Almost every able-bodied Russian one day has to find a job in new job. Most of the newly minted workers in their employment contract find a clause on the mandatory passage of a probationary period. Labor law provides for some exceptions. The employing 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 sphere of work, 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 the newly accepted candidate. The duration 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 for the presence of a probationary period when hiring in without fail is prescribed 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 evaluate factors that are significant for him, for example, working conditions, the mood in the work team, the characteristics of colleagues and immediate supervisor. If one of the parties finds that something does not suit her, employment contract may be terminated. The initiator of the termination of the contract can be both the employee and the employer.
Video: probationary period for employment
Is a probationary period included in the length of service?
The trial period is included seniority, and a record that the employee has started work for a trial period is not entered in the work book. After signing the employment contract, the enterprise issues an appropriate order, on the basis of which a standard entry is made in the work book about hiring in a specific position.
So that a newly minted employee can avoid unnecessary worry about whether the probationary period is included in the length of service in each particular case or not, he is recommended to make every necessary effort to receive a signed employment contract in the very first days at a new place.
How is a probationary period different from an internship?
The difference between an internship and a probationary period is the term for concluding an employment contract. In the case of a probationary period, the employment contract is concluded before the start of the direct labor activity, and the internship implies that the employment contract will or will not be signed by the parties based on the results of the internship. If probation If specialists of any level, up to directors and top managers, can take part, 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 a new type of activity.
The Labor Code of the Russian Federation informs that the employer is supposed to conclude a fixed-term employment contract with the intern. Otherwise, the procedure for passing the internship, as well as its content and the conditions under which the internship is considered successfully completed, are determined individually in each organization. The relevant rules are fixed in the local documentation of the enterprise.
Video: what is an internship
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 probation period
In most cases, for ordinary positions, the probationary period cannot last longer than three months. Employees recruited to senior positions are subject to close management scrutiny for a six-month period. If a probationary period condition is included in fixed-term contract between two and six months, such trial period may not exceed two weeks. Periods of temporary incapacity for work for any reason, as well as days on which the employee was absent from the workplace, are not taken into account for the probationary period.
Can the trial period be extended?
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 test period for a new employee may arise if, after the agreed period of work, the employer has not been able to verify that the candidate's qualification level meets the requirements, or if the employer is not sure that the adaptation of the new employee in the team was successful. Regarding the legality of extending the test period of work, there are two opposing opinions.
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 contract will be considered void, since it will mean a deterioration in the position of the employee compared to previously agreed conditions (see Letter of Rostrud dated 02.03.2011 N 520–6-1 and). However, federal laws allow some exceptions to this rule. So, in accordance with the provisions of the Federal Law of January 17, 1992 N 2202-1 "On the Prosecutor's Office", citizens who have entered the service of the prosecutor's office can receive an extension of the probationary period within six calendar months by agreement of the parties. At the same time, an additionally appointed 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 probationary period legitimate argue their position as follows. General rule, set out in Article 72 of the Labor Code of the Russian Federation, allows for amendments to certain conditions of an employment contract by mutual agreement of the parties. At the same time, for each of the categories of workers, the law establishes maximum duration labor tests. Thus, if the employer has received the consent of the employee to extend the probationary period, they can conclude an additional agreement to the main labor contract. The main condition of this agreement will be that the extended trial period will not exceed the terms specified in the legislation for this category of workers.
Early termination of the trial period
Early termination of the probationary period is possible when the employer wants to reward the accepted employee for special success during the test trials. As in the case of the extension of the probationary period, its early termination requires appropriate documentation and the consent of both parties. The employer and the employee enter into an agreement on the early termination of the probationary period (see explanation Federal Service on labor and employment N 1329-6-1 dated May 17, 2011).
In addition, there are a number of other reasons for the early termination of trials. These reasons are not related to the direct results of the employee's activities in the workplace:
- the employee was admitted to study at a higher educational institution;
- the employee found a relative in need of constant care;
- the newly hired employee provided documents confirming pregnancy or the presence of a child under the age of one and a half years.
Features of the installation and passage of a probationary period for certain categories of workers
For some categories of citizens in determining the procedure for passing the probationary period, there are some features. These categories include, in particular, public civil servants, seasonal workers, persons working part-time.
Features of organizing a probationary period for civil servants are regulated by Article 27 of the Federal Law “On the State Civil Service Russian Federation". In the case when a citizen is first accepted into the civil service, the duration of the test period of work for him can vary from one to twelve months. For professionals with experience in state structures appointed to a new position in the order of transfer from another state organization The duration of the probationary period is from one to six months. From one to twelve months, an employee appointed to such a public position may also be tested, the decision on accepting and dismissing from it can only be taken by the President or the Government of the Russian Federation. If the employer considers the test results unsatisfactory, the service contract with the employee may be terminated. An appropriate written notice indicating the reasons for termination must be received by the employee no later than three days before the date of termination of the contract.
Employment contracts for employees for the season most often differ in short duration. For a contract lasting from two to six months, the period for checking the competencies of an employee cannot exceed two weeks. If the contract is concluded for a period of not 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, a probationary period may be assigned to him in this company on a general basis. If the employee plans to combine two similar activities in one enterprise, the appointment of a probationary period will be illegal, since the employee has already proven his competence.
Video: labor rights for pregnant women
Regulation on probation
The legislation 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 a task for the probationary period, who, in what time frame and by what principles evaluates the success of the candidate passing the probationary period, and so on. The following is a sample probation statement.
Regulation on probation. Sample.
1. GENERAL PROVISIONS.
1.1. The probationary period is the last stage in assessing the professional suitability of a candidate for a vacancy.
1.2. The purpose of the probationary period is to check the compliance of the specialist with the activity assigned to him directly in the working environment.
1.3. The probationary period shall not exceed three months.
1.4. The duration of the probationary period is indicated in the employment contract and in the order for employment (Articles 68, 70 of the Labor Code of the Russian Federation).
1.5. The probationary period does not include a period of temporary disability and other periods when the employee was absent from work for good reasons (Article 70 of the Labor Code of the Russian Federation).
1.6. The trial 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 result of the test is unsatisfactory, the dismissal of the employee is carried out at the initiative of the university administration without agreement with trade union body and without the payment of severance pay, with the wording "as if he had not passed 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 probation. 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. ORDER OF PASSING THE PROBATION PERIOD.
2.1. On the first day after the newly hired employee enters work, the immediate supervisor:
2.1.1. Conducts an informative discussion about the conditions professional activity(Appendix 3);
2.1.2. Introduces the new employee to the job description. The employee certifies with his signature that he is familiar with the job description, agrees to perform the functional duties listed therein. 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 division and other local acts governing the activities of the unit and the activities of the employee.
2.1.4. Appoints a curator - 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 such, supervision is assigned to the immediate supervisor or head of the unit;
2.1.5. If a probationary period is established for an employee accepted for the position of head of a structural unit or vice-rector, then the most qualified employee of this unit or another higher manager, immediate supervisor and head of the unit - the dean of the faculty, vice-rector by affiliation, or the rector of the university can be appointed curator.
2.2. Organization of probation.
2.2.1. The probationary period can take place in one (if, with successful work during the first month of the trial period, the latter was reduced to 1 month) or two stages (if the trial period was not reduced).
2.2.2. The immediate supervisor with a new employee, during the first three days after going to work, draw up a work plan in accordance with job description for the first month of the probationary period (Appendix 1). The work plan of a new employee is approved by the head of the unit, signed by the employee and agreed with the vice-rector for affiliation (rector or chief accountant). The plan must be with the employee and the immediate supervisor.
2.2.3. Three days before the end of the first month of the probationary period, the immediate supervisor, the curator and the employee discuss the compliance of the specific results achieved with the set goals (work plan).
2.2.4. Not 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 you can reduce the probation period to 1 month" or "the test did not pass, the probationary period remains the same." If the probationary period does not exceed one month, then a conclusion is given “test passed” or “test did not pass”. The conclusion is agreed with the head of the unit and the vice-rector by affiliation (rector or chief accountant) and transferred to the personnel 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, the employee's work plan for the remaining period is also drawn up in accordance with clause 2.2.2. of this provision. Not later than 7 days before the end of the probationary period, the immediate supervisor, curator and employee discuss the compliance of specific results achieved with the work plan. The immediate supervisor draws up an informational and analytical note on the results achieved by the employee for the subsequent stage of passing the test, and gives a conclusion “passed the test” or “failed the test”. The conclusion is agreed with the head of the department and the vice-rector for affiliation and transferred to the personnel department for further work no later than 5 days before the end of the probationary period.
2.2.6. The original plans for passing the probationary period and information and analytical notes are transferred to the personnel department and stored in the employee's personal file.
Applications:
1. Annex 1. "Plan of the work of the employee during the probationary period."
2. Appendix 2. "Information and analytical note on the results of the probationary period."
3. Annex 3. "Matrix for determining the levels of functional duties."
4. Annex 4. "The scheme of the interview with the employee at the time of going to work."
AGREED:
First Vice-Rector __________________________
Head of Human Resources ______________________
Lawyer _____________________________________
Chairman of the trade union committee of employees _______________
Annex 1.
"AGREED" "APPROVE"
Vice-rector Head of department
_______________________ ________________________
"____" _______________ 200__ "___" ______________ 200__
Who should not be placed on probation
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). These privileged categories include, in particular, the following:
- Persons selected to fill a vacant position through a competition held in accordance with the requirements of the legislation or local acts of the enterprise. 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, while the children can be both consanguineous and adopted.
- Employees under the age of eighteen.
- Citizens entering the first place of work after graduation vocational education within a year from the date of graduation.
- Citizens elected to elective office for paid work.
- Citizens moving to a new job in the order of transfer from another employer as agreed between the heads of companies.
- Citizens with whom an employment contract has been concluded for a period of not more than two months.
The legislation also provides for other cases of categories of beneficiaries:
- citizens who have successfully completed 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 by transfer caused by the liquidation or reorganization of the former employer organization.
If the employer unknowingly established a probationary period for an employee belonging to one of the privileged 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 beneficiaries is revealed, to draw up an additional agreement to the contract on employment, in which to prescribe a condition that annuls the clause on the probationary period. This can be done, for example, when pregnancy is detected in a newly hired employee. Employers should remember that they face administrative and, in some cases, criminal liability for violating the provisions of the Labor Code of the Russian Federation.
Making an employee on probation
When hiring an employee with the condition of mandatory completion of a probationary period, the employer must properly prepare everything Required documents and include in the employment contract, among other things, a clause on the availability of preliminary tests for a newly hired employee. Otherwise, labor disputes and litigation may arise.
How to draw up an employment contract with a trial period
The employment contract must contain a clause stating that the employee will have to go through a probationary period to confirm qualifications. There can be no separate contracts for a trial period. Some employers offer to sign an internship agreement first. Such behavior is a sign of dishonesty of the employer. According to the law, an employment contract must be prepared no later than three days from the date of entry to work. A sample employment contract with a three-month trial period is easy to download from the link.
Video: Popular probation questions
Liability agreement for the period of probation
During the probationary period, the provisions of the Labor Code of the Russian Federation and other regulatory legal acts that determine the norms apply to the employee labor law. Accordingly, an agreement on liability can be concluded with an employee already during the probationary period, if there is such a need and the position falls into the list of positions for which the conclusion of such an agreement is mandatory.
Assignment for probation
The probation assignment serves several purposes. First of all, a specifically formulated task helps a new employee to better understand their 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 a newly hired specialist. The fact is that it is impossible to dismiss an employee who has not coped with the test period without a clear evidence base and documentary evidence of his incompetence, therefore, the assessment of the performance of an employee during a trial period in the employer company should be taken very seriously.
The content of the test task may be different depending on the nature of the work. Such a task may include, as a requirement, to follow the most detailed instructions, for example, for working with cash register and leave room for creativity. In general, it is recommended to include in the task the most significant points for this position and for the company as a whole. A sample assignment for a trial period is shown in the illustration below.
The task for the probationary period may include those items, the implementation of which is most significant 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 to be performed by the employee in this new position are fundamentally different from his previous activities within the company. Unfortunately, a situation is common when an employee is offered to undergo a probationary period when being transferred to a higher position. It is important to know that such behavior of the employer is not legal. The trial 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 the fact of his inconsistency with the new position is revealed.
The result of the probationary period and its staffing
After the parties sign the employment contract, which indicates that the employee is accepted subject to a probationary period, personnel service the company issues a corresponding order. At the end of the probation period, the company issues special documents confirming the success or failure of the new employee to pass the test period.
Probation period report
Many enterprises today have adopted the practice of creating a final report on the passage of a probationary period by an employee who has passed the test. In such a report, the employee discloses the following questions:
- the difficulties and problems that the employee encountered in the course of work, the ways in which he tried to solve them;
- which of the assigned tasks the employee was able to complete;
- what tasks the employee failed to cope with during work and for what reasons;
- What did the employee learn during their work?
A detailed report will help both the employee and his immediate supervisor to better analyze the work. It is recommended to draw up a report not on the last day of the probationary period, but in advance. In this case, you can find weaknesses in the work and have time to eliminate them before a decision is made. The illustration below shows an example of a report on the work in the test period.
Reports can be formatted in a variety of ways.
Characteristics of the employee after the verification period
The characteristic of the employee is the immediate supervisor or mentor who worked with the new employee during the trial period. This document indicates that the specialist knew and was able at the time of taking office, what tasks were assigned to him for the trial period, how he showed himself in the course of performing work tasks, what strengths and weak sides demonstrated personality. The characteristic ends with general conclusions, forecasts and recommendations.
Conclusion on passing the probationary period
Some companies have adopted the practice of collegial decision-making on the passage of 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 whole range of opinions and get a complete picture of the new employee. The documented decision is called the conclusion on the passage of the probationary period.
The conclusion can be drawn up in the form as it is accepted at a particular enterprise.
Order on the end of 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 further.
Actions of the employer in case of failure of the employee to pass the probationary period
The reasons for not passing the probationary period may be different. An employee, from the point of view of the employer, may not confirm his level of qualification, may not find a common language with colleagues, may violate labor discipline or provoke some unpleasant situations for business. In any case, an employer cannot fire an employee simply because he does not like him in some way. Dismissal during the probationary period must be supported by objective facts and documentary evidence confirming that the employee really cannot cope with the activities entrusted to him. Such documentary evidence may include a task plan for a trial period, a report on the passage of a trial period, memorandums from the immediate supervisor, feedback from colleagues and clients. It is very important not only to explain to the employee why the probationary period has not been recognized as passed, but to get his agreement with these explanations. Otherwise, the dismissed employee may file an application with the court. If the company fails to correctly justify the decision to dismiss, the employee will have to be taken back, and all expenses incurred by him will be compensated, including the lost wages for the period when the employee was considered dismissed.
In case of dismissal due to a negative test result, the employee receives a corresponding notification three days before the dismissal. In some cases, by agreement with the employer, dismissal can occur on the same day, that is, without any working off.
Video: dismissal upon failure to pass the probationary period
What rights and obligations does an employee have during the probationary period?
The rights and obligations of an employee accepted under the condition of passing 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 worker is entitled to the following preferences:
- timely payments wages, premiums, allowances for overtime work, as well as other incentive payments, if any are provided for by the terms of the contract;
- access to sick leave and receiving insurance payments during a period of temporary disability.
- the use of unpaid leave at their own expense or the use of days on account of future leave, while the employer has the right to refuse to grant leave in accordance with the law (if the decision does not run counter to Article 128 of the Labor Code of the Russian Federation);
- receiving up to five unpaid days off at the birth of a child;
- voluntarily dismissal at any time before the end of the probationary period.
New employee responsibilities include:
- fulfillment of the terms of the employment contract;
- performance of work obligations in accordance with the job description;
- compliance labor discipline And internal regulations employer, 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 take sick leave during a period of temporary disability. With the permission of the head, during the probationary period, you can take a vacation at your own expense, as well as a vacation on account of a future paid vacation. This time is not included in the trial period and upon return to workplace the countdown of the days of the test period resumes.
Payment amount sick leave is determined based on the length of service of the employee and from this average daily earnings. The accounting department can learn the length of service from the work book, and earnings are affected by both the salary at the current job and payments for same place, which are easy to evaluate according to the 2-personal income tax certificate.
An employee who is on sick leave and wants to quit the probationary period must first close the sick leave. Dismissing an employee while on sick leave is illegal. In addition, the employer is obliged to pay the hospital 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 on probation?
The dismissal of an employee who, during the probationary period, discovered that she was expecting 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 for a pregnant employee is illegitimate. Upon confirmation of the fact of pregnancy, the probationary period must be canceled by an additional agreement to the concluded employment contract.
Salary on probation
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 a trial period with the promise of a pay raise upon successful completion of the trial period. From the point of view of the Labor Code of the Russian Federation, such an offer is also not legitimate, but rarely any of the employees decides to enter into a conflict with the employer for this reason.
Video: probationary salary
Pros and cons of a probationary period for the employee and for the employer
The probationary period is provided for by law so that both parties involved in the conclusion of an employment contract have the opportunity to evaluate each other and, if necessary, part with minimal losses. This opportunity can be considered an absolute plus for both the employee and the employer. Upon dismissal from a probationary period, an employee is not required to work for two weeks, and the employer has the opportunity to evaluate the qualities of a candidate 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 the period of 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 a position and test his skills and abilities.
When working in a test mode, an employee may experience some psychological discomfort, since the result of his actions determines his future in this job. The employing company, concluding an agreement with a new employee, always runs the risk of getting litigation upon dismissal under Article 71 of the Labor Code of the Russian Federation.
In general, the balance of positive and negative aspects of the application of the probationary period allows both parties to use it with the greatest benefit for themselves.
The requirement to pass a probationary period for employment in Russian companies is optional. from the point of view of the Labor Code of the Russian Federation. However, many employers are happy to use this opportunity to properly study a new employee, as well as save some money on his salary, at least in the first months of his work. Employees take this requirement for granted and do not try to dictate their terms to the employer. Thus, the very concept of a probationary period has firmly entered the practice of work and is actively used throughout Russia.
When hiring, each of us has faced a period of probation. During this time, the employer assesses the abilities of a potential employee and makes a decision on his further employment. Recently, however, unscrupulous employers have been trying to circumvent the norms established by law. To protect yourself from deception at a new place of work, we recommend that you refer to the presented article.
How long can a probationary period last under the labor code?
The procedure for hiring new personnel is regulated by articles Labor Code RF. According to the relevant legal act, the following probationary periods are defined:
- One month;
- Three months;
- Six months.
The law also provides for some rules when establishing the duration of this time:
- A test for admission to a new place of work must be established at the conclusion of an employment contract;
- The test period cannot be determined later. This procedure should be carried out at the initial stage;
- In accordance with the Labor Code of the Russian Federation, the period of verification of a new employee should not exceed 3 months. A certain category of persons may act as an exception;
- If the worker for any reason was not present at work, then the probationary period is extended for the duration of the trainee's absence;
- There is no provision for reducing the test time. However, the employer can personally terminate the contract if the employee does not satisfy the organization's requests. Notification of the decision must be made 3 days before the cancellation. Also, the manager may prematurely hire an intern.
Labor law designates representatives who may be exempt from inspections. The list of specified persons is as follows:
- Women in position or women who have children under two years of age;
- Minor representatives;
- Young professionals who have graduated from an educational institution;
- Employees specially invited to the proposed position;
- Disabled people.
How long can a probationary period last when applying for a job without registration?
When hiring a new worker for a position, a prerequisite is the conclusion of an agreement between the parties. IN this document the rights and obligations of the trainee and the employer should be indicated. The opinion of the employer about the non-mandatory conclusion of an agreement is considered erroneous. If a potential employee started work without registration, then it is considered that he has passed the probationary period and is officially employed.
How long is the probation period for contract work?
Recently, a method of hiring new specialists under a contract has become widespread among organizations. In the Labor Code of the Russian Federation, this concept is called the execution of a fixed-term employment contract. Such a document is an agreement signed between the employee and the manager. A feature of the contract is the exact determination of the duration of the labor activity of a new employee.
When concluding a contract when hiring, the following rules should be considered:
- The duration of employment should not exceed 5 years;
- It is issued strictly on time for the performance of the necessary work;
- Signed if necessary to replace the employee holding the position;
- The contract can be concluded for a season to perform the necessary activities;
- The internship period is negotiated upon signing the contract;
- According to the Labor Code of the Russian Federation, if a fixed-term employment contract is concluded for a period of 2-6 months, then the duration of the trainee's check should not exceed 2 weeks. If the contract is for 2 months, then the trial period is not expected.
How is the trial period paid?
When hiring an employee vacant position probationary period is expected. During this period, the employee goes through the procedure for formalizing relations with the enterprise. Under the law, the same privileges apply to the trainee as to the workers.
Regarding the payment of the trial period, you should know some rules:
- Probation period payment is obligatory;
- The salary of the subject during the verification period must be stipulated in the employment contract;
- Legislation guarantees full and timely remuneration during the internship;
- The employer is obliged to pay the trainee an amount not less than the minimum wage. It should be commensurate with the complexity, quality and volume of labor activity.
During the passage of the probationary line, applicants for a position often face restrictions on their rights. This happens mostly because the interns are not well aware of the opportunities guaranteed by the Labor Code. To protect yourself and your rights in a new place of work, read the legal acts of labor legislation.
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Hiring personnel carries certain risks for the organization, because success, in general, depends on the experience, knowledge and skills of an individual staff unit. The probationary period allows them to be minimized. According to the Labor Code of the Russian Federation, it is a right, not an obligation, of the employer and is usually established within three months.
Main regulatory framework
The test when hiring is intended for the employer to evaluate the business and professional qualities of the employee, and the employee to determine for himself whether the assigned work suits 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 - the results of the passage;
- Art. 289 - with a fixed-term contract.
Federal Law on Civil Service No. 79-FZ
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 Article 70 mentions "testing for employment". Experts consider these concepts to be equivalent and attribute them to the elements of an agreement concluded between the employer and the applicant. If the document does not contain a condition on a probationary period, the legislation recognizes it as unestablished; the employee is automatically enrolled in the state.
Detailed information on the probationary period under the Labor Code of the Russian Federation in 2019 is presented in the table.
| Categories of citizens | Maximum test duration | Document link |
| Employees who signed a contract for 2 - 6 months | 14 days | Part 6 Art. 70 of the Labor Code of the Russian Federation |
| Signing a contract for up to 2 months | absent | Part 4 Art. 70 of the Labor Code of the Russian Federation, art. 289 of the Labor Code of the Russian Federation |
| Applicants for leadership position- chief accountant, middle manager, deputy director, etc. | 6 months | Part 5 Art. 70 of the Labor Code of the Russian Federation |
| The beginning of a career in the civil service | 12 months | Art. 27 of Law No. 79-FZ |
| Police officer | 6 months | Art. 24 Law No. 342-FZ |
| Other employees (signing an open-ended contract) | 3 months | Part 5 Art. 70 of the Labor Code of the Russian Federation |
What does the Labor Code say about dismissal on probation?
The result of passing the test is evaluated by the employer, whose decision affects further fate employee. When the allotted time has expired, and nothing has changed - that is, all the assigned tasks have been completed successfully - he is automatically accepted into the company. Additional registration is not required.
If the applicant did not show the necessary professional qualities or committed a serious violation of discipline, dismissal is allowed for a trial period under the article of the Labor Code of the Russian Federation at the initiative of the employer (Article 71). Then three important conditions must be observed:
- Inform the employee in a timely manner decision by providing written notice. Deadline - 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 weighty and justified. If rights are violated, undesirable consequences are guaranteed for the organization.
- Correctly draw up the procedure for terminating an employment contract, observing a certain procedure. Please note: if there is an error in the documents, such consequences as the restoration of an employee with a requirement for them to monetary compensation from the employer. See also "".
If the level of qualification suits the employer, he has the right to shorten the probationary period provided for by law and accept the employee on the staff.
Important nuances
First, with regard to salaries and compensation. Candidates formally registered and undergoing verification are endowed with the rights of permanent employees. The Labor Code does not provide for special conditions for them, therefore they are accrued in a general manner.
A probationary period can be established for a person with whom a work contract is concluded in order to determine his compliance with the position held and the requirements. This rule is reflected in article 70 of the Labor Code of the Russian Federation.
The candidacy of any applicant for a position is always studied in detail. This mostly happens on the day the person is being interviewed.
The head initially decides for himself whether the applicant can be appointed to the position. However, quite often an interview or some kind of preliminary testing is not enough, you need to check the capabilities of a person in practice. But in accordance with the requirements of the current legislation, the manager cannot entrust work to a person who is not in an employment relationship with the organization. For this purpose, an agreement is concluded with the applicant on the terms of preliminary verification.
Employment with a probationary period is possible only in case of mutual consent of the parties. It is necessary to draw up an employment contract with an employee in such a situation with the inclusion in the content of the condition on the establishment of a preliminary check, which a person must pass. If there is no such rule in the agreement, then it is considered that the worker is hired without a preliminary test. When a person was admitted to the performance of duties in his position without drawing up an agreement, then passing the test will be possible subject to the preparation of a separate document.
The effect of labor legislation during the test applies to the employee in full. That is, they will pay him as much as is provided for by regulatory enactments, without restrictions. The verification period is included in the length of service. Sick leave will be paid on a general basis, the indicator will be calculated according to the average. In fact, the subject is at the same level as the rest of the workers.
Probationary period
The current legislation defines the time period for the preliminary test. The maximum duration of such a period for most employees is three months. For some categories, a longer duration of the check is set. These include managers, their deputies, chief financial specialists, as well as heads of branches, representative offices and separate structural divisions. For them, the verification period can be extended up to six months.
A three-month probationary period cannot be established for those employees whose period labor relations with which is from two to six months. The test for this category shall not exceed two weeks.
In the specified accounting periods does not include the time when the person was actually absent from work. For example, sick leave will not be included in such a period.
It should be noted that the minimum verification period is not defined by the current regulations.
Is it possible to extend
The legislation establishes the maximum terms of preliminary testing. They are two weeks, a quarter and six months. This is the maximum duration.
Current regulations do not prohibit extending the check within the agreed framework. That is, set new term impossible, but extending the old one is quite acceptable.
In order to realize such an intention, it is necessary to reflect this condition in the content of the contract, and in the event of an actual extension, issue an order justifying the reasons for increasing the test time. The main thing is to comply with the upper limit stipulated by law. The total duration of the check should not exceed the specified maximum. For example, if the manager was tested for two months, then the test can be extended by no more than four.
Who should not be tested
The current legislation defines the categories of people who, when employed, cannot set the time of the test. Such a guarantee applies if the person has a certain status.
A preliminary test cannot be established:
- Appointed to the position based on the results of the competition.
- Women in a state of pregnancy and workers raising children under the age of one and a half years. The number of children in this case does not matter.
- Minors, that is, those under the age of eighteen.
- Graduates of a higher or secondary specialized educational institution that has state accreditation, provided that a person enters a job for the first time and within twelve months after graduation.
- Appointed to the position following the results of the election campaign.
- Employed in the order of transfer, by mutual agreement of the leaders.
- Entering into an employment relationship for a period of less than two months.
This list is not exhaustive. Special or local regulatory legal acts may also define other categories of workers for whom a preliminary check will not be established.
Test result
After the specified period ends, each of the parties must decide for itself whether to continue the employment relationship or not. That is, the initiator in this case is both the leader and the worker.
The results of the test will always be two outcomes - further professional cooperation or termination of the employment relationship.
Continuation of work
In accordance with the current legislation, if the preliminary check period has expired, and the person continues to fulfill the duties of his position, then it is considered that the test has been passed, and it will be possible to terminate the interaction only on general grounds, for example, the initiative of the head, own wish person, the expiration of the contract. In this case, it is not necessary to create additional documents- orders, notices, statements. Everything happens automatically, when the agreed date for completing the test arrives.
Dismissal
The termination of the employment relationship after the expiration of the verification period occurs at the decision of the head. If the boss is not satisfied with the results of the test, then he can fire the person. To implement such a procedure, two conditions must be met.
First of all, this must happen during the period of probation, that is, before the expiration of its period.
A person must be notified of the termination of employment no later than three days in advance. That is, there will be processing. In this case, the manager is obliged to explain to the employee the reasons for his decision.
Dismissal on probation
Termination of employment relations is also possible during the period of preliminary verification. In this case, each of the parties, that is, both the leader and the worker, can act as the initiator. The reason is the dissatisfaction of both with the results obtained.
According to the employee
If an employee acts as an initiator, then he is obliged to notify the manager of his decision in advance. Informing must occur no later than three actual days before the planned dismissal. The notification shall be sent in writing in the form of an application. Unlike voluntarily leaving, in the case of a preliminary test, the employee is not required to work for 2 weeks. Such a period will actually last no more than three days, and then on the condition that this time will be working.
At the request of the employer
The manager, in turn, can also initiate the procedure for terminating cooperation if the verification process does not suit him. Most often this happens due to the low quality of the work performed or the incompetence of the specialist in some matters.
The manager is obliged to inform the employee of his intention no later than three days in advance. In this case, actual days are taken into account. At the same time, the law does not directly specify in what form the notification should be issued - by order or a separate document. In practice, in most cases, an order of the appropriate content is drawn up, with which the worker must be familiarized with the signature.
Legal registration
The very procedure for termination of labor relations on such grounds is documented according to general rules and does not have significant differences.
First of all, for the dismissal of a person you need a reason. In this case, this will be a statement from the employee or a notification from the director. After one of the parties has expressed its intention, you need to draw up an order. Such a document must be drawn up correctly, in compliance with all legal requirements.
The text should reflect:
- Full name of the organization.
- Registration number and date of issue of the order.
- grounds for its approval.
- Information about the dismissed employee - full surname, name, patronymic, position held.
- The date on which the employment relationship will end.
- Reasons for termination of working relationship with reference to the article of the Labor Code.
- Leader's signature.
- Date and signature of the worker on familiarization with the content of the order. Refusal to read must be documented.
On the day of dismissal, a person is given a personal work book with a record of the reasons for dismissal made in it. Data is entered into the labor, as a rule, HR specialist. In this case, a pen with black, purple or blue ink is used. Data must be recorded in strict accordance with the wording of the order. Any exceptions and reductions are unacceptable. You also can't fix errors. Any incorrect entry must first be canceled and only then a new entry made. The mark is signed by the head or an official authorized by him, and certified by the seal of the organization.
The entry states:
- The serial number of the mark. It is assigned chronologically, that is, as it is made.
- Date of release from office.
- Reasons for dismissal with reference to the norm of the Labor Code of the Russian Federation.
- Date and number of the order of the head.
The dismissed employee must receive the final payment on the day of departure.
It includes funds that a person has earned, but did not have time to receive:
- Salary - that is, salary for the position held, allowances, bonuses.
- Compensation for unused vacation days.
- Other types of funds, the payment of which is provided for in such cases by local regulations.
Severance pay is not paid in this case. Cash can be issued to an employee against signature at the cash desk of the organization, or credited to a personal bank account.
It should be noted that the dismissal based on the results of the preliminary test occurs without the consent of the trade union committee.
Arbitrage practice
The court considered the claim of the person to the company, with a request to annul the decision to dismiss, pay wages for the entire period of unforeseen interruption in work, as well as compensation for moral damage.
During the study of the content of the appeal, the following was established. An employment contract was concluded between the initiator and the organization on the terms of a preliminary test. The review period was three months. Subsequently, the plaintiff was fired from his job due to unsatisfactory test results. At the same time, the reasons for the termination of cooperation were unreasonable, the facts of violation of duties were not confirmed, the employment contract was not handed to the plaintiff, and the latter was not familiarized with the internal labor regulations. In connection with the above, the initiator asked to cancel the decision of the head, change the wording and date of dismissal, recover from the organization earnings for the entire period of forced absenteeism and compensation for moral damage.
The representative of the company did not agree with the claims of the plaintiff and explained that the entire dismissal procedure was carried out in strict accordance with the current legislation.
In the course of studying the submitted materials, the court found that the employment contract, which was drawn up in two copies, was signed by the plaintiff. Therefore, the latter was duly informed about his duties, including the schedule of work and rest. In the process of carrying out professional activities, there was a fact of violation by the employee of his duties, which was expressed in non-compliance with working hours. This was recorded by the materials of the check and a remark was announced to the person. There were also complaints from the management on the quality of the work performed. For this reason, the employee was subsequently fired as having failed the test. The person is duly informed about the termination of the employment relationship. On the day of dismissal, all the necessary documents were handed over to the employee. He was paid the money due.
Based on the foregoing, the court concluded that the dismissal procedure was observed by the employer in full. In turn, the initiator did not provide evidence of his arguments. For this reason, the claim was dismissed.
During their working life, most people have to repeatedly look for a new place of employment. The first step in hiring is the conclusion of an employment contract (Article 16 of the Labor Code of the Russian Federation).
It is important to know what the conditions may be in 2016. The probationary period is one of its subparagraphs, which is an additional condition.
Deciphering the concept of the Labor Code of the Russian Federation
The concept of "probationary period" is mentioned in article 70 of the Labor Code of the Russian Federation. This clause of the contract protects the interests of both management and new employees.
The trial period is:
- The time interval during which the employer is able to evaluate the professional qualities of a new employee in practice.
- An opportunity to check the discipline of the candidate, the ability to work in a team.
- The employee should decide whether or not to continue working in the new team and how satisfied he is with the new job.
The nuances of registration for the test period according to the Labor Code of the Russian Federation 2016
There are important subtleties in the preparation of documents for this period, because the probationary period is an additional condition in the admission documents.
Therefore, the mention of the test must be in the contract.
- It is assumed that if there is nothing in the employment contract about the trial period, then the employee does not have it.
- If the test is mentioned in the contract, then it can also be entered in the acceptance order.
- It is not allowed to independently enter the test clause into the order.
- An exception may be the case when an employee is allowed to start work without an employment contract, which is properly drawn up, that is, in writing (Article 67 of the Labor Code of the Russian Federation).
Then, within three days, a contract is drawn up and a line about the test is included in it. - But in this case, a preliminary agreement on the test is required.
Such an agreement must also be drawn up on paper.
The procedure for dismissal during the probationary period according to the Labor Code of the Russian Federation 2016
The test helps speed up the work.
Employer actions:
- The employer must issue a written notice in which it notifies the employee of the termination of the contract three days in advance (Article 71 of the Labor Code of the Russian Federation).
- The notice must be stamped and dated. One notification is given to the employee, the other is transferred to the accounting department.
- The manager issues a dismissal order.
- It remains to make a calculation, payments and give the work book to a former employee.
Employee actions:
- The employee, for his part, is not obliged to work out a two-week period if he came to the conclusion that the place is not suitable.
- The employee must notify the employee of the decision not to continue at this workplace. This must be done in writing three days before the scheduled date (Article 71 of the Labor Code of the Russian Federation).
- However, there are cases when this rule does not apply, for example, if the head of the organization is in the place of the subject. He must be warned one month in advance, Article 280 of the Labor Code of the Russian Federation.
The conditions for passing the probationary period can be found in the video.
What are the benefits of a probationary period for the employer and the subject
When a candidate is applying for a new job, it is important for him to know what benefits the test provides.
In the process of work, the subject is a full-fledged employee of the organization and has, on a par with employees who make up the permanent composition, rights and obligations.
Differences:
- upon dismissal, the subject is not required to work out a two-week period;
- the employee has the right to choose whether to stay at this job or look for a new one.
The probationary period for employers is, in fact, saving time and money. To terminate the contract with an employee of the main staff, without his consent, you need good reasons.
It is much easier to fire a candidate during the trial period:
- it is possible to dismiss an unsuitable employee within three days (Article 71 of the Labor Code of the Russian Federation);
- settlement of the issue with trade unions is not required;
- the consent of the employee is not required, it is enough to familiarize him with the notification.
Does the employee have rights and obligations during the probationary period?
What the subject is entitled to and what the subject is obliged to do is noted in Art. 70 of the Labor Code of the Russian Federation.
For such, of course, all the provisions of the Labor Code of the Russian Federation, the provisions of internal local acts and various agreements, the terms of the collective agreement, if any, apply:
- An employee during this period of employment receives a salary, the amount of which should not be less than that provided for this position.
- This condition applies to bonus payments only if they are mentioned in internal acts.
- The employee is accrued temporary disability benefits, additional and study leave is provided.
- If an employee on probation in 2016 falls under the states, then all the conditions for dismissal for this case also apply to him (Articles 81,178,180 of the Labor Code of the Russian Federation).
- The employer controls the employee and checks the fulfillment of all the conditions of the employment contract.
During the test, the employee has all the rights and obligations that all employees of the organization have.
Probationary period
The management of the organization should not independently determine the duration of the test:
- from Art. 70 of the Labor Code of the Russian Federation, it is known that this interval is 3 months;
- if this period is passed by the heads of the organization, as well as chief accountants, deputies, heads of branches, structural divisions, then the test is six months (maximum);
- if the interval of the employment contract is from two to six months, then the probationary period is set to two weeks.
How does it affect vacation, seniority and temporary disability benefits
Article 70 of the Labor Code of the Russian Federation mentions that for an employee on probation, all installations and clauses of labor legislation apply.
The countdown of the length of service begins with the start of work on a probationary period and is counted in the total length of service. And this experience is taken into account in the future when, in accordance with Art. 121 of the Labor Code of the Russian Federation in 2016.
However, there are periods of time that do not fall within the probationary period:
- The interval during which the subject was on temporary disability leave is not taken into account when calculating the probationary period.
- For example, if the test came to an end at the moment when the test subject was temporarily disabled, then after the sick leave is closed, such an employee must work the number of days that remained before the end of the term before it can be considered completed.
- The test interval does not include the time when the employee was not in place: short-term unpaid leave, study leave and other cases when the employee was absent for any valid reason with the consent of the management.
Thus, do not be confused:
- the probation period does not include the absence of an employee at the place of work for various reasons;
- but when calculating temporary disability benefits, vacation, work experience, this period is necessarily taken into account.
Which employees are not eligible for the test?
But not everyone has a trial period.
Article 70 of the Labor Code of the Russian Federation contains a list of categories of employees who work without testing:
- candidates who have entered into a short contract for an interval of up to two months;
- persons who were transferred to this job from other places;
- pregnant women;
- mothers with children under one and a half years;
- applicants under 18;
- persons who have received a diploma after graduating from higher or secondary educational institutions who for the first time start working in the specialty received after graduation. The interval before the start of work should be no more than a year.
- persons who have received a position as a result of the competition.
If, according to the Labor Code 2016, a specific candidate cannot be set a period for probation, then it cannot be set, even if this is provided for by the internal documents of the organization and the employee himself is not opposed to establishing a probationary period. This conclusion is made on the basis of Article 9 of the Labor Code of the Russian Federation, which states that the internal documents of the organization cannot restrict the rights and worsen the conditions guaranteed by labor legislation.
Test results and pay
Remuneration is regulated by chapter 21 of the Labor Code, where in Art. 71 states that all provisions of labor law apply to the test subject.
That's why:
- An employer cannot arbitrarily reduce the salary of an employee during a trial period.
- An employee on a probationary period is entitled to the salary established for this position.
The result of passing the test (Article 71 of the Labor Code of the Russian Federation) is the continuation of work if the employee is satisfied with the management of the organization and is himself satisfied with the working conditions.
If the test subject made a worthy impression, the employer can reduce the test period, which is specified in the contract:
- This must be recorded in writing.
- It is necessary to issue an order that it is considered completed.
If the trial period has ended, and the employee remains at his workplace, then he has passed the test. There is no need to create test completion documents.
If the employer is not satisfied with the work of the subject and intends to terminate the contract, he must notify him of his decision within three days and terminate the contract.
Thus, the probationary period is an important clause of the employment contract and is a kind of mutual tool that both parties can use.
At the right time, this tool can insure both the employer and the employee.
Find out about the duration of the probationary period and wages during it from the video.
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