On the basis of Article 70 of the Labor Code, when concluding an employment contract, by agreement of the parties, it may provide for a condition on testing an employee in order to verify his compliance with the assigned work.

The absence of a test clause in the employment contract means that the employee is hired without a test. In the case when the employee is actually allowed to work without drawing up an employment contract (part two of Article 67 of the Labor Code of the Russian Federation), the test condition can be included in the employment contract only if the parties have drawn it up in the form of a separate agreement before starting work.

During the probation period, the employee is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations.

A test for employment is not established for:

Persons elected on the basis of a competition for 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 graduated from state-accredited educational institutions of primary, secondary and higher professional education and

for the first time coming to work in the acquired 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 in the order of transfer from another employer as agreed between employers;

Persons concluding an employment contract for a period of up to two months;

Other persons in cases provided for by the Labor Code of the Russian Federation, other federal laws, a collective agreement.

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

When concluding an employment contract for a period of two to six months, the probation may not 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 probationary period.

In case of an unsatisfactory test result, the employer has the right to terminate the employment contract with the employee before the expiration of the test period, notifying him in writing no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as not having passed the test. The employee has the right to appeal against the decision of the employer in court.

If the result of the test 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 paying severance pay.

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

If during the probationary 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 requestby notifying the employer in writing three days in advance.

7. Guarantees of the right of workers to work in conditions that meet the requirements of labor protection.

In accordance with Article 220 of the Labor Code of the Russian Federation, the state guarantees employees

protection of their right to work in conditions that meet the requirements of labor protection.

According to Part 2 of Article 7 , labor and health of people are protected in the Russian Federation The right of citizens to work in conditions that meet the requirements of safety and hygiene is enshrined in Article 37 of the Constitution of the Russian Federation. This right of the employee is realized by the obligation of the employer to create such working conditions (Article 212 of the Labor Code of the Russian Federation).

shall be compensated for material and moral damage in accordance with established by law

The working conditions stipulated by the employment contract must comply with the requirements of labor protection. When concluding an employment contract, the employer undertakes to create safe working conditions and provide benefits and compensation to employees engaged in hard work and work with harmful or dangerous working conditions.

For the period of suspension of work due to the suspension of activities or a temporary ban on activities due to violation of state regulatory requirements for labor protection, through no fault of the employee, the place of work (position) and average earnings are retained. For this time, the employee, with his consent, may be transferred by the employer to another job with wages for the work performed, but not lower than the average earnings for the previous job.

If an employee refuses to perform work in the event of a danger to his life and health, with the exception of cases provided for by federal laws, the employer is obliged to provide the employee with another job for the time the danger is eliminated. If this is not possible, pay a downtime. Downtime is the forced suspension of work.

In accordance with Article 74 of the Labor Code of the Russian Federation, in case of downtime, employees are transferred for up to one month, taking into account their specialty and qualifications, to another job in the same organization. At the same time, the employee cannot be transferred to work that is contraindicated for him for health reasons.

If the employee is not provided with personal and collective protective equipment in accordance with the established norms, the employer does not have the right to require the employee to perform labor duties and is obliged to pay for the downtime that has arisen for this reason in accordance with the Labor Code of the Russian Federation.

Acquisition by the employer at his own expense and free provision of employees with personal protective equipment, as well as monitoring the correct use of these means is the direct responsibility of the employer (Article 212 of the Labor Code of the Russian Federation).

An employee's refusal to perform work in the event of a danger to his life and health due to violation of labor protection requirements or from performing heavy work and work with harmful and (or) dangerous working conditions not provided for by the employment contract does not entail bringing him to disciplinary responsibility .

, harm is carried out in accordance with the Federal Law of July 24, 1998 No. Federation. In accordance with this Law, compensation for harm is carried out in the form of insurance payments by the Social Insurance Fund of the Russian Federation and its regional branches. The specific procedure for insurance compensation for harm - insurance coverage - is regulated by the relevant decrees of the Government of the Russian Federation, as well as regulatory legal acts of the Ministry of Health and Social Development of Russia and the Social Insurance Fund of the Russian Federation.

In order to prevent and eliminate violations of state regulatory requirements for labor protection, the state ensures the organization and implementation of state supervision and control over their observance and establishes the responsibility of the employer and officials for violation of these requirements.

8. Features of labor regulation of workers under the age of eighteen.

In accordance with Article 265 of the Labor Code of the Russian Federation, the employment of persons under the age of 18 is prohibited in the following types of work:

* at work with harmful and (or) dangerous working conditions;

* on underground works;

* at work related to the carrying and movement of heavy loads that exceed the established limits for them;

* at work that may have a negative impact on the moral development and health of minors.

The list of hard work and work with harmful or dangerous working conditions, in the performance of which it is prohibited to use the labor of persons under eighteen years of age, approved by Decree of the Government of the Russian Federation dated February 25, 2000 No. 163.

The employment of persons under the age of 18 in the jobs included in the List is prohibited in all organizations, regardless of sectors of the economy, organizational and legal form of ownership, as well as in cases where the activity is carried out by an employer - an individual.

The employer may decide on the employment of persons under 18 years of age in the jobs included in the List, subject to the creation of safe working conditions, confirmed by the results of attestation of workplaces, with a positive conclusion of the state examination of working conditions and the service that performs the functions of control and supervision in the field of sanitary - epidemiological well-being of the population of the subject of the Russian Federation.

Notes to the List define the procedure for admission to the work included in the List, persons under 18 years of age when they undergo industrial practice.

Federal Law No. 136-FZ of November 7, 2000 “On the Social Protection of Citizens Working with Chemical Weapons” establishes an additional age limit. Citizens who have reached the age of 20 are allowed to work with toxic chemicals related to chemical weapons.

Persons under the age of 18 are not allowed to do any type of underground work.

The norms of maximum permissible loads for persons under 18 years old when lifting and moving weights manually are approved by the Decree of the Ministry of Labor of Russia dated April 7, 1999 No. 7.

The test condition is not mandatory, but an additional clause in the content of the employment contract, along with conditions such as additional non-state pension coverage for the employee, additional insurance for the employee, non-disclosure of legally protected secrets, and others that are specified in. Therefore, if this condition is absent in the employment contract, then the employee is considered to be hired without a test.

If the employee is actually admitted to work without drawing up an employment contract, the test condition can be included in the employment contract only if it is drawn up as a separate agreement before the start of work ().

Who can't be put on probation by an employer?

• candidates under the age of 18;
• pregnant women, as well as women with children who are not yet 1.5 years old;
• elected by competition for the corresponding position;
• elected to an elective position for a paid job;
• employees concluding an employment contract for a period of up to two months;
• people who were invited to work as a transfer from another employer as agreed;
• those who successfully completed their apprenticeship;
• persons with secondary vocational education or higher education, who received it under accredited educational programs, for the first time applying for a job in their specialty within one year from the date of receiving the relevant education.

How long can a probationary period be?

The duration of such a period may be determined by the employer by agreement with the employee. However, the labor legislation provides for a maximum period for a specific category of workers.

There is a certain rule: it is possible to make the term less than what is indicated by law, but it is impossible to set a longer term or extend it.

It is also worth considering that the periods when the employee was actually absent from work, in particular, the period when he was on sick leave, are not counted in the probationary period.

C provides an explanation as to why it is not necessary to include in the probationary period periods of an employee on short-term leave without pay or on leave in connection with training, performance of state or public duties and absence without good reason (for example, absenteeism). The Office proceeds from the fact that the workplace, as specified in, is the place where the employee must be in connection with his work and which is controlled by the employer directly or indirectly.

Is it then possible to consider a business trip as a period, which, like all of the above, should not be included in the probationary period? Rostrud believes that a business trip should be included, citing the following arguments. On the one hand, the employee is on a trip outside the place of permanent work. On the other hand, he is sent there by the employer for a specific purpose - to perform the labor function provided for by the employment contract.

It is also noted that after the break, the probationary period continues, but its total duration before and after the break should not exceed the period specified in the employment contract.

In what documents to prescribe the condition for testing an employee

This condition is included in the employment contract or in a separate agreement. And the employer has the right to establish it only before the actual admission of a person to work and with the consent of the latter.

The employment contract or agreement is signed in two copies. One is for the employee and the other is for the HR department. It is better to flash and number the employment contract. This is necessary in case the dismissed employee does not have the opportunity to talk about replacing the sheets of the contract with the employer.

The condition of the probationary period is also prescribed in the text of the order, which is issued on the basis of an employment contract.

For an employee who is on probation, the employer must keep a work book. In Art. 66 of the Labor Code of the Russian Federation clarifies that "an employer (with the exception of employers - individuals who are not individual entrepreneurs) keeps work books for each employee who has worked for him for more than five days, in the case when the work for this employer is the main one for the employee."

In order to understand whether a newcomer corresponds to the position for which he is applying, it is necessary to monitor the results of his activities throughout the entire probationary period, demand reports from him, and fix shortcomings.

A final decision on compliance can be made before the expiration of the probationary period.

Salary for trial period

Since it establishes that during the probationary period all the norms of labor legislation apply to the employee, passing the test cannot be considered as a basis for reducing its size. Moreover, if there are no provisions prescribing a special procedure for calculating salaries during this period.

But there is no direct prohibition in the law to reduce the salary of an employee in connection with the passage of a probationary period. Therefore, it is common practice for employers to do just that.

What to do if the employee has not passed the probationary period

In this case, the following algorithm of actions is useful:

• Prepare a reasoned conclusion (documentary evidence) that the employee has not passed the test. This is necessary in order to terminate the employment contract with the employee on its basis.
• Notify the employee in writing of your plans three days prior to dismissal. To do this, prepare in duplicate (one will need to be handed over to the employee, and the other to keep, it must be signed by the employee). In this document, it is not enough just to indicate the reasons for terminating the employment contract, but also to confirm them with links to evidence documents: acts, orders to impose a penalty, explanatory notes, customer complaints, etc.
• Having received from the employee a receipt for receiving a notice of dismissal, you need to issue an order to terminate the employment contract. Further, the process is no different from the usual dismissal of an employee. In the work book, do not forget to make an appropriate entry stating that the employment contract was terminated due to an unsatisfactory test result, part 1 of Art. 71 of the Labor Code of the Russian Federation.

It is worth considering that the employer cannot terminate the employment contract if he is dissatisfied with the test results related to the violation of acts that the employee was not familiarized with against signature. These documents include:

• job description;
• internal labor regulations;
• other local regulations directly related to the work activity of the employee.

Is a probationary period included in the length of service that gives the right to leave?

The right to annual paid leave for the first year arises only after six months of continuous work with a particular employer (). The length of service for vacation includes the time of actual work. And during the probationary period, the employee is subject to all the provisions of labor legislation and local regulations.

Since the probationary period is not named among those periods that are not taken into account when calculating the length of service for providing paid leave (), it turns out that this period is included in the length of service for vacation.

Dismissal of an employee for not passing the test, and litigation

Even when the employer indicates the reasons that, in his opinion, served as the basis for recognizing that the employee did not pass the test, the employee himself can appeal this decision in court.

Judicial practice is good because it often dots the “i” in rather controversial and atypical situations. Let's look at some of them.

Dismissal of a pregnant woman who has not passed the probationary period

Situation:

The employee is placed on probation for three months, after some time she informs the employer about her pregnancy, but she is fired due to failure to pass the probationary period.

The court's decision:

Labor legislation prohibits the termination of an employment contract with a pregnant employee at the initiative of the employer (part 1 of article 70, part 1 of article 261 of the Labor Code of the Russian Federation). This requirement applies to all employees, including those on probation. Therefore, dismissal in this case is illegal.

It is also important that the court noted that it has no legal significance whether the employer knew about the pregnancy of the dismissed employee or not.

Document: Appeal ruling of the Samara Regional Court dated February 19, 2015 in case N 33-1934/2015

The employee was fired based on a memorandum from the deputy director about the unsatisfactory results of the test. Is this enough for legal dismissal?

The employee who was fired believes that it is not enough. And he was supported by the court, when in the course of the proceedings it found out that:

1. The employment contract that was concluded with the employee has incorrect content. It turned out that labor functions are not indicated in it, but only general duties are mentioned. Conclusion: the employee was fired for failure to perform duties that were not assigned to him.
2. When hiring, the employee was not familiar with the job description . Conclusion: the employee could not perform those duties with which he was not even acquainted.
3. The immediate supervisor of the dismissed employee is the director of the company. Conclusion: the deputy director could not give an opinion on the failure of the test, since the employee did not obey him.

Document: Appeal ruling of the Sverdlovsk Regional Court dated June 14, 2018 in case No. 33-10097/2018

The employer has no evidence of unsatisfactory work of the employee during the probationary period. Can he fire him?

Oddly enough, but the court often takes the side of the employer in such situations. So, for example, did the St. Petersburg City Court. The situation was that the employee was dismissed due to failure to pass the probationary period, although during this period no claims were made to him at work. As it turned out, the organization did not have any documents proving the employee's mistakes.

At the same time, the employee was familiarized with the job description under the signature, but did not fulfill the action plan, as evidenced by the job notes, and his reports contained incorrect information.

The court considered that the employer did not violate the requirements of labor legislation on the procedure for terminating the contract due to the failure to pass the probationary period. He also pointed out that only the employer has the right to evaluate the results of the employee's test and, accordingly, decide whether to continue or terminate cooperation with him.

The probationary period is a period of time during which the employer checks the employee of the enterprise for his suitability for work.

A probationary period is necessary to test the professional qualities of a future employee.

Note that the establishment of the period necessary for testing is the right of the employer, but not his obligation.

Therefore, if the employer believes that this applicant is suitable for a vacant position, then he can hire him without passing the test.

What is the purpose of probation?

The procedure for testing a potential employee when hiring expresses the completely legitimate right of the employer to determine his professional skills and the suitability of his position.

The condition for passing such a check allows:

evaluate the quality of performance of the duties assigned to the employee;

check the compliance of the business qualities (working skills) of the new employee with the existing requirements of the employer;

determine the level of discipline of the beginner.

trial period and

When hiring an employee, even if there is a probationary period, the employer is obliged to conclude an employment contract with the employee of the enterprise.

The employment contract must state that the employee is hired with a probationary period. The salary that the employer must pay to the employee on probation must also be stipulated in the employment contract.

It should be noted that all the norms of the current labor legislation, as well as other local regulations of the enterprise, containing labor law norms, apply to an employee on probation. That is, the employee has all labor rights and must fulfill all labor duties, and can also be held liable for violation of the norms of the Labor Code of the Russian Federation. This applies to wages, receiving bonuses, establishing social guarantees.

The candidate has the right to appeal against any actions of the employer in court.

If the employment contract with the employee does not specify the condition for assigning a probationary period to the applicant when hiring, this means that the employee of the enterprise has been hired for a vacant position without a probationary period.

Probationary period

The duration of the probationary period is not an essential condition of the employment contract. That is, without this clause, the employment contract will be valid.

In addition, if during the course of the employment relationship the parties have agreed that the test period needs to be changed, they can sign the corresponding supplementary agreement.

Article 70 of the Labor Code of the Russian Federation states that the duration of the probationary period cannot exceed three months.

If the head of the organization, his deputy, the head of a branch, representative office, structural unit, or his deputy is hired, then the probationary period is extended by up to 6 months.

If an applicant for a vacant position is concluded for a period of 2 to 6 months, or an employment contract is concluded with an applicant working in seasonal jobs, then the trial period cannot exceed 2 weeks.

Tests for a period of 3 to 6 months are established for civil servants who are hired for the first time and for persons who are transferred to the civil service for the first time.

However, there are such periods in work that are not included in the period for the employee to pass the test, that is, they actually increase the probationary period for a particular employee.

These are periods of time such as:

the period of illness, that is, the employee can justify his absence with a certificate of incapacity for work;

administrative leave, that is, leave when the employee does not retain his salary;

study leave, i.e. absence from the workplace due to training;

the presence of an employee in public works or the performance of public duties by him;

the absence of an employee at his workplace for other valid reasons.

In fact, these periods extend the probationary period of a particular employee, although there are no changes in the employment contract.

Who can't be put on probation

According to the Labor Code of the Russian Federation, a probationary period for employment cannot be established for the following employees:

persons who occupy a vacant position as a result of a competition;

pregnant women with a relevant certificate;

women with a child under the age of 1.5 years;

underage applicants;

applicants who are university graduates and who get a job for the first time within 1 year after graduation;

applicants who hold elective office;

persons who occupy a vacant position as a result of a transfer from another employer, if there is an appropriate agreement between these employers;

applicants with whom the employer has concluded an employment contract for a period of less than 2 months;

to other persons, if it is provided for by a local regulatory act or a collective agreement.

Results from passing the test

The test results can be either positive or negative.

If the employee has passed the test, then it is not necessary to conclude a new employment contract with him. The employee continues to work on the conditions that are prescribed in the employment contract concluded upon hiring the employee.

If the results of the test, according to the employer, are negative, then the employer has the right to terminate the employment contract with the employee even before the end of the probationary period. To do this, the employer must notify the employee in writing of the upcoming dismissal 3 days before the dismissal.

The notice of dismissal must also detail the reasons, as the employer must justify its decision on the negative results of the test.

If the employee does not agree with the results of the test, then he must also notify the employer. Moreover, if an employee of the organization considers his dismissal illegal, then he has the right to apply to the labor inspectorate or to the court.

The employee also has the right to terminate the employment contract with the employer if, during the test, he decides that this job is not suitable for him for a number of reasons.

To do this, he must notify the employer in writing 3 days before the termination of the employment contract.

conclusions

Article 70 of the Labor Code of the Russian Federation contains norms according to which, when applying for a job, an employer can establish a probationary period for a future employee for a limited time.

This trial period according to the Labor Code of the Russian Federation cannot be more than 3 months. For management positions, the duration of the probationary period is 6 months. If the work is supposed to be short-term (from 2 months to six months), then the duration of the probationary period is no more than 2 weeks. And if the employment time does not exceed 2 months, then the test condition may not be stipulated.

At the end of the trial period, the employer must decide whether the employee is suitable for him or whether he should be fired.

If the worker continues to work after the completion of the probation, then he is considered hired.

Still have questions about accounting and taxes? Ask them on the forum "Salary and personnel".

Probation period: details for an accountant

• We set a trial period: for whom and for how long?

  To work without probation. How many times can a trial period be set? In the article ... the named norms. Who can't be put on probation? For some candidates, the probation was not ... the work of the health worker was set to be a probationary period for the worker, but then arose ... an additional agreement. What is the length of the probationary period? As a general rule, the test is not ... the immediate supervisor about the employee passing the probationary period; disciplinary order...

• Errors in the calculation and payment of wages

  Is it possible to establish a lower salary during the probationary period? Possible... ? Is it possible to establish a lower salary during the probationary period? It is possible ... for the period of the probationary period, the salary in a smaller amount. The procedure for establishing a probationary period is regulated by Art ... -1874). Payment of wages during the probationary period in a smaller amount compared to ... in an employment contract, the salary for the duration of the probationary period is not paid in full ...

• Review of judicial practice on taxes and labor disputes from October 15 to December 15, 2019

  33-46257 / 2019 Is the probationary period extended due to pregnancy, the Moscow City Court explained ... parental leave, the probationary period was extended to her. When the employee left... The Moscow City Court declared the dismissal illegal. By extending the trial period until the end of the decree, the organization violated...

• Review of court practice on taxes and labor disputes from September 15 to October 15, 2019

  A27-29591/2018 Supreme Court: probation does not allow wage cuts for an employee... and those on probation. The condition for reducing wages by ...

• Employer's risks when concluding and terminating an employment contract

  Force if the employee does not pass the probationary period? By virtue of Art. 70 of the Labor Code ... on this basis (did not pass the probationary period) will be illegal and entail negative ...

ST 70 of the Labor Code of the Russian Federation .

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

The absence of a test clause in the employment contract means that the employee is hired without a test. In the case when the employee is actually allowed to work without drawing up an employment contract (), the test condition can be included in the employment contract only if the parties have drawn it up in the form of a separate agreement before starting work.

During the probation period, the employee is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations.

A test for employment is not established for:

persons elected on the basis of a competition for 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 received secondary vocational education or higher education in state-accredited educational programs and for the first time come to work in the specialty they have received within one year from the date of receiving vocational education of the appropriate level;

persons elected to elective office for paid work;

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

persons concluding an employment contract for a period of up to two months;

other persons in cases stipulated by this Code, other federal laws, a collective agreement.

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

When concluding an employment contract for a period of two to six months, the probation may not 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 probationary period.

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 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 test. It is impossible to establish a test after the conclusion of the contract either by an act of the employer or by an additional agreement of the parties.

An exception to this rule is provided for the public service, when the test, firstly, is established by virtue of a direct prescription of the law, i.e. is a non-contractual condition, and 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 probation condition is provided not by an employment contract, but by an act of appointment to a position. The employment contract is concluded based on the results of the test. So, according to the legislation on service in the customs authorities, a citizen who has submitted an application for admission to the service in the customs authorities and all the necessary documents , when establishing a test, is appointed to the appropriate position as an intern for the test period. The time of work as a trainee is counted in the length of service in the customs authorities. The condition of the test and its duration are indicated in the order of appointment. During the test period, 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. The Labor Code establishes the maximum allowable period of probation. As a general rule, it cannot 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 deadlines for probation are imperative and cannot be the subject of an agreement between the parties to an employment contract. In other words, when concluding a contract, the parties may determine a trial of any duration, but within the limits of a three- or six-month period, 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, by virtue of Art. 40.3 of the Federal Law of January 17, 1992 N 2202-1 "On the Prosecutor's Office of the Russian Federation", the period of probation in the course of service may be reduced or extended within six months by agreement of the parties.

Federal Law of July 27, 2004 N 79-FZ "On the State Civil Service of the Russian Federation" in Art. 27 provides not only the maximum, but also the minimum duration of the test - from three months to one year.

For workers hired for a period of two to six months (including seasonal work), the probationary period cannot exceed two weeks (see).

The period of temporary disability and other periods when the employee was actually absent from work are not included in the probationary period. Therefore, in case of any absence from work (both for a valid and unjustified reason), including absenteeism for many days, the probationary period is automatically subject to extension by the number of days of absence from work.

4. The test condition cannot serve as a basis for restricting the labor rights of an employee in terms of remuneration, work and rest regime, and other labor rights. During the trial period, the provisions of labor legislation, local regulations, a collective agreement, an agreement apply to him.

At the same time, the legislation establishes some features of the legal status of a person undergoing a test.

First of all, the Labor Code of the Russian Federation establishes the features of the procedure for terminating an employment contract based on the results of the test (see to it).

For certain categories of employees, the legislation establishes restrictions both in the exercise of powers in the relevant position and in labor rights. 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 is not entitled to independently make decisions on the customs clearance of goods and vehicles, the calculation and collection of customs duties and fees, and perform other administrative and power actions in his position. Until the end of the probationary period, the next qualification category (class rank, special rank) is not assigned to a civil servant.

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

1) the legislation delimits the moments of concluding an employment contract, its entry into force and the start of work. The indicated moments may not coincide in time (see to it). Therefore, it is necessary to distinguish between two aspects of the test condition - the date of establishment and the date of the beginning of its course. If the test condition is established at the conclusion of the employment contract, i.e. acts as an element of the content of the contract formed by the parties, then the beginning of this condition must be associated with the moment the work begins (in any case, the time the person is absent from work during the probationary period is not included);

2) the test condition is established at the conclusion of the employment contract, i.e. in formulating its content. The inclusion of this condition in an already concluded, and even more so, a valid employment contract is impossible and makes this condition null and void, even if it is included in an already concluded employment contract by mutual agreement of the parties (). This rule also applies when concluding an agreement in the form of an actual admission to work (part 2 of article 70 of the Labor Code of the Russian Federation).

Art. 70 of the Labor Code of the Russian Federation: questions and answers

Art. 70 of the Labor Code of the Russian Federation is intended to regulate the relationship between the parties to an employment contract on issues of test procedures when hiring. Who and how can be tested, as well as who is not threatened, find out from our article.

When does Article 70 of the Labor Code of the Russian Federation allow an employer to establish probationary procedures?

provides for the possibility of including a probation period clause in the employment contract. In doing so, it stipulates the following conditions:

• the probationary period is established by agreement of the parties;
• the presence of a probationary period and its duration are prescribed separately in the employment contract;
• test procedures are designed to check the compliance of the skills and abilities of the employee with the work duties entrusted to him.

In fact, employers usually fulfill only the second of the listed conditions.

The issue of reaching an agreement between the parties to the employment contract in this situation is usually not even raised. The employee is given the choice of:

• either agree with the set "test" condition;
• Or look for another job.

As for the goals of the test procedures, different employers have their own:

• Some company executives really want to make sure the competence of the hired employee.
• However, other employers use legally permitted probationary procedures to their advantage - in order to save on wages by setting a minimum wage for the maximum permitted probationary period. At the same time, the actual competence of the employee and his skills are not taken into account.

Why and for whom is a probationary clause required in an employment contract?

The trial period is important for both parties to the employment contract. It allows the employer to:

• take a closer look at a new member of the labor collective;
• assess the skills, abilities, knowledge and competence of the employee;
• compare the level of training of the employee with the requirements that apply to him in the performance of his duties;
• make an informed decision on the suitability of the employee for the position offered to him.

This period is no less significant for the employee. During the probationary period, he may:

• legally gain experience from more qualified employees of the company ;
• analyze your abilities in relation to this position;
• to study the general organizational and personalized nuances of working for this employer;
• make a decision about the possibility of working effectively and the acceptability of the atmosphere in the company (or in time to conclude that it is necessary to part with this employer).

What does the absence of a "test" clause in the contract mean?

Art. 70 of the Labor Code of the Russian Federation does not allow any liberties with regard to test procedures. For example, an oral agreement between the parties to an employment contract on the establishment of a probationary period has no legal force.

IMPORTANT! If the employment contract does not contain a clause on a probationary period, this means that the employee was hired without a test.

Article 70 of the Labor Code of the Russian Federation protects the interests of an employee if he is forced to start performing work duties without drawing up an employment contract with him.

IMPORTANT! If an employee is allowed to work, but an employment contract has not been drawn up with him, a clause on a probationary period is subject to inclusion in the contract only in 1 case: if an agreement on probation was signed even before the start of work.

Thus, the employer should not delay the execution of the employment contract. Then the test clause included in it will have legal force.

As Art. 70 of the Labor Code of the Russian Federation protects the rights of the subject?

If the employment contract provides for a test, the employee and the employer need to remember 1 important rule: in the period from the start of work to the end of the probationary period, the employee is a full-fledged unit of the labor collective, he is fully subject to labor legislation and intra-company local acts.

Any infringement of the labor rights of the subject is not allowed.

Who is not on probation?

The list of employees who, when hiring, cannot be placed on probation, is given in Art. 70 of the Labor Code of the Russian Federation:

• persons elected to vacant positions based on the results of the competition;
• women with children under the age of 1.5 years;
• women expecting the birth of a baby;
• working teenagers (under 18);
• graduates of colleges and universities (having state accreditation) who first went to work within 12 months after their graduation;
• employees transferred from another company (by mutual agreement of employers);
• other persons (in accordance with the law).

Given this list, it is important for the employer to carefully and in accordance with the law establish a test condition in the contract.

If a probationary clause is included in an employment contract with these persons, the company and its director may face penalties under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation - from a warning to the imposition of a fine in the amount of 30,000-50,000 rubles. per company and 1,000-5,000 rubles. on the leader.

What should the employer do if the “test” employee is pregnant, see the article “Can a pregnant woman be fired during a probationary period?” .

Is an extended trial period possible?

Most employees know the duration of the labor test: no more than 3 months. However, in Art. 70 of the Labor Code of the Russian Federation also lists who can be given an extended probationary period:

• director and his deputies;
• chief accountant and persons replacing him;
• heads of branches and other structural units.

The probationary period for these persons is lengthened (compared to the usual 3-month period), but cannot exceed six months.

How long is a trial period for a fixed-term employment contract?

If an employee goes to work not on a permanent basis, but for a certain period, Art. 70 of the Labor Code of the Russian Federation limits the appetites of the company's administration in relation to the length of the trial period.

IMPORTANT! The test cannot last more than 2 weeks if the employment contract is concluded for a period of 2 months to six months.

By introducing this restriction, legislators stopped possible abuses by companies in the form of establishing a trial period equal to the duration of the employment relationship.

Can a test be established for civil servants, see the article "Trial period for employment (nuances)".

How long can the trial period be extended?

Art. 70 of the Labor Code of the Russian Federation not only guards the interests of the subjects, but also takes into account the reasonable requests of the employer.

Taking into account the importance of the employer's assessment of the competence of the hired employee and the availability of the necessary skills, the legislator provided for companies a special bonus.

IMPORTANT! If during the probationary period the subject fell ill or was absent from the workplace for any reason, the time of such absence in the probationary period is not counted.

With this norm, the legislator stopped the abuses of employees related to their desire to shorten the probationary period for themselves.