Home Audience 2 What is the probationary period established by the Labor Code of the Russian Federation? Probation period: nuances of registration and completion. Probationary period (Labor Code of the Russian Federation)

What is the probationary period established by the Labor Code of the Russian Federation? Probation period: nuances of registration and completion. Probationary period (Labor Code of the Russian Federation)

The probationary period is an opportunity for both the employee and the employer to evaluate how suitable they are for each other. However, employers, when ordering a test, often violate the Labor Code of the Russian Federation. And there are some, not very decent employers who take advantage of the probationary period to hire workers at a reduced salary. And then, dismissing the previous employee as not completing the probationary period, they hire the next one.

The sad experience of workers deceived by their employers has received wide publicity. As a result, concerned citizens already at the first interview ask personnel officers: how much do they pay during the probationary period and do they pay for the probationary period at all in the company?

It is clear that it is impossible to know for sure how the employer will behave after the adaptation period for a new employee. But how to protect your rights, fight dishonest employers and what to pay attention to when you enter into an employment contract with a probationary period - we’ll talk about this.

Situation 1. Who should not be given the test

The young specialist graduated from the institute six months ago. I have worked before, but this is the first time I am getting a job in my specialty. He is given a probationary period. Is this legal?

Let's start with the fact that the test can only be ordered by mutual consent of the employee and the employer. This is provided Article 70 of the Labor Code of the Russian Federation, where it says: “When concluding an employment contract, it agreement parties a provision may be made for testing the employee in order to verify his suitability for the assigned work.” That is, without the consent of the employee, a probationary period cannot be assigned to him. Of course, the applicant is unlikely to be able to take advantage of this right; most likely, he will not be hired if he tries to start his career with such disagreement. But there are categories of employees for whom such a trial period is not permitted by law, even with their consent. A hiring test is not established for:

pregnant women and women with children under the age of one and a half years;
persons elected through a competition to fill the relevant position;
persons under the age of 18;
persons who have graduated from state-accredited educational institutions of primary, secondary and higher vocational education and are entering work for the first time in the acquired specialty within one year from the date of graduation from the educational institution;
persons elected to elective positions 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.

Therefore, despite the fact that the young specialist from our example has already worked, it is unlawful to set a test for him. And even if he signed a contract containing such a condition, the employer cannot fire him as having failed the test.

Situation 2. Employment contract with a probationary period

The specialist got a job. The employer warned him about the probationary period. An employment contract was signed. But there was not a word in it about the purpose of the test. What are the consequences?

If a probationary period is assigned, this must be specified in the employment contract. The Labor Code of the Russian Federation states that the absence of such a condition in the employment agreement means that the employee was hired without a special period of adaptation and evaluation. Even if there is an order to appoint a trial, it will not be possible to dismiss an employee as having failed the probationary period. And the labor inspector or the court, having compared the order and the contract, will consider the absence of a corresponding clause in the contract to be a significant violation. In this case, the court will certainly recognize the appointment of a probationary period as invalid.

Situation 3. Fixed-term employment contract for the duration of the trial

The employee was offered to enter into a fixed-term employment contract for two months during the probationary period. After its completion, the contract will either be re-signed for an indefinite period, or will not be concluded if the employee does not pass the test. Is this legal?

IN Article 58 of the Labor Code of the Russian Federation it is written in black and white: “It is prohibited to conclude fixed-term employment contracts in order to evade the provision of rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period of time.” And concluding a fixed-term contract instead of completing a trial falls under such cases. Moreover, the Plenum of the Supreme Court of the Russian Federation, in its Resolution No. 2 of March 17, 2004, recommended that courts pay special attention to these points. Therefore, if an employee goes to court or the labor inspectorate with a complaint about such actions of the employer, a fixed-term employment contract can be recognized as concluded for an indefinite period.

Situation 4. Length of period

An employee gets a job as an accountant. She was given a probationary period of 6 months. Is this legal?

According to Article 70 of the Labor Code of the Russian Federation, the probationary period cannot exceed three months. The exceptions are heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations, for which the test is established for a period of no more than six months. But in our case, a person gets a job as an accountant, and not as a chief accountant or his deputy. Thus, a probationary period of 3 months is the maximum duration. And if the employment contract is concluded for a period of 2 to 6 months, then the trial period cannot exceed two weeks. When concluding a contract lasting less than 2 months, there is no trial period at all.

During the trial period, days of temporary incapacity for work of the employee and other periods when he was actually absent from work are not counted. That is, if an employee is assigned a probationary period of 2 months, and he was sick for 2 weeks of these two months, then the probationary period is extended by two weeks.

Situation 5. Reduced salary for probationary period

When hiring a new employee, the employer tells him that he is being hired for a probationary period of two months - the salary will be lower than at the end of these two months. Are these conditions legal?

What does the Labor Code say about what the salary should be during the probationary period? And in general, is the probationary period paid? Article 70 of the Labor Code states: “During the probationary period, the employee is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, and local regulations.” Each organization must have a staffing table, which indicates all salaries (tariff rates) for each position existing in this enterprise. Thus, for the probationary period (Labor Code of the Russian Federation), payment should not be less than indicated in the staffing table. This means that the situation with understating wages in this case is unlawful.

Of course, the employer can justify the reduced salary for the probationary period in other ways. For example, establish that after this period the first indexation of wages occurs (the Labor Code of the Russian Federation directly establishes the employer’s obligation to index the wages of employees), or transfer the employee to another position in the staffing table. Finally, you can simply increase his salary without making this conditional on passing a probationary period (for “one-off” positions that are present in the staffing table in a single copy).

You can challenge a reduced salary for the adaptation period only if it is white. Or the condition for a reduced salary is specified in the employment contract. If this condition is not specified in the contract, and part of the salary was black, then it is difficult to prove that this money was paid to you at all. However, an attempt to challenge a reduced salary assigned in the first two to three months of work is relatively realistic in our conditions only for workers who do not want to stay at a given place of work.

And one more point: in an employment contract, the salary cannot be determined by the wording “according to the staffing table.” IN Article 57 of the Labor Code of the Russian Federation it is said that the terms of remuneration (including the size of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments) are mandatory for inclusion in the employment contract. That is, it must include either the tariff rate or salary, as well as other payments.

6. Test results and their consequences

The new employee got a job with a probationary period. At the end of the test, the employer did not inform him of the results of the test, and the employee continued to work. Two weeks have passed. Unexpectedly, the employer announced that the employee had failed the test and would be fired as a result. Did the employer violate the law with his actions?

In this situation, the employer made two mistakes at once. Firstly, if the test period has expired and the employee continues to work, then he is considered to have passed the test and subsequent termination of the employment contract is allowed only on a general basis ( Art. 71 Labor Code of the Russian Federation). Secondly, under the same article, if the employer is dissatisfied with the results of the test, he has the right to terminate the employment contract with the employee before the expiration of the employee evaluation period. But at the same time, he must notify the employee about this in writing three days in advance, indicating the reasons that served as the basis for recognizing him as having failed the test.

So, in this case, the employer did not give the employee three days' written notice, giving reasons, that he failed the test. And only after two weeks, when the person continued to work, he verbally announced the decision to fire him. Based on all of the above, it is unacceptable to dismiss an employee as having failed the test.

By the way, the Labor Code of the Russian Federation reserves the right for the employee to appeal the employer’s decision on an unsatisfactory test result in court. And in this case, special attention is paid to the formulation of the reasons why the employee was not satisfied with the employer. In this case, all statements of the employer must be supported by relevant evidence. The court will be critical of dubious, vague formulations.

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

Please note: not in two weeks, as with a regular voluntary dismissal, but in just three days.

So, we have looked at the most common situations in life. Let's repeat the most important rules.

Results

Let's once again list the points that are worth paying attention to:

There are categories of employees for whom a probationary period (PT) is not provided at all.
If the IP is not included in the contract, it means that the employee, from the point of view of the law, was hired without an IP.
Concluding a fixed-term employment contract for the period of IP is prohibited by the Labor Code of the Russian Federation.
IP must not exceed three months. The only exceptions are managers and chief accountants. For them, the maximum IP is 6 months.
When concluding an employment contract from 2 to 6 months, the IP should not exceed two weeks. And if a fixed-term employment contract lasting less than 2 months is concluded, IP is not provided for in a fixed-term employment contract at all.
The salary for the IP should not be lower than the salary existing in the staffing table for a specific position.
If the employee does not pass the IP, the employer is obliged to notify him of his decision in writing three days in advance, indicating the reasons.
If the IS is over and the employee continues to work, then it is considered that he has successfully completed the IS.
If an employee decides during the period of employment that this position is not suitable for him and decides to quit, he is obliged to notify the employer of his decision three days before dismissal.

Remember that stability and reliability are usually where the employer complies with the law. If you get a job where you are initially asked to act illegally, then be prepared for the fact that in the event of a disagreement it will be much more difficult to defend your rights.

As a general rule, the probationary period cannot exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations - six months, unless otherwise established by federal law.

If an employment contract is concluded with an employee for a period of two to six months, then the probationary period cannot exceed two weeks. The probationary period does not include the period of temporary incapacity for work of the employee and other periods when he was actually absent from work. The duration of the probationary period is set at the discretion of the parties, but cannot be longer than that established by law.

In practice, the employer often extends the probationary period during the period the employee undergoes the test agreed upon when concluding the employment contract. This is against the law. And, if the employer does not decide to dismiss the employee before the expiration of the period specified in the employment contract, the employee will be considered to have passed the test.

Note that the legislation in some cases establishes a longer probationary period compared to the established Labor Code, in particular for civil servants (Article 27 of the Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation”).

The result of the test when hiring is established in the Labor Code of the Russian Federation: “If the test period has expired and the employee continues to work, then he is considered to have passed the test and subsequent termination of the employment contract is allowed only on a general basis.” That is, if the employer considers the employee suitable for the position for which he was hired, then no additional documents are required - the employee continues to work on a general basis.

According to Art. 71 of the Labor Code of the Russian Federation “If the test result is unsatisfactory, the employer has the right, before the expiration of the test period, to terminate the employment contract with the employee, warning him about this in writing no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as having failed the test. The employee has the right to appeal the employer’s decision in court.”

If the test result is unsatisfactory, the employment contract is terminated without taking into account the opinion of the relevant trade union body and without payment of severance pay.

If the employer decides to dismiss a new employee, then a certain procedure must be strictly followed and the necessary documents must be drawn up:

1) notification of an unsatisfactory test result must be drawn up in writing in two copies: one for the employee, the second for the employer;

2) announced to the employee under his personal signature.

What to do if the employee refuses to accept the notice? In such a situation, the employer can take the following actions. It is necessary to draw up a corresponding act in the presence of several employees of this organization. Employee-witnesses will confirm with their signatures in this act the fact of delivery of the notice to the employee, as well as his refusal to certify this fact in writing. A copy of the notice can be sent to the employee’s home address by registered mail with return receipt requested. At the same time, it is important to comply with the deadlines established by Article 71 of the Labor Code of the Russian Federation - a letter of notice of dismissal must be submitted to the postal authority at least three days before the expiration of the probationary period established for the employee. The date of mailing is determined by the date on the postmark on the receipt and the notification of delivery of the letter returned to the employer. A notice of termination of a contract during the probationary period must have all the necessary features of a document, namely:

1) date, reference number, signature of the person authorized to sign the relevant documents, as well as the stamp of the seal intended for the execution of documents of this organization;

2) in the notice given to the employee, the reason for dismissal must be correctly and legally formulated. The wording must be based on documents confirming the validity of the decision made by the employer;

3) judicial practice shows that when considering disputes about dismissal due to unsatisfactory test results, the courts require the employer to confirm the fact that the employee is unsuitable for the position held.

To confirm the employee’s inadequacy for the position held, moments when the employee did not cope with the work assigned to him or committed other violations (for example, labor regulations, etc.) must be recorded. These circumstances must be documented (recorded), if possible, indicating the reasons. In addition, it is necessary to require written explanations from the employee about the reasons for the violations he committed. From the point of view of a number of specialists, when dismissal under Article 71 of the Labor Code of the Russian Federation (due to an unsatisfactory test result), proof of the employee’s professional inadequacy for the position held is required (Appendix 1). And if an employee violated labor discipline during the probationary period (for example, committed absenteeism or otherwise demonstrated an unfair attitude towards work), then he must be dismissed on the basis of the corresponding paragraph of Article 81 of the Labor Code of the Russian Federation.

The following may be accepted as documents confirming the validity of dismissal:

1) act of committing a disciplinary offense;

2) a document confirming the non-compliance of the quality of the subject’s work with the production standards and time standards adopted in the organization; probationary period employer employment contract

3) an explanatory note from the employee about the reasons for the poor quality of the work assignment, written complaints from clients.

Thus, the level of theoretical and practical knowledge and skills in the relevant profession, specialty, qualifications, ability to work with clients and other professional knowledge and skills necessary to perform this work are tested, as well as non-personal qualities, discipline and compliance with the so-called corporate culture.

Thus, citizen M. filed a claim with the Simonovsky Court of Moscow for reinstatement at work, recovery of wages for the period of forced absence and compensation for moral damages in connection with illegal dismissal under Art. 71 Labor Code of the Russian Federation. In support of his claims, M. indicated that he was hired by the defendant’s organization as a leading specialist with a probationary period of 6 months and at the end of the probationary period, M. was dismissed under Art. 71 of the Labor Code of the Russian Federation as having not passed the probationary period.

During the court hearing, questions were considered about confirming the fact of inadequacy for the position held and the validity of the dismissal.

M.'s demands were partially satisfied, namely, he was reinstated at work, wages were collected for the period of forced absence and moral damages were compensated.

An analysis of this case and the decision made allows us to draw some conclusions that may be useful to both the employer and employees hired on a probationary period.

Upon confirmation of the fact of non-compliance and the validity of his dismissal as having failed the test under Art. 71 of the Labor Code of the Russian Federation, the defendant was unable to prove that the plaintiff did not comply with the work assigned. It should be noted that this happened as a result of improper registration of those cases when the plaintiff could not cope with the work assigned to him or was negligent in his duties.

The court considered it insufficient to confirm the fact of inadequacy for the position held and dismissal under Art. 71 of the Labor Code of the Russian Federation, an order to reprimand M. for negligent attitude towards his official duties and failure to fulfill an official assignment and testimony of witnesses who confirmed that M. did not always competently perform the assigned work. To avoid such situations, it is necessary to draw up acts and protocols recording the actual failure by the employee to complete the work assigned to him, indicating the reasons. In all such cases, it is mandatory to take written explanations from the employee about the violations he committed.

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

However, establishing a test when accepting a job for each of the parties to the employment relationship allows you to find out in the shortest possible time and without unnecessary formalism how well they correspond to each other’s expectations and capabilities.

Establish a probationary period when accepting new employees. For how many days to check employees and how to document the procedure, read the article.

From this article you will learn

What is a probationary period?

The procedure for establishing a probationary period is regulated by Article 70 of the Labor Code. It specifies the rights and obligations of the parties. The main condition for establishing a test is mutual consent, as discussed in the first part of the article. Usually there are no difficulties, since applicants agree to the conditions put forward by the employer.

There is not always the right to check an employee. Certain categories of persons. Otherwise, this is regarded as a gross violation of the law. Please keep in mind that a probationary period can only be established subject to long-term employment - for a period of more than two months (Article 289 of the Labor Code).

Pay attention! Count the probationary period into the period of actual work and take it into account when calculating your vacation and insurance periods. Experts at Sistema Personnel talk about how to calculate length of service.

According to parts 1 and 2 of Article 70 of the Labor Code, the condition is reflected in the contract. If a document is drawn up without the required clause, the employee is automatically considered accepted without verification. Prepare the document carefully and check the text for significant terms.

Question from practice

Nina Kovyazina answers,
Deputy Director of the Department of Medical Education and Personnel Policy in Healthcare of the Russian Ministry of Health.

The probationary clause does not apply to the mandatory conditions of the employment contract. When drawing up an employment contract by agreement of the parties, you can write in it to check how the newcomer will cope with the work (). In this case, the test condition ()...

Ask your question to the experts

Maximum probationary period for an employee

The duration of the check is limited. The maximum possible probationary period is 3 months for ordinary employees. If an employee works under a fixed-term contract, which is concluded for a period of two to six months, the inspection lasts no more than two weeks (Part 6 of Article 70 of the Labor Code). You do not have the right when all conditions are agreed upon with the employee, as this is prohibited by labor legislation.

Based on the contract, issue an order for employment. Include it with dates, as well as a standard list of details:

company name;
employee personal data;
full name of the position, structural unit;
nature of work activity;
tariff rate with surcharges;
reference to the basis - in this case, the employment contract;
signatures of the manager and employee.

Sometimes the sequence of document preparation is violated, so an employee is allowed to perform duties earlier than the organization concludes a contract with him. In this case, the law is not violated, but the contract must be concluded within three working days from the date of commencement of work. Secure the verification condition in a separate agreement. If the contract does not have a probationary period, admission occurs as usual.

Dismissal due to failure to complete the probationary period

Entrust the evaluation of the newcomer’s work performance to the immediate supervisor, mentor or special commission. If the observation results indicate that a person is qualified for the job, he is considered and continues to work. You do not need to issue additional orders or prepare other documents.

If an employee cannot cope and his competencies do not meet the established level, make a decision to fire him. Notify the employee about this no later than three days before the date of termination of the labor contract (Article 71 of the Labor Code). Draw up the notice in two copies: give one to the employee for review, and leave the second with the organization.

To avoid claims and accusations of illegal dismissal, collect an extensive documentary base. Any documents that have at least some relation to the case will be useful: reports, memos, complaints and comments from clients, conclusions and acts of the commission, reports, etc. State the reasons for dismissal clearly and legally correctly.

Issue an order to terminate the TD. Indicate unsatisfactory test results as the reason for dismissal (Article 71 of the Labor Code). You are not required to pay severance pay or coordinate the decision on dismissal with the trade union. On the last day, issue a work book, wages and compensation for unused vacation. . Follow the recommendations, otherwise the employee will be considered permanently employed. It is possible to terminate the employment relationship with an employee who has successfully passed the test on a general basis.

Not every person calmly takes the news of an imminent dismissal. The situation is heating up because the employer is not satisfied with the level of job compliance. Therefore, the procedure develops into an acute conflict involving the State Tax Inspectorate, the court, the prosecutor’s office and other authorities. To avoid litigation, develop a local act regulating the inspection.

Include in the Regulations information on the design, establishment of an audit, and rules for assessing performance results. List the categories of persons who are not subject to the initial test. Attach standard forms as attachments: characteristics, notifications, conclusion of the commission. Approved local rules must not contradict labor legislation.

Reference: at the stage of drawing up an application for personnel selection. But this does not cancel the preparation of the Regulations.

Before employment under a probationary period, familiarize the employee with the “Regulations” against signature. If a person agrees with the points of the Regulation, the likelihood of conflict upon dismissal is minimized. Applicants who are not satisfied with the organization's routine are eliminated. This simplifies the process of recruiting loyal staff.

Conclude an employment contract without a probationary period only if you are confident in the applicant. This is usually practiced when selecting rare specialists who have extensive experience and merit. In other cases, take some time to check. Follow the rules for preparing documents to avoid fines.

Almost every capable Russian will one day have to find a new job. Most newly hired employees find a clause in their employment contract requiring them to undergo a probationary period. Labor legislation also provides for some exceptions. The hiring company is, in principle, deprived of the right to arrange test periods for certain categories of citizens. Unfortunately, not all working citizens are familiar with their rights in the world of work and know how to use and defend them. Such situations lead to abuse by unscrupulous employers.

What is a probationary period

The concept of a probationary period is regulated by Articles 70 and 71 of the Labor Code of the Russian Federation. The probationary period is the time allotted for the employer to evaluate in practice the professional skills and personal qualities of a newly hired candidate. The length of the probationary period may vary and depends on the level of the position for which the employee was hired, as well as on the nature of the work performed. The condition of a probationary period when hiring is mandatory in the employment contract with the citizen being hired. In turn, the employee also has the right to use this period of test work in order to assess factors that are significant to him, for example, working conditions, the mood in the work team, the characteristics of colleagues and his immediate superior. If one of the parties finds that something does not suit her, the employment contract can be terminated. The initiator of termination of the contract can be either the employee or the employer.

Video: probationary period during employment

Is the probationary period included in the length of service?

The probationary period is included in the length of service, but an entry in the work book that the employee has started work for a probationary period is not made. After signing an employment contract, the enterprise issues a corresponding order, on the basis of which a standard entry for employment in a specific position is made in the work book.

In order for a newly hired employee to avoid unnecessary worry about whether a probationary period is included in the length of service in each particular case or not, he is recommended to make all necessary efforts to obtain a signed employment contract within the first days in a new place.

How is a probationary period different from an internship?

The difference between an internship and a probationary period lies in the period of conclusion of the employment contract. In the case of a probationary period, the employment agreement is concluded before the start of direct work, and the internship implies that the employment agreement will or will not be signed by the parties based on the results of the internship. If specialists of any level, up to directors and top managers, can undergo a probationary period, then internships, as a rule, involve recent graduates who are employed for the first time. There are also internships for employees who have radically changed their field of activity and do not yet have sufficient qualifications in the new type of activity.

The Labor Code of the Russian Federation reports that the employer is required to conclude a fixed-term employment contract with the intern. Otherwise, the procedure for completing an internship, as well as its content and the conditions under which the internship is considered successfully completed, are determined individually in each organization. The corresponding rules are fixed in the local documentation of the enterprise.

Video: what is an internship

Duration of probationary period

The duration of the entrance examination period may vary depending on the position held, the nature of the work, as well as other internal conditions at the enterprise where the employee is employed.

Maximum and minimum probationary period

In most cases, for ordinary positions, the probationary period cannot last longer than three months. Employees hired for management positions are subject to close management scrutiny for a six-month period. If a condition for completing a probationary period is included in a fixed-term contract lasting from two to six months, such a probationary period cannot last longer than two weeks. Periods of temporary incapacity for work for any reason, as well as days during which the employee was absent from the workplace, are not taken into account towards the probationary period.

Is it possible to extend the probationary period?

In some cases, the employer may take the initiative to increase the length of the probationary period. From the employer’s point of view, the need to extend the trial period for a new employee may arise if, after the agreed period of work, the employer was unable to verify that the candidate’s skill level meets the requirements, or if the employer is not sure that the adaptation of the new employee to the team was successful. There are two opposing opinions regarding the legality of extending the test period of work.

Supporters of the ban on extending the period under review include, in particular, the Federal Service for Labor and Employment. Such an addition to an already concluded agreement will be considered void, since it will mean a worsening of the employee’s situation compared to previously agreed conditions (see Letter of Rostrud dated 03/02/2011 N 520–6-1 and). However, federal laws allow some exceptions to this rule. Thus, in accordance with the provisions of the Federal Law of January 17, 1992 N 2202-1 “On the Prosecutor’s Office”, citizens who entered service in the prosecutor’s office can receive an extension of the probationary period within six calendar months by agreement of the parties. In this case, the additionally assigned trial period must also be documented and with the consent of both parties to the transaction. Most often, an additional agreement to the main contract is used for this.

Labor law specialists who consider the extension of the trial period to be legitimate argue their position as follows. The general rule set out in Article 72 of the Labor Code of the Russian Federation allows for changes to certain terms of the employment contract by mutual agreement of the parties. At the same time, for each category of workers, the maximum duration of labor tests is legally established. Thus, if the employer has received the employee’s consent to extend the probationary period, they can enter into an additional agreement to the main employment contract. The main condition of this agreement will be that the extended trial period will not exceed the periods specified in the legislation for this category of employees.

Early termination of the trial period

Early termination of the probationary period is possible when the employer wants to reward the hired employee for special successes during testing. As with the extension of the trial period, its early termination requires appropriate documentation and consent of both parties. The employer and employee enter into an agreement on the early termination of the probationary period (see explanation by the Federal Service for Labor and Employment N 1329-6-1 of May 17, 2011).

In addition, there are a number of other reasons for early termination of trials. These reasons are not related to the direct results of the employee’s activities in the workplace:

the employee was accepted to study at a higher educational institution;
the employee has a relative who needs constant care;
the newly hired employee provided documents about pregnancy or the presence of a child under the age of one and a half years.

Features of setting up and passing a probationary period for certain categories of workers

For some categories of citizens, there are some peculiarities in determining the procedure for completing the probationary period. These categories include, in particular, state civil servants, seasonal workers, and people working part-time.

The specifics of organizing the probationary period for civil servants are regulated by Article 27 of the Federal Law “On the State Civil Service of the Russian Federation”. When a citizen is hired for the first time in the civil service, the duration of the test period for him can vary from one to twelve months. For specialists who already have experience working in government agencies and are appointed to a new position by transfer from another government organization, a probationary period of one to six months is provided. An employee appointed to such a public position, the decision to accept and release from it can only be made by the President or the Government of the Russian Federation, may also be subject to probation from one to twelve months. If the employer finds the test results unsatisfactory, the service contract with the employee may be terminated. The employee must receive the appropriate written notice indicating the reasons for termination no later than three days before the date of termination of the contract.

Employment contracts for seasonal workers are most often short in duration. For a contract lasting from two to six months, the period for checking the employee’s competencies cannot exceed two weeks. If the contract is concluded for a period of no more than two months, a probationary period cannot be established in principle.

For persons working part-time, various situations are possible when the appointment of a probationary period is regulated by general rules, as well as when the appointment of a probationary period is in principle illegal. In particular, if an employee is employed part-time in a company that is not his main employer, this company may assign him a probationary period on a general basis. If the employee plans to combine two similar types of activities at one enterprise, the appointment of a probationary period will be illegal, since the employee has already proven his competence.

Video: labor rights of pregnant women

Probationary period regulations

The law does not require the creation of a separate provision on the probationary period, however, many companies practice issuing such a local regulation. This document describes in as much detail as possible the procedure for organizing a probationary period for newly hired employees. In particular, from it you can find out who is obliged to draw up an assignment for the probationary period, who, in what time frame and by what principles evaluates the success of the candidate’s completion of the probationary period, and so on. Below is a sample probationary period clause.

Probationary period provisions. Sample.
1. GENERAL PROVISIONS.
1.1. The probationary period is the last stage of assessing the professional suitability of a candidate for a vacant position.
1.2. The purpose of the probationary period is to verify the specialist’s compliance with the activities assigned to him directly in the work environment.
1.3. The probationary period lasts no more than three months.
1.4. The duration of the probationary period is indicated in the employment contract and in the employment order (Articles 68, 70 of the Labor Code of the Russian Federation).
1.5. The probationary period does not count the period of temporary disability and other periods when the employee was absent from work for valid reasons (Article 70 of the Labor Code of the Russian Federation).
1.6. The probationary period may be reduced to a duration of at least 1 month. The basis for reducing the probationary period is the decision of the Rector (or First Vice-Rector) of the university, confirmed by satisfactory test results.
1.7. If the test result is unsatisfactory, the employee is dismissed on the initiative of the university administration without the consent of the trade union body and without payment of severance pay, with the wording “as someone who failed the test” (Article 71 of the Labor Code of the Russian Federation).
1.8. If the probationary period has expired and the employee continues to work, he is considered to have passed the test. Subsequent termination of the employment contract is carried out only on a general basis (Article 71 of the Labor Code of the Russian Federation).
2. PROCEDURE FOR COMPLETING THE PROBATIONAL PERIOD.
2.1. On the first day after a newly hired employee returns to work, the immediate supervisor:
2.1.1. Conducts an informational conversation about the conditions of professional activity (Appendix 3);
2.1.2. Introduces the new employee to the job description. The employee certifies with his signature that he has read the job description and agrees to perform the functional duties listed in it. The job description is issued to the employee. A copy signed by the employee remains with the immediate supervisor;
2.1.3. Introduces the employee to the Regulations on the unit and other local acts regulating the activities of the unit and the activities of the employee.
2.1.4. Appoints a supervisor - an employee of the unit who has worked in this position for at least six months or the most qualified employee of the unit, and in the absence of one, supervision is assigned to the immediate superior or head of the unit;
2.1.5. If a probationary period is established for an employee hired to the position of head of a structural unit or vice-rector, then the most qualified employee of this unit or another senior manager, the immediate superior and the head of the unit - the dean of the faculty, the vice-rector according to affiliation, or the rector of the university can be appointed as the supervisor.
2.2. Organization of probationary period.
2.2.1. The probationary period can be completed in one (if, upon successful work during the first month of the probationary period, the latter was reduced to 1 month) or two stages (if the probationary period was not shortened).
2.2.2. The immediate supervisor and the new employee, within the first three days of starting work, draw up a work plan in accordance with the job description for the first month of the probationary period (Appendix 1). The new employee’s work plan is approved by the head of the unit, signed by the employee and agreed with the vice-rector according to affiliation (rector or chief accountant). The employee and immediate supervisor must have a plan.
2.2.3. Three days before the end of the first month of the probationary period, the immediate supervisor, supervisor and employee discuss the compliance of the specific results achieved with the set goals (work plan).
2.2.4. No later than one day before the end of the first month of the probationary period, the immediate supervisor draws up an information and analytical note on the results achieved by the employee (Appendix 2) for the first month of the probationary period and gives the conclusion “passed the test and the probationary period can be reduced to 1 month” or “failed the test, leave the probationary period the same.” If the probationary period does not exceed one month, then the conclusion “passed the test” or “failed the test” is given. The conclusion is agreed upon with the head of the unit and the vice-rector according to the affiliation (rector or chief accountant) and transferred to the human resources department for further work.
2.2.5. If the probationary period has not been reduced to 1 month, then at the beginning of the next stage a work plan for the employee for the remaining period is also drawn up in accordance with clause 2.2.2. of this provision. No later than 7 days before the end of the probationary period, the immediate supervisor, supervisor and employee discuss the compliance of the specific results achieved with the work plan. The immediate supervisor draws up an information and analytical note about the results achieved by the employee during the next stage of the test, and gives a conclusion “passed the test” or “failed the test.” The conclusion is agreed upon with the head of the unit and the vice-rector of the affiliation and transferred to the human resources department for further work no later than 5 days before the end of the probationary period.
2.2.6. The originals of plans for completing the probationary period and information and analytical notes are transferred to the personnel department and are stored in the employee’s personal file.
Applications:
1. Appendix 1. “Work plan for the employee during the probationary period.”
2.Appendix 2. “Information and analytical note on the results of the probationary period.”
3. Appendix 3. “Matrix for determining levels of functional responsibilities.”
4. Appendix 4. “Scheme of an interview with an employee at the time of going to work.”
AGREED:
First Vice-Rector __________________________
Head of HR Department ______________________
Lawyer _____________________________________
Chairman of the trade union committee of employees _______________
Appendix 1.
“AGREED” “APPROVED”
Vice-rector Head of department
_______________________ ________________________
"___"_______________200__g. "___"______________200__g.

Who should not be given a probationary period?

According to the Labor Code of the Russian Federation, for some categories of working citizens a probationary period cannot be established in principle (see part 4 of Article 70 of the Labor Code of the Russian Federation). Such preferential categories include, in particular, the following:

Persons selected to fill a vacant position through a competition held in accordance with the requirements of legislation or local regulations of the enterprise. The appointment of a probationary period under such circumstances may provoke the emergence of labor disputes.
Women who are pregnant or raising one or more children under the age of one and a half years, and the children can be either natural or adopted.
Workers whose age does not exceed eighteen years.
Citizens entering their first job after graduating from a vocational education institution within a year from the date of graduation from the institution.
Citizens elected to elective positions for paid work.
Citizens moving to a new job by transfer from another employer as agreed between company managers.
Citizens with whom an employment contract has been concluded for a period of no more than two months.

The legislation also provides for other cases of categories of beneficiaries:

citizens who have successfully completed their training and enter into an employment contract with the employer from whom they were trained;
citizens employed in alternative civil service;
civil servants appointed to a new position through a transfer caused by the liquidation or reorganization of the previous employing organization.

If the employer unknowingly established a probationary period for an employee belonging to one of the preferential categories, that is, for an employee for whom a probationary period cannot be established in principle, it is necessary, immediately, as soon as the fact of belonging to the preferential recipients is revealed, to draw up an additional agreement to the agreement on employment, in which to state a condition that cancels the clause on the probationary period. This can be done, for example, if a newly hired employee is pregnant. Employers must remember that for violating the provisions of the Labor Code of the Russian Federation they face administrative, and in some cases, criminal liability.

Registration of an employee for a probationary period

When hiring an employee with the condition of mandatory completion of a probationary period, the employer must correctly prepare all the necessary documents and include in the employment contract, including a clause on the availability of preliminary tests for the newly hired employee. Otherwise, labor disputes and litigation may arise.

How to draw up an employment contract with a probationary period

The employment contract must necessarily contain a clause stating that the employee will have to undergo a probationary period to confirm his qualifications. There cannot be separate contracts for the probationary period. Some employers offer to sign an internship agreement first. Such behavior is a sign of the employer's dishonesty. According to the law, an employment contract must be prepared no later than three days from the date of starting work. A sample employment contract with a three-month probationary period can be easily downloaded from the link.

Video: popular questions about the probationary period

Liability agreement for the probationary period

During the probationary period, the employee is subject to the provisions of the Labor Code of the Russian Federation and other regulations defining labor law standards. Accordingly, an agreement on financial liability can be concluded with an employee already during the probationary period, if there is such a need and the position is included in the list of positions for which the conclusion of such an agreement is mandatory.

Probationary assignment

A probationary assignment serves several purposes. First of all, a specifically formulated task helps a newly hired employee better understand his tasks in a new place and get up to speed. On the other hand, the company uses this task to assess the level of professionalism of the newly hired specialist. The fact is that it is impossible to dismiss an employee who has failed to complete the test period without a clear evidence base and documentary evidence of his incompetence, therefore the employer company must approach the evaluation of the employee’s performance during the probationary period very seriously.

The content of the test task may vary depending on the nature of the work. Such a task may include both a requirement to follow the most detailed instructions, for example, for operating a cash register, and leave room for creativity. In general, it is recommended to include in the task the most significant points for the given position and for the company as a whole. A sample assignment for the trial period is shown in the illustration below.

The task for the probationary period may include those items, the implementation of which is most important for management

Features of establishing a probationary period when transferring to another position

When transferring to another position, a probationary period may be established if the duties that will be performed by the employee in this new position are fundamentally different from his previous activities within the company. Unfortunately, a common situation is when an employee is asked to undergo a probationary period when being transferred to a higher position. It is important to know that such behavior by the employer is not legal. The probationary period, according to the Labor Code of the Russian Federation, is not mandatory and can only be assigned to new employees. An employee who has received a promotion can be returned to his previous position or dismissed if it is revealed that he is not suitable for the new position.

The result of the probationary period and its personnel registration

After the parties sign an employment agreement, which states that the employee is accepted subject to a probationary period, the personnel service of the enterprise issues a corresponding order. At the end of the probationary period, the enterprise issues special documents confirming the success or failure of the test period by the new employee.

Probation period report

Many enterprises today have adopted the practice of creating a final report on the completion of the probationary period by the employee undergoing probation. In such a report, the employee reveals the following questions:

the difficulties and problems that the employee encountered during his working life, the ways in which he tried to solve them;
which tasks the employee was able to complete;
what tasks the employee was unable to cope with during work and for what reasons;
What new did the employee learn during his work?

A detailed report will help both the employee and his immediate supervisor to better analyze the work. It is recommended to prepare the report not on the last day of the probationary period, but in advance. In this case, you can detect weaknesses in the work and have time to eliminate them before making a decision. The illustration below shows an example of a report on work during the test period.

Reports can be generated in various ways

Characteristics of the employee after the verification period

The employee's characteristics are compiled by the immediate supervisor or mentor who worked with the new employee during the trial period. This document indicates what the specialist knew and was able to do at the time of taking up the position, what tasks were assigned to him for the trial period, how he showed himself during the performance of work tasks, what strengths and weaknesses of the personality he demonstrated. The characterization ends with general conclusions, forecasts and recommendations.

Conclusion on passing the probationary period

Some companies have adopted the practice of collegial decision-making on completing a probationary period. An assessment of the employee’s qualifications and his achievements is requested from all specialists and managers with whom he dealt during the test. The final decision is made by the immediate supervisor, but this practice allows you to take into account the entire range of opinions and create a complete picture about the new employee. The documented decision is called a conclusion on completion of the probationary period.

The conclusion can be drawn up in the form that is customary at a particular enterprise

Order to end the probationary period upon successful completion

The issuance of an order to end the probationary period upon successful completion is not mandatory. The employee simply continues to work at the enterprise.

Actions of the employer if the employee fails to complete the probationary period

The reasons for failing to complete the probationary period may vary. An employee, from the employer’s point of view, may not confirm his level of qualifications, may not find a common language with colleagues, may violate labor discipline or provoke the emergence of some unpleasant situations for business. In any case, an employer cannot fire an employee simply because he doesn’t like him for something. Dismissal during the probationary period must be supported by objective facts and documentary evidence confirming that the employee really cannot cope with the activities assigned to him. Such documentary evidence may include a plan of tasks for the probationary period, a report on the completion of the probationary period, memos from the immediate supervisor, reviews from colleagues and clients. It is very important not only to explain to the employee why the probationary period was not recognized as completed, but to obtain his agreement with these explanations. Otherwise, the dismissed employee may file a claim with the court. If the company cannot correctly justify the decision to dismiss, the employee will have to be hired back, and all expenses incurred by him will be compensated, including lost wages for the period when the employee was considered dismissed.

If dismissed due to a negative test result, the employee receives appropriate notice three days before dismissal. In some cases, by agreement with the employer, dismissal can occur on the same day, that is, without any work.

Video: dismissal if the probationary period is not completed

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

The rights and obligations of an employee hired under the condition of completing a probationary period are regulated by the Labor Code of the Russian Federation and are no different from the rights and obligations of other working citizens. The probationary employee is entitled to the following preferences:

timely payment of wages, bonuses, overtime bonuses, as well as other incentive payments, if provided for by the terms of the contract;
going on sick leave and receiving insurance payments during a period of temporary disability.
using unpaid leave at your own expense or using days towards future leave, while the employer has the right to refuse to provide leave in accordance with the law (if the decision does not contradict Article 128 of the Labor Code of the Russian Federation);
receiving up to five unpaid days off at the birth of a child;
voluntary dismissal at any time before the end of the probationary period.

The responsibilities of the newly hired employee include:

fulfillment of the terms of the employment contract;
fulfillment of work obligations in accordance with the job description;
compliance with labor discipline requirements and internal regulations of the employing company, as well as fire safety requirements.

Is it possible to take sick leave or vacation during the probationary period?

An employee on probation has the right to go on sick leave during a period of temporary incapacity. With the permission of the manager, during the probationary period you can take leave at your own expense, as well as leave on account of future paid leave. This time is not included in the probationary period and upon returning to the workplace, the countdown of the days of the test period is resumed.

The amount of sick leave pay is determined based on the employee’s length of service and the average daily earnings. The accounting department can find out the work experience from the work book, and earnings are affected by both the salary at the current job and payments at the previous place, which can be easily assessed using the 2-NDFL certificate.

An employee who is on sick leave and wants to resign from the probationary period must first close his sick leave. Dismissing an employee while he is on sick leave is illegal. In addition, the employer is obliged to pay for sick leave for an employee for another 30 days from the date of dismissal, provided that the employee has not found a new job during this time.

Is it possible to fire a pregnant employee during a probationary period?

The dismissal of an employee who, during her probationary period, discovered that she is expecting the birth of a child, is illegal if it occurs at the initiative of the employer. A pregnant woman can only be fired at her own request. Moreover, the very appointment of a probationary period to a pregnant employee is illegitimate. If the fact of pregnancy is confirmed, the probationary period must be canceled by an additional agreement to the concluded employment contract.

Salary during probationary period

An employee on a probationary period is entitled to a salary, from which the employer is obliged to pay all mandatory taxes to the budget, including income tax. Many Russian enterprises are trying to evade paying taxes by offering only part of their salary payments in “white” money with official registration. Unfortunately, employees often agree to such unfavorable conditions for them. Many employers also offer a reduced salary for the probationary period with the promise of a salary increase upon successful completion of the test period. From the point of view of the Labor Code of the Russian Federation, such a proposal is also not legitimate, but rarely does any employee decide to enter into conflict with the employer for this reason.

Video: salary during probationary period

Pros and cons of a probationary period for the employee and for the employer

A probationary period is provided by law so that both parties involved in concluding an employment contract have the opportunity to evaluate each other and, if such a need arises, part with minimal losses. This opportunity can be considered an absolute advantage for both the employee and the employer. When leaving a probationary period, an employee is not required to work for two weeks, and the employer has the opportunity to evaluate the candidate’s qualities not only from his words at the interview, but also in practice.

Among the disadvantages for the employee is the fact that many employers offer a reduced salary for remuneration during the probationary period. On the other hand, the employer bears an increased burden caused by the need to allocate additional resources to introduce a new employee to the position and test his skills.

When working in test mode, an employee may experience some psychological discomfort, since the result of his actions determines his future in this job. The employing company, when concluding an agreement with a new employee, always runs the risk of legal proceedings upon dismissal under Article 71 of the Labor Code of the Russian Federation.

In general, the balance of positive and negative aspects of the use of a probationary period allows both parties to use it with the greatest benefit for themselves.

The requirement to undergo a mandatory probationary period when applying for employment in Russian companies is not mandatory. from the point of view of the Labor Code of the Russian Federation. However, many employers are happy to use this opportunity to thoroughly study a new employee, as well as save some money on his salary, at least in the first months of his work. Employees accept this requirement as a given and do not try to dictate their terms to the employer. Thus, the very concept of a probationary period has become firmly established in work practice and is actively used throughout Russia.

When hiring almost all employees, the employer sets a probationary period. What are the features of establishing a probationary period? How long is it in 2018? Who should not be given a probationary period? This will be discussed in this article.

What is included in the concept of “probationary period for employment”?

The probationary period is provided for by labor legislation ( Art. 70 Labor Code of the Russian Federation). This period is necessary for both the employer and the employee:

The probationary period is determined upon concluding an employment contract by agreement of the parties.

What is the length of the probationary period upon hiring?

According to labor legislation (Article 70 of the Labor Code of the Russian Federation), the maximum size of the probationary period is determined, but the minimum is not determined. Taking into account this fact, the employer has the right to set any size of the probationary period within the maximum:

Example:

Employee Mikhailova M.M. hired on October 15, 2017, having concluded an employment contract for a period until December 14, 2017. Probationary period under the employment contract of Mikhailova M.M. not provided.

Features when determining the duration of the probationary period

In addition to the probationary period norms specified in labor legislation, there are norms that determine the duration of the probationary period for other categories of citizens:

Categories of workers	Maximum probationary period	Regulatory act
A citizen or civil servant upon appointment to a civil service position, appointment to and dismissal from which is carried out by the President of the Russian Federation or the Government of the Russian Federation	from 1 month to 1 year	Article 27 Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation” (as amended and supplemented)
A citizen or civil servant upon appointment to a civil service position who has previously served in the civil service of the Russian Federation	from 1 to 6 months
A citizen or civil servant upon appointment to a civil service position by transfer from another government body	from 1 to 6 months
Persons recruited for the first time to serve in the prosecutor's office, with the exception of persons recruited for the first time to serve in the prosecutor's office within one year from the date of graduation from the educational organization	6 months	Art. 40.3 of the Federal Law of January 17, 1992 No. 2202-1 “On the Prosecutor’s Office of the Russian Federation”

Thus, when hiring and determining the probationary period, not only the term of the employment contract is taken into account, but also the status of the position held.

Employees who are not subject to a probationary period upon hiring

According to Article 70 of the Tax Code of the Russian Federation, employment testing is not established for:

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 receiving vocational education at the appropriate level;
persons elected to elective positions 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.

What can affect the length of the probationary period?

If during the probationary period the employee was absent from work, the probationary period is extended by the number of days when the employee was not at work. The reasons for extending the probationary period may be the following:

period of temporary incapacity for work;
leave without pay;
suspension from work

Dismissal during the probationary period

In accordance with Art. 71 of the Labor Code of the Russian Federation, both the employee and the employer can unilaterally terminate an employment contract during the probationary period:

Reason for termination of the employment contract	Mechanism for terminating an employment contract
If the test result is unsatisfactory by the employee	The employer, before the expiration of the test period, warns the employee of termination of the employment contract in writing no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as having failed the test. Termination of an employment contract is carried out without taking into account the opinion of the relevant trade union body and without payment of severance pay.
During the probationary period, the employee came to the conclusion that the job offered to him was not suitable for him	The employee has the right to terminate the employment contract at his own request by notifying the employer in writing three days in advance.

Example:

Employee Mikhailova M.M. hired on October 15, 2017. During the period of work, the employee realized that she was not satisfied with the job and decided to quit during the probationary period, which lasted 3 months. 11/15/2017 Mikhailova M.M. I wrote a letter of resignation effective November 18, 2017. The employer does not have the right to force an employee on a probationary period to work for 2 weeks.

If, upon completion of the probationary period, the employee continues his work activity, the probationary period can be considered successfully completed.

Questions and answers

The employer said that he does not plan to continue his employment relationship with me after the probationary period, but my probationary period ends in 2 days. Do I understand correctly that after 3 days I may not go to work?

Answer: According to Article 71 of the Labor Code of the Russian Federation, the employer can terminate an employment contract with you before the expiration of the probationary period, but his responsibility is to warn the employee about the termination of the employment contract in writing no later than three days, indicating the reasons that served as the basis for recognizing this employee as not passed the test. In your case, there is only an oral discussion, so you will have to go to work after 3 days in order to avoid troubles regarding violation of labor laws with subsequent disciplinary action.

I decided to quit during the probationary period. Can I expect to receive severance pay?

Answer: In accordance with Art. 71 of the Labor Code of the Russian Federation, termination of an employment contract during the probationary period is carried out without taking into account the opinion of the relevant trade union body and without payment of severance pay. Based on this regulatory act, you will not have to count on payment of severance pay.

I am planning a transfer from one department to another within the same organization. Will I be put on probation again?

Answer: No, in case of transfer from one department to another within the same organization, a probationary period will not be assigned. Even in the case of a transfer from one employer to another as part of an agreement between employers, a probationary period is also not assigned.