Hiring employees with a probationary period has long become the norm - it is a rare case of employment today that goes without it. At the same time, it is believed that it will be easier to fire an employee after a probationary period than without it. Is this really true? Let's figure it out.

Who can set a deadline?

An employer can establish a probationary period, or, in the language of the Labor Code, a test when hiring, in relation to an employee hired by the organization (Article 70 of the Labor Code of the Russian Federation). At the same time, the Labor Code immediately establishes restrictions on the inclusion of this condition in the employment contract.

Thus, the first limitation follows from the fact that probation can only be installed upon hiring. This means that when already existing employees are appointed to a position (promotion, transfer, etc.), the test cannot be established. Please note: this rule also applies in cases where an employee was initially hired for a position on probation, but was transferred to another job before the end of the probationary period. In this case, the transfer simultaneously means the end of the probationary period.

In addition, the Labor Code contains a list of persons for whom, in principle, a probationary period cannot be established. It includes pregnant women and women with children under the age of one and a half years; persons under 18 years of age, as well as graduates educational institutions. True, the Code does not contain the employer’s obligation to establish these facts. This means that the employee himself must submit documents confirming that a test cannot be introduced against him. So if the employer at the time of signing employment contract has not received the appropriate documents, the establishment of a probationary period will be legal.

Separately, we need to focus on graduates of educational institutions. For them, the Labor Code establishes several additional conditions. Thus, the institution from which they graduated must have state accreditation, and no more than a year must have passed since graduation. In addition, the position for which the employee is hired must correspond to the specialty specified in the education document, and the employee’s work book should not contain records of work in this specialty. Accordingly, when hiring graduates, the employer needs to be especially careful and monitor whether these conditions are met or not. After all, the inclusion in a contract of a condition on a probationary period in cases where this is prohibited by law entails administrative liability up to and including suspension of the organization’s activities (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

What to do when setting up a test

Let’s assume that the employee being hired is not included in the “prohibited” list, which means that a probationary clause can be included in the employment contract with him. In most cases, everything is limited to this entry. However, with this design, there is no benefit for the employer from the probationary period - it will be almost impossible to dismiss an employee as having failed the test. But an employee can use this record if, for example, he finds better job and wants to quit quickly. After all, during a probationary period, the period of “working off” upon dismissal at will is not two weeks, but only three days (Article 71 of the Labor Code of the Russian Federation).

So, we found out that the probationary period should be formalized not only by an entry in the employment contract. Let's now see what documents the employer will need to submit.

The first thing to do is to reflect the condition of the probationary period and its duration in the employment order. Please note that for most employees the maximum probationary period is three months, but the employer may set a shorter period. So, if in the contract and order we have fixed a trial lasting, for example, two months, then in the future it will not be possible to extend it to three months permitted by the Labor Code without the consent of the employee. After all, the probationary period is one of the essential terms of the contract and can only be changed by agreement of the parties.

It should be noted here that many experts believe that the organization does not have the opportunity to extend the test at all, even with the consent of the employee. At the same time, they refer to the fact that the probationary period, according to Article 70 of the Labor Code of the Russian Federation, is established upon hiring. However, a careful reading of this article of the code leads to the conclusion that when hiring, it is imperative to resolve the issue of establishing a probationary period. But the Code does not require establishing the duration of the probationary period directly upon hiring. It turns out that the Labor Code does not prohibit changing the length of the probationary period after concluding an employment contract.

The second stage of establishing a probationary period will be the development of tasks for the probationary period and the conditions under which the employee will be considered to have passed the test. These documents must be handed over (or announced) to the employee against signature. We would like to clarify that both the tasks and the conditions for determining the success of their implementation must be clear, not allowing for ambiguous interpretation and subjectivity.

Further, throughout the entire period of probation, the employer is obliged to monitor the employee’s performance of these tasks and, in case of poor quality or untimely performance, promptly record these facts. To do this, you can use various acts, reports or memos. In these documents, it is necessary to indicate as clearly as possible what specific task was given to the employee, what exactly the failure was, etc. If possible, each such document should be accompanied by the task that was given to the employee and which he failed to complete.

If during the test the employee was given additional tasks, these facts also need to be recorded in writing, in memos. The task must contain a clear description of the result to be obtained, deadlines for completion and evaluation criteria. Such tasks must be handed over to the employee against a signature, indicating the date of receipt and that the essence of the task is clear to the employee.

As you can see, a real probationary period requires a rather complex formalization of the relationship between the employee and the employer. Each step must be documented in order to have irrefutable evidence in the future that the employee did not complete the probationary period, and therefore he can be fired.

Dismissal: don't miss the moment

Since we touched on the topic of dismissing an employee who has not completed the probationary period, we will dwell on this in a little more detail. The Labor Code requires that an employer who decides to dismiss an employee who has not completed the probationary period warns him about this in writing no later than three calendar days before the planned dismissal (Article 71 of the Labor Code of the Russian Federation). In this case, it is better to carry out the dismissal itself on the last day of the probationary period. The fact is that, according to the same Article 71 of the Labor Code of the Russian Federation, if an employee continues to work after the end of the probationary period, he is considered to have passed the test (from this, by the way, it follows that successful completion of the test is not required to be documented in a separate document).

Therefore, the employer needs to carefully monitor the deadlines and provide the employee with notice at least four working days before the end of the test. It must indicate the reasons why the employee is considered to have failed the test, the documents that support these reasons, and the date of the planned dismissal. This document must be given to the employee against signature, indicating the date of delivery.

Also, do not forget that special rules for calculating its length have been established for the probationary period. Thus, the probationary period does not include periods of temporary incapacity for work of the employee and other times when he was actually absent from work, including for an unexcused reason. In this case, the period itself is calculated in calendar days, that is, taking into account weekends and holidays. This means that it may well end on a non-working day. This also needs to be taken into account if a decision is made to dismiss - the day of dismissal in this case will be the last working day before the end of the probationary period, and all notifications will need to be made in advance.

Finally, do not forget that the dismissal of an employee who has not completed the probationary period is a dismissal at the initiative of the employer. This means that you cannot fire an employee while he is sick or on vacation. Accordingly, these points also need to be taken into account when preparing notices and orders of dismissal.

Job search, like recruitment, is a labor-intensive process. Even if professional qualities candidates meet the requirements of the vacancy, and the specialist is fully suited for the proposed job, this does not mean that the cooperation will be long and successful.

A probationary period upon hiring allows you to determine further cooperation.

Probation period according to the Labor Code of the Russian Federation

According to Article 70 of the Labor Code of the Russian Federation, the test period can last for different cases:

• no more than two weeks;
• no more than 3 months;
• no more than six months;

The shortest probationary period is provided for when concluding a fixed-term employment contract of up to 6 months. The same rule applies to seasonal workers.

The usual probationary period does not exceed 3 months. By agreement of the parties, it may end earlier, but not later.

A six-month probationary period can be established for the chief accountant, the head of the company, its branch, representative office, as well as their deputies.

The longest probationary period of up to a year is established upon entry into the civil service. If an employee is transferred from one government agency to another, the maximum probationary period is six months.

The Labor Code of the Russian Federation specifies categories of workers for whom it is impossible to establish a probationary period:

• If the candidate was hired through a competition.
• Pregnant women.
• Employees with whom the contract is concluded for two months or less.
• Candidates under 18 years of age.
• Former students who completed primary, secondary or higher education, and went to work for the first time in the specialty they received.
• Disabled people sent to work based on the recommendations of a medical examination.
• Specialists invited by way of transfer to work for another employer.
• If the candidate was elected to an elected position.
• Persons who were transferred to the reserve from service (military, alternative).

Why is a probationary period introduced when hiring a new employee?

Upon taking up a position, a probationary period is introduced not only for the employee, but also for the employer. During this period, both parties have the opportunity to take a closer look at each other and draw appropriate conclusions whether it is worth continuing cooperation or not.

During the employee's probationary period, the employer evaluates his abilities, business qualities, communication skills, compliance with the assigned position, the ability to competently carry out assignments, observe discipline and the rules established in the company.

During the probationary period, the employee draws conclusions about the company as a whole, about his position, responsibilities, salary, team and management.

Remuneration during the testing period

An employee who is in the probationary stage is fully covered by labor law. Therefore, if the company decided to stipulate in the contract that the trial period will not be paid, then this is a clear violation of the law.

Moreover, many employers deliberately set the probationer a lower salary, promising to increase it after the probationary period.

Firstly, it is impossible to limit the remuneration of an employee on probation. The size of his salary should not be less than the rate provided for in the staffing table for this position.

Secondly, reducing the salary during the test falls under the article of discrimination. For example, in the company's staffing table there are 2 rates. One position was occupied by an old employee, and another was hired by a new person with a probationary period. So, from the first day of his work, a newcomer should have the same salary as an employee who has been working in a similar position for several years.

But, nevertheless, almost all companies set a lower salary for employees on a probationary period. This can be done quite legally, for example, by changing the salary for a newbie position in the staffing table. It is worth remembering that the salary should not be less than the minimum wage.

The tested specialist may be paid a bonus and other incentive payments specified in the regulations on bonuses and remuneration. The employer is also obliged to pay the test subjects for sick leave, overtime hours, and going to work on weekends and holidays.

How to register

The probationary period is subject to mandatory registration. An employment contract is concluded with the employee, and on the basis of it an order for employment is issued. These documents record the duration of the test period. Information about the probationary period, but only a record of employment.

Is it possible to extend the probationary period of an employee?

It is not prohibited to increase the trial period, but only if its duration does not exceed the norms established by law.

For example, when an employee’s probationary period is one month, but after this time the employer has doubts about the candidate’s professional qualities, the probationary period can be extended to three months or up to six months if we are talking about the position of chief accountant or branch manager.

It is impossible to increase the length of the probationary period without the consent of the employee. Therefore, the employer's task is to justify its decision to extend the trial.

It is necessary to document the employee’s mistakes, untimely completion of tasks, violation labor discipline, attach memos from managers, if any. Documented facts are handed over to the employee for review against signature.

If the candidate agrees with his shortcomings in his work, then an additional agreement is made to the employment contract to increase the probationary period.

If an employee considers the claims to be unfounded and does not agree to increase the probationary period, dismissal is permitted on the basis of irrefutable written evidence.

What rights and responsibilities does an employee have during the probationary period?

The rights and responsibilities of the tested employee are no different from the rights and responsibilities of other employees working in the company.

What rights does an employee have during the probationary period:

• receive wages, overtime allowances, bonuses, and other incentive payments;
• take sick leave and receive insurance payments for the period of incapacity;
• take at your own expense or towards a future vacation. However, the employer can legally refuse leave if this does not contradict Article 128 of the Labor Code of the Russian Federation. For example, if an employee has a child, the employer is obliged to give him time off without pay for up to 5 days;
• resign on your own initiative, without waiting for the completion of the probationary period.

Responsibilities of the employee:

• comply with the terms of the employment contract;
• observe labor and fire discipline, internal regulations;
• Perform your job duties according to job descriptions.

The procedure for dismissing an employee who has not completed the probationary period

Dismissal of someone who has not completed the probationary period, step by step instructions:

Step 1. In advance in in writing prepare a notice for the employee indicating the reasons why further cooperation is impossible.

These reasons must be documented. This could be a memorandum from the manager, an act of failure to fulfill labor duties, an act of disciplinary action, written complaints from clients with whom the specialist worked, minutes of the meeting of the commission to determine the outcome of the probationary period, etc.

The notice also indicates the date of the planned dismissal and the date of drawing up the document. The notice is drawn up in 2 copies for each party.

Step 2. Give notice to the employee no later than 3, and preferably 4 days before the end of the probationary period, or the date of planned dismissal, if the decision to terminate cooperation was made much earlier than the end of the probationary period.

If this is not done on time, the employee is automatically considered to have passed the test.

Step 3. The employee reads the notice and signs for its receipt, indicating the date. If the employee refuses to sign the notice, then the employer draws up a report, which is signed by at least two witnesses.

Step 4. A dismissal order is issued. An entry corresponding to the article of dismissal is made in the work book.

Step 5. On the day of dismissal, the employee receives a work book, salary for days worked and compensation for unused vacation(if available).

In cases where the specialist himself decides to terminate the employment relationship without waiting for the end of the test, he must notify the employer about this 3 days in advance. At the same time, he writes a letter of resignation on his own initiative, and resigns precisely under this article.

It should be noted that the dismissal of employees who have not passed the probationary period is equivalent to dismissal at the initiative of the employer. Therefore, you should read Article 81 of the Labor Code of the Russian Federation before removing a specialist from his position.

For example, you cannot fire a pregnant woman or a woman raising a child under three years old. If an employee is on vacation or temporarily disabled, it is also prohibited to fire him.

Who benefits from it?

A probationary period is beneficial to both parties. Thanks to this period, the employer will be able to verify the candidate’s professionalism or begin an immediate search for a new specialist.

And the specialist, in turn, will be happy about the new job or will begin to look at vacancies from other employers. Thus, neither the specialist nor the employer will waste time looking for a new candidate or another job.

Video - rules, procedure for establishing and registering a probationary period when hiring a new employee:

Discussion (19)

In our organization, all employees are accepted on a probationary period. As an assistant personnel officer, I had problems dismissing such candidates. Especially when a person disappears without taking his work book. There are many nuances here, the main thing is to strictly adhere to the deadlines for submitting documents for dismissal. This requires clear coordination of the actions of the manager and personnel service. It often happens when managers need to immediately fire a person on probation, but under the law such actions are illegal. The main thing is to clearly and competently draw up documents from the very beginning of employment, discussing with the person all the nuances of his employment contract.

Yes, staff turnover in our company is also high, now the demand in the labor market is many times greater than the supply, so managers are expelled as best they can. The fact that bonuses are not given during the probationary period is a separate issue. Although I personally read in the Regulations on Bonuses that everyone should be paid - both new employees and part-time workers (both internal and external)

We established a probationary period for the chief accountant for a period of 6 months. The salary is full, after the probationary period bonuses are added to the salary. So the accountant turned out to be unqualified, although he had extensive experience. We broke up. And thanks to the trial period, it’s painless. I think that not all positions need it, but somewhere it is still necessary. And not always the employer is to blame; sometimes the employees do not meet the requirements.

When I came to work after college, I was given a standard probationary period of 3 months with a reduced salary. And words could not be said about this.

We have experience in removing an employee from staff for a probationary period. At this time, he is officially employed by the recruitment agency with which we cooperate. Usually this is 6 months. Then admission to the staff with a probationary period of three months. Thus, both the employee and the company have 9 months to see the results of cooperation and make a decision. This is important when the result of a specialist’s work is tied to long-term projects.

Often employers fall for the trick “in order not to spoil your employment, we will not fix a probationary period,” and then simply part with an employee who has worked for a month with a payment of 10 thousand rubles.

Tell me what to do. They gave me a probationary period of 3 months, but I have been working for the company for 5 months already. I don’t know where to turn and how to generally resolve this issue.

A fairly common practice is when an employee who is actually hired on a probationary period is signed up for a fixed-term employment contract (2-3 months). If the vacancy is interesting enough to the employee, then he will agree to such conditions and agree that the contract will include work for which a contract cannot be issued for an indefinite period (not those that the employee actually performs). This is, of course, beneficial for the employer - an unsuitable employee is fired without unnecessary formalities.

I have my own construction company, and when hiring employees, both engineers and workers, there is a probationary period great value. During this time, you find out who is capable of what. Many people complain that employers fire employees at the end of their probationary period. But judge for yourself, a person joined the team, began to work fruitfully, and then he was fired. This is not beneficial for the employer. After all, it takes one and a half to two months for an employee to start working at 100%. And compliance with the Labor Code is on the conscience of the employer. Therefore, a probationary period is vital.

I want to comment on the article from the employer's point of view. There are five salespeople working in my store, I hired all of them with a probationary period of three months. During the store's operation, two candidates did not pass the probationary period; I parted with them without conflicts, because the registration was clear, the girls were warned.
For me, it is important not only professional suitability, but also the attitude of the candidate in the team. I paid the same salary to everyone, bonuses too, no disadvantage due to the probationary period.
I broke up with one of the candidates literally a month later due to outright theft, and if she had been hired on a permanent basis, it would have been more difficult to fire her, the girl could have worked for another 15 days, I absolutely didn’t want to see her.
I think that there is nothing offensive to the candidate in the practice of a probationary period. Believe my experience, an entrepreneur will never part with an intelligent employee, who is still looking for.

Very often, employers abuse the norms of the Labor Code, which allow them to hire workers on a probationary period. It is no secret that during the probationary period, the salary is an order of magnitude lower than that of those who work under an indefinite employment contract. As a rule, this is a bare salary, without bonuses and allowances. There are many large enterprises that hire workers with a probationary period of 3 months. They are paid minimum wages, and then fired as having failed the test, and new ones are immediately hired. This is practiced on a large scale, people are hired and fired in shifts, but legally everything is clear, all these people allegedly did not pass the test when hiring. Therefore, such a legal phenomenon as “probationary period” has an ambiguous meaning. On the one hand, it allows the employer to choose for himself best shots, on the other hand, sharply increases the possibility of arbitrariness on the part of the employer. And if “white collar” workers can somehow apply for a job, since it is not easy to find a highly qualified specialist, then “blue”, and even more so “black” collar workers are in a much more disadvantageous position. They can simply be fired in batches after 3 months, without explaining anything.

At the job where I currently work (as an accountant), the issue of payment during the probationary period was resolved as follows: I receive only a salary, and after its completion they will begin to accrue a bonus to me. At the same time, the employment contract stipulates that the bonus is awarded based on the results of work and by the decision of the management.

I have a lot of experience working during a probationary period, but at one time I just couldn’t find a job that would suit me, so everywhere during the probationary period my salary was much lower than that of full-time employees or simply the minimum wage, this is about 4,500 thousand, and when the time came to formalize it, they delayed this process in every possible way, especially individual entrepreneurs

The probationary period has the status of a high necessity when hiring! How could it be otherwise? How to understand whether a person’s professional qualities are suitable and whether they are comparable with the declared data? This is why both the employer is looking at a potential employee and the applicant is looking at a potential job. If everything suits everyone, then the person is officially registered labor code with all that it implies. If not, then the search continues, and there are no obligations left to the person. In my opinion, everything is correct and fair!
The main thing is that both parties must know and comply with labor laws. Because sometimes, due to ignorance, a person is hired and is not subsequently employed due to a long probationary period. In the end, when it is convenient for the employer to get rid of you, he will easily do this, and without infringing on your rights. So, of course, it is necessary to monitor the legality of actions taken at the enterprise, this will be useful for everyone)))
It is very good that the rights of the test subject are equal to the rights of a full-fledged employee. This is, first of all, a guarantee and some kind of care for a person as a socially significant unit in our country!

I had to work in an organization where the employer lowered wages during the probationary period. This is a clear violation. And this happens a lot. We had a probationary period of three months; we could have been kicked out the door not long before the end of the probationary period. Apparently they were saving on salaries.
The question is: why doesn’t anyone contact the labor inspectorate?

I agree with Yana. “Experienced” employers often use the probationary system for illegal reasons. Usually students and young people (without work experience) suffer from unscrupulous companies. They agree to all the conditions and are unfamiliar with the TC. Learn from your own mistakes very quickly! But often, having not received payment or compensation, they do not go to the courts, which is very sad, because there would be an order of magnitude fewer deceivers.
According to the law, the probationary period cannot exceed 6 months. And employers like to take full advantage of this period, if not to deceive, then to cut costs (in the form of wages).

I have extensive experience working in various organizations - large and not very large, and I have never encountered complete compliance with the rules for dismissing an employee who has not completed the probationary period. Usually this process is simplified - the employer verbally notifies the employee that the probationary period has not been completed and the employee is dismissed at his own request.
IN lately there are a lot of complaints about employers - they hire an employee for a position for a probationary period with a lower salary, the person works from a month to three, then they tell him that he did not pass the probationary period. They recruit employees again - and everything goes in a circle. Thus, the company saves on wages. Naturally, this applies to a greater extent to unskilled workers.

When a person applies for a job, they are invited to attend an interview. This is the case if he has never worked in this company. If a potential employee successfully passes the interview and his skills and experience match the vacancy, he is hired. However, this is not yet final success.

Probation period - what is it?

Probationary period when hiring is a period when new employee has taken up duties in the company for the first time, and his work is being assessed by a potentially permanent employer. The probationary period is a chance for both parties to understand:

1. To the employer - whether the employee is suitable for the position.
2. The employee is satisfied with the team, duties and working conditions.

Probationary period - pros and cons

Working with a probationary period has its advantages and disadvantages. Recruiting and retaining valuable employees – Herculean task for personnel officers. The introduction of a probationary period is a kind of guarantee of hiring a suitable employee. Advantages for the employer:

1. The ability to evaluate an employee’s performance without significant risks.
2. The right to terminate probation without any consequences.
3. No significant financial investments(for example, benefits) until the end of the “examination” period.

There are also significant disadvantages:

1. The employee may leave before the expiration of the probationary period, leaving him with a “new” vacancy.
2. The risk of wasted finances if:

• the employee decided to leave;
• the candidate was not suitable.

For the applicant, the probationary period is also replete with pros and cons. Undoubted advantages:

• a chance to “fit in” to the position;
• the opportunity to see the company from the inside;
• lack of serious obligations when leaving.

Not so pleasant aspects:

• reduced wage rate;
• the risk of “flying out” and being left without work;
• lack of a full package of benefits.

To avoid negative aspects when applying for a job with a probationary period, you need to get answers from the employer to the following questions:

1. How long will the probationary period last?
2. Who will evaluate and when?
3. If a reduced salary is offered during the trial period, when will it increase?
4. How many people were tested for this position, and how many were eliminated?
5. What specific duties will be performed?

Before agreeing to a probationary period, it is important:

1. Understand all its terms.
2. Be willing to go the extra mile to make an impression.

It is common practice for employers to expect more from newcomers - to perform work that is not directly related to the job description. For example, after hours or little things like “running for coffee” and “changing the cartridge in the printer.” It's okay if in moderation. These situations test your ability to:

• be active;
• work in a team;
• come face to face with .

Probation period

The probationary period must be specified in the employment contract. According to the Labor Code of the Russian Federation, it can last up to 3 months, no more. During this period, the employee has all rights in accordance with labor laws. A probationary period of 6-12 months can be assigned for management positions (director, branch manager) and their deputies, as well as for:

• chief accountant;
• police officer;
• civil servant;
• law enforcement officer.

Probation cannot be extended. If the probationary period expires and the employee continues to work, he is considered to have passed it successfully. Applicants of some categories are not subject to a probationary period:

• pregnant women;
• mothers with children under 1.5 years old;
• employees under 18 years of age;
• employees with an employment contract of less than 2 months.

I haven’t passed the probationary period – what should I do?

Failure to complete probation is not the end of the world. If all the issues were discussed before it began, and the “failure” was honest on the part of the employer, it is worth moving on:

• first calm down;
• then rest;
• update your resume;
• start searching - your dream job is still ahead!

How to quit during a probationary period?

Dismissal during the probationary period works both ways. The law states that an employee has the right to terminate an employment contract during the probationary period on his own initiative:

1. Reporting your decision three days in advance.
2. By writing a letter of resignation.

It is not necessary to inform the employer about the reasons for leaving - a simple written notice will suffice. However, there are some points:

1. Workout. In the case of full-time work, it lasts two weeks. If you leave voluntarily during the test, it is reduced to three days.
2. The financially responsible person, upon dismissal during the probationary period, must transfer all matters to the receiver.

Can they be fired during a probationary period?

Dismissal during a probationary period at the initiative of the employer and in connection with unsuccessful result Maybe. But must be respected certain rules, the employer must:

1. Establish clear criteria for evaluating an employee for a probationary period.
2. Issue work assignments in writing.
3. Provide at least 3 days notice prior to termination date.
4. Provide a reasonable explanation of the reasons.

Only lazy employers do not currently establish a probationary period for employees. Even if its use is unlawful, the employer, just in case, prefers not to remove it from standard form employment contract. At the same time, only a few have learned to correctly use this condition for parting with employees.

The possibility of establishing a test when hiring is provided for in Art. 70 Labor Code of the Russian Federation. Testing, according to this article, means checking an employee to determine his compliance with the assigned work.

Test Establishment Basics

When fixing the condition of a probationary period in an employment contract, you should remember the restrictions and prohibitions defined by the Labor Code of the Russian Federation. Thus, a hiring test is not established for (Part 4 of Article 70 of the Labor Code of the Russian Federation):

— persons elected through a competition to fill the relevant position, conducted in the manner 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 are entering work for the first time in the acquired specialty within one year from the date of receipt vocational education appropriate level;

— persons elected to an elective position for paid work;

— persons invited to work by way 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, and a collective agreement.

If a probationary period, in violation of the prohibition, is established by an employment contract, then it should be borne in mind that the probationary condition will not be applied, and the dismissal of an employee on the basis of an unsatisfactory test result (Part 1 of Article 71 of the Labor Code of the Russian Federation) in the described situation will be recognized by the court illegal.

In addition, it should be remembered that the law establishes restrictive (maximum) test periods (Parts 5 and 6 of Article 70 of the Labor Code of the Russian Federation):

- three months for all employees,

— six months for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations (unless otherwise established by federal law),

- two weeks - when concluding an employment contract for a period of two to six months.

At the same time, 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.

The absence of a test clause in the employment contract means that the employee was hired without a test (Part 2 of Article 70 of the Labor Code of the Russian Federation). In the case where an employee is actually allowed to work without drawing up an employment contract (Part 2 of Article 67 of the Labor Code of the Russian Federation), the probationary condition can be included in the employment contract only if the parties formalized it in the form of a separate agreement before starting work. The literal interpretation of this norm does not allow an employer who “forgot” to establish a probationary period to establish it additional agreement to the employment contract already in the process of labor relations.

FYI.During the probationary period, the employee is subject to the provisions labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations (Part 3 of Article 70 of the Labor Code of the Russian Federation). The literal interpretation allows us to draw an unambiguous conclusion: the amount of wages cannot be reduced during the probationary period. In fact, it's a violation of this rule accepted by most employers.

Registration of test conditions

Drawing up the test conditions itself does not present any particular difficulties. The text of the employee’s employment contract should include the following provision: “...The employee is given a probationary period of three months.”

The inclusion of this phrase in the employment contract provides certain benefits to both parties to the employment relationship. This allows the employer, before the expiration of the test period, to terminate the employment contract with the employee if the test result is unsatisfactory in the manner prescribed by Part 1 of Art. 71 Labor Code of the Russian Federation.

FYI.During the probationary period, the employee is subject to all the norms of the Labor Code of the Russian Federation, including any grounds for dismissal provided for by the Labor Code of the Russian Federation and suitable for the specific current situation. That is, an employee can be fired for absenteeism (subclause “a”, clause 6, part 1, article 81 of the Labor Code of the Russian Federation), and due to staff reduction (clause 2, part 1, article 81 of the Labor Code of the Russian Federation), and for other reasons .

An employee, if there is a probationary clause in the employment contract, will be able to notify the employer of his dismissal within a shortened period. So, if during the probationary period he comes to the conclusion that the work offered to him is not suitable for him, then he has the right to terminate the employment contract at his own request, warning the employer about this in writing three days in advance (and not two weeks in advance, as this is required by Article 80 of the Labor Code of the Russian Federation upon dismissal at one’s own request).

Please note that the reason for dismissal is stated as general - “at one’s own request”. The fact that the work did not meet the employee’s expectations can be kept silent. In any case, a notice period of three days rather than two weeks will apply.

Registration of termination of an employment contract

With registration of dismissal on the basis provided for in Part 1 of Art. 71 of the Labor Code of the Russian Federation - as a result of an unsatisfactory test, many employers have problems. To minimize the risk of dismissal being declared illegal on the above grounds, we will go through all the stages of this procedure together.

For convenience, consider the following situation.

A new employee was hired at the company, and an employment contract was concluded with him on February 17, 2014. According to the terms of the employment contract, the employee must begin work on this day. The employment contract provides for a probationary period of three months. According to the new employee’s immediate supervisor, the level of knowledge, skills, and attitude to work do not meet the employer’s requirements. This official reported this to the director of the enterprise at a planning meeting on April 30, 2014 and proposed to initiate a dismissal procedure as a result of an unsatisfactory test result. At the same time, the employee’s manager explained that the new employee was absent from work from 03/13/2014 to 03/17/2014 due to illness (a certificate of incapacity for work was submitted).

1. We count the deadlines

First you need to find out the end date of the probationary period. Under the conditions of the situation under consideration, the last day of the probationary period falls on 04/12/2014. However, due to the employee’s absence from work from 03/13/2014 to 03/17/2014, the test period must be extended by five calendar days, that is, until 04/17/2014.

Having established the end date of the probationary period, we determine last date, in which the employee must be given notice of an unsatisfactory test result. In accordance with Part 1 of Art. 71 of the Labor Code of the Russian Federation, notification should be submitted no later than three days before the end of the probationary period.

According to Art. 14 of the Labor Code of the Russian Federation, the period of time with which the Labor Code of the Russian Federation associates the emergence of labor rights and obligations begins with the calendar date that determines the beginning of the occurrence of these rights and obligations. The period of time with which the Labor Code of the Russian Federation associates the termination of labor rights and obligations begins the next day after the calendar date that determines the end of the labor relationship. Terms calculated in years, months, weeks expire on the corresponding date last year, month or week period. The period calculated in calendar weeks or days also includes non-working days. If the last day of the period falls on a non-working day, then the end of the period is considered to be the next working day following it.

In our situation, the last day for delivering notice of upcoming dismissal will be 04/14/2014.

Question. Is it possible to begin the procedure for dismissing an employee before the end of the probationary period if the employer comes to the conclusion that the employee did not complete the probationary period?

Start the dismissal procedure under Part 1 of Art. 71 of the Labor Code of the Russian Federation as a result of an unsatisfactory test result is possible at any time. However, it should be borne in mind that by that time a sufficient amount of documented evidence should have been collected that the employee did not pass the test.

2. We collect evidence of an unsatisfactory test result

Such grounds may include reports/memos from the manager and other services, acts of internal investigations of employee misconduct, acts of inspections recording erroneous actions of the employee, and other written evidence.

3. We issue a notification

The notification should clearly and clearly describe the reasons why the test result was found unsatisfactory (Example 2).

delivery

JSC "Speed ​​Delivery"

N. A. Kozlova

Moscow, st. Pirogova, 7, apt. 24

Notification

Dear Nikolai Alexandrovich!

We notify you that the test result established by clause 2.5 of the employment contract concluded between you and OJSC “Speed ​​Delivery” on February 17, 2014 (No. TD-14) was recognized by the employer as unsatisfactory for the reasons stated below.

In accordance with the official investigation report dated March 25, 2014, based on the results of an inspection during the period of your work from February 17, 2014 to March 24, 2014, a violation of clauses 4.1 and 4.1.2 of the Rules for the delivery of items to addressees, approved by order dated October 7, 2011 N 417, was revealed, and clause 3.1 of the job description of the leading specialist of the delivery department, approved on October 30, 2012, namely: the shipment dated February 25, 2014 N 41 was delivered to the addressee 14 hours late, the shipment dated February 26, 2014 N 54 was delivered 2 hours late, departure dated 03/06/2014 N 62 was delivered 4 hours late.

Due to the unsatisfactory result of the test, the management of High-Speed ​​Delivery OJSC made a decision to terminate your employment contract dated February 17, 2014 No. TD-14 under Part 1 of Art. 71 of the Labor Code of the Russian Federation (if the test result is unsatisfactory) 05/16/2014.

I notify you that before the date of dismissal (05/16/2014) you retain the right to terminate the employment contract at your own request.

Director of OJSC "Speed ​​Delivery" Smirnov N. A. Smirnov

If the employee refuses to sign the receipt of the notification (or refuses to read it), it is necessary to draw up a report about this (Example 3).

Open joint stock company"Fast delivery"

Act

12.05.2014

N 15

Moscow

On refusal to put a signature on the acquaintance

We, the undersigned: director Smirnov N.A., deputy director Tkachev E.N., chief accountant Nosov N.S., head of the personnel department Ivanova N.K., have drawn up this act on the following:

Today, May 12, 2014, at 12:30 p.m. in the office of the director of High-Speed ​​Delivery OJSC, N.A. Smirnov, the leading specialist of High-Speed ​​Delivery OJSC, N.A. Kozlov, was presented with a notice dated 12.05 for review and signing upon receipt. 2014 N 45 about unsatisfactory test results. After familiarization, Kozlov N.A., in the presence of all the undersigned officials, signed in receipt of the specified notification and refused to sign for familiarization with it.

Smirnov N. A. Smirnov

Tkachev E. N. Tkachev

Nosov N. S. Nosov

Ivanova N.K. Ivanova

4. We give the employee a choice

In most cases, upon receiving such notice, employees write a letter of resignation of their own free will. The law does not prohibit, if there are several grounds for dismissal, choosing one of them, including dismissing an employee on his own initiative.

Question. The employee was given a notice of unsatisfactory test result on the verge of deadlines. Immediately after reading it, he wrote a letter of resignation of his own free will, but indicating the deadline for dismissal in two weeks, as provided Art. 80 Labor Code of the Russian Federation. However, the date of dismissal will already go beyond the probationary period. How to protect yourself from the risk of an employee withdrawing his application for dismissal immediately after the end of the probationary period?

You can only protect yourself from such a tricky turn of the situation:

- asking the employee to rewrite the application indicating the date of dismissal, which is included in the probationary period;

— by terminating the employment contract by agreement of the parties on the “required” date;

- by terminating the employment contract on a previously planned basis, provided for in Part 1 of Art. 71 of the Labor Code of the Russian Federation, on the date specified in the notice, despite the presence of the employee’s resignation letter.

5. Formalize your dismissal

The dismissal procedure in in this case standard.

Step 1. On the day of dismissal, you must issue a dismissal order (the project can be prepared in advance).

FYI.You have the right to use the unified form N T-8, approved by Decree of the State Statistics Committee of the Russian Federation dated 01/05/2004 N 1 “On approval of unified forms of primary accounting documentation for recording labor and its payment.” Despite the fact that from 01/01/2013 the unified forms are no longer mandatory for use, they provide the greatest information content and for many employers remain the most convenient due to their versatility and familiarity. However, do not forget that they must be approved by order of the company.

Step 2. Then the employee must be familiarized with the order under his personal signature or an appropriate entry must be made on the order (instruction) in the case where the order to terminate the employment contract cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it under his signature (Part 1 of Article 84.1 Labor Code of the Russian Federation).

Step 3. Make a full settlement with the employee in accordance with the settlement note (Article 140 of the Labor Code of the Russian Federation).

Step 4. Give the employee copies of documents, including a 2-NDFL certificate, if there is his application, a certificate of the amount of earnings for two calendar years preceding the year of termination of work (clause 3, part 2, article 4.1 of the Federal Law of December 29, 2006 N 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity”). The certificate form was approved by order of the Ministry of Labor of Russia dated April 30, 2013 N 182n.

Step 5. Record the dismissal in the work book. According to Art. 84.1 of the Labor Code of the Russian Federation, an entry in the work book about the basis and reason for termination of the employment contract must be made in strict accordance with the wording of the Labor Code of the Russian Federation or other federal law and with reference to the relevant article, part of the article, paragraph of the article of the Labor Code of the Russian Federation or other federal law.

Step 6. Complete the remaining personnel documents to record labor relations:

— employee’s personal card (most employers continue to use the unified form N T-2). It is necessary to obtain the employee's signatures on the card in certain places provided by the form;

— notice of termination of the employment contract (dismissal), sent to the military registration and enlistment office within two weeks from the date of dismissal. The employee's signature is not required on it ( Methodical recommendations on maintaining military records in organizations, approved by the General Staff of the Armed Forces of the Russian Federation dated April 11, 2008).

Step 7. Issue a work book to the employee. The issuance is carried out under the personal signature of the employee, indicating the date of receipt in the journal of the movement of work books and inserts in them (Example 5). The form was approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 N 69 “On approval of the Instructions for filling out work books.”

Appendix No. 3

TO Resolution Ministry of Labor of Russia dated October 10, 2003 N 69

Book of movement of work books and inserts in them

N p/p	Date of hiring, completion work book or an insert in it	Last name, first name and patronymic of the owner of the work book	Series and number of the work book or its insert	Position, profession, specialty of the employee who submitted the work book or for whom the work book or insert in it was filled out	Name of place of work (indicating structural unit), where the employee was hired	Date and number of the order (instruction) or other decision of the employer on the basis of which the employee was hired	Signature of the responsible person who accepted or filled out the work book	Received for completed work books or inserts in them (rub.)	Date of issue of the work book upon dismissal (termination of the employment contract)	Employee's signature when receiving a work book
Number	Month	Year
1	2	3	4	5	6	7	8	9	10	11	12	13
1	09	01	2014	Kulikov Anton Vladimirovich	Series - TK-IV, N 2457454	Specialist		09.01.2014	Signature
2	09	01	2014	Nazaridze Turam Davidovich	Series - TK-II, N 5574322	Leading specialist	JSC "Speed ​​Delivery", delivery service	09.01.2014	Signature
3	17	02	2014	Kozlov Nikolay Alexandrovich	Series - TK-IV, N 8604301	Leading specialist	JSC "Speed ​​Delivery", delivery service	17.02.2014	Signature	150	16.05.2014	Kozlov

If it is impossible to issue a work book to an employee on the day of termination of the employment contract due to his absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for it or agree to send it by mail. From the date of sending this notification, the employer is released from liability for the delay in issuing the work book (Article 84.1 of the Labor Code of the Russian Federation).

Mistakes when terminating an employment contract

An analysis of practice has shown that the main mistakes in dismissal on this basis are:

1) failure to comply with the warning period or lack of warning at all. The employer must notify the employee of termination of the employment contract on this basis no later than three days in advance;

2) failure to comply with the written form of the warning;

3) ignoring the legislator’s requirement to indicate the reasons that served as the basis for recognizing this employee as having failed the test. The employer's statement about an unsatisfactory test result cannot be unfounded; it must be supported by documents;

4) incorrect classification of actions/inactions as the reason for the employee’s unsatisfactory test result. For example, if you hired a driver without including in his duties washing the entrusted car, then his failure to perform this function in no case can be regarded as evidence of an unsatisfactory test result;

5) termination of the employment contract on the above grounds after the expiration of the probationary period.

All specified requirements for registration are provided for in Part 1 of Art. 71 Labor Code of the Russian Federation. Despite this, the number of employers forced to reinstate employees dismissed in violation of these requirements is not decreasing.

Judicial practice. An employee dismissed under Part 1 of Art. 71 of the Labor Code of the Russian Federation, was reinstated by the court. Considering the case, the court came to the conclusion that the defendant did not comply with the dismissal procedure, and did not indicate specific reasons that served as the basis for recognizing the employee as having failed the test, which is a gross violation of labor legislation. The right to evaluate the employee’s test results belongs to the employer, who during the probationary period must determine the employee’s business and professional qualities. Therefore, when dismissing an employee as having failed the test, the obligation to prove the fact of his unsatisfactory work rests with the employer.

However, the defendant did not provide sufficient and convincing evidence to confirm the facts set out in the annex to the employee’s notification about the unsatisfactory test result. It does not follow from the evidence presented how the plaintiff’s level of professionalism and the quality of her performance of her duties were assessed. According to the court, the defendant did not provide evidence convincingly indicating that the plaintiff was improperly fulfilling her official duties. Thus, the court came to correct conclusion about the absence of grounds for recognizing the employee’s test results as unsatisfactory (ruling of the St. Petersburg City Court dated October 14, 2013 N 33-15722).

* * *

It should be remembered that upon dismissal under Part 1 of Art. 71 of the Labor Code of the Russian Federation, the most important thing is compliance with the dismissal procedure. Moreover, it will be legal only if there is evidence of unsatisfactory test results for the employee.

Even if the employer tries to comply with all the requirements of the law, as practice shows, he is not immune from the employee’s reinstatement. If the court establishes specific circumstances, the court may conclude that the employer violated the dismissal procedure, despite the fact that the employee’s actions may show signs of abuse of rights (for example, silence about the presence of an illness and an open sick leave).

To determine the actual knowledge and skills of a candidate when applying for a job, it is not enough to provide recommendations from previous places, educational documents, etc. An enterprise has the opportunity to find out the qualities and skills of an employee by including a probationary period in the employment contract when hiring. Several articles in the Labor Code of the Russian Federation are devoted to this period.

represents a period during which the employee performs the work provided for by his job description, and the employer determines, based on the actual results of the employee, whether he is suitable for him or not.

At this time, all parties may terminate the action in a simplified manner. Basically, during the test, the worker is observed by a responsible person who checks his work and writes a report on it.

On the other hand, during this period the employee gets the opportunity to get to know his employer better and get acquainted with new job, and if the assessment is unsatisfactory, leave. Labor law rules determine that a probationary period at work can only be introduced by agreement between the employee and the company.

According to the current regulations of the law, employment testing is introduced for a period of 2 weeks to 3 months. The duration of the probationary period for the chief accountant and managers, their deputies and other positions can be up to 6 months.

At the same time, for persons entering the civil service, it is allowed to set its duration for 1 year. The maximum probationary period when hiring under an employment contract concluded for a period of two to six months should not exceed two weeks.

The company administration may terminate the test early if the employee shows that he meets the requirements and is capable of performing this work. To do this, the company must additionally conclude an agreement with the employee to the current contract.

After the expiration of the probationary period, if no objections are received from the parties to the employment relationship, the employment agreement is considered to be drawn up on a general basis.

Who cannot be tested

It cannot be entered when applying for a job:

• Pregnant candidates;
• Workers with children under 1.5 years of age;
• Young professionals who have just received a certificate or diploma of professional education;
• Employees hired by transfer from other employers;
• Persons who have not yet turned 18 years of age;
• Candidates selected as a result of a competition to fill a position;
• Elected to an elected position.

Test period for hiring not established for imprisonment for a period of less than 2 months. You also need to remember that you cannot introduce a trial period for already working employees.

Registration procedure

The test provision must be included in the employment contract concluded with the employee, and it is necessary to determine the exact duration of the test or its start and end dates. The test must be reflected in the employee’s hiring order. It is advisable that the application also contain a condition regarding this.

If, nevertheless, this period was provided only in the order, then it is considered that the employee was hired without a probationary period. This organization will also be confirmed by the court if it goes there regarding a labor dispute.

When an employee starts work without drawing up a contract, a probationary period condition can be included in this document only if there is a preliminary agreement between the parties, concluded in writing before performing work duties.

Having signed the contract, the employee must also familiarize himself with the signature. Then he must be given the internal regulations to read, job description with a list of responsibilities. Here the employee must also sign. This is especially important if he has to be dismissed as having failed the test.

Information about the preliminary test is not entered into the work book.

Amount of wages for the probationary period

Very often, employers set a reduced salary for the probationary period. This, according to the law, is a gross violation of employee rights. Salary for a specific position is determined based on the staffing table. When hiring an employee for a predetermined position, the company must provide an appropriate salary.

Being on probation does not make any exceptions for this; labor law norms apply in general order.

Is it possible to take sick leave?

Having hired an employee on a probationary period, the company is obliged to provide his social insurance in the general manner. That is, if he provides a certificate of incapacity for work during the probationary period, the company must pay for it. Therefore, an employee can safely contact doctors for assistance. medical care. Only they can ask for a certificate of employment in order to correctly fill out the supporting document.

However, according to the Labor Code of the Russian Federation, the period an employee is on sick leave is excluded from the duration of the probationary period. That is, when an employee leaves, the period of checking him at work will be extended by the number of days of illness.

Dismissal during probationary period

The main difference between the probationary period and regular work is the simplified termination procedure labor agreement between the parties.

By general rules, in order to dismiss an employee during a test, the organization must warn him about this in writing at least three days before the date of dismissal.

However, here you need to be very careful with such wording of dismissal as “failed to pass the preliminary test.” To use it in a company, you need to appoint a responsible person who will check the test subject, record his successes and shortcomings in a special journal. In this case, it is necessary to familiarize the inspected employee with these records against signature. If the company does not formalize everything as expected, the subject can appeal the decision to dismiss in court.

The legislation also provides for how an employee can resign during a probationary period if he is not satisfied with the working conditions, the work itself, wages. He does not have to wait two weeks, as with regular work. It is enough for the employee to notify the employer in writing in the form of a resignation letter three days before the expected date of dismissal.