Probationary period when applying for a job article. Early termination of the trial period. Registration of the test condition

In this article, we will consider an employment contract without a probationary period. Let's figure out who can't be installed probation... Find out about the typical mistakes.

When both parties have agreed that a preliminary test will be scheduled, they enter into an agreement that includes information:

about the first day and about the end of the probationary period;

about the responsibilities of a new member of the team;

about the operating mode, etc.

The conditions of the probationary period should not be at variance with the conditions of work of staff members

Even if an employee begins to work before the conclusion of an employment contract with him, the fact that he is accepted into the team should be recorded in a written agreement. If the employment contract is signed and does not contain information about the tests, new employee is considered to be employed without a qualification test.

Labor legislation traces the terms of the agreement on the appointment of the trial and the time frame during which the employer evaluates the abilities and potential of the employee, however, the criteria for evaluating the results of the inspection are not spelled out in the Labor Code.

The maximum term for the verification of a candidate is 3 months... In case of leadership positions and the chief accountants, the test period may last up to six months... If the contract involves a cooperation of 2 to 6 months, the probationary period should not be longer than 2 weeks. The fact of the part-time job does not play any role - the part-time job is being tested on general terms.

Before giving an applicant for a position an agreement on passing checks for signature, you should familiarize him with the rules of work, job duties, give him a copy job descriptions... Employers are also advised to approve in advance Regulation on the procedure for passing tests... This is due to the fact that scrupulous employers, weeding out the majority of candidates and carefully checking them for compliance with expectations, may find themselves in a situation where a potential employee who did not get a position went to court for protection of his rights. In such a case, the documented Tests and Selection Criteria Statement will help to win the case.

Large companies in recent times started to draw up individual test instructions- with this approach, it becomes possible to clearly define the criteria for work for any position. A beginner knows exactly what to do to get workplace, and at the end of the check, he himself sees whether he has the ability to continue cooperation with the employer or not. Often, a mentor is assigned to the candidate, who points out to him the shortcomings in his work and assesses his potential.

Who is not allowed to establish a trial period

Drivers

The conclusion of a probationary agreement with drivers is important for the employer, because he must be sure that he has good enough driving skills. The safety of other employees and the driver of the vehicle himself depends on this, as well as the integrity of the company's transport. If the organization does not provide for the conclusion of agreements on collective or individual responsibility, the role of checking the professional qualities of the candidate for the position becomes twice as important.

However, the law provides for two cases when the establishment of a probationary period is not provided for:

It is supposed to cooperate with the driver for no more than 2 months;
the driver is looking for a job for the first time after completing specialized education according to a state-accredited program (there is a reservation - no more than 1 year has passed since the date of receipt of the educational document).

Workers

Tests for workers, whose work will be associated with continuous physical activity, are carried out in order to find out whether they have necessary knowledge about work in special conditions, in particular about work safety. The law prohibits the inclusion of conditions on the probationary period and obliges the employer to take a citizen without checks if:

a potential worker wants to get a job on an apprenticeship agreement, after graduating from an educational institution;

the candidate is looking for a job in the specialty for the first time.

Chief accountants

Chief accountant is a managerial position that requires high level responsibility and competence. A candidate for this position must understand the laws and have professional skills to the fullest; a probationary period is established to test a person for suitability. Hiring an unverified person for the position of chief accountant is risky.

But even in a situation with such a responsible work, the aptitude test is not carried out for:

pregnant women and parents of a child under one and a half years old (including single parents);

an accountant who is employed on the basis of a transfer from another company by agreement of the management of both enterprises;

candidates who received a place on a competitive basis in accordance with the Labor Code of the Russian Federation.

Civil servants

A probationary period cannot be set for:

candidates who have guarantees to preserve their jobs according to the law;

appointed to the position by transfer in connection with the liquidation of the state structure or the reduction in the number of employees;

secondary / higher education and looking for work on the basis of an apprenticeship contract.

ATS officers

Usually, a future employee of the internal affairs bodies is checked for compliance with the position within 2-6 months, for the period of verification, a police officer, for example, is an unranked trainee.

It is prohibited to establish a probationary period in relation to:

persons who came to the Fed. executive body for the purpose of obtaining higher education;

citizens who have successfully passed the competitive selection;

an employee who is going to occupy a senior management position.

Probationary period for young professionals

Article 70 Labor Code provides for a refusal to appoint a probationary period for young professionals who have just graduated educational institution and those who have received specialized education in accredited programs, if they are trying to find a job in their specialty for the first time. But if a young specialist has managed to work in the position that he is trying to occupy in this moment, in respect of him, the employer has the right to set the time of the aptitude test.

There is also a condition - no more than 1 year must pass from the date of presentation of the diploma to the candidate for the workplace, otherwise the employer may also appoint a probationary period. Accordingly, the dismissal of such an employee due to unsatisfactory passage of the inspection is illegal.

Employment contract (no probationary condition)

LABOR CONTRACT

Limited Liability Company "Polet" represented by Director General Petrova M.V., acting on the basis of the Charter, hereinafter referred to as the "Employer", on the one hand, and the Citizen of the Russian Federation Ivanov Sergey Vladimirovich (passport 40 99 682380, issued on 25.08.1800 by the 42 militia department of Rostov), hereinafter referred to as "Employee ”, On the other hand, have entered into an agreement as follows:

1. The Subject of the Agreement

1.1. The Employer recruits the Employee to the position of the Head of the Legal Department.

1.2. LLC "Alphabet" is the permanent and main place of work of the Employee.

2. Rights and Obligations of the parties

2.1. Job responsibilities of the Employee:

(Indicates the main characteristics of the work and the requirements for the level of their performance in terms of the volume of work, quality of service, the level of fulfillment of norms and standardized tasks, compliance with labor protection rules, performance of related work in order to ensure interchangeability.

When combining professions (works), performing related operations, a list of these works and their volumes and other obligations is given.)

2.2. The employee is obliged:

2.2.1. perform labor duties in accordance with the labor legislation of this contract and the job descriptions approved by the Employer;

2.2.2. obey the internal labor schedule, observe labor discipline;

2.2.3. take good care of the property of the Employer.

2.3. The employer is obliged:

2.3.1. organize the work of the Employee;

2.3.2. create conditions for safe and efficient work;

2.3.3. equip the workplace in accordance with the rules of labor protection and safety measures;

2.3.4. timely pay the wages stipulated by the contract.

3. Working hours

3.1. A five-day working week with two days off is established for the Employee.

3.2. The duration of the Employee's working hours under this agreement is 40 (forty) hours per week.

3.3. The daily duration of the working day cannot exceed 8 (eight) hours.

4. Rest time

4.1. The employee is provided with a daily break for rest and food lasting 1 (one) hour. The break is provided four hours after the start of work.

4.2. The employee can use the break at his own discretion. During this time, he is given the right to leave the place of work.

4.3. The duration of weekly uninterrupted rest must be at least forty-two hours.

4.4. The days off are Saturday and Sunday.

4.5. The day before holidays the duration of the Employee's work is reduced by one hour.

4.6. Work of the Employee on the day off is compensated by the provision of another day of rest or, by agreement of the parties, in monetary form - in double the amount. Work of the Employee on a holiday is paid double.

4.7. The employee is provided annual vacation in the summer, lasting 24 (twenty four) working days with the preservation of the place of work (position) and average earnings.

4.8. Upon a reasoned application of the employee, he may be granted additional leave in accordance with the norms of the labor legislation of the Russian Federation.

5. Wages

5.1. The employee's salary cannot be lower than 1 (one) minimum size wages established by the current legislation of the Russian Federation.

5.2. Remuneration of the Employee is made on the basis of official salary... The size of the official salary is established by the Administration of the Employer.

5.3. Salary is paid twice a month.

5.4. Salary for the entire vacation period is paid no later than 1 (one) day before the start of the vacation.

5.5. Pay wages An employee is performed at the place where he performs work, unless otherwise provided by agreement of the parties.

5.6. Non-fulfillment or improper fulfillment by the Employee of his job responsibilities through no fault of its own, does not entail a decrease in the established monthly salary. The guilty failure to perform or improper performance by the Employee of his job duties entails remuneration for labor in a reduced amount established by the Employer.

5.7. Upon dismissal of an employee, the payment of all amounts due to him from the employer's enterprise is made on the day of dismissal.

6. Term of the contract

6.1. The contract is concluded for an indefinite period and can be terminated on the grounds provided for by the current legislation of the Russian Federation.

7. Other conditions

7.1. An employee is hired without a probationary period.

7.2. For exemplary performance of work duties, long and impeccable work, innovation in work and other achievements in work, the following incentives are applied:

1) announcement of gratitude;

2) issuance of an award;

3) rewarding with a valuable gift;

4) awarding with a certificate of honor.

5) other incentives provided for by the labor legislation of the Russian Federation.

7.3. The relationship between the Employee and the Employer, not specified in this agreement, is governed by the labor and social security laws in force in the territory Russian Federation.

7.4. This agreement is drawn up in Russian, in duplicate, having equal legal force, one for each of the parties.

8. Details and signatures of the parties

Employer: Limited Liability Company "Alphabet"

198198, Moscow, st. Blagodatnaya, 15

Worker: Volkov Sergey Petrovich

192267, Moscow, st. Zoological, 13/3, apt. five

Employer:
___________________

Employee:
____________________

These days, the process of recruiting and hiring new employees in an organization is very time consuming. A candidate for a vacancy undergoes an interview, 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 set for checking workers according to the Labor Code

Many are interested in why the trial period is established. This is done to determine if the new employee is suitable for 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 exceed 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:

The probationary period 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 an employee in writing, containing its conditions in the probation period. Terms can also be formalized in a separate agreement. If the probationary period is not formalized in 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, the 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 the legislation on labor rights ah man. 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. But 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 dismissal of the employee 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 a certain time period is already spelled out in such a contract. Yes, the employer can set for the employee who signed fixed-term contract, probation. 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)
minors 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.

Have you passed 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 trial 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 a job description from the employer.
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 who copes with his official duties.
If, nevertheless, the employer has good reason to dismiss 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.

How the trial period should be arranged
and to whom it cannot be assigned.

The condition of the probationary period must be reflected in the employment contract.
Probationary period - the time during which the employer can check your professional qualities, suitability for the position.
The probationary period is given not only to the employer, but also to you. If during the probationary period you become disillusioned with your work, you can terminate the employment contract. Just don't forget to write your application three days before your dismissal.
On the contrary, if the employer considers your competencies insufficient, then he can dismiss you before the end of the probationary period, it is enough to warn you in writing three days in advance and explain the reasons (Articles 70 and 71 of the Labor Code of the Russian Federation).

To confirm the reasons for the dismissal, the employer can use:

feedback from your immediate supervisor about the passage of the probationary period, which lists comments and complaints about your work;
memos from your supervisor or colleagues about your improper performance of duties;
your explanatory notes about non-fulfillment or poor-quality fulfillment of duties. Disciplinary orders (if any), etc.

These documents will be attached to the written termination notice. If you disagree with the employer's decision, you do not have to sign the warning. In this case, the personnel department will draw up an act. With a copy of this act and a copy of the written notice of dismissal, you can contact the labor inspectorate, the court, to challenge the employer's decision. But keep in mind that this will take time, nerves. Perhaps you should not spoil your reputation in the labor market (after all, HR communicate in professional communities, share cases), waste energy on disputes instead of directing it to find a new employer.

When the probationary period does not affect dismissal

Consider possible situations.

The probationary period was assigned inappropriately. A trial cannot be assigned:

those who passed the competition and were selected to fill the position;
pregnant women and women with children under one and a half years. It is impossible to terminate the contract with such employees based on the test results (Resolution of the Plenum of the Supreme Court of the Russian Federation of January 28, 2014 No. 1);
underage workers;
graduates of colleges and universities when applying for their first job in their specialty within a year after receiving a diploma;
those who are elected to an elective paid position;
employees transferred from another employer;
at the conclusion employment contract for up to two months.

If you fall into one of these categories, then the employer must hire you without a probationary period.

The probationary period is not specified in the employment contract. If there is no test condition in the employment contract, then you were hired without it (Article 70 of the Labor Code of the Russian Federation).

The employment contract was concluded after the fact. If the employer allowed you to work without drawing up an employment contract, then the condition of the test can be spelled out in the supplementary agreement. But only if the agreement was signed before the actual start of work (Articles 67 and 70 of the Labor Code of the Russian Federation). And another moment. In such a situation, the employer must draw up an employment contract within three days.

The probationary period has actually ended. If you have worked for at least one day beyond the probationary period, it is automatically considered passed. From this moment on, you can only be dismissed on a general basis (Article 71 of the Labor Code of the Russian Federation). However, it should be borne in mind that periods when you were not at work (were on sick leave, took time off, for example) are not included in the trial period.

How long is the trial period

For most categories of workers, the test period cannot exceed 3 months.
Two weeks: upon conclusion of a fixed-term employment contract for a period of 2-6 months.
Six months for: heads of enterprises and their deputies; for heads of departments, branches, structural divisions and representative offices of companies; for chief accountants and their deputies.

Let's summarize. What you need to do in order to calmly perform duties and prove yourself during the probationary period.
Important points:

when signing an employment contract, carefully read the conditions about the test;
during the trial period, do not violate labor discipline - do not give unnecessary reasons for your dismissal;
Calculate and track the test completion date yourself. This will make you feel more confident.

Cover: pixabay.com

Job search, as well as recruiting, is a laborious process. Even if the professional qualities of the candidate meet the requirements of the vacancy, and the proposed job is fully suitable for this specialist, there are no guarantees that the cooperation will necessarily be successful and long-term.

How long can be set?

Hiring for a trial period allows you to determine the possibilities of further cooperation. According to this period, in different cases be different. There are the following options:

No more than 2 weeks;

Probationary period 3 months (or less);

Up to six months;

Up to one year.

At the same time, the shortest duration is provided when an urgent one is concluded (up to six months). This also applies to seasonal workers. A probationary period of 2 weeks can be established for them, but no more.

However, it usually lasts longer. In most cases, the trial period lasts up to 3 months. The Labor Code of the Russian Federation indicates that it can end by agreement of the parties or earlier, but not later. A period of 6 months can be set, for example, for the head of the company, its representative office, branch, chief accountant, as well as their deputies.

In what cases is recruitment carried out for a trial period for the longest time? For example, when an employee enters the civil service. How long does the probationary period last in this case? Up to one year. However, if an employee is transferred to a new job from one government agency to another, then the maximum time is six months.

Categories of workers for whom a probationary period cannot be established

The rules listed above do not apply to all potential employees. There are categories of workers for whom a probationary period cannot be established (the Labor Code of the Russian Federation indicates the relevant cases). These are pregnant women, candidates under the age of 18, workers with whom the contract is concluded for 2 months or less. Another case is if a candidate for a job entered through a competition. In addition, this category includes former students who have received a higher, secondary or primary education and who have started to perform their positions for the first time in their specialty. Also, hiring for a trial period is impossible for people with disabilities who were sent to this position based on the results of a medical examination. Another category is specialists who were invited to this place in the order of transfer to another employer. The last two cases are if a candidate is elected to an elective position, as well as if he is retired from service (alternative, military).

Why do you need a trial period?

Hiring for a trial period upon taking up a position is introduced not only for the future employee, but also for the employer. During this period, both sides have the opportunity to look at each other and understand whether to continue cooperation. During the test, the employer assesses the business qualities, the employee's abilities, his communication skills, the ability to carry out orders with high quality, the suitability of the position, his compliance with the rules established in the company, as well as discipline. During this period, the employee makes a conclusion about the company, his position, salary, responsibilities, leadership and team.

How is work paid during the probationary period?

The employee who is at the test stage is fully covered. Therefore, if the company agreed in the contract that this period will not be paid, this is a clear violation of Russian law. In addition, many employers nowadays deliberately set a lower salary for the subject, promising to increase it later. In this regard, the following can be said.

Firstly, an employee who is at the trial stage cannot be limited in remuneration. His rate should not be less than that provided for this position in staffing table... Secondly, a company that reduces its salary during a probationary period falls under such an article as discrimination. In the staffing table of a company, for example, there are two rates for a purchasing manager. The first one is occupied by an old employee, and the second one was invited new person with the passage of the probationary period. In this case, from the first day of work, the newcomer must have no less salary than that of the worker for several years in a similar position of the employee.

Legal way to set a lower salary during a probationary period

Nevertheless, practically all companies set lower salaries for employees during the probationary period. This can be done quite legally by changing, for example, the salary of employees for a newcomer position in the staffing table. However, it should be remembered that its size should not be lower than the minimum wage.

A specialist who is on a probationary period may be paid a bonus, as well as other incentive payments, which are spelled out in the regulation on remuneration and bonuses. The employer is also obliged to pay the subjects overtime, sick leave, going to work on holidays and weekends.

Registration of a probationary period

A trial period is subject to mandatory registration. You need to conclude with the employee labor contract, and the order for the hiring of an employee is issued on the basis of it. These documents indicate the duration of the test period. IN work book do not make the entry "accepted for a trial period", it only notes that the employee is hired.

Extension of the probationary period

It is not prohibited to increase it, but only if the duration of the probationary period does not exceed the norms established by law. For example, if initially it is 1 month, and the employer after this period still has doubts about the suitability of the candidate for this position, the trial period can be extended to 3 or to 6 months, if it comes about the vacancy of the head of the branch, chief accountant.

It is impossible to increase its duration without the consent of the employee. Therefore, the employer must give reasons for the decision to extend the probationary period.

The need for a written record of the facts of violation of labor discipline by an employee

Untimely performance of tasks by an employee, his mistakes, violation of labor discipline should be documented, and if there are managers, then they should be attached. The facts attested in this way should be passed on to the employee for review. To confirm, he must put his signature. If the employee agrees with the shortcomings in the work, then it is made to the employment contract, and the probationary period is increased. If the employee believes that the claims against him are unfounded and does not give his consent for an additional period, dismissal is allowed, which must be based on written irrefutable evidence.

Rights and obligations that an employee has during the probationary period

They are no different from those of other employees working in this company. A specialist registered for a trial period has the following rights:

Receive salary, bonuses, overtime wage supplements, and other incentive payments;

Take sick leave on the basis of which to receive insurance payments for the period of incapacity for work;

Quit at any time on your own initiative (it is not necessary to wait until the end of the probationary period);

Take the weekend at your own expense or at the expense of future vacation; however, the employer in this case may refuse to take leave for legal grounds, if this does not contradict the Labor Code of the Russian Federation, Article 128: for example, if an employee has a child, then he should be given time off without pay for up to five days.

The duties of the employee are as follows:

Observe internal regulations, fire and labor discipline;

Comply with the terms of the contract;

Perform work duties in accordance with the job description.

Dismissal of an employee who has not passed the test period

First of all, a written notice should be prepared in advance for the employee, in which it is necessary to indicate the reasons why further cooperation is impossible. They must be documented. This can be an act of disciplinary action, an employee's failure to fulfill his job duties, written complaints from clients who interacted with a specialist, or, for example, the minutes of a commission meeting, in which the outcome of the probationary period was determined, etc. The notification also indicates the date of the planned dismissal and drawing up a document. It is done in duplicate (for the employee and for the employer).

The next step is to deliver this notice to the employee no later than three days (or better 4) before the end of the trial period or the date of his planned dismissal (if the decision to terminate the contract was made much earlier than the end of the trial period). Note that if this is not done on time, the employee will be automatically considered to have passed the test.

The next step is to familiarize employees with the notification and sign it with the date. If those who have not passed the probationary period refuse to sign, the employer draws up a special act. It must be signed by at least 2 witnesses.

The next step is that the employee, on the day of dismissal, receives a salary for the days he worked, a work book and compensation for unused vacation, if any.

Termination of the contract by decision of the employee

If the specialist independently decides to terminate the contract before the end of the probationary period, the employer should be warned about this. He must write a letter of resignation, indicating the reason "on his own initiative", and then the contract is terminated under this article. If employees who have already passed the probationary period are required to notify their employer of their desire to quit two weeks in advance, then the employee undergoing the probation must notify him in just three days.

Cases in which dismissal is impossible

It should be noted that the dismissal of employees who have not passed the probationary period is equivalent to their dismissal precisely at the initiative of the employer. Therefore, it is necessary to familiarize yourself with the Labor Code of the Russian Federation before dismissing a specialist undergoing a probationary period (Article 81). For example, an employer has no right to fire a woman who is pregnant or raising a child under 3 years old. If disabled or on vacation, it is also prohibited to remove him from office.

Who benefits from a trial period?

It is beneficial for both the employer and the employee. Thanks to the trial period, the company can make sure that the candidate has professionalism, or start looking for another specialist. And the employee, in turn, will be satisfied with his new job or will start looking for another. Thus, neither the company nor the specialist will waste additional time looking for another candidate or a new job.

New edition of Art. 70 of the Labor Code of the Russian Federation

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 as 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 labor law norms, collective agreements, agreements, local regulations.

A test at hiring is not established for:

persons elected through a competition to fill the relevant position, held in the manner prescribed by labor legislation and other regulatory legal acts containing labor law norms;

pregnant women and women with children under the age of one and a half years;

persons under the age of eighteen;

persons who have received secondary vocational education or higher education with state accreditation educational programs and for the first time applying for work in the received specialty within one year from the date of receipt vocational education the appropriate level;

persons elected to an elective position for a paid job;

persons invited to work by transfer from another employer as agreed between employers;

persons who conclude 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.

Commentary on Article 70 of the Labor Code of the Russian Federation

Separate consideration should be given to the restrictions associated with the establishment of tests for persons entering work when concluding an employment contract. The purpose of such a test is to verify the compliance of the employee's professional qualities with the work assigned to him in accordance with the employment contract (labor function).

It is understood that in case of a positive test result, the employee will continue to work at the enterprise. In the event that an employee is found to have failed the test, he, as a rule, is subject to dismissal at the end of the probationary period.

The general procedure for conducting such a test is set out in article 70 of the Labor Code of the Russian Federation. In the event that a test is established for an employee upon admission to work, an appropriate condition should be included in the employment contract.

However, it should be borne in mind that a test at hiring cannot be established for some categories of persons.

In all these cases, the trial period cannot exceed 3 months, and for certain categories of workers it can be reduced to two weeks. For heads of enterprises, their deputies, chief accountants and their deputies, as well as heads of branches, representative offices, territorial offices and other separate structural divisions of enterprises, the test period cannot exceed 6 months, unless otherwise provided by federal law.

The period of temporary disability of the employee and other periods of his actual absence from work are not included in the trial period. At the same time, we emphasize that during the trial period, the employee is subject to the provisions of the Labor Code of the Russian Federation, laws, other regulatory legal acts, as well as local acts of the enterprise containing labor law (collective agreement, agreement, etc.).

Note that the duration of the test is fixed at the conclusion of the employment contract as a component of one of its additional conditions. Changing the duration of the test is allowed only by mutual agreement of the parties to the employment relationship and only within the above time limits.

Another commentary on Art. 70 of the Labor Code of the Russian Federation

1. The test condition, being an optional condition of the employment contract, is included in its content by agreement of the parties. It cannot be established by the employer in unilaterally in addition to the employment contract. Accordingly, if the specified condition is not specified in the employment contract, the employee is considered to be hired without a trial. It is impossible to establish a test after the conclusion of the contract neither by an act of the employer, nor additional agreement parties.

Exception from of this rule provided for the sphere public service, when the test, firstly, is established by virtue of a direct prescription of the law, i.e. is a non-contractual condition; secondly, it is possible not only when concluding a service contract, but also subsequently, when transferring from one civil service position to another.

2. In some cases, the condition of probation is provided not by an employment contract, but by an act of appointment to a position, while an employment contract is concluded based on the results of probation.

So, in accordance with the legislation on service in the customs authorities, a citizen who submitted an application for admission to service in the customs authorities and all Required documents, when establishing a trial for him, he is assigned to the corresponding position as an intern for the trial period. The time spent as a trainee is counted towards the length of service in the customs authorities.

The test condition and its duration are specified in the order of appointment.

During the period of passing the test, a contract for service in the customs authorities is not concluded with a citizen.

Similar norms are established by the legislation on other types of public service.

3. Legislation sets out the maximum allowable trial period. By general rule the trial period may not exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices and other separate structural divisions of organizations - six months, unless otherwise provided by federal law.

The norms of the law that determine the maximum trial period are imperative and cannot be the subject of agreement between the parties to the employment contract. In other words, when concluding a contract, the parties can determine a test of any duration, but within a period of three or six months, respectively. The parties have the right to revise the test period, provided that its initial period has not expired, and the total duration of the test does not exceed three (six) months. So, in accordance with the Law of the Russian Federation of January 17, 1992 N 2202-1 "On the Prosecutor's Office of the Russian Federation", the test period in the process of service can be shortened or extended within six months by agreement of the parties (Article 40.3).

Federal Law of July 27, 2004 N 79-FZ "On the State Civil Service of the Russian Federation" provides not only the maximum, but also the minimum test duration - from three months to one year (Article 27), and the Decree of the Government of the Russian Federation of July 5 2000 N 490 "On probation when appointing to a public position of the federal public service by the Government of the Russian Federation" establishes a clearly fixed period of probation when filling the relevant positions - three months.

For employees hired for a period of two to six months (including seasonal work), the test period cannot exceed two weeks (see article 294 of the Labor Code of the Russian Federation and the commentary to it).

In accordance with Art. 70 of the Labor Code of the Russian Federation, the period of temporary disability and other periods when the employee was actually absent from work are not included in the test period. Consequently, in case of any absence from work (both for valid and disrespectful reasons), including for many days of absenteeism, the trial period is automatically extended by the number of days of absence from work.

5. The test condition cannot serve as a basis for restricting the employee's labor rights in terms of remuneration, work and rest hours and other labor rights. During the trial period, it is subject to the provisions of labor legislation, local regulations, a collective agreement, an agreement (see also clause 1 of the commentary to Article 71 of the Labor Code of the Russian Federation).

At the same time, some features of the legal status of a person undergoing testing are established by law.

First of all, the Code establishes features in the procedure for terminating an employment contract based on the test results (see Articles 71, 77 of the Labor Code of the Russian Federation and a commentary to it).

Restrictions in the exercise of powers, as a rule, are associated with the activities of an official as a representative of the state. For example, a trainee holding the position of a customs officer does not have the right to independently make decisions on customs clearance of goods and Vehicle, accrual and collection of customs payments and fees and perform other administrative and power actions in the position held.

To a civil servant until the end of the trial period for the next qualifying rank(class rank, special title) are not awarded.

6. As follows from the content of Art. 70 of the Labor Code, the test is established by the parties when concluding an employment contract. Based on this, two groups of circumstances should be taken into account.

First, the legislation distinguishes between the moments of concluding an employment contract, its entry into force and the beginning of work. These three moments may not coincide in time (see article 61 of the Labor Code of the Russian Federation and the commentary to it), therefore, it is necessary to distinguish two aspects of the test condition - the date of establishment and the date of the beginning of its course. If a probationary condition is established at the conclusion of an employment contract, i.e. acts as an element of the content of the contract that is being formed by the parties, then the beginning of this condition must be associated with the moment of starting work (because in any case, the time of absence of a person at work is not included in the trial period).