The test for employment. The Labor Code of the Russian Federation

When concluding an employment contract, the management of an enterprise has the right to appoint a new employee a test when applying for a job. TC RF regulates this right. For sure, each of us came across at least once with this procedure. The probationary period is appointed in order to check the new employee for his / her correspondence to the position he received. What are the rights and responsibilities of the employee and employer?

What is the trial period?

The employment test is the time during which the employer assesses the professional skills, skills, knowledge of the new employee. Based on the results of the trial period, the employer concludes that 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 company, the internal schedule, and 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 when hiring for new employees. The basis for establishing this period is the mutual agreement of the parties. That is, without the consent of a potential candidate for a vacant position, a hiring test can not be scheduled. However, in practice it happens in another way: the employer appoints a probationary period, and the candidate silently agrees with his decision, since otherwise he will be refused employment.

If the employment contract does not specify this condition, the employee is recruited without testing. An employment contract with a probationary period presupposes the availability of benefits for the employee: he can notify about dismissal not for 14, but for 2-3 days. According to the fourth part of Article 57 of the LC RF, the contract may provide for a number of additional conditions for testing.

Restrictions

Article 70 of the LC RF states that the appointment of a probationary period for an employee is the right of the employer. But the labor law establishes the categories of workers who must be recruited without testing. These include:

• Persons who are elected to a competitive position.
• Women with children under the age of 1.5 years, as well as pregnant women.
• Minors.
• Graduates of educational institutions with state accreditation, if arranged for work on the specialty within a year from the moment of receiving the diploma.
• Elected to elective offices.
• 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 has successfully completed their studies.
• Persons who are appointed to the posts of higher commanders in the Ministry of Internal Affairs.
• Graduates of universities and colleges, who come to work on distribution.

If the employment contract between the employer and the 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 passing of the test. It is also illegal to appoint a test to employees who are transferred to a new position from the same employer.

Length of probation period

According to the Russian labor legislation, the probation period can have different duration. The maximum period of the test when applying for a job lasts:

• 14 days for fixed-term employment contracts, concluded for 2-6 months.
• 3 months as a general rule for all categories of employees of enterprises.
• Six months for management 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 incapacity for work and absence of an employee for other reasons (leave, absenteeism) do not enter the period of testing when applying for a job.

Is it possible to extend or reduce

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 law, this condition can not be contained in the contract. However, the reduction in the period of testing does not in any way violate the rights of workers.

The employer and the employee of the enterprise can conclude additional agreements on the basis of the agreement to the main contract, which shortens the duration of the probationary period.

Registration of an employee for a trial period

The period of the trial period must be prescribed in the employment contract, and the employee, in turn, must be acquainted with this condition before he begins to perform his duties. If the employee was allowed to perform official duties, and the employment contract was issued "retroactively," the purpose of the test is unjustified. In this case, according to Article 67 of the Labor Code, an employee is considered enrolled in a state without testing.

Who is participating in the trial?

To participate in the testing and control of its course are usually attracted:

• Direct head of a new employee (control of the whole test).
• Curator (control at certain stages of the test).
• Observers (evaluate the work from outside, do not take part in it).
• Mentor (makes a test plan, assists, monitors the quality of work, studies the employee's personal qualities, compiles reports, recalls).

Often, for the objectivity of assessing professional skills, commissions are created. Sometimes external consultants can be involved (usually when hiring employees for managerial positions).

Salary

According to article 70 of the TC, an employee of an organization that is staffed with a probationary period has the same rights, privileges and duties as the main employees. Accordingly, wages are paid in the same amount as full members of the work collective. The new employee can receive bonuses, he can also apply penalties.

Low wages in comparison with the basic employees can not be established, as it contradicts the labor legislation. The purpose of the tests is to assess the professionalism of the employee, and not to save on wages.

results

The Labor Code of the Russian Federation does not provide for procedures for fixing the result of passing the test. If a new employee successfully passes the test, the employer enlists it in the staff. At the request of the employer, the employee can be informed about this either verbally or in writing. If after the termination 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 about it. The decision of the employer should be clearly motivated, that is, the low level of training, the discrepancy of the personal qualities of the position held, and references to internal documents should be emphasized.

Common Mistakes

Often, when assigning tests to new employees, the employer makes a number of mistakes:

• The conditions of the test when applying for a job are entered only in the order to enroll in the state, although they must be spelled out in the employment contract.
• Tests are conducted for persons to whom they can not be established by law.
• The new employee does not get 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. In these situations, the treaty is considered null and void.

The grounds for dismissal of employees who did not pass the test

To dismiss an employee based on the results of the test when hiring, you need good reasons. To begin with, it is necessary to establish the legality of including a probationary period in the employment contract and make sure that the employee does not belong to the category of persons to whom this period can not be appointed. The employer also needs to obtain evidence that the new employee has not passed the test. Evidence is important, since an employee has the right to challenge dismissal in court. If the court decides that there is no evidence on the part of the employer, the employee may be re-enrolled in the state. Thus, the responsibility for the undefined probation period falls entirely on the employer.

Evidence includes complaints received from employees, managers, mentors, clients of the enterprise, as well as acts of violation of the labor regulations and orders for disciplinary action. It is important to note that a new employee, accepted with a probationary period, can not be dismissed because of disciplinary offenses (for example, being late), because the purpose of this period is to assess professional skills.

The firing procedure

If the test result in hiring is negative, the employer has the right to dismiss a new employee. This can be done before the expiration of the trial period in accordance with the first part of Article 71 of the TC. In this case, the employee must be informed of the termination in writing at least 3 days before the date of termination of the contract. The letter-warning necessarily indicates the reasons for the termination of the employment relationship.

After the employee receives notification, and 3 days from now, the employer issues an order for dismissal. The order should contain a reference to part 1 of Article 71 of the LC RF, as well as clauses of the employment contract and a list of internal documents confirming the fact that the test at the hiring was not sustained. The workbook must also contain a record of dismissal with reference to this article. The employee is dismissed without payment of severance pay. However, in this case, compensation for unused vacation can be paid .

Alternative

If an employee does not pass the test at work, there is an alternative method of dismissal. Such an employee can resign at will. This reason is more advantageous for the employee, since a record with a reference to Article 71 (part 1) of the LC RF is not entered in the work record book. For the employer, such dismissal has fewer consequences.

Thus, the test of an employee in recruitment is governed by Russian labor law. Knowing the basic details of the test procedure, as well as the rights and responsibilities is very important. The test at employment is established only with the consent of the potential employee of the enterprise. The purpose of this period for the employer is to assess the professional and personal qualities of the new employee. The employee, in turn, evaluates the company, its internal routine, the relationships between members of the work collective. Based on these findings, a well-considered decision is taken to continue or terminate the employment relationship.

Often, employers violate Russian labor laws. But if everyone is aware of their labor rights and duties, then you can be sure that you will not be able to deceive the employer of a new employee.