What probationary period is established upon admission? What rights and responsibilities does an employee have during the probationary period? Actions of the employer in case of refusal to accept notice

Recruiting personnel for any organization is an important and very difficult matter. Employers often maintain entire HR services, create their own system for searching and evaluating applicants, and turn to professional recruitment agencies, but these measures do not always give the desired result. Even multi-level interviews and the presence of recommendations from the candidate cannot guarantee that the potential employee has the necessary competence, discipline and other characteristics that carry the greatest weight in the eyes of the employer. As you know, it is quite difficult to fire a person on the initiative of the employer. And so that the company can easily get rid of a newly hired employee who turned out to be not so good, labor legislation allows him to be placed on a probationary period.

The trial period is a unique opportunity for the administration and colleagues to take a closer look at the newcomer, evaluate his professional and personal qualities, on the basis of which they can make a decision on further interaction. At the same time, the employee himself tries himself in the business, tries to join the team and checks to what extent the working conditions promised at the interview correspond to reality. Having realized that this is “not his” place, he has every right to quit within 3 days and not waste his and other people’s time on unpromising cooperation. Thus, the candidate will be able to immediately start looking for more interesting offers, and the former employer will be able to select a suitable applicant.

True, it is not so easy to sever an employment relationship with an employee who does not believe that he failed the test. The organization's decision to part with such an employee must be justified and supported by relevant documents. It is important to strictly follow all procedures related to the probationary period - this will avoid problems with the dismissal of a careless newcomer.

Assignment of probationary period

An applicant is admitted for a probationary period only with his consent. This condition must be present in the employment contract, otherwise the employee has every right to begin his duties immediately as a “full-fledged” employee.

According to the letter of the law, the establishment of a probationary period is possible only at the time of employment. You cannot assign a test “retroactively” when the new person has already taken office and started working. There is also a ban on testing for “old-timers” who are transferred to another job, even if the new position is a leadership one. Promotion or transfer of an employee on probation to another position means that the test was completed successfully and completed ahead of schedule.

There are a number of persons for whom the Labor Code of the Russian Federation prohibits establishing a probationary period. These include:

• minors;
• pregnant women and women with children under 1.5 years of age;
• graduates of universities and colleges applying for a job in their specialty for the first time within a year after receiving their diploma;
• winners of the competition to fill a vacant position;
• entering into elective office;
• those who came on transfer from another job;
• those entering into a short-term employment contract (up to 2 months);
• other categories of employees, established by legal norms and the provisions of the organization’s collective agreement.

An employer who has established a probationary period for the above-mentioned persons may incur administrative liability up to and including suspension of the enterprise's activities, but such punishment is not always applied. The fact is that the organization’s responsibilities do not include establishing the “benefits” available to the employee during the probationary period. If on the day of registration for a job the applicant has not presented supporting documents to the personnel service, then the test that is contrary to the law is recognized as legal.

Duration of probationary period

The standard trial period for most beginners is 3 months. Exceptions to this rule are listed in Art. 70 of the Labor Code and include 2 categories of employees:

1. For management employees, chief accountants and their deputies, the probationary period can be set for a period of up to 6 months.
2. Those working under a fixed-term employment contract (from 2 months to six months) undergo the test within a maximum of 2 weeks.

The appointed period is necessarily fixed in the employment agreement and cannot exceed the maximum established for this category of employees. The employer may initially hire a person for a shortened probationary period, but in this case, he no longer has the right to extend it without the consent of the subject.

How to determine the end date of the test? Firstly, the duration is calculated in calendar days, that is, holidays and weekends are included. Secondly, the days that the “new guy” was sick or took at his own expense are excluded from the probationary period.

Registration of a probationary period

If management, based on the results of the test, decides that the employee is not suitable for working in the company, it will not be possible to dismiss him solely on the basis of a clause in the employment agreement. How to properly arrange a probationary period so that, if necessary, you can say goodbye to a new employee painlessly?

1. The employment order must include a record of the probationary period and its duration.
2. Evaluation of a newbie's performance cannot be subjective. The employer must develop and formulate on paper clear criteria for suitability for the position held. These can be special tasks, specific indicators that the subject undertakes to achieve within a certain period of time. All tasks are completed in writing and submitted to the employee for review and signature. Such a document is a list of tasks with a description of the result that should be obtained in the course of their solution, and specific deadlines for completion.
3. The employer is obliged to regularly monitor the newcomer’s achievement of the established indicators. Each fact of dishonest performance of duties must be recorded officially: in an act, memo, report, which will indicate which of the assigned tasks the employee failed to cope with. It is these documents that will serve as proof that the subject was not up to the task.

Dismissal of the subject

How to fire an employee who has not completed the probationary period? The employer must prepare for the end of the probationary period in advance, namely, draw up a notice and promptly familiarize the dismissed person with it. This must happen at least 3 days before the date of termination of the employment relationship.

Since the probationary period is calculated in calendar days, the moment it ends may coincide with a weekend or holiday when it is impossible to formalize dismissal. In this case, the date of dismissal should be considered the working day before the day off, which means that the employee must be notified even earlier.

What is a notification? This is a document that informs the employee that he has not completed the probationary period, indicating all recorded facts of unsatisfactory performance of duties and links to supporting memos. On the notice of dismissal, the subject puts a signature and date of review.

It is worth paying special attention to this point: if the HR service misses the deadline for transmitting the notice, it will lead to the fact that the “rejected” newcomer will, as if nothing had happened, work in his place, and it will become almost impossible to fire him on the initiative of the employer. An employee who has not received the employer’s decision within the time period established by law can rightfully consider himself to have passed the test and continue to work peacefully.

If by the end of the term the employee is ill or absent for any other reason, the test is accordingly extended, and the date of dismissal is postponed to the moment when the person reports to the workplace.

However, the subject can leave on his own without waiting for the end of the probationary period. To do this, he just needs to submit an application to the manager of his own free will. In this case, the employer does not have the right to demand work off and is obliged to calculate it within 3 days.

Hiring employees for a probationary period is an excellent opportunity for an employer to form a highly professional team, leaving only “battle-tested” personnel on staff. However, ignorance or ignorance of the nuances that accompany the registration of a probationary period reduces all the benefits of such employment to zero. If the employer violates the procedure for passing the test, he will not only not be able to get rid of what he considers an incompetent new employee, but there is also a high risk of getting problems with the labor inspectorate and the administrative code.

If the test is not properly completed, the former employee can appeal the dismissal in court, and as a rule, a decision in his favor should be expected. Often in such disputes, judges side with the plaintiffs and find them wrongfully fired. The result of such a verdict is disappointing for the organization - reinstatement of an unnecessary employee in his position and payment of monetary compensation to him in the amount of wages for the time he was forced to be absent from the workplace.

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 it really? 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 a probationary period can only be established 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 of 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 has not received the relevant documents at the time of signing the employment contract, establishing a probationary period will be legal.

Special attention should be paid to 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 the 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 a better job and wants to quit quickly. Indeed, during the probationary period, the period of “working out” upon dismissal at one’s own request 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 completion 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 must also 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 necessary 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.

Nowadays, the process of selecting and hiring new employees in an organization is very labor-intensive. A candidate for a vacancy undergoes an interview, which is often very difficult psychologically. In addition, the employer may set up an interview more than once, and the person has to go through it in several stages. All this does not provide a 100% guarantee that the employee will be suitable, which is why many organizations set a probationary period for new employees under the labor code. The conditions of the probationary period are stipulated in Articles 70 and 71 of the Labor Code of the Russian Federation.

Why is this measure needed?

To check employees, a probationary period is established in accordance with the Labor Code

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

Testing an employee allows the employer to evaluate the professional capabilities of a new employee, and if his work is unsatisfactory, terminate the contract with him.

Who determines hiring on special grounds?

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

The company's management conducts a test of the candidate to determine his suitability for the position. The following must be taken into account:

• A probationary period is established only for those employees who are rehired. It cannot be established for those employees who already work in a given company, but are transferred to another position and to another department, even to a higher position.
• Even before the employee begins performing his duties, he must be notified of the probationary period. An employment contract must be concluded with the employee in writing, containing its terms and conditions in the probationary period column. The terms and conditions may also be formalized in a separate agreement. If the probation period is not formalized in an official document, then the conditions for its implementation have no legal force.
• The presence of a probationary period must be indicated not only in the employment contract, but also in the employment order.
• The employee is obliged to confirm with his signature the fact of familiarization with the documents, while it is not necessary to put a mark on the assignment of a probationary period in the work book.
• In accordance with the Labor Code of the Russian Federation, the probationary period is negotiated between both parties. A note about mutual expression of will in an employment contract is mandatory. If the condition for testing an employee is stated only in the order that the employee has been accepted, then this is already a violation of the legislation on labor human rights. In this case, the terms of the probationary period have no legal basis and are therefore invalid.
• If the employment contract does not contain information about the probationary period, and the employee has already been admitted to work, it means that he was hired without a trial.
• The law prohibits extending the probationary period specified in the employment contract. But days when the employee was absent due to illness are not included in the trial period.
• After the expiration of the probationary period, if the employee remains in place, he is considered accepted into the organization's staff.
• An employer may dismiss an employee before the end of the probationary period by notifying him in writing 3 days in advance, indicating the reason for dismissal. The employer's decision can be challenged in court.

When hired, an employee must be familiarized with all regulatory documents of the enterprise and his main job responsibilities. The employee must certify the review of the documents with a signature. During the probationary period, the employer may realize that the employee is not suitable for the position. Then the fact that the employee knew what duties were assigned to him, but failed to cope with them, will be the reason for the employee’s dismissal as having failed the test.

A separate issue is a fixed-term contract

The probationary period is established only for new employees

Employers and job seekers are interested in whether it is possible to establish a probationary period when hiring under a fixed-term contract, because such a contract already specifies a certain time period. Yes, an employer can set a probationary period for an employee who has signed a fixed-term contract. If the contract is drawn up for a period of two to six months, then the trial period cannot be longer than 2 weeks.

Who is not accepted on probation?

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

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

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

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

What is important to remember

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

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

The probationary period is included in the length of service. During the period of incapacity for work, the employee, like other employees, is entitled to social benefits. He also receives additional pay for extracurricular work.

Did you pass the test?

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

Employers do not strive to hire employees who are often sick or ask for time off, so they often fire them at the end of the probationary period, citing the fact that the employee failed to cope with his direct job responsibilities. Evidence confirming that the employee successfully copes with his job responsibilities will help you avoid being in such a situation. It is better to collect them immediately, from the first working day.

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

Many workers, due to ignorance of their rights and responsibilities, can lose not only time, but also promising jobs. Knowing his rights, an employee can always appeal to them in the process of resolving difficult situations that arise in relations with the employer. In cases where there are violations of labor laws by an employer or employee, you need to contact the relevant authorities.

When hiring a new employee, employers often order a test to assess the abilities and skills required for a particular field of activity. This condition must be specified in the employment contract. At registration for a probationary period You will need to prepare various documents. The procedure consists of seven stages. Let's talk about each of them.

Stage 1. Mention in the contract

The contract is drawn up according to general requirements and concluded in writing. The Labor Code obliges managers to include in it a clause on the condition of hiring - passing a test for suitability for the position being filled. At the same time, its time boundaries must be noted. In the absence of such information, it is considered that the newcomer is admitted to the staff without testing.

If the employment relationship has not been formalized (the duration of the inspection, the start and end date of cooperation have not been established), but the employee has begun to perform his duties, the employer must prepare all the necessary documents and familiarize him with their contents against signature within three days.

Please note that the probationary period can be full or shortened, depending on the type of cooperation. For a permanent test, the test lasts from three to six months, and for a temporary test, up to two weeks. The main text of the document is something like this.

Stage 2. Familiarization with internal rules

A newcomer hired for a probationary period must be familiarized with the internal labor regulations. They represent a local act that spells out the main nuances of cooperation:

• signing and breaking an employment contract;
• rights and responsibilities of subordinates and managers;
• work and rest schedule;
• rewarded work results;
• offenses that are subject to disciplinary action.

In the future, the manager has the right to demand from the subject strict compliance with internal rules (Articles 21 and 22 of the Labor Code of the Russian Federation). There are no special conditions for beginners.

Stage 3. Familiarization with the collective agreement and other acts

Before signing a contract, an employee must be familiar with another almost internal document - a collective agreement (Article 68 of the Labor Code of the Russian Federation). It stipulates the everyday side of working conditions and contains important information about the specifics of paying salaries, the need to take advanced training courses, health care, etc.

Before registration of a probationary period of the Labor Code of the Russian Federation obliges the subordinate to familiarize himself with a number of other key acts of the enterprise. They may concern:

• confidentiality of personal data;
• ensuring safe working conditions;
• requirements for the job function (job description);
• customer service standards, etc.

The employer also has the right to draw up a document reflecting the criteria for assessing the employee’s business qualities. These may, for example, include:

• communication skills;
• conscientious attitude to responsibilities;
• availability of the required professional knowledge;
• readiness for regular training;
• responsibility.

Another document that deserves attention is the test plan. It is reflected in internal documents or an employment contract.

Stage 4. Issuing an order

After completing the above, further registration for a probationary period according to the Labor Code of the Russian Federation involves issuing an order to hire an employee. It must contain:

• date of enrollment;
• duration of verification for suitability for the position;
• type of work;
• working hours and remuneration;
• other information.

The State Statistics Committee has approved the forms of such an order (T-1 or T-1a), but they can be used at will. The company has the right to develop its own template.

The provisions of the order must not contradict the employment contract (for example, when different hiring dates are indicated). The content must contain information about the purpose of the temporary inspection. The employee must be familiarized with this document against signature no later than three days from the day he began to carry out official assignments.

Stage 5. Work record book

A work book is an official document that contains personal information about the activities of a citizen. Her formalized and on probation. First of all, it reflects:

• seniority;
• job title;
• transfers to organizations;
• facts and reasons for dismissal;
• awards received.

This document is filled out by both legal entities and merchants. To the employee who is during the probationary period, make an entry in the labor record in the “Work Information” section in the general order. There is no special mark indicating that the test has been completed. Whether such information needs to be entered in the future depends on the result of the test:

1. If everything goes well, then they don’t contribute anything. The employee is officially hired.
2. When unsatisfactory, the employer terminates the employment contract and records:

EXAMPLE
On August 4, 2016, the company Automarket LLC hired Solovyova to the position of head of the production site with a probationary period of 4 months. The employee makes the following entry in her work book:

If the test result is unsatisfactory and a decision is made to terminate cooperation, the following information is entered:

Stage 6. Filling out a personal card

When hiring a new employee, the personnel department must create a personal card for him (form T-2). The document contains general information about him: position held, work activity, incentives, rights to benefits and much more. But the question arises: Is there a probationary period? personal card?

If the period allotted for checking suitability for the position has expired and the employee continues to work, then he has been hired. There is no need to issue additional acts, orders or make changes to your personal card (Article 71 of the Labor Code of the Russian Federation).

Step 7: Journaling

The results of the test determine whether it is possible to continue working at the enterprise. That's why registration of an employee on a probationary period involves keeping a special journal during this period of time. All subtotals are recorded in the table. It contains:

• number and name of the order;
• the time allocated for completing the task;
• FULL NAME. responsible person;
• the result of passing the test time.

Reports are attached to the information. And at the end of the test, they analyze all completed and uncompleted tasks and make a decision on further cooperation.

When the check fails

When an employee fails to cope with the tasks assigned to him or commits serious misconduct, the contract is terminated. In this case, the employer needs to have documentary evidence of the validity of his decision and correctly enter information into all types of documents we mentioned earlier.

Three important details

• The manager needs to remember: two-week work in such a situation is not provided. The employment relationship is terminated no later than three calendar days, otherwise there is a violation of the law on the part of the employer.

2. If an employee does not agree with the decision on unsatisfactory results of the inspection, he has the right to appeal to the court. Then the employer must provide the regulatory authorities with significant evidence of the legality of their actions.

• If incorrect registration of an employee on a probationary period reinstatement to the previous position and payment of compensation for damage are possible.

3. When terminating an employment contract with a person who has not passed the competency test, you must remember the established restrictions. It is prohibited to fire people under social protection:

• pregnant employees;
• women raising children under 1.5 years of age;
• minors.

What an employer should know

When hiring, it is unacceptable to set a period exceeding the limits established by law. Yes, when registration of a probationary period according to the Labor Code of the Russian Federation The duration can be from 3 to 12 months (depending on the situation).

If a subordinate was absent during the probationary period, even for a valid reason, these days are not taken into account. The HR specialist automatically formalizes the extension of the term in administrative documents. It is important to comply with two conditions:

1. indicate the reason for postponing the deadline;
2. attach copies of documents justifying the decision.

The result of passing the test depends on the developed tasks, which will show the level of success of the beginner. Therefore, they must be well thought out, clear, and realistic to implement. A situation where they can be interpreted ambiguously is unacceptable.

Probation period of the Labor Code of the Russian Federation providedto protect the rights and interests of both the job applicant and the employer. During the probationary period, each party to the employment relationship has the opportunity to take a closer look at each other, evaluate the working conditions on the one hand and the qualifications of the employee on the other. We will talk about the features and nuances of the screening period when applying for a job in this article.

What is a probationary period in labor law?

A probationary period in labor law is the time period necessary for the parties to an employment contract to evaluate each other’s capabilities.

Of course, first of all, conducting a test when applying for a job is the employer’s preference, as it allows you to take a closer look at the employee and pre-certify the level of his knowledge and qualifications. But the employee also gets the opportunity to look at the desired job “from the inside,” check working conditions, find out how the employer’s responsibilities are fulfilled at the enterprise, and sometimes evaluate interpersonal relationships in the team.

It is important that the legislation places emphasis on the optionality of a probationary period when taking on official duties and the mutual consent of the parties to a probationary period. So, in Art. 57 of the Labor Code of the Russian Federation, among the mandatory conditions of an employment contract, a probationary period is not established, and in Art. 70 of the Labor Code of the Russian Federation directly states that the test is established by agreement of the parties.

At the same time, if a candidate for a position refuses to undergo testing, this does not mean that the employer is obliged to sign an employment contract with him without such a condition. Concluding an agreement with an employee is a right, not an obligation of the employer.

If the employer insists on including a provision for a probationary period in the contract, and the applicant for the position, in turn, seeks to exclude such a condition, it is obvious that the parties have not reached agreement. This means that the conclusion of an employment contract may not take place.

The requirement for a test must be written down in the employment contract and not in any other document. And only if the employee is actually allowed to perform official duties without paperwork, the probationary condition is subsequently included in the contract only if a written agreement on this has been previously reached. If there is no mention of a probationary period in the employment contract, then the employee is considered to have been hired without verification.

Duration and extension of the probationary period under the Labor Code

According to the general rules established by the Labor Code of the Russian Federation, the duration of the probationary period cannot be more than 3 months. However, for positions such as:

• the director of the enterprise and his deputy;
• chief accountant and his deputies;
• heads of separate divisions of the enterprise (branches, representative offices, etc.),

The probationary period should not be more than six months. In this case, the verification time can be reduced. The employer, at its discretion and by agreement with the employee, sets the duration of the trial period - from 1 day to 3 months (or 6 months).

The probationary period does not include the time the employee is on sick leave, unpaid leave, study leave, downtime of the enterprise, or other time when the employee is absent from work for a valid reason.

If there are valid reasons listed for missing work, the probationary period may be extended. The decision to extend is formalized by an order from the head of the organization, with which the employee must be familiarized with signature. In any other cases, including because the director of the enterprise so wishes, the probationary period cannot be extended.

There is no need to formalize any additional documentation for completing the probationary period. If the probationary period has ended and the employee continues to work, then he is considered to have completed the probationary period.

Probationary period for a fixed-term employment contract

In addition to an open-ended employment contract, that is, concluded for an indefinite period, a fixed-term employment contract is known in labor law. This is an agreement between an employee and an employer, which immediately determines the duration of the work for which the employee is hired.

A fixed-term employment contract is drawn up for:

• period no more than 5 years;
• the period of execution of a certain work, if it is impossible to determine the exact start and end dates of the work;
• during the absence of the main employee from his position (for example, during an employee’s maternity leave);
• for seasonal work (for example, harvesting).

A verification period can also be established for an employee when signing a fixed-term employment contract. In this case, the terms remain the same - up to 3 months, but with a reservation.

Labor legislation draws attention to the fact that if an employment contract is drawn up for a period of 2 to 6 months, then the duration of the test upon entry to work should not be more than 2 weeks; If the contract is drawn up for a period of less than 2 months, then the test is not carried out.

Categories of employees to whom the probationary period does not apply

For some categories of applicants, a probationary period is not established when drawing up an employment contract. The law prohibits the inclusion of a probationary period clause in employment contracts with the following employees:

• selected by competition in accordance with current legislation;
• pregnant women and those with children under one and a half years old;
• minors (under 18 years of age);
• graduates of a higher or secondary specialized educational institution with state accreditation, if they are hired for the first time, in the specialty they received and within a year from the date of graduation from the university;
• those elected to elective positions for paid work;
• transferred from another organization by agreement between employing organizations;
• accepted under a fixed-term employment contract for a period of up to 2 months;
• other employees in accordance with current legislation and agreements at enterprises.

Working conditions during the probationary period

Working conditions during the probationary period upon entry to work should not differ from the conditions under which the employee will work in the future and under which other colleagues work.

In accordance with Art. 70 of the Labor Code of the Russian Federation, during the probationary period, the norms of labor legislation, other legal acts, a collective agreement and other internal documents of the enterprise are applied to the employee.

First of all, this is guaranteed by the fact that a real employment contract must immediately be concluded with the employee, which specifies the duration of the probationary period. There should be no agreements during the trial period, the results of which promise the conclusion of an employment contract!

The same goes for salaries. It is impossible to indicate in the contract that the salary is set one way, and another for the probationary period.

Employers, of course, have found a way out of this situation and set low salaries for all employees, preferring to pay monthly bonuses. Since the bonus is given based on the results of work and the manager is not obliged to accrue it every month, employees on a probationary period, as a rule, are bypassed by such remuneration.

Dismissal during probationary period

The test period provision in the employment contract allows the parties to carry out the dismissal procedure under simplified conditions, regardless of who is the initiator - the employer or the employee.

If during the test the employer comes to the conclusion that the employee is not suitable for him, then the law gives him the right to dismiss the candidate for the position before the end of the probationary period, giving written notice no later than 3 days in advance and indicating the reasons for the dismissal.

Such dismissal (as a result of an unsatisfactory probationary period) takes place without union participation and without payment of severance pay. If the employee does not agree with such dismissal, he can go to court to appeal.

If during the probationary period the employee comes to the conclusion that the new place of work does not meet his needs, then he can also resign in a simpler manner.

While according to the general rules, when dismissing at his own request, the employee must notify the employer about the date of dismissal no later than 2 weeks in advance (these are the same 2 weeks that are called “working off” in everyday communication), dismissal during the probationary period must be notified 3 weeks in advance. day. The warning must be given in writing by sending a statement to the head of the organization.

To avoid disputes about the date of receipt of the resignation letter, it is better to submit the document against signature, with a mark on the copy of the date of transfer and signature of the recipient.

Thus, it is important to know that if the dismissal occurs during the probationary period of employment, the employer's requirement of 2 weeks of work is illegal! With a complaint about a violation, especially if they refuse to hand over the work book, you can contact the state labor inspectorate or court (See. Where to complain about an employer, and how to complain correctly?).

Probation period and pregnancy

As mentioned above, there cannot be a probationary period for pregnant women when hiring. However, there are situations when an employee finds out that she is expecting a child during her probationary period. How to be in this case?

In accordance with labor legislation (Article 261 of the Labor Code of the Russian Federation), a pregnant woman cannot be dismissed at the request of the employer in any case, except for the liquidation of the enterprise. This means that it is impossible to dismiss a pregnant woman as having failed the test. In addition, from the moment the employer is notified of the employee’s pregnancy, her probation period must be canceled.

Thus, if during the probationary period an employee becomes aware of her pregnancy, she must obtain a doctor’s certificate confirming this and submit it to the employer.

In case of illegal dismissal of a pregnant woman, she must go to court with a demand for reinstatement at work, payment for forced absence, moral compensation, and recognition of the employment contract as indefinite.

Employment contract with and without probationary period (sample)

Employment contract with probationary period and the same agreement without a probationary period are not much different. As a rule, the employee is provided with a ready-made template agreement for signing, developed at the enterprise, in which, next to the mention of the probationary period, a place is left where it is supposed to determine the duration of the probationary period or make an entry “without a probationary period.”

So, employment contract with probationary period (sample) looks like that.

1. The header indicates the date of signing, the city where the agreement is concluded, and the details of the parties.
2. The general provisions establish: the organization where the candidate will work, the position for which he is hired, the date when the employee must begin work. As a rule, the duration of the probationary period is also specified here. It is also determined whether the job for the applicant will be primary or part-time, whether the contract will be fixed-term or open-ended.
3. The following describes the rights and obligations of the employee, as well as the rights and obligations of the employer.
4. A mandatory condition of the employment contract is the condition of payment. It can be written down briefly “according to the staffing table” or in detail, indicating what components the salary and bonus procedure will consist of.
5. Also, the contract must agree on the conditions under which the candidate will work. As a rule, the work and rest hours, the procedure for granting and duration of vacations, and the specifics of the work process (business trips, traveling, etc.) are prescribed.
6. In addition to the above, the responsibility of the parties, the grounds for termination of the employment contract and any special conditions applicable to a specific employee and employer are usually agreed upon.
7. The employment contract ends with information about the parties and their signatures.

The employment contract is drawn up in 2 copies, each of which is signed by the parties.