.
The employer can dismiss the employee before the end of the probationary period, notifying him of this in writing 3 days in advance, indicating the reason for the dismissal. The latter can challenge the employer's decision in court.

When hiring an employee, they must be sure to familiarize themselves with all regulatory documents enterprise and its main job responsibilities. The employee must certify the acquaintance with the documents with a signature. During the probationary period, the employer may realize that the employee is not suitable for the position. Then the fact that the employee knew what duties were assigned to him, but did not cope with them, will be the reason for the employee's dismissal as not passing the test.

A separate issue is a fixed-term contract

The probationary period is established only for new employees

Employers and applicants are interested in whether it is possible to establish a probationary period for admission under a fixed-term contract, because such a contract already contains a certain time period. Yes, the employer can establish a probationary period for an employee who signs a fixed-term contract. If the contract is drawn up for a period of two to six months, then the test period cannot be longer than 2 weeks.

Who is not accepted on probation?

The probationary period is not established for the following categories of persons:

employees who were elected to the position through competitive selection)
women at any stage of pregnancy, as well as mothers of children under the age of one and a half years)
minor citizens under the age of 18)
persons who have received higher or secondary special education under the state accreditation program (this privilege applies to them within 1 year from the date of receiving a diploma of the relevant education))
persons elected to an elective position for a paid job)
employees who entered the position by transfer from another employer, if there was agreement between the employers)
hired for up to two months.

In all of the above cases, a probationary period cannot be established.

If an employee in the process of performing his official duties comes to the conclusion that this work or the organization does not suit him, he has the right to terminate the employment contract without waiting for the end of the probation period. The employee must notify the employer about this in writing 3 days before the expected date of dismissal. The reason for dismissal in this case is the desire of the employee himself. The employer has no right to interfere with this and is obliged to timely pay the employee.

What is important to remember

According to the Labor Code in 2013, an employee on a probationary period has the same rights as his full-time colleagues.

Therefore, such facts of infringement of the rights of an employee as a decrease in wages, a decrease in the level of bonuses and others are a violation of legislative labor standards.

The probationary period is included in the length of service. During the period of an employee's disability, social benefits apply to him, as well as to other employees. For extracurricular work, he also receives an additional payment.

Did you pass the test?

There are a number of reasons why a probationary period cannot be set.

Employers do not seek to accept those employees who are often sick or ask for time off, so they often fire them at the end of the probationary period, citing the fact that the employee did not cope with his direct labor duties. Evidence confirming that the employee is successfully coping with his labor duties will help not to find himself in such a situation. It is better to collect them right away, from the first working day.

On the first day of work, the employee must receive from the employer job description.
If in the process of work certain difficulties arise through no fault of the employee, he must notify his immediate supervisor about this with a memo.
If in the process of work the employee did not receive disciplinary sanctions, then this characterizes him as an employee coping with his official duties.
If, nevertheless, the employer has good reason to fire an employee who is not coping with his duties, he cannot do this during the absence of the employee from the workplace due to illness or other good reason, including during vacation. If this happens, the employee has the right to go to court, and the decision (if there is evidence) will be made in his favor.

Many employees, due to ignorance of their rights and responsibilities, can lose not only time, but also promising work. Knowing his rights, the employee can always appeal this in the process of resolving difficult situations that have arisen in relations with the employer. In cases where there are violations of labor legislation by the employer or employee, you need to contact the appropriate authorities.

A. Polyanina, Leading Legal Counsel of the Sberbank of the Russian Federation Branch, Post-Graduate Student of the RSSU

Job search, like the search for a suitable employee by a company, is a long and complex process that requires a responsible approach from potential employers and employees. Choosing the right place to work and hiring qualified personnel involves a certain amount of risk on both sides. The possibility of establishing a probationary period regulated by labor legislation is designed to help the employer determine how the new employee meets the requirements set by the company, and the employee, in turn, to assess the compliance of the proposed job with his interests and expectations and, if the result is negative, to quit, warning the employer three days in advance, and not in two weeks as a general rule.

Therefore, in order to avoid confusion, it is especially important to consider the establishment of a probationary period only as a right for both the employer and the employee. The exercise of this right is associated with large quantity mandatory formalities, legal subtleties, as well as not entirely accurate wording of the law itself. So, it would be advisable to indicate in the Labor Code article not only the verification of the employee's compliance with the assigned work, but also the compliance of the “work” with the employee's requirements as the main purpose of establishing the probationary period.

Views on the application of probation have changed relatively little since Soviet law. The timing of the test has been changed; the circle of persons who are not subject to the establishment of a probationary period for them. A novelty of the Labor Code of the Russian Federation is the right of an employee during the trial period to terminate an employment contract under on their own with the employer's warning three days in advance. According to Soviet labor legislation (which was in force from 1971 to 2002 with the Labor Code), a probationary period is a test of the compliance of a worker or employee with the work entrusted to him, stipulated by the agreement of the parties upon concluding employment contract... The trial period could not exceed 1 week for workers, 2 weeks for employees (except for responsible employees) and 1 month for responsible employees.

When hiring workers subject to certification in research, design, engineering, technological organizations and research departments of universities, a trial can be established for up to 3 months, and in some cases - up to 6 months. The Labor Code excluded the establishment of a test, along with other categories of citizens, also for persons with disabilities. Patriotic War directed to work at the expense of special armor. The sole purpose of the hiring test was to determine compliance vocational training and the employee's business qualities to the requirements of the position.

Meanwhile, the provisions of modern labor legislation on testing during hiring are fraught with many uncertainties, problems and barely visible nuances. The establishment, passing and the results of passing the probationary period require not only competent registration from the employer, but also considerable legal awareness of the hiring employee in order to prevent the use of his labor for selfish purposes. This, of course, requires a careful reading of the relevant articles of the Labor Code.

Article 70. Probation for employment

When concluding an employment contract, by agreement of the parties, a condition may be provided for testing the employee in order to verify his compliance with the assigned work.

The absence of a test condition in the employment contract means that the employee was hired without a test. In the event that an employee is actually admitted to work without drawing up an employment contract (part two of Article 67 of this Code), a test condition may be included in the employment contract only if the parties have drawn up it in the form of a separate agreement before starting work.

During the trial period, the employee is subject to the provisions of labor legislation and other regulatory legal acts containing norms labor law, collective agreement, agreements, local regulations.
A test at hiring is not established for:
- persons selected through a competition to fill the relevant 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 graduated from educational institutions of primary, secondary and higher vocational education with state accreditation and are entering work for the first time in their specialty within one year from the date of graduation from an educational institution;
- persons elected to an elective position for a paid job;
- persons invited to work by transfer from another employer as agreed between employers;
- persons entering into an employment contract for up to two months;
- other persons in the cases provided for by this Code, other federal laws, collective agreement.

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

When concluding an employment contract for a period of two to six months, the trial cannot exceed two weeks.
The period of temporary disability of the employee and other periods when he was actually absent from work are not included in the trial period.

Article 71. The result of the test when hiring
If the test result is unsatisfactory, the employer has the right to terminate the employment contract with the employee before the expiration of the test period, notifying him of this in writing not later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as having failed the test. The employee has the right to appeal against the employer's decision in court.

(as amended by the Federal Law of June 30, 2006 No. 90-FZ)
If the test result is unsatisfactory, the termination of the employment contract is carried out without taking into account the opinion of the relevant trade union body and without payment of severance pay.

If the test period has expired, and the employee continues to work, then he is considered to have passed the test, and the subsequent termination of the employment contract is allowed only on a general basis.

If, during the trial period, the employee comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract at his own request, notifying the employer about this in writing three days in advance.

Among the obvious, understandable and familiar to any personnel officer of the provisions of the law regarding the probationary period, the following stand out.

First, the test is established only by agreement of the parties with mandatory inclusion into the text of the employment contract. Secondly, this period should not exceed three months. An exception was made only for the heads of organizations, chief accountants and their deputies, as well as for the heads of branches, representative offices and other separate structural divisions. The test of the business and professional qualities of these workers can last up to six months. In some cases, a long probationary period is established, in particular for civil servants (Federal Law of July 27, 2004 No. 79-FZ "On State Civil Service Russian Federation"States that for a citizen first hired for a public office, including as a result of a competition of documents, or for a civil servant when transferring to a public office of another group or other specialization, the test is established for a period of 3 to 6 months, that is, at least 3 and no more than 6 months).

Thirdly, there is a circle of persons to whom the employer does not even have the right to offer a probationary period. These are pregnant women, women with children under one and a half years old, persons under the age of 18, employees invited to work by transfer from another employer, as well as young specialists who first come to work in their specialty within one year from the date of graduation from the educational institutions, persons elected through a competition for filling the relevant position held in the manner prescribed by labor legislation and other regulatory legal acts containing labor law norms, persons who have entered into an employment contract for a period of up to two months. Fourthly, if the professional qualities of the employee turn out to be unsatisfactory, the organization has the right, with three days' notice, to terminate the employment contract with him without taking into account the opinion of the trade union and without paying severance pay. Fifth, periods of absence, including vacation, temporary disability and others, are not included in the trial period.

However, not everyone who is in one way or another affected by the rules on the probationary period delves into their understanding. There are some difficulties in the application of these norms in practice, which leads to the emergence of conflict situations... It is imperative to pay attention to the moments that are often hidden from “non-professional” eyes.

1. It is known that a probationary period can be established only upon mutual expression of will, therefore, the most important circumstance should be the consent of the employer and the employee when concluding an agreement on a probationary period or an employment contract, which stipulates the conditions for passing the probationary period. The inclusion of the probationary provisions in the hiring order does not in any way cancel, but supplement the employment contract or the probationary agreement. But at the same time, the absence in the order (order) for employment of an indication of the establishment of a probationary period for the employee testifies to the unilateral refusal of the employer to establish a trial. The issuance of this order is allowed by labor legislation, since this improves the position of the employee in comparison with the concluded contract.

2. If the employee refuses to test his professional qualities (and this is quite possible from the point of view of the law), no one has the right to oblige him equally and refuse to hire him. Otherwise, it can be considered as an unjustified refusal to hire, and the applicant has a reason to go to court.

3. It is especially important that an employment contract with the condition of establishing a probationary period was concluded before the actual admission of the hired employee to work. When the employee begins his labor duties, the terms of the employment contract (even without its practical drawing up) between him and the employer, which does not contain a provision on probation, are implemented.

When hiring on the basis of an employee's application and an order for employment with a probationary period, the employee is considered hired without a probationary period, since when hiring, the employee did not agree to establish a trial. Consequently, an employee is considered to be hired without probation, and the employer can only dismiss him on a general basis.

4. The employment contract must clearly indicate the length of the probationary period. Their absence deprives the condition of the probationary period of force, since the very concept of the term implies a certain period of time.

5. The probationary period is established only before the start of the work, and not any period of the employer.

Extension of the test period specified at the beginning is not allowed.

6. The salary of an employee during the probationary period should not be reduced. Article 135 of the Labor Code of the Russian Federation emphasizes that the conditions of remuneration determined by the employment contract cannot be worsened in comparison with the current legislation. The probationary period should be used to test the qualifications of the employee, and not as a means of saving the enterprise labor costs.

7. The law defines a circle of persons for whom the employer is not entitled to establish a probationary period even in the event of their voluntary expression of will. An obstacle to the establishment of a probationary period is, firstly, the act of electing an employee through a competition held only on the basis of a federal or regional law, and not any other act. It is assumed that in case of unsatisfactory results of work, such an employee can simply be re-elected by the meeting of participants. Secondly, a medical document confirming pregnancy, which can also be submitted during the probationary period. In the latter case, he is obliged to issue an order to exempt the employee from passing the probationary period. A document confirming that the employee has a child under the age of one and a half years (passport, birth certificate). Third, the minority of the accepted employee. Fourth, a document on primary, secondary or higher vocational education and admission to a job corresponding to the received vocational education, for the first time within one year from the date of graduation.

Fifth, documents confirming election to an elective paid position. Sixth, an invitation to new job, which is confirmed by a letter from the employer with a request to release the employee to another job in the order of transfer, as well as an entry in the employee's work book about his dismissal under paragraph 5 of Article 77 of the Labor Code of the Russian Federation in connection with the transfer to another employer and / or an order to dismiss him in case of loss of employment books. Seventh, an employment contract for up to two months.

The list of these cases is not exhaustive and can be supplemented by adopting a collective agreement indicating additional categories of citizens who are prohibited from establishing a probationary period.

8. A test period of up to 6 months, in addition to the head of the organization, his deputies, the chief accountant and his deputies, can also be set for the head of a branch, representative office or other separate structural unit.

So, in accordance with civil law (article 55 of the Civil Code), separate structural divisions are branches and representative offices legal entity... This means that a test period of up to 6 months can be set for the heads of only these structural divisions, and not for the head of a shop, department, sector and other similar structural divisions.

9. The test is established only for hired employees, and not already working at the enterprise, for example, when transferring to a higher position.

10. The entire period of the probationary period is included in the length of service, which gives the right to annual basic paid leave. That is, upon dismissal of an employee during the probationary period, the employee is paid compensation for unused vacation in proportion to the time worked in the company.

11. The most common mistake is a lack of understanding of the essence of unsatisfactory test results both on the part of employees and on the part of employers.

Labor legislation provides for a probationary period as a test of the professionalism of an employee, and the decision to dismiss, accordingly, must be reasoned, correctly, objectively and have a clear evidence base.

Thus, the level of theoretical and practical knowledge and skills in the relevant profession, specialty, qualifications, the ability to work with clients and other professional knowledge and skills necessary to perform this work, and the impersonal qualities, discipline and compliance with the so-called corporate culture... The moments when the employee did not cope with the assigned work, facts of improper performance of the labor function, non-compliance with production standards, non-compliance with time standards must be recorded. In addition to the fact that these circumstances are drawn up, recorded, written explanations should be requested from the employee himself about the reasons for the violations committed by him. The justification for dismissal in connection with unsatisfactory results of the probationary period can be: a document confirming the non-compliance of the work with the norms of production and time standards, acts on the release of marriage, written complaints from customers, contractors, explanations of the employee, testimony of witnesses.

The term of dismissal at the discretion of the employer cannot be included in the text of the employment contract, this is contrary to the law. It is especially important to note that the employer does not have the possibility of dismissing an employee due to a violation of labor discipline, since it does not reflect the conclusion about his professionalism. In this case, he must be dismissed on the basis of the relevant norm of the Labor Code of the Russian Federation. It is understood that with a conscientious attitude towards work and the absence of fault on the part of the employee, he is not able to fully fulfill his labor duties.

During the test period, the employee must be provided with all the necessary conditions for normal work and safe conditions labor (serviceable equipment, provision of raw materials, transport, telephone), otherwise all references to improper business qualities of the employee will have no effect. In the event of a dispute, the employer will be obliged to documentarily refute such arguments.

In any case, when making claims to an employee about the performance of his duties, he must be familiarized (against signature) with the content of the job description and other local regulations.

12. The employer has the right to make a decision on the non-compliance of the employee with the assigned work only during the probationary period. However, very often there is a failure to comply with the deadline and form of warning the employee about the upcoming dismissal.

According to the law, a notice of an unsatisfactory test result must be drawn up in writing in two copies: one for the employee, the second for the employer, and announced to the employee against a personal signature three days in advance.

It should be remembered that the course of the terms associated with the termination of labor rights and obligations begins on the next day after the calendar date that determines the end of labor relations (Article 14 of the Labor Code of the Russian Federation). The dismissal of an employee cannot be made earlier than the fourth day from the date of delivery of the notification. The written warning itself must contain a clearly formulated reason for dismissal based on documents, date, reference number, signature of an authorized person, seal imprint.

13. In case of refusal to familiarize with the notification, an appropriate act is drawn up. Otherwise, the employer will not have evidence that at a certain time, in a certain place and in the presence of certain persons, the employee was asked to familiarize himself with the notification of the results of the probationary period. The act must contain the specific circumstances of both the provision of the notification itself and the drawing up of the act: place (office address, office number, etc.); time (date, hour, minutes).

Such an act must be signed by employees, preferably uninterested, for example, of various divisions of the enterprise, and not by the immediate superiors or subordinates of the employee, with a mandatory decoding and indication of positions. A copy of the notice can be sent to the worker's home address by registered mail with acknowledgment of receipt.

The letter must be forwarded to the postal authority at least three days before the expiration of the trial period set for the employee, as evidenced by the postmark stamp on the receipt and the return letter returned to the employer.

14. During the probationary period, the employee is subject to all provisions of federal laws, other regulatory legal acts, local acts, as well as collective agreements and contracts, provided that they contain labor law norms, including norms and guarantees regarding the grounds for dismissal. at the initiative of the employer.

For example, if an employee hired on a probationary period is subject to dismissal due to a reduction in the number or staff of employees with severance pay and a two-month warning, or in connection with a disciplinary sanction, the dismissal must be made in accordance with the relevant articles of the Labor Code of the Russian Federation.

The methods of fixing the test results are determined by the characteristics of a particular production and the nature of the work of the employee himself. For some organizations, it may be advisable to use an employee test plan, which is drawn up by his immediate supervisor. It outlines each work assignment, the timing and order of completion, evaluates the employee's actions, and then provides substantiated feedback on the results of the probationary period. All this makes it easier to justify the employer's decision.

It should be noted that dismissal due to an unsatisfactory test result has a number of difficulties and uncertainties regarding and evidence of the employee's inadequacy with the work performed, and the order and timing of passage. There is a need for legislative regulation of the dismissal procedure on this basis for better application of these norms in practice.

Nevertheless, the establishment of a test when accepting a job for each of the parties to an employment relationship makes it possible, in the shortest possible time and without unnecessary formalism, to find out how much they correspond to the expectations and capabilities of each other.

Everyone who has ever found a job knows what a probationary period is. The employer has the legal right to assess the aptitude and knowledge of the future employee for a certain period of time. This period can last from two weeks to six months. The period of validity of the trial period must be indicated when concluding an employment contract, and the employee must be notified of all the details in advance. There should be no information on this in the work book.

So what is the maximum trial period for hiring?

Information in the Labor Code

In article 70 of the Labor Code of the Russian Federation, you can find all the information about the probationary period when hiring. This period is a period of time established by the employer in order to assess the suitability of the employee for the position he seeks to get. The employment contract between the employer and the test employee must provide information on the conditions and duration of the test.

How long should the test last for employees of organizations, determines Labor Code RF, and for civil servants, employees of the Ministry of Internal Affairs, the Investigative Committee and the Prosecutor's Office of the RF - federal laws.

For employees of enterprises, the duration of this period for employment in general order up to three months.

A special case is the signing of a short-term (up to six months) contract - in this case, the test lasts no more than 14 days. If the employer needs to establish a probationary period for the candidate for the position, for example, for 3 weeks, then an agreement should be concluded for a period that will exceed six months.

Features of the conclusion of an employment contract

Most often, the labor market offers work with a probationary period.

He is not necessary condition hiring an employee, but at the same time it is a legal right of the employer, allowing him to determine the readiness of the candidate for the position. If we talk about an employment contract, then everything related to information on the probationary period is an additional clause of this agreement, made by mutual agreement of the parties.

The test is not always carried out

Usually, if the employer is fully confident in the qualifications of a new employee, then there is no question of testing. Sometimes employers purposefully lure valuable employees from other organizations. Naturally, in this case, the question of the probationary period is not raised - the employee is offered the conditions for which he decides to leave the previous one. workplace... But in normal practice, employers do not know how professional new employees are. Therefore, a probationary period of 3 months is good way out out of the situation.

With all this, an employee who passes this period has all the rights of a full-fledged employee of the company, is a full representative of its work collective and has the right to a salary in the amount that is spelled out for this period in his employment contract. Usually, the employer offers the applicant for the position a salary lower than that offered for a permanent period. This nuance is not regulated in any way by the Labor Code. The maximum probationary period for employment often differs from one enterprise to another.

Registration procedure

The employment contract must specify in detail all the conditions for hiring an employee, including for a trial period. You must specify exact dates both the beginning and the end of the test period, or its duration. It should also be noted in the order for hiring an employee that he will undergo a probationary period in order to check his compliance with the vacancy. One of the copies must be given to an employee.

It is clear that it is much easier to fire an employee on probation.

In what cases can it not be installed?

The test period is prohibited in some cases. This applies to certain categories of persons, such as:

hired as a result of a competition;
pregnant women who will soon have maternity leave;
citizens who have not reached the age of majority;
graduates for whom this work is the first;
an employee who is selected at a given paid rate;
an employee who received a job as a result of a transfer from another organization.

There are also other conditions when, according to Article 70 of the Labor Code of the Russian Federation, a probationary period cannot be established. For example, this is temporary employment, when an employee is hired for a position for a period of up to two months. Also if the employment contract is concluded before the employee completes the apprenticeship period. The same condition applies to those who replace for a specific period of employees belonging to certain categories: managers, advisers, assistants. This also applies to the rules for admitting employees to the customs service: if graduates who have completed training in specialized educational institutions federal significance or came through a competition.

What is the probationary period for workers and representatives of other specialties?

Duration of the probationary period

Usually the test period is three months. But for senior employees, such as CFOs, chief accountants and their deputies, the probationary period can be up to six months. The term of probation for managers is also 6 months. If it comes for fixed-term employment contracts concluded for a period of up to six months, then the test time should not exceed two weeks.

Minimum and maximum probationary period for employment

The minimum probationary period is the two-week period established for fixed-term employment contracts concluded for six months or less. If a regular labor agreement is concluded, then the employer decides for himself what the trial period will be: one, two or three months (which depends on the position held by the applicant).

According to article 70 of the Labor Code of the Russian Federation, the head has the right to initiate the extension of the probationary period. This issue is regulated by two documents - the labor agreement between the employer and the employee, as well as the order on admission to the position. And if the tested employee was on sick leave during the probationary period, took time off or underwent specialized training, then the probationary period can be extended.

All these conditions must be mentioned in advance in the documentation that is drawn up when applying for a job. In the case of extending the trial period, the employer will need to issue an additional order, in which it is necessary to indicate the term for extending the trial, as well as those valid reasons that became the basis for such a decision.

If an applicant for a position is hired according to the Labor Code on a permanent basis, then maximum term employee checks can take not 3 months, but six months.

In what cases is it possible to terminate the trial early?

The main reason for the early termination of the trial period may be its successful completion. In this case, the employer must issue an order according to which the trial period is terminated and describe the reasons for this action. On the part of the employee, it is possible to apply for resignation from the organization in the event that he was not satisfied with the position for which he was applying.

Can the employer, on his own initiative, complete the labor test before completing it under the conditions labor agreement? For example, in case he found the job of the new employee unsatisfactory? According to the legislation, it can. But this step must also be formalized by issuing an appropriate order and notifying the employee in advance of this decision.

Rights of an employee undergoing probation

Labor law strictly regulates this moment indicating that the person being tested has exactly the same rights and responsibilities as everyone else in the organization. This point also applies wages, including receiving bonuses and all social guarantees implied by the position.

If a candidate is faced with a violation of his rights, then he can appeal against the employer's actions that infringe on his interests in court. This also applies to early termination of the employment agreement.

An employee on probation has the right to take sick leave, and he, like for other employees, must be calculated based on his average daily earnings. However, for the duration of the sick leave, the test period will not be counted; it will resume when the employee leaves the place of work. If a person decides to stop working with the organization, the employer will be obliged to pay for his sick leave.

What determines the size of the employee's salary during the probationary period?

Since the tested employee is under the protection of the Labor Code, his rights should not be less than that of all other workers in this organization. And his salary is determined in accordance with staffing table organizations. However, employers often circumvent this point by introducing into the schedule a lower salary, which is due to "assistants" or "assistants" in different positions. The size of this salary should not be less than the minimum wage.

Among other things, the new employee should be paid for everything sick leave, overtime, work on holidays or weekends.

The test period for chief accountants is six months.

End of the test period

There is a certain situation in which it is impossible to fire an employee after the trial period. It concerns employees who become pregnant during a given period of time and provided the employer with the appropriate certificates. In all other cases, the employee verification period ends either positively, when both labor parties satisfied with the work and the employee is enrolled as a permanent employee of the organization in accordance with job descriptions, and negative - when the work of the subject was unsatisfactory for the employer and labor contract terminated. In the latter case, the dismissal order must contain a listing of its reasons and evidence that the employee is unsuitable for this position.

In this case, it is necessary to take responsibility for the written justification for the dismissal, because the employee may consider these actions unlawful and go to court. This can be avoided by proving that the employee did not follow safety rules, did not follow instructions, skipped work without good reason.

We have considered the maximum probationary period for hiring.

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

Main regulatory framework

The test for hiring is intended for the employer to assess the business and professional qualities of the employee, and the employee to determine for himself whether the assigned work is suitable for him or not (part 1 of article 70, part 4 of article 71 of the Labor Code of the Russian Federation).

Labor Code of the Russian Federation:

Art. 70 - concept and limitations;
Art. 71 - the results of the passage;
Art. 289 - for a fixed-term contract.

Federal Law on Civil Service No. 79-FZ

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

The test condition (including the term) is established exclusively when hiring (parts 1, 2, article 70 of the Labor Code of the Russian Federation).

Different approach

The Labor Code does not contain the term "probationary period", but Article 70 mentions about "probation when applying for a job." Experts consider these concepts to be equivalent and refer them to the elements of an agreement concluded between the employer and the applicant. If the document does not contain a condition on the probationary period, the legislation recognizes it as unsettled; the employee is automatically enrolled in the staff.

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

Categories of citizens	Maximum test duration	Link to document
Employees who have signed a contract for 2 - 6 months	14 days	h. 6 art. 70 of the Labor Code of the Russian Federation
Signing a contract for up to 2 months	missing	h. 4 tbsp. 70 of the Labor Code of the Russian Federation, art. 289 of the Labor Code of the Russian Federation
Applicants for leadership position- chief accountant, middle manager, deputy director, etc.	6 months	h. 5 art. 70 of the Labor Code of the Russian Federation
The beginning of a career in the civil service	12 months	Art. 27 of Law No. 79-FZ
ATS officer	6 months	Art. 24 Law No. 342-FZ
Other employees (signing of an open-ended contract)	3 months	h. 5 art. 70 of the Labor Code of the Russian Federation

Also see "".

And the Labor Code of the Russian Federation prohibits socially protected citizens from establishing a probationary period. They are eligible for employment without being screened. These include:

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

What the Labor Code says about dismissal on probation

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

If the applicant did not show the necessary professional qualities or committed a serious violation of discipline, dismissal is allowed on a probationary period under the article of the Labor Code of the Russian Federation on the initiative of the employer (Article 71). Then you need to observe three important conditions:

Timely inform the employee about the decision by submitting written notice. Deadline - no later than three days before the expected date of termination of the contract.
Prepare documents confirming incompetence. The interests of employees, including those undergoing a probationary period, are fully protected by the Labor Code. Therefore, the reason for dismissal must be weighty and reasonable. In case of infringement of rights, undesirable consequences are guaranteed for the organization.
Correctly draw up the procedure for terminating an employment contract, observing a certain procedure. Please note: if there is an error in the documents, consequences such as the restoration of an employee with a demand for monetary compensation from the employer are not excluded. Also see "".

If the employer is satisfied with the qualification level, he has the right to shorten the probationary period provided for by law and take the employee into the state.

Important nuances

First, with regard to salaries and compensation. Formalized and vetted candidates have permanent employee rights. The Labor Code does not provide for special conditions for them, therefore, their accrual is carried out in a general manner.

According to our information, this year it is not planned to change the procedure for regulating labor relations between the employer and the applicant for a trial period. The 2018 Labor Code remains current and its provisions remain in effect.

Experts recommend, even if a person is at first glance ideally suited for any position, conclude an employment contract with a probationary period. In this case, it will be possible to assess 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 on the articles quite clearly regulates the procedure for registering a person for a particular position. Recruiting personnel is often a rather lengthy process. Usually recruitment is carried out based on the results of the interview. Often when hired, he is offered professional tests.

Nevertheless, even the most careful selection of personnel does not exclude the risk for the employer. 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 to formulate an agreement legally correctly. The Labor Code, with commentary on articles, establishes the legal basis for employment with such conditions. However, you need to know some of the nuances in order to avoid mistakes in practice.

Principles by which a probationary period at work is established

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

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

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 on the enrollment of a person in the state. In this case, the future employee with his signature must confirm the fact of familiarization and agreement with these facts. It is not necessary to put a mark on the appointment of a probationary period in the work book.

Legal registration

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

In addition to the main contract and order, the order of registration of an employee can be reflected directly in his application for an appointment to a particular position. It should be said that the duties of the employer include not only legally competent execution of the contract and other documents, but also familiarization of the future employee with labor duties, internal regulations at the enterprise, job descriptions. The employee certifies this fact with his signature. This is of particular importance if the person has not passed the probationary period. If the employer is forced to dismiss an employee who has not withstood the established period, the fact of his familiarization with the duties is used to confirm his inadequacy to the assigned position.

Alternative option

Quite often employers instead of demons fixed-term contract a fixed-term agreement is concluded with a probationary period. In their opinion, such an employee registration greatly simplifies the situation when a person has not coped with the assigned tasks and should be fired. The fixed-term contract period will end and the employee will leave on his own. However, the legislation establishes certain conditions conclusion of such an agreement. So, according to Article 58 of the Labor Code, the execution of a fixed-term contract with the aim of evading guarantees and rights provided for employees for whom an open-ended contract should be used is prohibited. It is recommended that courts pay special attention to the observance of these conditions in the proceedings of violations.

Resolution of the Plenum of the Supreme Court (Supreme Court) No. 63 (from 28.12.2006), p. 13

If, in the course of considering a dispute about the legality of drawing up a fixed-term agreement, it is revealed that it was concluded by an employee by force, then the court applies the rules of the contract for an indefinite period. If a person appealed to the legal authority or to the relevant inspectorate, then the contract can be recognized as concluded for an indefinite period. In this case, a probationary period is not assigned. During the probationary period, a person is subject to the relevant provisions of legislation and other acts that contain norms established right, collective agreement, contract, local documents.

Salary

It is considered a violation of the law to establish a lower pay for an employee's activities for a probationary period in an employment contract. The norms do not provide that the salary of a specialist in this case is different. If a conflict situation arises, the employee has the right to receive underpayment in court. On the part of the employer, this moment can be decided different ways... In particular, when drawing up an employment contract, the amount of payment on time trial period specified as permanent. At the end of the period, a specialist is signed supplementary agreement, in which the increase in payment is set. 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 trial period, the employee is also subject to guarantees and norms related to the reasons for the refusal of the employer, on his initiative, from the employee's services. They are provided for in Article 81. An employment contract may not include additional grounds not established by law. These, for example, include reasons for "appropriateness" or "at the discretion of the management." These wordings are often found in contracts. However, they do not comply with the law.

Vacation

The probationary period is included in the seniority of the employee. It entitles you to basic annual paid leave. In the event 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 assigned 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 legislation excludes the possibility of applying a probationary period to a number of categories of persons. These include:

Elected through a competition to fill a particular position, held in accordance with the procedure established by law or other regulatory enactments.
Women who are pregnant or have dependent children under one and a half years of age.
Persons under 18 years of age.
Those 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 duration

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

This period does not include days when the employee was actually absent from the enterprise. It can be temporary sickness disability, for example. In practice, employers often resort to extending the probationary period specified in the contract. These actions are contrary to the law. If at the end of the term the employer has not made a decision to dismiss, the employee is considered to have passed the test. In some cases, a longer period is provided. It is governed by Art. 27 ФЗ №79 and concerns civil servants.

End of the probationary period

Often, after the expiration of the period, the employee continues to work at 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 regular basis.

Article 71

In the event of an unsatisfactory test result, the employer has the right to terminate the contract before its expiration. However, he should notify the employee about this three days before the termination of the contract. The warning should contain the reasons why the employer admits that the person is inappropriate and has not passed the test. The employee can appeal this decision in 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 notice of an unsatisfactory result is drawn up. It must be in two copies - for the employee and the manager. The document is handed over to the employee for signature.

The employer's actions in case of refusal to accept the notification

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

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

Legally correct wording of reasons for dismissal

It should be based on documents that confirm the validity of the decision taken by the employer. As shows arbitrage practice, in the process of considering disputes about dismissal due to an unsatisfactory result during the test, the employer is required to confirm the fact of the employee's inadequacy to the position. For this, moments should be recorded when a person did not cope with the task at hand or committed other violations (for example, job descriptions, internal regulations, and others).

These circumstances must be documented (recorded), indicating the reasons, if possible. 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 inadequacy for the position held. If he violates internal discipline (he skipped or in some other way showed a negligent attitude towards activities at the enterprise), then he should be dismissed under the relevant paragraph of Article 81. The documents with which the employer confirms the validity of the dismissal may be:

Discipline Act.
A document confirming the inconsistency of the quality of work with the requirements and standards of production and time adopted at the enterprise.
Explanatory notes of the employee about the reasons for the failure to complete the tasks.
Customer complaints in writing.

Assessment of business qualities

It is directly dependent on the specifics and scope of the enterprise. Based on this, conclusions about the test results can be based on various data. For example, in the sphere of production, in which an object (product) acts as the result of activity, the level of quality can be determined 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 claims.

Certain difficulties are present in the field of intellectual activity. In this case, to assess the results, the quality of the execution of orders, 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 in charge of the preparation and submission of these documents. The procedure for dismissing an employee, therefore, requires a certain formalism from the employer. Nevertheless, the employee can in any case legal grounds appeal the decision.

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 the management of his decision three days in advance. The notice must be in writing. This rule is of particular importance to the employee. This is because potential employers would like to know the reasons why the job seeker quit so quickly from the previous enterprise.

Finally

The legislation rather precisely defines the conditions under which the application of the probationary period is allowed. Due to the fact that often a new employee is considered within the framework of these relations as a party that does not have social protection, the rules of law establish certain guarantees for him. At the same time, the procedure for dismissing an employee due to an unsatisfactory result of the trial period is rather formalized. The legislation defines the right of an employee to appeal against the decision of the company's management in court.

In such cases, the executive body 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 observance of all legal aspects by the management of the enterprise within the framework of these relations. 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 noted less often where the selection is carried out based on the results of several stages of the interview.