Probationary period: as it happens and how it should be. How not to violate the labor code of the Russian Federation when applying for a trial

Date of: 15.10.2019

The trial period is an important time of adaptation in the company, as well as the opportunity to check whether this position is suitable for you and whether you are suitable for it. During this period, the candidate is eyeing a new place of work and the head checks the professional qualities of the employee. Therefore, it is useful to both management and employee. Employed in a new place for himself, an employee who has to go through a probationary period must know some legal subtleties.

In the Labor Code of the Russian Federation, the 70th and 71st articles are devoted to the probationary period. According to these articles, the establishment of a trial period is not a condition. It is possible to accept for work without testing. Thus, the deadline is set only by agreement of the parties. If you do not wish, the employer does not have the right to test you. And then either he takes you to work without a trial period, or you leave the company and go in search of work again. But more often than not, if you refuse to sign a contract in which a probationary period is set, then you simply do not get a job.

The Labor Code also lists all categories of workers for whom the test period is not set in principle. These include women with children under the age of one and a half years, pregnant women, minors (under 18), as well as young professionals. Regarding young specialists, the law is valid with reservations that they must get an education at a school, university, and similar institutions with state accreditation and enter a job for the first time in their specialty, and only within a year after graduation. Since this is a direct indication of the law, even if you have signed an agreement in which you set a trial period, the contract in this clause is not valid.

The trial period should not exceed three months. At least one day less is possible, but more is impossible. However, the chief accountants and their deputies and managers can set the test period to six months, since the work is responsible. A specific period is set for you, and it must be indicated in the employment contract. You must also take into account the fact that the time you spent on sick leave is not included in the trial period. If you have been ill for three weeks, then they are added to the deadline. However, the probationary period, at the discretion of the employer, may be shortened. But to increase it, he has no right.

The employer has the right to terminate the contract with you during the probationary period if he is not satisfied with your work. To do this, you need to monitor compliance with certain conditions: the contract is terminated before the end of the trial period, and you should have been notified of your dismissal in writing no later than three days with all the reasons indicated. For example, if the employer considers that you did poor work, did not meet deadlines or were late for work, then all this should be spelled out. The employer has no right to take your mistakes “out of the head”. He needs to confirm them with documents. For example, if you are late, there should be an explanatory and memorandum. You can appeal the decision on dismissal in court if you think that you were dismissed without any reason. From the point of view of the law, such popular formulations as: “on a trial period, the salary is 20 thousand rubles, and after 30 thousand rubles” are not legitimate. By law, you cannot set a lower salary for the duration of the probationary period. However, management has a workaround. One salary is set in the contract for you, and verbally informs that after the trial period you will be increased. All conscientious employers fulfill their promise, and after successfully completing the probationary period, you are invited to enter into an additional agreement, which indicates the promised amount. But unscrupulous people are unlikely to do so, so you can only focus on the good reputation of the company.

The contract should clearly indicate the duties that fall on the employee. For example, if you occupy the position of an accountant, then the area of \u200b\u200bwork should be clearly stated, for example, accounting. warehouse accounting, payroll deduction or tax accounting services. That is, all that the employee is required to perform during the probationary period. Such a document must be submitted to the employee for signature.

If all the conditions of your test are spelled out only in the employment order, and not a word about them in the contract, then in this case the probationary period is considered illegal. In this case, this means that the employee was hired without a trial period. If your probationary period has come to an end, and the employer is silent, then you withstood it with honor and are now a full-fledged employee of the company. Links to forgetfulness are not accepted.

If you have not been presented with claims to professionalism, then nothing else can be a reason for dismissal. Of course, personality traits should not be taken into account. However, in practice it is often different. For many positions, it is difficult to separate professional from personal.

If you are entering a probationary period, remember that you will always have difficult moments and periods of getting used to (our recruitment managers will always warn you about the probationary period). It will be very difficult in the first weeks, and making hasty decisions during this period is not worth it. But after the first month of work, you can well decide whether you like such work or not, and how comfortable it will be for you to work in the workplace.

Who can be contracted without a trial period?

In accordance with part 1 of Article 70 of the Labor Code of the Russian Federation, upon the conclusion of an employment contract, it may, by agreement of the parties, stipulate a condition for testing an employee in order to verify his compliance with the assigned work. In simple terms, a trial period can be set for an employee.

The key words of the norm are “ by agreement of the parties”And“ can be installed" It follows from this that the probationary period may or may not be established at all, it all depends on the will of the parties to the employment relationship. Accordingly, without a probationary period, it can be concluded with any employee, regardless of their position.

Part 4 of Article 70 of the Labor Code of the Russian Federation establishes a list of workers for whom the test for employment cannot be established. Even the presence of the desire of the employee himself, the consent of the parties does not give the right to include in the employment contract the condition for testing the employee.

The specified list is not exhaustive, the Labor Code itself, other federal laws, the collective agreement, it can be expanded. For example, a probationary period is not set for a person who has successfully completed apprenticeship and enters into an employment contract with the employer from whom he was trained (part 1 of article 207 of the Labor Code of the Russian Federation). The test is not established by a civil servant accepted for service as a result of a transfer in connection with the reduction of civil service posts or the abolition of a state body (part 3 of article 27 of the Federal Law of July 27, 2004 N 79-FZ).

An employment contract without a trial period is concluded with the following categories

Employees selected by competition to fill the relevant position.
For example, in accordance with the federal law of 02.03.2007 No. 25-ФЗ “On Municipal Service in the Russian Federation”, a competition may precede the conclusion of an employment contract with a municipal employee. The competition itself is held to assess the professional level of applicants for filling the posts of the municipal service, their compliance with the established qualification requirements for the position of the municipal service. The competition for filling the position of the municipal service solves the probationary task in full, so the establishment of an additional test is unnecessary.

Pregnant women and women with children under the age of one and a half years.
This provision applies not only to women with children under the age of one and a half years. But also on other persons raising children of a specified age without a mother.

Minors workers.

Employees who have received secondary vocational education or higher education and first entered the work in the specialty received.
In this case, there are two additional conditions:

An educational organization must have state accreditation of educational programs (in this case, the graduate will have a document on state education).
A graduate of an educational organization must be employed in the specialty acquired within one year after graduation.

Employees elected to an elective position in paid work.
For example, a newly elected deputy of the State Duma of the Russian Federation.

Employees invited to work in the transfer order from another employer as agreed between employers.

Workers who have entered into an employment contract for up to two months.

Summarizing
An employment contract without a trial period can be concluded with any employee, for this only good will of the parties to the employment relationship is necessary. By virtue of the law with certain categories of workers, the probationary period is not established at all.

Video on the topic “Employment contract without a trial period”

Legislation in the field of labor relations stipulates the need to conclude between the employee and the employer either an employment contract or a civil law contract. Only with one of these documents is a person authorized to start work. By decision of the management of the enterprise, the person employed may be installed. About what it is, why it is required, who should not set a trial period and other subtleties of legislation we will discuss in this article.

Why do I need a trial period?

So, trial period is the period of time established by the employer for the newly hired employee in order to verify his compliance with the position held. For example, it is advisable to establish a probationary period in the case of hiring people who have a different education than what is required for a particular position, or who do not have experience in a particular field. At the same time, such a trial period is necessary not only for the employer, but also for the employee himself in order to draw conclusions about the suitability of the chosen position, about how suitable the organization itself and the staff are.

Quite often, a probationary period is set for employees who fully comply with all the requirements established for a particular position. This is done by employers in order to verify the accuracy of the information specified by person c.

If, during the period of the probationary period, the employer concludes that the person employed does not cope with the duties stipulated for his position, then the employment contract concluded with him may be terminated even before the final completion of the test. At the same time, the employer must notify the employee about the decision in writing 3 days before the dismissal, indicating the reason for the dismissal.

In order to avoid the employee having grounds for contacting the labor inspectorate or the courts, he should be familiarized with his official duties under signature. They can be recorded in the job description, as well as other local regulations. Each violation of official duties must also be recorded in writing.

What does the law on probation say?

Legislation regarding the probationary period contains article 70 of the Labor Code of the Russian Federation "Test for employment". This article clearly defines the optional nature of the period for the test, its deadlines, as well as a list of persons for whom a trial period is not established.

Article 70 of the Labor Code of the Russian Federation - Test for employment
When concluding an employment contract, it may, by agreement of the parties, stipulate a condition for testing an employee in order to verify his compliance with the assigned work.
The absence of a test condition in the employment contract means that the employee was hired without a test. If the employee is actually admitted to work without an employment contract (part two of Article 67 of this Code), the test condition may be included in the labor contract only if the parties have issued it in a separate agreement before work begins.
During the test period, the employee is subject to the provisions of labor law and other regulatory legal acts containing labor law, collective bargaining agreements, agreements, local regulations.
The job test is not set for:
Persons elected through a competition to fill an appropriate position, conducted in the manner prescribed by labor legislation and other regulatory legal acts containing labor law standards;
pregnant women and women with children under the age of one and a half years;
persons under the age of eighteen years;
persons who have received secondary vocational education or higher education in state-accredited educational programs and who first enter the work in the specialty acquired within one year from the date of receipt of professional education of the appropriate level;
persons elected to an elected position for paid work;
persons invited to work in the order of transfer from another employer as agreed between employers;
persons concluding an employment contract for a period of up to two months;
other persons in cases provided for by this Code, other federal laws, collective agreement.
The test period may not exceed three months, and for the heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations - six months, unless otherwise provided by federal law.
When concluding an employment contract for a period of two to six months, the test may not exceed two weeks.
The period of the test does not include the period of temporary disability of the employee and other periods when he was actually absent from work.

So, trial period cannot exceed 3 months. When it comes to temporary work that lasts 2-6 months, then the trial period is either not set at all, or, in extreme cases, a maximum of 2 weeks is provided.

For individual posts, a six-month probationary period may be provided. These include the positions of heads of enterprises and organizations, their deputies, chief accountants and their deputies, as well as heads of structural divisions, branches and departments.

These officials must pass the six-month test if they are not subject to certain federal laws that cancel the test during employment.

Moreover, the duration of the trial period does not include the days when the employee was on sick leave and at. So, if the employee was given a probationary period from March 1 to March 31, but he went on sick leave from March 6 to 10, his test will last until April 5.

About those who can not set a trial period

The mentioned article of the Labor Code provides a list of citizens for whom it is forbidden to establish a test for employment. This list includes:

Pregnant women;
persons employed before the age of 18;
women with children under the age of 1.5 years;
persons holding elected posts;
persons hired for temporary work for a period not exceeding 2 months;
persons, by agreement, employed by transfer from another enterprise;
persons first employed in their specialty after graduation from a state-accredited educational institution;
employees hired by the results of the competition.

Also, the probationary period is not set when hiring for other categories of workers, if it is provided for by local regulatory acts for the enterprise, primarily a collective agreement.

How is the trial period?

As already noted, the need for a probationary period, as well as its duration in each case, are determined in the employment contract, which the employer signs with the employee upon entering work. If such information is not contained in the employment contract, it is considered that the person is hired without a test.

It happens that it is executed retroactively when the employee has already embarked on the performance of his duties. In this case, the test is made out in the form of an additional agreement to the contract, which should be done before starting work. As noted in article 67 of the Labor Code, if an employee starts work without signing any documents, he is considered accepted.

What is the salary during the test period?

Labor legislation establishes the right of an employee on a trial period to receive all benefits, as well as enjoy the rights provided for persons who are at their main job. And that means that his salary should not differ from that which he would receive as a main employee. This also includes bonuses and other types of material incentives established at the enterprise. But, as a rule, everyone who passes the probationary period has a lower salary. This is primarily due to the fact that the employee joins the work and cannot work at full strength.

But a similar legislative norm also applies to, since the employee is considered a full member of the labor collective for a trial period.

Hiring staff carries certain risks for the organization, because success, in general, depends on the experience, knowledge and skills of an individual staffing unit. Minimize them allows a trial period. According to the Labor Code of the Russian Federation, it is a right, not an obligation, of the employer and is usually set within three months.

Basic regulatory framework

The test for admission to work is intended so that the employer assesses the business and professional qualities of the employee, and the employee determines for himself whether the assigned work is suitable for him or not (part 1 of article 70, part 4 of article 71 of the Labor Code of the Russian Federation).

Labor Code of the Russian Federation:

art. 70 - concept and limitations;
art. 71 - results of the passage;
art. 289 - under a fixed-term contract.

Federal Law on Civil Service No. 79-ФЗ

Federal Law on Service in the Department of Internal Affairs No. 342-FZ

The test condition (including the term) is established exclusively upon employment (parts 1, 2 of article 70 of the Labor Code of the Russian Federation).

Different approach

The Labor Code does not contain the term “probationary period”, but in article 70 it is mentioned about the “test for employment”. Experts consider these concepts to be equivalent and relate them to the elements of an agreement between the employer and the applicant. If the document does not contain a condition on a trial period, the legislation shall recognize it as undefined; the employee is automatically credited to the staff.

Detailed information on the trial period for the Labor Code of the Russian Federation in 2018 is presented in the table.

Categories of citizens	Maximum test duration	Document Link
Employees with a 2-6 month contract	14 days	h. 6 tbsp. 70 Labor Code of the Russian Federation
Signing a contract for up to 2 months	absent	h. 4 tbsp. 70 of the Labor Code of the Russian Federation, Art. 289 of the Labor Code of the Russian Federation
Applicants for a leadership position - chief accountant, middle manager, deputy director, etc.	6 months	h. 5 tbsp. 70 Labor Code of the Russian Federation
The beginning of a career in public service	12 months	art. 27 of Law No. 79-FZ
Police officer	6 months	art. 24 Law No. 342-FZ
Other employees (signing a perpetual contract)	3 months	h. 5 tbsp. 70 Labor Code of the Russian Federation

What the Labor Code says about probation

The result of the test is assessed by the employer, whose decision affects the future fate of the employee. When the set time has expired, but nothing has changed - that is, all the tasks set have been completed successfully - he is automatically accepted into the company. No additional clearance is required.

If the applicant has not shown the necessary professional qualities or has committed a serious violation of discipline, dismissal is allowed on a trial period under article of the Labor Code of the Russian Federation at the initiative of the employer (Article 71). Then you need to observe three important conditions:

Timely inform the employee of the decision by presenting a written notice. Term - no later than three days before the expected date of termination of the contract.
Prepare documents confirming incompetence. The interests of employees, including those undergoing a probationary period, are fully protected by the Labor Code. Therefore, the reason for dismissal must be substantial and justified. In case of infringement of rights, undesirable consequences are guaranteed for the organization.
Correctly execute the procedure for termination of the employment contract, following a certain procedure. Please note: if there is an error in the documents, such consequences as the restoration of an employee with the requirement of monetary compensation from the employer are not excluded. See also "".

If the employer is satisfied with the qualification level, he has the right to shorten the probationary period provided for by law and to recruit an employee.

Important Nuances

Firstly, with regard to salaries and compensation. Officially registered and tested candidates are endowed with the rights of permanent workers. The Labor Code does not provide for special conditions for them, so they are accrued in a general manner.

According to our information, this year there are no plans to change the procedure for regulating labor relations between the employer and the applicant for a trial period. The Labor Code for 2018 remains relevant, and its provisions remain in force.

Set a trial period by recruiting new employees. How many days to check employees and how to document the procedure, read the article.

From this article you will learn

What is a trial period?

The procedure for establishing a trial period is regulated by Article 70 of the Labor Code. It spells out the rights and obligations of the parties. The basic condition to establish a test is mutual consent, as described in the first part of the article. Usually there is no difficulty, as applicants agree to the conditions put forward by the employer.

The right to inspect an employee is not always. Separate categories of persons. Otherwise, this is regarded as a gross violation of the law. Keep in mind that a probationary period can be established only on condition of long-term employment - for a period of more than two months (Article 289 of the Labor Code).

Note! Count the time of the trial period in the period of actual work, take it into account when calculating the vacation, insurance experience. Experts of the "Personnel System" talk about how to count and length of service.

According to parts 1 and 2 of Article 70 of the LC, the condition is reflected in the contract. If the document is drawn up without the necessary item, the employee is automatically considered accepted without verification. Carefully prepare the document, check the text for significant conditions.

Question from practice

Nina Kovyazina answers
deputy Director of the Department of Medical Education and Personnel Policy in Health Care of the Ministry of Health of Russia.

The test condition does not apply to the mandatory conditions of the employment contract. When making an employment contract by agreement of the parties, it can be written in it to check how the newcomer will cope with the work (). In this case, the test condition () ...

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Maximum probationary period for an employee

The duration of the check is limited. The maximum probationary period is 3 months for ordinary workers. If an employee works under a fixed-term contract, which is concluded for a period of two to six months, the check 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 with the employee, as this prohibits labor law.

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

company name;
employee’s personal data;
full name of the post, structural unit;
nature of work;
tariff rate with premiums;
a reference to the basis - in this case, an employment contract;
signatures of the head and employee.

Sometimes the sequence of preparation of documents is violated, so the employee is allowed to perform duties earlier than the organization enters into an agreement with him. In this case, the law is not violated, but enclose within three business days from the start of work. Fix the verification condition by a separate agreement. If the contract is without a trial period, admission occurs as usual.

Dismissal due to failure to pass a probationary period

Assign the beginner’s performance assessment to your immediate supervisor, mentor, or special commission. If the results of the observation indicate a person’s job compliance, he is considered and continues to work. You do not need to issue additional orders or prepare other documents.

If an employee fails and his competencies do not meet the established level, make a decision on his dismissal. Notify the employee about this no later than three days before the date of termination of the TD (Article 71 TC). Make two copies of the notice: one should be handed over to the employee for review, the second should be left in the organization.

To avoid claims, allegations of illegal dismissal, collect an extensive documentary base. Any documents with at least some relevance to the case will be useful: reports, memos, complaints and comments of clients, conclusions and acts of the commission, reports and so on. Formulate the reasons for dismissal clearly, legally correctly.

Issue an order to terminate the AP. Indicate unsatisfactory test result as the reason for dismissal (Article 71 of the Labor Code). You do not have to pay severance pay, agree on the decision to quit with the union. On the last day, issue a work book, salary and compensation for unused vacation. . Follow the recommendations, otherwise the employee will be deemed to be on staff on an ongoing basis. Termination of employment with an employee who has successfully passed the test is possible on a common basis.

Not every person calmly accepts the news of the imminent dismissal. The situation is heating up by the fact that the employer is not satisfied with the level of job compliance. Therefore, the procedure develops into an acute conflict with the involvement of GIT, the court, the prosecutor's office and other instances. To avoid litigation, develop a local act governing the passage of the audit.

Include in the Regulation on information on the design, establishment of verification, rules for evaluating performance. List the categories of people to whom the initial test is not established. Attach standard forms as applications: specifications, notifications, commission conclusion. Approved local rules must not conflict with labor law.

Reference: at the stage of compiling an application for personnel selection. But this does not preclude the preparation of the Regulation.

Before employment on a trial period, familiarize the employee with the "Regulation" under the signature. If a person agrees with the provisions of the Regulation, the likelihood of conflict upon dismissal is minimized. Applicants who are not satisfied with the routines adopted by the organization are eliminated. This facilitates the process of selecting loyal staff.

Enter into an employment contract without a probationary period only if you are confident in the applicant. Usually this is practiced in the selection of rare specialists who have extensive experience and merit. In other cases, take some time to check. Follow document preparation guidelines to avoid fines.