Who is subject to a hiring test? For whom a probationary period is not established upon hiring

Employment often involves setting up a testing period for the employee. It allows you to evaluate his abilities. The Labor Code provides for a number of cases when no probationary period is established employer. Accordingly, dismissal due to unsatisfactory completion of the test is unlawful.

Normative base

Labor Code:

• Art. 70 – persons exempt from inspection;
• Art. 71 – test results.

Law on State Civil Service No. 79-FZ:

• Art. 27– tests in civil service.

Law on service in internal affairs bodies No. 342-FZ:

• Art. 24 – check upon admission to the internal affairs bodies.

Law on alternative civil service No. 113-FZ:

• Art. 16 – alternative civil service.

For the driver

Operating a vehicle safely requires certain skills and experience. The working conditions of the driver are different from other workers. Among other things, they often have to be responsible for an expensive car. When an enterprise does not have the opportunity to conclude an agreement on individual or team responsibility for property, establishing probationary period for the driver is of significant importance. But it is impossible if:

• the driver gets a job for the first time after receiving specialized education under a program accredited by the state. Condition – less than 12 months have passed since the qualification was awarded;
• The maximum duration of cooperation is two months.

For the service sector

When recruiting staff for an enterprise related to the service sector, passing a test is required to assess the qualities of the applicant necessary for the job. That's why probationary period for staff this kind is necessary to check them:

• communication skills;
• hospitality;
• politeness;
• stress resistance, etc.

All these abilities are important because you have to work with different clients.

Pregnant women, minors and when concluding a fixed-term employment contract for up to two months there is no probationary period.

For workers

The activities of a number of employees involve constant physical labor, which is based on the application of certain knowledge. Usually the execution of such labor responsibilities occurs under special conditions. Real professional skills can only be learned through practice, so the employer sets probationary period for workers professions.

However, on the basis of Art. 70 of the Labor Code of the Russian Federation, you cannot add this condition to the contract with employees who:

• are employed under a student contract after graduating from an educational institution;
• are entering work in their specialty for the first time.

For the chief accountant

The position of chief accountant is a management position. It is characterized by increased responsibility and requires a clear understanding of certain laws, professional knowledge and qualifications. That's why probationary period for chief accountant and testing him for competence is an important condition when hiring. But even in this case the test is not established for persons:

• the position was provided on a competitive basis in accordance with the Labor Code of the Russian Federation;
• transferred from another company by mutual consent of managers;
• pregnant women or raising a child under 1.5 years of age (including single parents).

Attention: a single mother with a child over 1.5 years old is not entitled to privileges when establishing a competency test.

In the civil service

When signing a contract with a person entering the civil service, a period of one to 12 months is assigned in order to test the abilities necessary to perform the duties.

• received average or higher education and are employed for the first time under a student contract;
• appointed to a position by transfer due to staff reduction or liquidation of a government structure;
• have guarantees for maintaining their place of work in accordance with the legislation of the Russian Federation.

For police officers

When hiring an employee to the internal affairs bodies, it is necessary to determine the level of training and suitability for the position. The audit can last from two to six months, depending on the type of tasks assigned.

The assignment of a special rank in the police will require a minimum of three months of probation. During this period, the employee is considered a trainee and has no title.

In some situations, legislation prohibits such verification. Here, in which cases a probationary period is not established:

• the employee will hold a senior management position;
• the candidate received a place on a competitive basis;
• the citizen entered the federal executive body to receive higher education in the field of internal affairs.

A probationary period during employment allows you to select qualified personnel. However, the employer must always remember about certain categories of employees for whom it is not established.

When hiring a person, the employer has the right to set a probationary period for a citizen. It is necessary to verify a person's suitability for work. Art. 70, 71 of the Labor Code of the Russian Federation establish the rules for establishing a trial period, as well as the rights of the parties for this period. Let's consider their features.

Art. 70 Labor Code of the Russian Federation

Probation can be established by agreement of the parties when drawing up an employment contract. If there is no corresponding condition in the contract, it is considered that the citizen has been accepted without verification.

If a person is actually admitted to professional activity without concluding a contract, a clause on a probationary period can be included in it if the employer and the applicant have drawn up a separate agreement providing for verification before starting work.

During the trial period, according to Art. 70 of the Labor Code of the Russian Federation, the employee is subject to the provisions of legislative and other legal documents regulating labor relations, local acts, collective agreements and other industry agreements.

Exceptions

They are established by part 4 of Art. 70 Labor Code of the Russian Federation. Competency testing is not carried out for:

• Citizens selected to fill a position through a competition organized and conducted in accordance with the procedure established by labor legislation and other legal acts regulating the sphere of labor.
• Women with dependent children under 1.5 years old, as well as pregnant women.
• Citizens under 18 years of age.
• Persons with secondary vocational education or higher education in duly accredited educational programs, entering work for the first time in the acquired profession/specialty within a year from the date of receipt of education.
• Citizens elected to elective office for paid work.
• Subjects invited to the enterprise as part of a transfer from another enterprise in agreement with the new employer.
• Citizens who have entered into a contract for less than 2 months.

This list is not exhaustive. In Part 4 of Art. 70 of the Labor Code of the Russian Federation stipulates that the Code, other federal laws, as well as a collective agreement may contain lists of other persons for whom the test is not established.

Duration

According to part 5 Art. 70 Labor Code of the Russian Federation, probationary period cannot last more than three months, and for Ch. accountants, managers (including separate divisions), deputies of these persons - 6 months.

If the contract is concluded for a period of 2-6 months, the duration of the inspection cannot be more than two weeks.

The trial period does not include days of temporary disability and other time during which the citizen was actually absent from the workplace.

Art. 70 Labor Code of the Russian Federation with comments

The trial agreement is considered one of additional conditions agreement. As stated in Part 1 of Art. 70 of the Labor Code of the Russian Federation, the purpose of the probationary period is to check the professional suitability of the applicant.

As a rule, during this period the employee’s performance is assessed. It is also important that the employee adheres to discipline and timely completion of assigned tasks.

In Art. 70 Labor Code of the Russian Federation special meaning is given to the preparation of a probationary period. Since its establishment is considered an additional condition, it must be included in employment contract. This means that the employer cannot impose a testing period unless there is a clause in the contract. In this case, as stated in Art. 70 of the Labor Code of the Russian Federation, a citizen is admitted to an enterprise without testing.

However, there are some exceptions to the rule. First of all, they relate to the execution of a test for persons actually admitted to perform professional duties without concluding a contract. When it is subsequently completed, in this case, the test condition may be included in it if, before the start of work, the employer and employee agreed on the appropriate condition. However, such an agreement must be documented.

Rights and responsibilities during the test

At the time of verification of the employee, according to Art. 70 of the Labor Code of the Russian Federation, all labor standards apply. It is worth saying that at one time some employers practiced non-payment of wages to citizens during the probationary period or payment of smaller amounts than required. Such actions should be regarded as unlawful.

An employee on a probationary period can expect to receive a salary, disability benefits and other payments established by law. At the same time, he acquires a number of responsibilities. In particular, he must comply with the rules established by the enterprise, perform labor functions efficiently and on time, etc.

The employer, in turn, has the right to demand that the candidate comply with discipline and other obligations established by law. The employer is also obliged to pay the amounts due to the employee, including benefits and wages.

Dismissal

The employer has the right to terminate the employment relationship on his own initiative, subject to the conditions established by the Labor Code.

So, for example, if during the probationary period a reduction in strength is carried out and the subject is subject to dismissal, the termination of the contract must be carried out according to the rules provided for such cases in accordance with Articles 180, 178 and 81.

Nuances of the norm

Article 70 provides a list of persons to whom the probationary period does not apply. If a condition has been provided for an entity included in this list, it cannot be applied, even if the citizen does not object to it.

These rules are based on the requirements of Article 9 of the Code. According to this norm, collective agreements and contracts cannot include conditions that worsen the situation, limit the rights, guarantees of employees or the responsibility of the employer, in comparison with the conditions provided for by law and other regulatory documents regulating labor relations.

Specifics of establishing test duration

The deadlines are determined by part 5 of article 70. By general rule, the duration of the inspection should not be more than 3 months. This rule applies to ordinary employees of the enterprise.

A longer trial period can only be established for individual categories workers. This rule is completely justified. Managers, chief accountants, and their deputies bear increased responsibility. These individuals are subject to more stringent requirements. Federal laws may establish shorter probationary periods for these categories of workers.

Important point

In accordance with the law, representative offices and branches are considered. Their characteristics are enshrined in Article 55 of the Civil Code. Accordingly, the duration of the test is up to 6 months. can be set for managers, ch. accountants and deputies of these employees only of the relevant division.

This means, in particular, that the specified duration of the inspection cannot be provided for heads of workshops, departments, sectors, etc. structural divisions regardless of their level of isolation.

Test result

It is mentioned in Article 71 of the Labor Code.

The norm states that if the result of the probationary period is unsatisfactory, the employer has the right to terminate the contract without taking into account the opinion of the trade union and without paying the subject severance pay. As a rule, such situations occur when a citizen fails to fulfill the duties assigned to him.

If the test period has expired and the subject continues labor activity, then he is considered to have passed the test. Accordingly, subsequent termination of the contract is carried out on a general basis.

During the test, the employee may come to the conclusion that the job that has been offered is not suitable for him. In this situation, he can terminate the contract on his own initiative. Article 71, however, establishes a mandatory condition for the employee. He is obliged to notify the employer of his decision 3 days before dismissal.

If the employee decides to terminate the contract after the end of the test, then the procedure is carried out according to the general rules, since in this case he will be considered a full-time employee.

The probationary period of the Labor Code of the Russian Federation is established with some restrictions. All important information You will learn about the specifics of establishing an employment test from this article.

What does Art. 70 of the Labor Code with comments about the probationary period?

Based on the prescribed norms in Art. 70 of the Labor Code of the Russian Federation, a probationary period for hiring is established only if there is agreement between the parties - the employee and the employer. The probationary period must be specified in the employment contract or other written agreement signed before the start of work. At the same time, the employment contract may not contain a verification clause, since it is not considered mandatory (Article 57 of the Labor Code).

Read more about the contents of the employment contract in the material "St. 57 Labor Code of the Russian Federation: questions and answers" .

In addition to declaring the test condition in the contract itself, the employing company is obliged to indicate this in the employment order - in accordance with Part 1 of Art. 68 of the Labor Code, what is stated in the order must fully comply with the terms of the concluded employment contract.

For a probationary period, the Labor Code of the Russian Federation stipulates in the agreement between the employee and the employer the need to indicate a special condition. If the test is not mentioned in the contract, then it is considered that the employee is immediately hired without any reservations.

In the event that the agreement was not drawn up in writing upon the actual admission of the employee (in accordance with Part 2 of Article 67 of the Labor Code), the test condition must be stated in a separate agreement. It is important that this document is signed before the new employee begins work.

The condition of passing such verification allows:

• assess the quality of performance of the duties assigned to the employee;
• check compliance business qualities(working skills) of the new employee to the existing requirements of the employer;
• determine the beginner’s level of discipline.

At the same time, during the probationary period, the employee should not experience any discriminatory manifestations in the form of a reduction in wages (Part 2 of Article 132 of the Labor Code) or deterioration of working conditions. Indeed, during the probationary period under the Labor Code of the Russian Federation in 2019, as before, the provisions of labor legislation, the collective agreement and other internal regulations in the company must be observed.

To whom, according to Part 4 of Art. 70 of the Labor Code of the Russian Federation is it impossible to establish a test when hiring?

In accordance with Part 4 of Art. 70 of the Labor Code of the Russian Federation, certain categories of employed persons cannot be subject to a probationary period. Thus, the Labor Code in Art. 70 determines that the employer does not have the right to impose a condition on checking the qualities of a newcomer in an employment contract:

• for pregnant women and mothers with young (under 1.5 years of age) children;
• employees selected on a competitive basis to fill a position;
• young specialists who have recently (within 1 year) completed their studies under a state program at a vocational school or university, if this is their first place of work in their specialty;
• minors;
• persons elected to an elective position with an agreed salary;
• those employees who were invited under the terms of transfer from another company;
• workers employed for a period of less than 2 months.

What is the maximum probationary period and can it be extended?

The probationary period according to the Labor Code of the Russian Federation should not exceed:

• 6 months for persons holding management positions, chief accountants and their deputies;
• 3 months for all other categories of employees;
• 2 weeks if the contract is concluded for 2-6 months (Article 70 of the Labor Code of the Russian Federation with comments).

Establishing a test for employment for a period of less than 2 months is prohibited (Articles 70, 289 of the Labor Code of the Russian Federation).

The length of the probationary period for employees is also established federal laws. You can read about the maximum length of the probationary period for various categories of employees in the article “Probationary period when hiring (nuances)”.

If a new employee was sick or absent from work during the probationary period good reason(for example, he was on vacation or did not work due to downtime of the enterprise), then, according to the Labor Code of the Russian Federation, in 2019 the probationary period is extended by the number of working days missed due to this.

In such circumstances, the employer must order that the test be extended (to a certain date) due to the occurrence of one of the above reasons. The employee must be familiarized with this order against signature.

You can learn more about the testing period from our article “Probationary period when hiring (nuances)” .

Art. 71 of the Labor Code of the Russian Federation: dismissal during the probationary period and at its end

In addition to Art. 70 Labor Code of the Russian Federation this area is also regulated by Art. 71 of this Code. It contains rules for the employer’s response to the results of the subject’s activities.

Completion of the probationary period is usually not documented. If the test period has expired and the employee continues to work, then it is considered that he has passed the test and is recognized as an employee whose skills, discipline and work habits meet the requirements stated by the employer.

If the subject does not correspond to the position for which he is applying, then the employer is given the right to dismiss the candidate under a simplified procedure. According to the Labor Code of the Russian Federation, dismissal during a probationary period can occur during the period of testing.

In the case where the employer decides to dismiss an employee early because he has not completed the probationary period, Art. 71 of the Labor Code of the Russian Federation obliges the failed employee to notify his decision three days before dismissal. At the same time, this notice must necessarily indicate the reasons for dismissal. Dismissal during the probationary period is carried out without payment of severance pay and without agreement with the trade union.

If an employee believes that he was fired unfairly, he can appeal the employer's decision in court.

If the employee himself wants to quit while undergoing probation (for example, if working conditions turn out to be such that do not meet his expectations), according to the Labor Code of the Russian Federation, he himself can interrupt the probationary period, but is obliged to notify the employer of his decision also before 3 days. Such notice must be in writing in the form of a statement and delivered to an authorized representative of the employer (sent by mail).

You will find more information about dismissal during the probationary period in our article “The procedure for dismissal during the probationary period (nuances)” .

Results

Article 70 of the Labor Code of the Russian Federation contains rules according to which, during employment, the employer can establish a check for a new employee for a limited time. This probationary period according to the Labor Code in 2019 cannot be more than 3 months (and for managerial positions - 6 months). If the work is supposed to be short-term (from 2 months to six months), then no more than 2 weeks. And if the employment period does not exceed 2 months, then the probationary condition cannot be specified at all.

At the end of the probationary period, the employer must decide whether the employee is suitable for him or whether he needs to be fired. If the employee continues to work after completing the test, then he is considered hired.

New edition of Art. 70 Labor Code of the Russian Federation

When concluding an employment contract, by agreement of the parties, it may include a provision for testing the employee in order to verify his compliance with the assigned work.

The absence of a probationary clause in the employment contract means that the employee was hired without a trial. In the event that an employee is actually allowed to work without drawing up an employment contract (part two of Article 67 of this Code), the probationary condition can be included in the employment contract only if the parties formalized it in the form of a separate agreement before the start of work.

During the probationary period, the employee is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, and local regulations.

A hiring test is not established for:

persons elected through a competition to fill the relevant position, conducted in the manner established by labor legislation and other regulatory legal acts containing labor law norms;

pregnant women and women with children under the age of one and a half years;

persons under the age of eighteen;

persons who have received secondary vocational education or higher education in state-accredited educational programs and are entering work for the first time in the acquired specialty within one year from the date of receipt vocational education appropriate level;

persons elected to elective positions for paid work;

persons invited to work by way of transfer from another employer as agreed between employers;

persons concluding an employment contract for a period of up to two months;

other persons in cases provided for by this Code, other federal laws, and a collective agreement.

The probationary period cannot exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations - six months, unless otherwise established by federal law.

When concluding an employment contract for a period of two to six months, the trial period cannot exceed two weeks.

The period of temporary incapacity for work and other periods when the employee was actually absent from work are not included in the probationary period.

Commentary on Article 70 of the Labor Code of the Russian Federation

The restrictions associated with the establishment of a test for persons applying for work when concluding an employment contract deserve special consideration. The purpose of this test is to verify compliance professional qualities employee for the work entrusted to him in accordance with the employment contract (labor function).

It is understood that if the test result is positive, the employee will continue to work at the enterprise. If an employee is found to have failed the test, he is usually subject to dismissal upon expiration of the probationary period.

The general procedure for conducting such a test is set out in Article 70 of the Labor Code of the Russian Federation. If a test is imposed upon an employee upon joining a job, the employment contract must contain a corresponding provision regarding this.

However, it should be borne in mind that the employment test cannot be established in relation to certain categories of persons.

In all of the above cases, the probationary period cannot exceed 3 months, and for certain categories of workers it can be reduced to two weeks. For heads of enterprises, their deputies, chief accountants and their deputies, as well as heads of branches, representative offices, territorial offices and other separate structural divisions of enterprises, the probationary period cannot exceed 6 months, unless otherwise established by federal law.

The period of temporary disability of the employee and other periods of his actual absence from work are not included in the probationary period. At the same time, we emphasize that during the probationary period, the employee is subject to the provisions of the Labor Code of the Russian Federation, laws, other regulations, as well as local acts of the enterprise containing labor law norms (collective agreement, agreement, etc.).

Note that the duration of the trial is fixed when concluding an employment contract as a component of one of its additional conditions. Changing the duration of the test is allowed only by mutual agreement of the parties labor relations and only within the deadlines specified above.

Another comment on Art. 70 Labor Code of the Russian Federation

1. The probation clause, being an optional condition of the employment contract, is included in its content by agreement of the parties. It cannot be established by the employer in unilaterally in addition to the employment contract. Accordingly, if the specified condition is not specified in the employment contract, the employee is considered hired without testing. It is impossible to establish a test after the conclusion of a contract either by an act of the employer or by an additional agreement of the parties.

An exception to this rule is provided for the area civil service, when the test, firstly, is established by virtue of a direct prescription of the law, i.e. is a non-contractual term; secondly, it is possible not only when concluding a service contract, but also subsequently, when transferring from one civil service position to another.

2. In some cases, the probationary condition is provided not by the employment contract, but by the act of appointment to the position, and the employment contract is concluded based on the results of the trial.

Thus, in accordance with the legislation on service in the customs authorities, a citizen who has submitted an application for admission to service in the customs authorities and all Required documents, when a test is established for him, he is appointed to the appropriate position as a trainee for the period of the test. The time spent working as an intern is counted towards the length of service in the customs authorities.

The condition of the trial and its duration are indicated in the order of appointment to the position.

During the testing period, a contract for service in the customs authorities is not concluded with the citizen.

Similar norms are established by legislation on other types of public service.

3. Legislation establishes the maximum permissible period of probation. As a general rule, the probationary period cannot exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices and other separate structural divisions of organizations - six months, unless otherwise provided by federal law.

The rules of law defining the deadlines for probation are mandatory in nature and cannot be the subject of agreement between the parties to the employment contract. In other words, when concluding a contract, the parties can determine the trial of any duration, but within a period of three or six months, respectively. The parties have the right to revise the trial period, provided that the original trial period has not expired and the total duration of the trial does not exceed three (six) months. Thus, in accordance with the Law of the Russian Federation of January 17, 1992 N 2202-1 “On the Prosecutor’s Office Russian Federation“The probationary period during service may be reduced or extended within six months by agreement of the parties (Article 40.3).

Federal Law of July 27, 2004 N 79-FZ “On the State Civil Service of the Russian Federation” provides not only the maximum, but also the minimum duration of the test - from three months to one year (Article 27), and the Decree of the Government of the Russian Federation of July 5 2000 N 490 “On testing for appointment to a public position in the federal public service by the Government of the Russian Federation” establishes a clearly fixed testing period for filling relevant positions - three months.

For workers hired for a period of two to six months (including for seasonal work), the probationary period cannot exceed two weeks (see Article 294 of the Labor Code of the Russian Federation and the commentary thereto).

In accordance with Art. 70 of the Labor Code of the Russian Federation, the period of temporary disability and other periods when the employee was actually absent from work are not included in the probationary period. Consequently, for any absence from work (both for good reasons and unjustified reasons), including in case of multi-day absenteeism, the probationary period is automatically subject to extension by the number of days of absence from work.

5. The test clause cannot serve as a basis for restriction labor rights employee in terms of remuneration, work and rest schedule and other labor rights. During the testing period, he is subject to the provisions of labor legislation, local regulations, collective agreements, agreements (see also paragraph 1 of the commentary to Article 71 of the Labor Code of the Russian Federation).

At the same time, some features of the legal status of the person undergoing testing are established by law.

First of all, the Code establishes specifics in the procedure for terminating an employment contract based on the results of the test (see Articles 71, 77 of the Labor Code of the Russian Federation and the commentary thereto).

Restrictions in the exercise of powers are usually associated with the activities of an official as a representative of the state. For example, a trainee holding the position of a customs officer does not have the right to independently make decisions on customs clearance goods and Vehicle, accrual and collection of customs duties and fees and perform other administrative actions in accordance with their position.

A civil servant is not assigned another qualification rank (class rank, special rank) until the end of the probationary period.

6. As follows from the content of Art. 70 Labor Code, the test is established by the parties when concluding an employment contract. Based on this, two groups of circumstances should be taken into account.

Firstly, the legislation distinguishes between the moments of concluding an employment contract, its entry into force and the start of work. These three points may not coincide in time (see Article 61 of the Labor Code of the Russian Federation and the commentary to it), therefore it is necessary to distinguish between two aspects of the test condition - the date of establishment and the date of the beginning of its course. If the probationary condition is established when concluding an employment contract, i.e. acts as an element of the content of the contract formed by the parties, then the beginning of this condition must be associated with the moment the work begins (for in any case, the time a person is absent from work is not included in the probationary period).

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A probationary period is not established for certain categories of persons. In order for this not to become an unpleasant surprise for a personnel specialist, as well as to avoid violation of labor laws that impose these restrictions on the employer, you need to know all categories of employees who are not subject to a probationary period upon hiring. Let's talk about this in detail.

In general, the test can be set

In most cases, when concluding an employment contract with an employee, it is possible to provide for a probationary period. This measure will help to part with an unsuitable employee without unnecessary difficulties by notifying him in writing at least three days before the date of dismissal. The main thing is that the dismissal occurs during the probationary period and is motivated (Part 1 of Article 71 of the Labor Code of the Russian Federation). When stipulating a probationary clause in an employment contract, you need to know in which cases a probationary period is not established.

A probationary period is a period established by an employment contract, during which the employer looks closely at the employee and, conversely, the employee in practice evaluates the work offered to him and the working conditions in the organization (individual entrepreneur).

For some people the test is prohibited

So, according to the Labor Code, a probationary period cannot be established for some employees.

The probationary period is established at the stage of concluding an employment contract by agreement of the parties (Parts 1, 2, Article 70 of the Labor Code of the Russian Federation). The test condition must be indicated in the text of the contract, otherwise it will be considered concluded without testing.

• employees hired through a competition;
• pregnant women and women with children under 1.5 years of age;
• workers raising children under 1.5 years of age without a mother;
• employees under 18 years of age;
• employees who have received secondary vocational or higher education and are entering work for the first time in the acquired specialty within a year from the date of receipt of this education;
• employees elected to elective paid work;
• employees invited by transfer from another employer;
• employees who have entered into a fixed-term employment contract for a period of less than two months;
• other employees in cases provided for by law (for example, employees who have successfully completed training under an apprenticeship contract).

Some employees are not given a probationary period. However, for example, students are not considered beneficiaries. That is, a probationary period for a student can be established on a general basis. An exception will be the employment of a minor student. After all, the test is not assigned to workers under 18 years of age.

Thus, when hiring new employees, you need to remember the benefits established by labor legislation for certain categories of citizens and check the list of employees who cannot be given a probationary period.