When concluding an employment contract, the management of the enterprise has the right to assign a new employee a test when hiring. The Labor Code of the Russian Federation regulates this right. Surely, each of us has come across this procedure at least once. A probationary period is set in order to verify a new employee for his compliance with the position. What rights and obligations do employees and employers have?
What is a trial period?
A test for employment is the time during which the employer evaluates the professional skills, abilities, knowledge of a new employee. Based on the results of the probationary period, the employer concludes whether it makes sense to continue working with a new employee. Also, this period is very important for the employee, because he needs to evaluate the work of the enterprise, the internal routine, to understand whether this organization is suitable for him.
The legislative framework
Article 70 of the Labor Code of the Russian Federation (part 1) regulates the right of the employer to establish tests for hiring new employees. The basis for establishing this period is a mutual agreement of the parties. That is, without the consent of a potential candidate for a vacant position, a job test cannot be assigned. However, in practice it is different: the employer sets a trial period, and the candidate silently agrees with his decision, because otherwise he will be denied employment.
If this condition is not indicated in the employment contract , the employee is hired without testing. An employment contract with a trial period implies the availability of benefits for the employee: he can notify him of his dismissal not in 14, but in 2-3 days. According to the 4th part of Article 57 of the Labor Code of the Russian Federation, the agreement may also provide for a number of additional conditions for testing.
Limitations
Article 70 of the Labor Code of the Russian Federation states that the appointment of a probationary period for an employee is the right of the employer. But labor legislation sets out the categories of workers who should be hired without testing. These include:
- Persons elected to a competitive position.
- Women with children not older than 1.5 years, as well as pregnant.
- Minors.
- Graduates of educational institutions with state accreditation, if they get a job in the specialty within a year from the date of receipt of the diploma.
- Elected to elected positions.
- Persons employed by transfer from another enterprise by agreement of employers.
- Persons who have concluded a fixed-term employment contract.
- Persons undergoing alternative service.
- Some categories of civil servants.
- Persons entering into an employment contract with an employer who successfully completed their studies.
- Persons who are appointed to the positions of senior officers in the bodies of the Ministry of Internal Affairs.
- Graduates of universities and colleges who enter the work of distribution.
If an employment contract between an employer and an employee in this category establishes a probationary period, then this condition is considered null and void. It is impossible to dismiss such employees due to unsatisfactory completion of the test. It is also considered illegal to assign a test to employees who are transferred to a new position with the same employer.
Trial period
According to the Russian labor legislation, the period of the probationary period may have a different duration. The maximum test period for employment lasts:
- 14 days for fixed-term employment contracts concluded for 2-6 months.
- 3 months as a general rule for all categories of employees.
- Six months for senior positions, accountants.
- 3-12 months for civil servants.
Part 7 of Article 70 of the labor legislation of the Russian Federation states that periods of temporary disability and absence of an employee for other reasons (vacation, absenteeism) are not included in the test period when hiring.
Is an extension or reduction possible?
The Labor Code of the Russian Federation does not provide for the extension of the trial period. The extension of this period is a condition limiting the right to work and reducing the level of guarantees of labor legislation. Therefore, according to article 9 of this legislation, this condition cannot be contained in the contract. However, shortening the test period in no way violates the rights of workers.
The employer and the employee of the enterprise may, on the basis of an agreement, conclude additional agreements to the main contract, under which the duration of the trial period is reduced.
Registration of an employee for a trial period
The period of the probationary period should be prescribed in the employment contract, and the employee, in turn, must familiarize himself with this condition before he begins to perform his duties. If the employee was admitted to the performance of official duties, and the employment contract was drawn up “retroactively,” the assignment of the test is unlawful. In this case, according to article 67 of the Labor Code, an employee is deemed to be employed without a trial.
Who is involved in the test
To participate in the test and control its progress are usually involved:
- The direct manager of the new employee (monitoring the entire course of the test).
- Curator (control at certain stages of the test).
- Observers (evaluate the work from the side, do not participate in it).
- Mentor (draws up a test plan, provides assistance, monitors the quality of work, studies the personal qualities of the employee, draws up reports, feedback).
Often, commissions are created for objectivity in assessing professional skills. Sometimes external consultants may be involved (as a rule, when hiring employees for managerial positions).
Salary
According to article 70 of the Labor Code, an employee of the organization, drawn up on a state with a probationary period, has the same rights, benefits and duties as the main employees. Accordingly, wages are paid in the same amount as full members of the labor collective. Bonuses may be paid to a new employee and penalties may also apply.
Low salaries in comparison with the main employees cannot be established, since this is contrary to labor law. The purpose of the tests is to evaluate the professionalism of the employee, and not to save on wages.
results
The Labor Code of the Russian Federation does not provide procedures for fixing the result of passing the test. If the new employee passes the test successfully, the employer enrolls him in the staff. At the request of the employer, the employee can be informed about this both orally and in writing. If after the end of this period the employer is silent, the employee is considered to have passed the test.
If the result is unsatisfactory, the employer in writing formulates the reasons for dismissal, issues an order, notifies the employee. The decision of the employer must be clearly motivated, that is, the low level of training, the discrepancy in the personal qualities of the position should be emphasized, and also references to internal documents should be given.
Most common mistakes
Often when assigning tests to new employees, the employer makes a number of mistakes:
- The test conditions for employment are entered only in the order of admission to the state, although they must be prescribed in the employment contract.
- Tests are conducted for persons to whom they cannot be established by law.
- The new employee is not acquainted with the signature during the trial period with the internal documents regulating the work.
In all of the above cases, the employee can defend his interests in court. The contract is recognized as null and void in these situations.
Grounds for dismissal of employees who did not pass the test
For dismissal of an employee based on the results of passing the test when applying for a job, good reason is needed. First you need to establish the legality of including the probationary period in the employment contract and make sure that the employee does not belong to the category of persons for whom this period cannot be appointed. The employer also needs to obtain evidence that the new employee has not passed the test. Evidence is important because the employee has the right to challenge the dismissal in court. If the court decides that there is no evidence from the employer, the employee may be re-enlisted. Thus, the responsibility for the unsustainable probationary period lies entirely with the employer.
Evidence includes complaints from employees, managers, mentors, customers of the enterprise, as well as acts of violation of the work schedule and orders for disciplinary sanctions. It is important to note that a new employee who is accepted on a trial period cannot be dismissed due to disciplinary offenses (for example, being late), because the purpose of this period is to assess professional skills.
Dismissal Procedure
If the test result when hiring is negative, the employer has the right to dismiss a new employee. This can be done before the end of the trial period according to the 1st part of the 71st article of the Labor Code. In this case, the employee must be informed about the dismissal in writing at least 3 days before the date of termination of the contract. The warning letter must indicate the reasons for the termination of the employment relationship.
After the employee receives a notification, and 3 days have passed from this moment, the employer issues a dismissal order. The order should contain a link to part 1 of article 71 of the Labor Code of the Russian Federation, as well as clauses of the employment contract and a list of internal documents confirming the fact that the job test was not passed. The employment record must also contain a record of dismissal with reference to this article. An employee is dismissed without severance pay. However, in this case, compensation may be paid for unused vacation.
Alternative
If the employee did not pass the test for employment, there is an alternative method of dismissal. Such an employee may resign of his own free will. This reason is more beneficial for the employee, since no entry is made in the labor book with reference to the 71st article (part 1) of the Labor Code of the Russian Federation. For the employer, such a dismissal has fewer consequences.
Thus, the test of an employee in hiring is regulated by Russian labor legislation. Knowing the basic details of the test procedure, as well as rights and responsibilities is very important. The test for employment is established only with the consent of a potential employee of the enterprise. The purpose of this period for the employer is to assess the professional and personal qualities of the newly made employee. The employee, in turn, evaluates the company, its internal routine, the relationship between members of the labor collective. Based on these findings, a balanced decision is made to continue or terminate the employment relationship.
Often, employers violate Russian labor laws. But if everyone is aware of their labor rights and obligations, then you can be sure that it will not be possible to deceive the employer of a new employee.