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Labor probation period. Probationary period according to the Labor Code of the Russian Federation when applying for a job

Nowadays, the process of selecting and hiring new employees in an organization is very time-consuming. A candidate for a vacancy is interviewed, which is often very difficult psychologically. In addition, the interview can be set by the employer more than once, and the person has to go through it in several stages. All this does not give a 100% guarantee that the employee will be suitable, therefore, in many organizations, a probationary period is set for new employees under the labor code. The conditions of the probationary period are stipulated in articles 70 and 71 of the Labor Code of the Russian Federation.

Why is this measure needed?

To check employees, a probationary period is established according to the Labor Code

Many are interested in what the probationary period is set for. This is done in order to determine whether the new employee is suitable for the duties assigned to him. The duration of the trial is determined by the internal requirements of the company, but the period for non-management positions cannot be longer than three months.

The test of an employee allows the employer to assess the professional capabilities of a new employee, and in case of unsatisfactory work, terminate the contract with him.

Who determines employment on special grounds?

The question of who sets the probationary period is decided by the direct management of the company and agreed with the recruitment department. Together, the management structures of the company decide on the advisability of establishing a probationary period, its validity period, and termination conditions.

The company's management conducts a test check of the candidate in order to determine his compliance with the position held. The following must be taken into account:

The probationary period is set only for those employees who are newly hired. It cannot be set for those employees who already work in this company, but are transferred to another position and to another department, even to a higher position.
Even before the employee begins to perform duties, he must be notified of the probationary period. An employment contract must be concluded with the employee in writing, containing its conditions in the column on the probationary period. Conditions can also be formalized as a separate agreement. If the probationary period is not formalized by an official document, then the conditions for its implementation have no legal force.
The presence of a probationary period must be indicated not only in the employment contract, but also in the order for employment.
The employee is obliged to confirm with his signature the fact of familiarization with the documents, while it is not necessary to put a mark on the assignment of a probationary period in the work book.
In accordance with the Labor Code of the Russian Federation, a probationary period is negotiated between both parties. A note on mutual expression of will in the employment contract is mandatory. If the condition for testing an employee is written only in the order that the employee is accepted, then this is already a violation of human labor law. In this case, the conditions of the probationary period have no legal basis, and therefore are invalid.
If the employment contract does not contain information about the probationary period, and the employee has already been admitted to work, then he was accepted without a test.
It is prohibited by law to extend the period of probation, which is noted in the employment contract. But the days when the employee was absent due to illness are not included in the probationary period.
After the expiration of the probationary period, if the employee remains in place, he is considered to be accepted into the staff of the organization.
The employer may dismiss the employee before the end of the probationary period by notifying him of this in writing 3 days in advance, indicating the reason for the dismissal. The decision of the employer may be challenged in court.

When hiring an employee, they must be familiarized with all the regulatory documents of the enterprise and its main labor duties. The employee must certify the familiarization with the documents with a signature. During the probationary period, the employer may realize that the employee is not suitable for the position. Then the fact that the employee knew what duties were assigned to him, but did not cope with them, will be the reason for dismissing the employee as having not passed the test.

A separate issue - a fixed-term contract

The probationary period is set only for new employees.

Employers and job seekers are interested in whether it is possible to set a trial period for admission under a fixed-term contract, because a certain time period is already prescribed in such an agreement. Yes, an employer can establish a probationary period for an employee who has signed a fixed-term contract. If the contract is drawn up for a period of two to six months, then the trial period cannot be longer than 2 weeks.

Who is not accepted on probation?

The probationary period is not established for the following categories of persons:

employees who were elected to the position through competitive selection)
women at any stage of pregnancy, as well as mothers of children under the age of one and a half years)
minors under the age of 18)
persons who have received higher or secondary specialized education under the program of state accreditation (such a privilege applies to them within 1 year from the date of receipt of a diploma of relevant education))
persons elected to elective office for paid work)
employees who entered the position by transfer from another employer, if there was agreement between the employers)
hired for up to two months.

In all of the above cases, a probationary period cannot be established.

If an employee, in the course of performing his official duties, comes to the conclusion that this work or organization is not suitable for him, he has the right to terminate the employment contract without waiting for the end of the probationary period. The employee must notify the employer of this in writing 3 days before the expected date of dismissal. The basis for dismissal in this case is the desire of the employee himself. The employer has no right to interfere with this and is obliged to pay the employee in a timely manner.

What is important to remember

According to the Labor Code in 2013, an employee on probation has the same rights as his full-time colleagues.

Therefore, such facts of infringement of the rights of an employee as a decrease in wages, a decrease in the level of bonuses, and others are a violation of legislative labor standards.

The trial period is included in the length of service. During the period of disability of the employee, he, like other employees, is subject to social benefits. He also receives additional pay for extracurricular work.

Has the test been passed?

There are a number of reasons why a probationary period cannot be established.

Employers do not seek to accept those employees who often get sick or ask for time off, so they often dismiss them at the end of the probationary period, citing the fact that the employee has not coped with his direct labor duties. Evidence confirming that the employee successfully copes with his labor duties will help not to be in a similar situation. It is better to collect them immediately, from the first working day.

On the first day of work, the employee must receive a job description from the employer.
If certain difficulties arise in the course of work through no fault of the employee, he must notify his immediate superior with a memo.
If in the process of work the employee did not receive disciplinary sanctions, then this characterizes him as an employee who copes with his official duties.
If, nevertheless, the employer has good reasons to dismiss an employee who does not cope with his duties, he cannot do this during the absence of the employee from the workplace due to illness or other good reason, including during vacation. If this happens, the employee has the right to go to court, and the decision (if there is evidence) will be made in his favor.

Many employees, due to ignorance of their rights and obligations, can lose not only time, but also a promising job. Knowing his rights, the employee can always appeal to them in the process of resolving difficult situations that have arisen in relations with the employer. In cases where there are violations of labor laws by the employer or employee, you need to contact the relevant authorities.

How to get a job with a trial period? The probationary period is a period of time when the parties look at each other. After signing the necessary documents, the employee is accepted for a probationary period.

The employer evaluates the subject as a future employee: his qualifications, the accuracy and quality of the duties performed, disciplinary behavior.

During the test, the test subject can also draw conclusions about working conditions, requirements for tasks performed, meeting deadlines for paying salaries.

The test time is included in the total length of service; for this period, no rights of the subject should be infringed. All conditions provided for other workers also apply to the subject. This also applies to wages.

The probationary period allows, in case of poor performance of one's duties, to terminate the contract with the subject before the end of the test without additional payments. But the main thing is that when applying for a job with a probationary period, the documents are correctly drawn up. Is the employment contract concluded for a trial period?

When introducing a newcomer to the staff of the enterprise, the following main documents are drawn up:

Application for a job with a trial period;
an employment contract with a probationary period;
an order for admission with a probationary period;
registration of the probationary period in the work book.

Only if all these documents are correctly executed with poor-quality work performed during the verification period, the subject can be fired without any legal proceedings.

In accordance with Article 70 of the Labor Code, a probationary period is not a prerequisite for employment.

The applicant has the right to refuse it.

In such a situation, it is either accepted without verification, or simply denied registration.

Let us consider in more detail the following questions: how to arrange a probationary period and is an entry made in the work book during the probationary period?

Application for a job

The first step in hiring an employee for a probationary period is the preparation of an application for a probationary period.. It is usually written in free form. The inclusion of the probationary period language in this document is the applicant's good will.

The application is drawn up in the name of the general director of the enterprise, indicating his full name, position and name of the organization. Next, it is written from whom this document is sent.

The text of the application must indicate the position for which the applicant is accepted and the service or department where he is registered. Then the employee who gets a job can write that he is accepted with a trial period, indicating its duration.

Moreover, this duration cannot be set longer than the prescribed period in the legislation: for ordinary employees, applying for a job with a trial period of 3 months is the maximum.

Employment contract with a probationary period upon employment

Is a contract drawn up for a probationary period and how to draw up an employment contract with a probationary period (sample below)?

An employment contract with an employee for a trial period is the most important link when registering for a job ().

When compiling it for a beginner undergoing a test, a clause on the test period under article 57 of the Labor Code is included in the text of the document.

The main condition of an employment contract for a trial period is bilateral consent.

When drawing up an open-ended contract, the verification period under Article 70 of the Labor Code cannot be announced for more than three months for ordinary employees and six for management staff. In such a sample employment contract with a trial period of 3 months, the following entry is made:

An employee is hired as an engineer. The beginning of activity is counted from "__" _______ 2016.

This document determines the execution of a probationary period for 3 (three) months from the date of employment. A positive mark of passing the test is the qualitative performance of the duties recorded in the job description.

In case of dishonest work, the contract is terminated at the suggestion of the employer in the form of a written notice three days before the term of termination.

The conditions of the probationary period must be specified in the regulation on passing the test, it specifies the conditions and criteria for evaluating the test subject.

If there is no mention of the verification period in the document, it is considered that the newcomer is enrolled without verification.

The trial period for a fixed-term employment contract (for employment with a trial period of six months) should not exceed two weeks.

For persons signing a contract for 2 months, verification is not introduced.

In all other cases of fixed-term contracts, the period remains the same as for open-ended contracts.

If for some reason the wording of passing the test was not included in the document, then after the employee began to fulfill his duties, it is no longer possible to change or add an entry about the test in the document.

It is considered incorrect practice when a document on passing a test is signed after working out at a new place for several days.

Order

After drawing up an employment contract, an order for admission is formed. A record of the test is entered into it and its duration is indicated, if such a mark is available in the contract. If it is absent in the contract, the check mark is not included in the order.

The employee was enrolled from "__" ______ 2016 to the position of an accountant with a salary according to the staffing table in the amount of ______ rubles.

With a trial period of 3 (three) months.

Reason: Employment contract No. __ dated "__" _______2016.

Filling out a work book

Is an entry made in the work book during the probationary period?

Is the probationary period recorded in the work book?

During the probationary period, when hiring, an entry in the work book is not made..

A standard phrase about applying for a job is formulated. Upon dismissal (at the initiative of the employer) during the probationary period, the following entry is made in the labor record: "dismissed of his own free will."

If the termination of the contract occurs during the verification at the suggestion of the employer (), then the following entry is made:

Dismissed due to an unsatisfactory test result in accordance with Article 71 of the Labor Code of the Russian Federation.

Important: The TC uses the term "test", not "probationary period". In order to avoid any discrepancies with the wording of the law, it is better to make an entry in official documents with the word test.

With a test without clearance

If an employee is registered for a probationary period without a contract, then he is considered to be enrolled without any tests.

Employment with the establishment of the test must be documented. Moreover, when concluding an employment contract for a trial period, the consent of the accepted employee is required.

Without this, this paragraph is not included in any document. The person who is applying for a job indicates his consent to the verification by an entry in the application for admission drawn up by him and by a signature in the concluded employment contract.

If a new employee has begun to fulfill his labor duties, then it is impossible to make a follow-up test line according to the law. Only with the correct preparation of documents with the inclusion in them of the wording of the verification period, there will subsequently be no discrepancies in conflict situations.

In the article, we remind employers of the procedure for establishing a probationary period. Using examples from judicial practice, let's pay attention to the mistakes that employers make when dismissing an employee who has not passed the test.

Who is not on probation?

Not all potential employees can be placed on probation. If the employer includes a test condition in an employment contract with a person who is prohibited from establishing a test, this condition will not be valid (part 2 of article 9 of the Labor Code of the Russian Federation).

The list of persons is determined by Part 4 of Art. 70, Art. 207 of the Labor Code of the Russian Federation and other federal laws:

pregnant women and women with children under the age of one and a half years;
under the age of 18;
who have received secondary vocational education or higher education in educational programs that have state accreditation and are employed for the first time in the acquired specialty within one year from the date of receiving professional education of the appropriate level;
concluding an employment contract for a period of up to two months;
invited to work in the order of transfer from another employer as agreed between employers;
successfully completed apprenticeship - when concluding an employment contract with the employer, under the contract with which they were trained (Article 207 of the Labor Code of the Russian Federation), etc.

If the employer establishes a probationary period for any of the listed persons, all the more, dismisses him as having not passed the test, he may be held administratively liable. The employee who applied to the court will be reinstated.

If, before the end of the probationary period, the employer finds out that the employee belongs to the category of persons for whom the probation is impossible, it is necessary to amend the employment contract. In this case, it is necessary to conclude an additional agreement to it, by which the test condition is canceled. Based on the agreement, an appropriate order should be issued.

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The procedure for terminating an employment contract with an employee who has not passed the test

The procedure for establishing a test for employment is established in Art. 70 of the Labor Code of the Russian Federation.

Step 1. The condition of a probationary period for an employee must be included directly in his employment contract. The absence of such a condition in the employment contract means that the employee is hired without a test.

The period of probation for employees may not exceed three months. For heads of organizations and their deputies, chief accountants and their deputies, heads of branches - six months. When concluding an employment contract for a period of two to six months, the probation may not exceed two weeks.

The probationary period does not include any periods of the employee's actual absence from work, including periods when the employee is on short-term leave without pay or on leave in connection with training, the performance of state or public duties, the period of absence of the employee from work without good reason (period absenteeism), a period of downtime, if the employee was absent from work during the downtime (Determination of the Supreme Court of the Russian Federation dated 04.08.2006 No. 5-В06-76). But it is impossible to dismiss an employee due to an unsatisfactory test result while he is on vacation or on sick leave.

Step 2 Based on the employment contract, which contains a condition on the establishment of a probationary period, the employer issues an order stating that the employee has been accepted with a probationary period, and indicates the period of such a probation.

We draw the attention of employers, if the condition of the test and its period are established only in the order, while not established by the employment contract, in this case, the employee will be considered hired without a test.

If an employee fails to perform his job duties during the probationary period, the employer has the right to dismiss him. The procedure for dismissal of an employee who has shown an unsatisfactory result is established by 71 of the Labor Code of the Russian Federation.

Step 3 The employer must confirm that the employee is not coping with work, because the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer (paragraph 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2). In order not to become a defendant in litigation, it is advisable to create a work plan for the employee for a trial period, keep a log for monitoring the passage of the test, and request reports from the employee on completed tasks.

Step 4 Your decision to dismiss an employee must be supported by a number of documents. It can be:

various kinds of acts confirming the non-performance or poor-quality performance of the work assigned to the employee, stipulated by the employment contract or job description;
memorandum (official) notes or reports of the immediate supervisor of the employee or the person responsible for evaluating the test results;
witness's testimonies;
"peculiar" attestation (test) sheet and minutes of the meeting of the "peculiar" attestation (test) commission;
orders to apply a disciplinary sanction to an employee (which is not challenged or challenged);
written complaints (claims) from customers.

By the way, sometimes one memorandum (service) note may be enough to dismiss an employee. There is such a case in jurisprudence. The reason for the dismissal was a memo from the immediate supervisor of the employee. The document stated that the employee does not correspond to the position in terms of the quality of work performed, he is lazy and lacks initiative in his work. The memo contained a proposal to terminate the employment contract with the employee as having not passed the test when hiring. The dismissal was recognized as lawful (Determination of the Leningrad Regional Court dated 07.12.2011 No. 33-5827 / 2011).

Step 5. It is necessary to warn the employee about the termination of the employment contract in writing: the facts indicating that the employee did not pass the test are recorded in the relevant act. This must be done no later than three days before the dismissal.

There is a case in judicial practice when the corresponding notice was drawn up and handed over to the employee only two days before the termination of the employment contract. The court recognized the dismissal of an employee as legal, even though the employer violated the dismissal procedure provided for in Art. 71 of the Labor Code of the Russian Federation (Cassation ruling of the St. Petersburg City Court dated August 29, 2011 No. 33-13139 / 2011).

A warning

Dear V.V. Smirnov!

In accordance with Art. 71 of the Labor Code of the Russian Federation, we warn you that the employment contract concluded with you is subject to early termination due to the fact that you are recognized as not having passed the test provided for by the employment contract, due to inconsistency with the position held and repeated violation of labor discipline and internal regulations of the organization .

Thank you for your work. You will be additionally informed about the procedure for settlement with the enterprise by your immediate supervisor.

We wish you all the best.

General Director Petrov S.S.

(title of the person who signed the document)

personal signature I.O. Surname

Date 18.07.2017

INTRODUCED

Job title personal signature ____________

(indicated by the employee by hand)

In the written notice of dismissal given to the employee, the employer must indicate the reasons for the dismissal. If the employee does not agree with the position of the employer, then this decision can be appealed in court. An analysis of judicial practice shows that the disputes considered by the courts are connected precisely with the violation by the employer of the procedure for dismissing an employee who has not passed the probationary period.

Step 6 So, the employee received a notification, signed, now after three days the employer issues a dismissal order, with which the employee must also be familiarized against signature. The following entry is made in the work book: "The employment contract was terminated due to an unsatisfactory test result, part one of Article 71 of the Labor Code of the Russian Federation."

If the probation period has expired, and the employee continues to work, then he is considered to have passed the probation and the subsequent termination of the employment contract is allowed only on a general basis.

Step 7 On the day of termination of the employment contract, the employer is obliged to issue a work book to the employee and make settlements with him with the payment of all amounts due to the employee.

Also Art. 71 of the Labor Code of the Russian Federation establishes that if, during the probationary period, a newcomer comes to the conclusion that the job offered to him is not suitable for him, he has the right to terminate the employment contract at his own request, notifying the employer about this in writing in the same three days. That is, not only the employer can fire an employee on probation, but the employee himself can decide that the chosen company does not meet his expectations: career or salary - it doesn’t matter.

If the trial period was not enough to evaluate the ability of the employee ...

Then, by agreement with the employee, the probationary period can be extended by another month. True, Rostrud officials in Letter No. 520-6-1 dated March 2, 2011 argue that the possibility of extending the probationary period by amending the employment contract is not provided for by the labor legislation of the Russian Federation. Their opinion on this issue is the only one, since there are no other explanations, it is up to the employer to stick to it or ignore it.

Rostrud is not opposed to reducing the probationary period if the employee quickly showed himself in the best possible way. Letter No. 1329-6-1 dated May 17, 2011 concludes that, by mutual agreement, the parties have the right to conclude an additional agreement to the employment contract to reduce the probationary period. These changes will not be contrary to labor laws.

Dismissal of a part-time worker

The employer must notify the employee in writing of his intention to terminate the employment contract with the part-time worker on this basis at least two weeks before the expected date of dismissal.

The employer is not obliged to offer another job to a part-time worker. This is his right if the enterprise has other work that the employee can perform on a combination basis. If there is no such job or the employee refused the proposed option, then he is subject to dismissal and in the future continues his labor activity only at the main place of work. The refusal of the employee must be recorded in writing in the form, on its basis, the employer issues an order (instruction) to dismiss the employee with the execution of the documents listed above.

If the employer can offer the part-time job, which he does part-time, as the main one, then with the consent of the employee, it is necessary to conclude a new employment contract on new conditions or conclude an agreement on changing the terms of the employment contract.

If this option is not suitable for the employee and he refused the offer of the employer, then the part-time worker is subject to dismissal. Based on the considered written application, the employer issues an order (instruction) to dismiss the employee with the execution of the above documents.

findings

Summing up, once again pay attention to the main points that will help the employer avoid litigation. Everyone should remember them when setting a probationary period and dismissing an employee who has not completed the test.

Not all employees can be placed on probation. Dismissal on the basis of a probationary period of a temporarily disabled employee, a pregnant woman or a woman with a child under the age of three is unlawful;
The test is considered established if the relevant condition is included in the employment contract. The absence of a probationary period clause in the employment contract makes it unlawful to subsequently apply the probationary period clause, even if it is enshrined in the collective agreement and other local acts (employment order, job description, etc.);
Test results must be documented;
To dismiss an employee based on the results of the probationary period, the employer must indicate in writing the reasons why he was recognized as not having passed the probation, as well as document this fact;
The employee must receive notice no later than three days before the dismissal.

In Kontur.Shkole: changes in legislation, features of accounting and tax accounting, reporting, wages and personnel, cash transactions.

When applying for a job, there are no trifles, every nuance is important. Consider one of the important points: how long does the probationary period last when starting work in a new place.

Minimum and maximum probationary period according to the Labor Code

A probationary period is a period officially established by law, after which the employer decides whether to accept the selected candidate for work on a permanent basis. This period is given to the applicant for a certain position to show their labor skills, knowledge and skills. The agreement on the period of probation must be stipulated in the contract signed by the employer and the person being hired.

An employee accepted for service with a probationary period must perform his job duties in accordance with the instructions. Its activities are supervised by a specially appointed employee. As a rule, this is the direct supervisor of the subject.

Curious Data

According to statistics, the question “How long was your probationary period?” the respondents' answers were distributed as follows: 25% one or two months; 23% two weeks-month; 16% several days; 14% two to three months; 9% a week or two; 9% week; 4% from three to six months.

The termination of the probationary period before the appointed date can be initiated by the head if he is completely tripled by the professional qualities of the subject. This option involves the early acceptance of a candidate for a permanent job. This is documented. agreement to the current employment contract.

Termination of labor relations during the allotted period of the trial period can be made at the initiative of either party in a simplified manner.

The provisions on the probationary period are regulated by the Labor Code (LC) of the Russian Federation, in articles 59, 70, 71, 289. The TC stipulates that the duration of the test can be from 14 days to 3 months. The exception is the duration of the term for positions of leadership.

It should be noted some nuances regarding the specific terms of the trial period:

when concluding an employment contract for a period of less than 2 months, a probationary period is not provided;
when applying for a seasonal job lasting from 2 months to six months, the duration of the probationary period should be no more than 14 days;
upon the occurrence of pregnancy, an employee who is on probation receives the status of a permanent employee, without waiting for the end of the probation;
the conclusion of a fixed-term employment contract of six months or more provides for the standard duration of the test - up to 3 months.

You should be aware that the probationary period for employment under the law is the time of actual work, therefore it is included in both vacation pay and insurance experience. Periods of absence of an employee from the workplace (including due to temporary disability) are not counted in the probationary period.

Probationary period according to the Labor Code of the Russian Federation for senior managers

Head, his deputy, chief accountant, deputy. chief accountant - these persons hold positions of leadership. The responsibility placed on the people in these positions is great. Therefore, the length of the probationary period is much longer than that of others (part 5 of article 70 of the Labor Code). The maximum period of probation for employment in managerial positions is up to a year in the state. service (Federal Law on Civil Service No. 79-FZ) and up to 6 months - in other organizations.

List of persons for whom the Labor Code does not provide for a probationary period

Russian legislation establishes that certain categories of citizens applying for a job are not subject to a screening test.
The following persons are issued without a probationary period:

pregnant women;
women who have a child under 1.5 years old;
citizens who are not yet 18 years old;
persons employed for a period of less than 2 months;
employees hired as a result of transfer from another organization;
young professionals, i.e. people who have just received a diploma of acquiring vocational education. Young specialists are citizens who have received a diploma of secondary specialized or higher education within a year from the date of its receipt;
employees who have already passed the competition for filling this vacant position;
persons elected to an elected position.

The rules for establishing a trial period are well described in the video

Extension of the probationary period

The probationary period may be extended for an employee who, during the established period, was on sick leave or administrative leave for some time (i.e., at his own expense). In addition, the reason for the extension of the trial period may be a documented downtime of the enterprise.

The duration of the test is extended by the total time the candidate was absent from the workplace, but no more. The extension of the test is stipulated in a special order, which indicates the reason for the extension, and indicates a new date for the end of the test period. The employee must read the order and sign this document.

The order must contain the following details:

name of the company or data of the entrepreneur
Title of the document
document is assigned a number
a valid reason for the extension is given
the time for which the test is extended, moreover, it must correspond to the number of missed working days
personal data of the employee being tested
lists documents proving absence during working hours: application for time off, sick leave, etc.
the order is signed by the head and stamped.

If you have any questions about the probationary period under an employment contract, leave them in the comments.

A probationary period may be assigned to an employee in order to check whether he really corresponds to the work assigned to him. If the test results are unsatisfactory, the employer will be able to terminate the employment contract with such an employee in a simplified manner, that is, by notifying him in just 3 calendar days and not paying compensation upon dismissal (except for compensation for unused vacation). We talked in more detail about the dismissal of an employee who did not pass the test in a separate one. By the way, an employee of his own free will can also quit during the probationary period earlier than usual, that is, by notifying the employer not 2 weeks in advance, but only 3 calendar days in advance (part 4 of article 71 of the Labor Code of the Russian Federation).

Since the probationary period is given to the employer in order to make sure that the work is suitable for the employee and the employee can cope with it, can the employer not enter into an employment contract with the employee until the end of the probationary period?

Are they on probation?

Labor relations between an employee and an employer arise on the basis of an employment contract concluded between them (part 1 of article 16 of the Labor Code of the Russian Federation). An employment contract is concluded in writing and is drawn up in 2 copies signed by the parties (part 1 of article 67 of the Labor Code of the Russian Federation). In the event that the employment contract was not executed in writing, but the employee started work with the knowledge or on behalf of the employer, it is considered that the employment contract was concluded. The employer is obliged to issue it in writing no later than 3 working days from the date the employee is actually admitted to work (part 2 of article 67 of the Labor Code of the Russian Federation).

The Labor Code of the Russian Federation indicates that the test condition should be provided for in the employment contract with the employee at its conclusion. Accordingly, if the contract does not contain a probationary clause, this means that the employee was hired without a probationary period.

For the case when the employee actually started work without an employment contract, the test condition can be included in the contract (which must be concluded within 3 days) only if the parties have drawn up a written test agreement before the actual start of work (part 1, 2 article 70 of the Labor Code of the Russian Federation).

It turns out that an employee who is provided with a probationary period by a separate agreement can work without drawing up an agreement for no more than 3 working days. Further failure to conclude an employment contract with such an employee is considered illegal.

Responsibility for an employer who does not conclude an employment contract

If the employer does not draw up an employment contract with an employee who is on probation, such an employer may be held administratively liable on the basis of Part 4 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation. For evasion of execution or improper execution of an employment contract, the responsibility is as follows:

a fine on officials of the employer from 10,000 to 20,000 rubles;
a fine on the employer-individual entrepreneur from 5,000 to 10,000 rubles;
a fine on the employer-organization from 50,000 to 100,000 rubles.