The need for work is felt by every average person on our planet. A person needs work for several reasons, the main of which are economic and social factors, the possibility of realizing one’s potential and gaining a certain status in society. Having spent a lot of time and effort in finding a decent or suitable job for any parameters, a potential employee is interviewed with the head of the department or organization. The higher the status of the organization, the greater the requirements for the applicant, but the refusal to hire is not always justified.
What is understood as an unreasonable refusal to accept employment under the Labor Code of the Russian Federation?
The Labor Code does not give a clear concept; it only indicates which actions infringe upon the rights of a person and a citizen. These include pregnancy, the presence of young children by the applicant, refusal to a person transferred from another organization, etc. Blurring the framework allows considering almost any reason why the organization (represented by the leader) does not want to cooperate with anyone .
There are a number of situations in the context of which a refusal, while seemingly unfounded, is legal. Based on international guarantees and human rights, it can be assumed that religion or gender cannot be the basis for rejection of a candidate. This is true, but there are exceptions. If the work of the applicant will be associated with religious rites and ceremonies, for example, he is going to work in a church choir, then another religion will not allow a person to work in this area.
A similar situation can occur when an employer needs a representative of a particular gender, for example, a woman teacher in a boarding school is required. A man cannot be accepted for such a job. A similar situation is when a Slavic sushi chef is refused a job at a sushi restaurant if the restaurant needs Asian sushi chefs and this was indicated in the vacancy text.
So that such criteria do not seem to infringe on the rights of citizens for any reason, the employer must state in applications for employment that he needs workers of a certain category. But this practice is legal only when the presence of any qualities of a potential employee is really necessary. If the work is not related to the implementation of sacred rites and does not differ in other specifics, on the basis of which the selection of working hands takes place, then refusing the responding person will be considered illegal.
A person who has Russian citizenship, but belongs to the small peoples of Russia or a person whose parents had immigrated to the USSR or the Russian Federation before his birth, cannot be denied admission to state and civil services because of his expressed non-Slavic appearance or other religion.
The heavy burden of motherhood
The greatest number of violations of labor standards is observed in relation to pregnant women, nursing mothers and mothers, whose children are not yet 3 years old, persons of pre-retirement age. This is due to fears and stereotypes of bosses who believe that the burdens placed on expectant mothers and women who have already given birth will not allow them to fully devote their energies to necessary activities, in addition, a material question arises related to maternity leave and financial losses.
Questions arise: "Is refusal to be allowed to work or prohibited?", "Is he unfounded if we are talking about a pregnant woman?" It is clearly unreasonable and illegal. A pregnant woman is the same worker as any other woman (or man), but her position gives her some relief and guarantees. In addition, she is entitled to leave associated with pregnancy and caring for the baby. Such an employee should not be hired over the weekend. If working conditions are difficult, then the woman needs to be transferred to activities less hazardous to her health. In this case, the type of activity must be changed or it should be engaged in a similar type of activity, but under safer conditions (if this is taken into account by the labor contract).
What to do in order not to get an unreasonable refusal to hire a pregnant woman?
First you need to understand that pregnancy in the early stages almost does not affect the working capacity of the expectant mother, so there is no reason to refuse to work with an average load. If the work she is applying for is not hazardous to her health, does not imply heavy loads, there are no reasons for refusal (if the applicant’s qualifications and knowledge correspond to the required level).
No less difficult is the situation with women who have already given birth and have young children. A child, especially an infant, needs special care and attention, the time that a woman must share with work and household duties. It is extremely difficult in this situation for a single mother. Labor legislation guarantees such women extra time to feed the baby and prohibits the involvement of mothers of young children in overtime work. Discrimination in the process of hiring a woman with a child is prohibited.
It is important to remember that the unjustified refusal to hire or the unjustified dismissal of a pregnant woman or mother with children under the age of 3 is a criminal offense.
Seniors and students
Most often, people of pre-retirement and retirement age are at risk of receiving an unjustified refusal to hire. Few employers want to hire people whose opportunities are far inferior to younger workers. Basically, people from 50 to 80 years old are hired for such jobs as masters of cleanliness, nannies, they work as educators and teachers, in reality there are not so many options. After 50 years, it’s hard to get a job in the specialty, many employers reject their candidacy, referring to the changed pace of work and production. Is it legal? The question is ambiguous, since the discrepancy between the level of knowledge and skills of the candidate is a legitimate and reasonable reason for refusal. But before denying such a person work, it is necessary to identify the level of knowledge and necessary skills, conduct an exam or set a trial period. An employer cannot base his arguments on personal perceptions, opinions not supported by reliable facts.
The situation with students is somewhat different. It is difficult for people who do not have sufficient work experience or do not have it at all to find work not only in their specialty, but also in general work not related to physical labor (loaders, harvesters, cleaners and others). Students are denied due to lack of experience, and such a refusal, unless the announcement indicated that persons without work experience are accepted, is justified.
How to understand that the work was refused unreasonably?
Each case of refusal or hiring is individual, but there are a number of indicators that the employer did not have sufficient grounds to consider the candidate unsuitable for concluding an employment contract.
- The job announcement did not list the specific skills that the jobseeker should have, but the employer requires these skills during the interview. Moreover, in documents of an advertising nature about the recruitment of persons for work in the organization it is written that "experience does not matter."
- The employer refuses the woman because of "non-female work". So, a similar wording can be heard, wanting to get a job in the law enforcement agencies of Russia.
- The employer refuses because of reaching a certain age, if the law does not have age restrictions, after which it is impossible to engage in such activities.
Appeal against an unreasonable decision of an employer
According to article 64 of the Labor Code of the Russian Federation, an unreasonable refusal to accept a job may be appealed in court. It should be understood that when applying to the court, the burden of proof falls on the plaintiff, that is, the person who has turned to justice. The plaintiff himself proves that he was refused employment, thereby discriminating against his rights. How to do it?
Before going to court, it is necessary to understand what facts and arguments are available to a person who has been refused employment. Does he have a written refusal or a telephone conversation recorded on the recorder? Can the plaintiff prove that he appealed to the employer regarding employment? Is there any evidence that the employer generally hired?
If there is no such evidence, then you should pay attention to the recordings of surveillance cameras, but this is an unreliable source of evidence, since the records are stored for a short time, about 3-5 days. The words of relatives are not considered as evidence, in contrast to the oral confirmation of the employee of the organization, which filed an application for employment.
Criminal punishment for dishonest employers
After an unjustified refusal to accept a job or unjustified dismissal of a person, dangerous consequences in the form of criminal punishment can occur. Criminal law does not protect all individuals, but only a separate category of people whose position makes them more vulnerable. These are pregnant women and having small children (up to 3 years), pensioners. This is a category of the population that needs additional protection of their rights, since it is they who are most often refused employment.
Until October 2018, for unjustified refusal to accept employment under the Criminal Code of the Russian Federation or unjustified dismissal, they were prosecuted only under Art. 145 prohibiting such inaction against pregnant women. In connection with the pension reform, art. 144.1 of the Criminal Code of the Russian Federation, providing for liability for similar inaction in relation to pensioners. But this applies only to a certain category of persons. And for the rest? Unreasonable refusal of employment is prohibited or permitted? It is explicitly prohibited, but if the state investigates refusal cases with pensioners and pregnant women by taking all necessary procedures, then all other people will have to prove their case on their own.
Arbitrage practice
The statistics of court practice on the unjustified refusal of employment does not look encouraging. Most of the claims and claims of citizens who were denied employment were not satisfied.
Why is that? Firstly, an unreasonable refusal to hire should be discriminatory, which means that the refusal should be based on the employer's unwillingness to accept representatives of a certain gender, race, religious beliefs, political preferences. In this case, the court itself examines whether the defendant’s refusal was discriminatory.
Secondly, as already mentioned, the plaintiff must himself provide evidence of the defendant’s guilt, if he can’t provide them, then "there is no trial."
Thirdly, the court, relying on the Resolution of the Plenum of the Supreme Court No. 2 of 2004 and the Constitution, emphasizes that the employer himself makes decisions on the selection and placement of personnel. An employer is not obliged to accept someone to work if this contradicts his desire and necessity. It follows that if a person who, as it seems to him, has received an unreasonable refusal to accept a job or dismissal cannot prove that these actions were related to a violation of human rights and freedoms, the court will refuse to satisfy the claim.
Moral compensation
If the employee managed to prove that the boss rejected his candidacy on the basis of sexual, racial, religious, national and other discrimination, he can attach to his claim a claim for compensation from the defendant for moral damage incurred as a result of the employer's inaction. It should be understood that the claim for non-pecuniary damage must be based on the proportionality determined by the court. You can often find the following wording: "I demand compensation for moral damage in the amount of the monthly salary that I could get while working in the specified specialty in this organization."
This wording can be admitted, but it should be understood that moral damage is not required because of the refusal itself, since it is the employer's right (to accept or not to accept the applicant), but because of discrimination, which violates international rights. In this regard, the amount of compensation cannot be too large.
Briefly about the main thing
The manager decides to conclude an employment contract with the person who has responded to the offer or not. Denial of employment is not in itself considered illegal. This is the right of a recruitment manager. An unreasonable refusal to accept a job is prohibited in cases where it is based on discrimination of another person for any grounds that are not related to his professional and working qualities.
Refusal to hire a pregnant woman, a woman with a child or a pensioner, if this work can be freely performed by these persons, is a crime for which criminal liability is provided. If other persons were refused, then the burden of proving the employer's guilt lies with them and the lack of evidence of discrimination will become the main reason why the lawsuit will not be satisfied in court.