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The total period of probation for an employee is: Why do you need a probationary period?

Recruiting and hiring a new employee for a company is often a long and labor-intensive process. As a rule, the applicant goes through several stages of interviews, often professional tests. However, even the most painstaking selection does not eliminate the risk for the employer that new employee will be insufficiently qualified or will simply be negligent in their duties. To determine how well a new employee meets the company's requirements, when hiring a new employee, it is advisable to establish a probationary period. In order to be able to evaluate a new employee and terminate the employment relationship in the event of an unsatisfactory assessment of his work, it is necessary not only to stipulate, but also to legally formalize the completion of a probationary period. Let's consider legal basis probation period established by the Labor Code (Articles 70, 71 of the Labor Code of the Russian Federation), and the most common errors when applying them in practice.

We set a probationary period

Probation is established to verify the employee’s suitability for the work assigned to him, and the following is important:

    A probationary period can only be established for newly hired employees, that is, those who have not previously worked for the company. A probationary period cannot be established, for example, for an employee already working in the company and appointed to a higher position;

    a probationary period can only be established before the employee starts work. If the employer considers it necessary to provide a trial for the hired employee, then before the employee begins to perform his duties, one of the documents should be drawn up - an employment contract containing a condition on the trial, or a separate agreement providing for the use of a probationary period. Otherwise, the probationary period condition will not have legal force;

    the condition for the existence of a probationary period must be contained in employment contract, as well as in the employment order.

Moreover, the employee must confirm with his signature the fact that he has read these documents. It is not necessary to put a mark in the work book indicating the establishment of a probationary period.

It is important to consider that the main document confirming the existence of a probationary period is an employment contract. In accordance with the Labor Code, a probationary period is established only by agreement of the parties, and the document reflecting the mutual expression of will is the employment contract. If the condition of a probationary period is contained only in the employment order, then this is a violation of labor legislation, and, in the event of a dispute, the court will declare the probationary condition invalid.

In addition to the employment contract, the employee’s consent to a probationary period can be expressed, for example, in a job application:

The absence of a probationary clause in the employment contract, as well as actual admission to work without preliminary execution of a probationary agreement, means that the employee was hired without a trial.

The employer is obliged not only to include a probationary clause in the relevant documents, but also to familiarize the new employee with his job responsibilities, job description and internal rules labor regulations. The employee confirms the fact of familiarization with his signature. This is especially important when hiring with a probationary period, since in the event of dismissal of an employee who did not complete the probationary period, the fact that he is familiar with his job duties will be important in confirming the non-compliance with the assigned work.

Often, organizations enter into a fixed-term employment contract with the hired employee instead of a permanent one. fixed-term contract subject to a probationary period. Many employers believe that by concluding a fixed-term employment contract, for example, for three months, they simplify the situation for themselves in case the employee cannot cope with the proposed work. That is, the fixed-term contract will end and the employee will be forced to leave.

However, the Labor Code of the Russian Federation establishes that a fixed-term employment contract can be concluded only in cases directly provided for by law (Articles 58, 59 of the Labor Code of the Russian Federation). In accordance with Article 58 of the Labor Code of the Russian Federation, “it is prohibited to conclude fixed-term employment contracts in order to evade the provision of rights and guarantees provided to employees with whom an employment contract is concluded for an indefinite period.” Plenum Supreme Court The Russian Federation, in Resolution No. 63 of December 28, 2006, recommended that courts apply Special attention to comply with these guarantees.

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Thus, if the employee goes to court or the relevant labor inspectorate, the contract can be recognized as concluded for an indefinite period, and without the condition of probation.

Test workers have the same rights as permanent workers

During the probationary period, the employee is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, collective agreement, agreements, local regulations. In practice, the application of this norm is expressed as follows:

    the establishment in an employment contract of a lower remuneration for an employee during the probationary period is recognized as inconsistent with the law, since the Labor Code of the Russian Federation does not provide that the remuneration of an employee during the probationary period has any specifics. In the event of a conflict, the employee judicial procedure will be able to recover the amount of the underpayment.

So, in LLC " Trade company“A note was made to the staffing table, which indicated that during the probationary period, the manager has the right to reduce the official salary, since the employee has underestimated labor productivity or does not have enough experience and qualifications.

The labor inspector conducted an inspection and pointed out this circumstance as a violation of labor legislation. At the same time, the following was noted: in accordance with Article 70 of the Labor Code of the Russian Federation, during the probationary period, the employee is subject to all provisions and norms of the Labor Code of the Russian Federation. Consequently, during this period the employee, in his own way, legal status He is no different from other employees and there is no reason to reduce his salary for this period. In addition, the principle of equal pay for work of equal value cannot be violated (Article 22 of the Labor Code of the Russian Federation). After all, the employee will perform the same work both during the probationary period and after its end. By paying differently for these periods, the employer violates this principle.

From the employer’s position, this issue can be resolved different ways. For example, when concluding an employment contract with an employee, you can indicate in it as a permanent amount of payment agreed upon for the probationary period. At the end of the probationary period, sign an additional agreement with the employee to increase the amount of payment. Or adopt a bonus provision in the organization ( additional payments), the size of which is set depending on the length of service in the company;

    During the probationary period, the employee is subject, among other things, to the rules and guarantees regarding the grounds for dismissal at the initiative of the employer. During the probationary period, an employee may be dismissed at the initiative of the administration on the grounds provided for in Article 81 of the Labor Code of the Russian Federation, but additional grounds for dismissal during the probationary period that are not provided for by law cannot be included in the employment contract, such as, for example, the possibility of dismissal due to “expediency.” "or at the discretion of management. Such language is often included in employment contracts, but is contrary to the law;

    the probationary period is included in the length of service giving the right to annual basic paid leave. If an employee is dismissed after the expiration of the probationary period (or before its expiration), despite the fact that the employee has not worked for the company for six months, the employee is paid compensation for unused vacation in proportion to the time worked in the company.

Special cases

When concluding an employment contract with an employee, it is important to remember that the Labor Code of the Russian Federation excludes the possibility of establishing a probationary period for:

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

    persons under the age of eighteen;

    persons who graduated from state accredited educational institutions of primary, secondary and higher education vocational education and those entering work for the first time in their specialty within one year from the date of graduation educational institution;

    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, and in other cases.

If you establish a probationary period for the above categories of employees, then this provision of the employment contract will not have legal force.

Duration of probationary period

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.

If you enter into an employment contract with an employee for a period of two to six months, then the probationary period cannot exceed two weeks. The probationary period does not include the period of temporary incapacity for work of the employee and other periods when he was actually absent from work. The duration of the probationary period is set at the discretion of the parties, but cannot be longer than established by law.

In practice, the employer often extends the probationary period during the period the employee undergoes the test agreed upon when concluding the employment contract. This is against the law. And, if the employer does not decide to dismiss the employee before the expiration of the period specified in the employment contract, the employee will be considered to have passed the test.

Please note that legislation in some cases establishes longer duration probationary period in comparison with the established Labor Code, in particular for civil servants (Article 27 Federal Law dated July 27, 2004 No. 79-FZ “On the State Civil Service Russian Federation»).

Result of the pre-employment test

The Labor Code of the Russian Federation establishes: “If the probation period has expired and the employee continues to work, then he is considered to have passed the test and subsequent termination of the employment contract is allowed only on a general basis.” That is, if the employer considers the employee suitable for the position for which he was hired, then no additional documents are required - the employee continues to work on a general basis.

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If the employer decides to dismiss a new employee, then a certain procedure must be strictly followed and the necessary documents must be drawn up:

    notification of an unsatisfactory test result must be drawn up in writing in two copies: one for the employee, the second for the employer, and announced to the employee under his personal signature.

What to do if the employee refuses to accept the notice? In such a situation, the employer can take the following actions. It is necessary to draw up a corresponding act in the presence of several employees of this organization. Employee-witnesses will confirm with their signatures in this act the fact of delivery of the notice to the employee, as well as his refusal to certify in writing this fact. A copy of the notice can be sent to the employee’s home address. by registered mail with notification of delivery. At the same time, it is important to comply with the deadlines established by Article 71 of the Labor Code of the Russian Federation - a letter of notice of dismissal must be submitted to the postal authority at least three days before the expiration of the probationary period established for the employee. The date of mailing is determined by the date on the postmark on the receipt and the notification of delivery of the letter returned to the employer. The notice of termination of the contract during the probationary period must have all the necessary characteristics of a document, namely: date, reference number, signature of the person authorized to sign the relevant documents, as well as a seal intended for registration of documents of this organization;

    In the notice given to the employee, the reason for dismissal must be correctly and legally formulated. The wording must be based on documents confirming the validity of the decision made by the employer;

    Judicial practice shows that when considering disputes about dismissal due to an unsatisfactory test result, the courts require the employer to confirm the fact that the employee is unsuitable for the position held.

To confirm the employee’s inadequacy for the position held, moments when the employee did not cope with the work assigned to him or committed other violations (for example, labor regulations, etc.) must be recorded. These circumstances must be documented (recorded), if possible, indicating the reasons. In addition, it is necessary to require written explanations from the employee about the reasons for the violations he committed. From the point of view of a number of specialists, when dismissal under Article 71 of the Labor Code of the Russian Federation (due to an unsatisfactory test result), proof of the employee’s professional inadequacy for the position held is required. And if an employee violated labor discipline during the probationary period (for example, committed absenteeism or otherwise demonstrated an unfair attitude towards work), then he must be dismissed on the basis of the corresponding paragraph of Article 81 of the Labor Code of the Russian Federation.

The following documents may be accepted as documents confirming the validity of dismissal: an act of committing a disciplinary offense, a document confirming the non-compliance of the quality of the subject’s work with the production standards and time standards adopted in the organization, explanatory letter employee about the reasons for poor quality performance of work assignments, written complaints from clients.

Citizen I. filed a lawsuit against kindergarten for reinstatement as a teacher, payment for forced absence time, compensation for moral damage, citing the fact that she was hired on the basis of an employment contract with a probationary period of 2 months and was unreasonably dismissed as having failed to complete the probationary period.

The court rejected the claim. The panel of judges left the court's decision unchanged.

In accordance with Article 70 of the Labor Code of the Russian Federation, when concluding an employment contract, the agreement of the parties may stipulate the testing of the employee in order to verify his compliance with the assigned work. The probationary clause must be specified in the employment contract. According to Article 71 of the Labor Code of the Russian Federation, if the test result is unsatisfactory, the employer has the right to terminate the employment contract with the employee before the expiration of the test period, warning him about this in writing no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as having failed the test.

In the case, it was established that citizen I. was hired as a teacher with a probationary period of 2 months, and an employment contract was concluded with her in writing. The grounds for dismissal included a written warning, reports from the children's parents, kindergarten employees, kindergarten reports, and a collective statement from parents. junior group, minutes of the meeting of the kindergarten council.

From the case materials it was clear that a written warning about her dismissal was drawn up. The warning indicates the reasons that served as the basis for recognizing the plaintiff as having failed the probationary period. The plaintiff refused to accept the warning, about which a report was drawn up.

The assessment of business qualities and how well an employee copes with the work assigned to him directly depends on the field of work and the specifics of the work performed. Based on the specifics of the work, the conclusion about the test result can be based on various data. So, in production sector, where the result of labor is a specific materialized result, it is possible to clearly determine how well the work is performed; in the service sector, you can take into account the number of customer complaints about the quality of a particular service. The situation is more complicated when the work involves intellectual work. IN in this case the quality of execution of the manager’s instructions, compliance with deadlines for completing tasks, the employee’s fulfillment of the total amount of proposed work, and the employee’s compliance with professional and qualification requirements should be analyzed. The new employee’s immediate supervisor must complete the relevant documents and send them to the head of the company.

As you can see, the procedure for dismissing an employee based on test results requires a certain formality from the employer. In addition, the legislation in any case provides the employee with the right to appeal the employer’s decision in court.

It is also necessary to say about the employee’s right to terminate the employment contract: “If during the probationary period the employee comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract at his own request, having notified the employer in writing. for three days". This norm is important for the employee, since many potential employers It is fundamentally important to know why the applicant left his previous job so quickly.

* * *

The author believes that with the help of a probationary period, the employer can see the hired employee “in action,” and the employee, in turn, can evaluate the compliance of the proposed job with his interests and expectations. The legislation clearly defines the conditions for applying the probationary period. And since the employee in labor relations is a socially unprotected party, the Labor Code of the Russian Federation establishes a number of guarantees for workers when passing the test, and the procedure for dismissing an employee due to an unsatisfactory test result is quite formalized.

The legislation gives the employee the right to appeal in court the employer’s decision to dismiss based on the results of the test. In this case, the court will check the legality of establishing a probationary period, the correctness of execution necessary documents and compliance by the employer with all legal aspects. Based on this, both the employee and the employer have the right to decide for themselves on the advisability of applying and the conditions for completing the probationary period.

1 See article by A.A. Atateva “Fixed-term employment contract in a new way” on page 23 of magazine No. 2` 2007.

2 Resolution of the Plenum of the Supreme Court of the Russian Federation No. 63 of December 28, 2006 “On introducing amendments and additions to the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation.”

3 Clause 11 of the Review judicial practice RF Armed Forces for the third quarter of 2005 according to civil cases. The text was not officially published.


When hiring a new employee, the employer takes a certain risk: the vacancy for which the candidate is applying involves the performance of certain functions that require skills, professional knowledge and experience from the employee, and the actual level of qualifications of the employee may not correspond to them. Russian laws help companies and organizations minimize risks by giving the employer the right to hire employees who are new to a position on a probationary period. During this period, the employee demonstrates the level of his professionalism and suitability for the place, and based on the results of the assessment labor activity a decision is made to admit him to the permanent staff or to terminate his employment labor relations.

Definition

The Labor Code defines a probationary period as a time period that is set by the employer to check the professionalism of a newly hired employee, his personal qualities as an employee, his competence and compliance with the entire set of characteristics of the employee for the position he occupies.

The trial is not strictly compulsory: the law states that its establishment is a right but an obligation, and an employer wishing to employ a person with a probationary period must obtain his consent to do so. The laws also stipulate the duration of the probationary period. These norms are regulated by certain rules that are mandatory for compliance by any organization.

What does the Labor Code of the Russian Federation say?

Articles 70-71 of the Code provide legislative norms relating to the probationary period. But it should be remembered that a person, even admitted to the company for a probationary period, also has other rights listed in the Labor Code. The provisions of other laws and regulations relating to labor law also apply to the subject. Consequently, such an employee has the full range of rights (and along with them, responsibilities) regulated by the Labor Code, and is responsible for his actions.

Probationary period and employment contract

As follows from the above, a test can only be established if both parties agree to it. The lack of consent of one of the parties, as well as concealment from one of the parties to the agreement of the fact of establishing a trial period, is a gross violation of the law. In a situation where the parties agreed to a trial period and determined its duration, this fact is indicated in the contract and confirmed by the signatures of the parties. If the contract does not say anything about a probationary period, the person is considered to be hired for the position without any tests.

The clause on the probationary period is optional, that is, the parties have the right to change its terms by agreement. But these changes must correspond certain rules: the deterioration of the employee’s position is unacceptable; all his rights under the Labor Code and other laws regulating labor relations must be respected. There are times when a person begins his professional responsibilities, but the contract has not yet been finalized. In such cases, the established probationary period is drawn up in a separate document, as an additional agreement, before the employee begins to perform his duties.

In addition to the employment contract, the probationary period clause is reflected in the administration’s order to hire a newcomer to the position. An order can be issued only after the parties have signed an agreement, in which the probationary period paragraph has also not been forgotten. If it is not in one of the documents, the establishment of the period is invalid, and the specialist is immediately added to the staff on a permanent basis.

When the test is not installed

The Labor Code defines situations when employees are hired for a vacant position without setting a probationary period for them.

The test is not prescribed:

  • those who were selected through a competition to fill a vacant position;
  • pregnant women, as well as mothers caring for babies under one and a half years old;
  • teenagers under 18 years of age;
  • graduates of state-accredited universities, if they get a job for the first time in their specialty and within a year from the date of graduation from the institute;
  • those who were elected to office;
  • employees who came to work from other companies after being transferred;
  • temporarily employed persons (working under a contract for no more than 2 months);
  • in other cases determined by law.

How long does the term last?

The law determines the maximum possible length of the probationary period: it cannot be more than three months. Certain categories of persons can be set different terms, since the law limits its duration for a number of positions. Thus, the test period is no more than six months:

  • heads and deputy heads of companies and enterprises;
  • heads of branches, departments, representative offices of companies and structural divisions of institutions;
  • chief accountants and their deputies.

A maximum of 2 weeks is set for seasonal workers and those with whom an agreement is concluded from 2 months to six months. A 3-6 month period is established for civil servants hired for the first time or transferred to civil service. Other deadlines are also possible, determined by individual Russian laws.

Is it possible to extend the trial period?

As mentioned above, the Labor Code defines a maximum duration of 3 months, and the parties must give their consent to this, and a clause on the period is included in the contract. The manager does not have the right to extend the trial, but can shorten it if necessary and justified.

The period does not include:

  • temporary disability (sick leave);
  • the time when the employee is on extraordinary, unpaid leave;
  • going on educational leave;
  • periods when a person performed state and public duties;
  • other periods of absence from work.

The test does not include all periods when a person is not actually at work. When the employee returns and resumes duties, the countdown is restored.

Interruption of labor relations

If the manager considers that the results of the probationary period are unsatisfactory, by law he has the right to dismiss the employee. But it is important to remember that this action must also be performed by agreement between the employer and employee.

To terminate the contract early, you must:

  1. Have provisions for a probationary period specified in the employment contract.
  2. Officially notify the employee of dismissal. The law defines the period: three days before termination.
  3. The probationary period must not have expired at the time of termination.

The warning is given in writing, listing all legal norms and grounds for expelling an employee from the state. Article 71 of the Labor Code establishes the right of the employee to resign early. If the employee considers that for some reason the position held is not suitable for him or is unacceptable, he must notify the employer in writing of his desire to terminate the contract, also 3 days in advance.

When the parties have decided to terminate the contract, the employer issues a dismissal order, but it is issued during the period when the probationary period is valid. When the order is issued, the enterprise must carry out three working days with former employee full payment.

Documentation of successfully/unsuccessfully completed trial period

The decision on whether an employee passes the test successfully or not is made by the employer. If the decision is made that the candidate is successful for the position, no further action is taken. The person simply continues to perform his duties under the conditions specified in the employment contract; this is not formalized additionally. An employee is added to the staff automatically.

The situation will be somewhat different if the employer considers that the candidate failed the test. In this case, management has the legal right to dismiss the employee. But this decision must be supported by evidence and properly reasoned.

Evidence includes:

  1. Characteristics of the employee, compiled by the head of the organization in writing. The document describes and lists the qualities of a person both as an individual and as an employee, and evaluates his knowledge of labor regulations. In the characterization, the manager makes a conclusion about the employee’s ability to perform professional activity. The employee must be familiarized with the characteristics, and he puts his signature under it.
  2. Feedback on the newcomer's completion of the probationary period. The document is written by the immediate supervisor (he can be a foreman or foreman, head of a department, etc. executives). The review lists observations of the candidate’s work, conclusions about the results of his work, comments and possible suggestions.
  3. A disciplinary sanction imposed on an employee and confirmed by an appropriate order.
  4. A report that states an inadequate level of performance, or complete failure to fulfill job duties.
  5. Confirmed by deed disciplinary offense or an offense committed.
  6. Explanatory notes, in which the employee sets out the reasons for the poor performance of his tasks and functions or their complete non-fulfillment.
  7. Other protocols, notes and acts. They record violations by the employee of the terms of the employment contract, poor performance of work or complete failure to fulfill job duties.

An employee who fails the probationary period is dismissed according to a special procedure, which includes certain stages:

  1. At the first step, according to part 1 of Art. 71 of the Labor Code, the employee is notified in writing of dismissal. The notification document is made in paper form, it indicates the grounds and reasons why the employee is dismissed from his position. Evidence of the employee's unsatisfactory performance is attached to the notice. Having received the notification, the employee is required to sign each copy, one of which remains with him, and the second is transferred to the organization. It is possible that an employee refuses to sign. In this case, an act is drawn up that records that the employer has fulfilled all legal requirements in relation to the employee.
  2. In the second step, a dismissal order is issued. When a decision is made to remove an employee and documentary evidence of his professional inadequacy is collected, the company management issues an order according to which the employment contract is terminated. The order must be issued no more than 3 days before the expected date of dismissal.
  3. Next comes the settlement with the employee. On the last day of the employment contract, the employee must make all due payments.
  4. Issuance of a work book. On the last day, the person being dismissed is given a work book; this fact is recorded by the person’s signature in the account book.

Salary during the trial period

Labor legislation states that employees undergoing a probationary period and officially hired have all the same rights as permanent employees of the organization.

The Labor Code does not indicate that those undergoing testing are entitled to any specific payment amounts that differ from the salary of those working permanently in a specific position. Accrual and payments are carried out in accordance with the law and the terms of the employment contract. If the contract provides for a lower salary during the probationary period, which does not comply with the norms of the law, then the employee can, through the court, recover the money that he did not receive as a result of such actions of the employer.

During labor relations, the company and the employee may have various disagreements regarding the amounts and procedure for paying wages. To resolve these issues, the law provides several ways:

  • the amount of salary for the probationary period is fixed in an agreement signed by both parties. A specific amount must be indicated for the trial period clearly indicated in the contract;
  • when the probationary period ends and the employee successfully completes it, a decision is made to continue performing his job duties, and the organization enters into an additional agreement with its already permanent employee to the contract, which stipulates an increase in salary;
  • throughout the enterprise or in its individual structural divisions, a regulation is developed and published that sets out the procedure and conditions for bonus payments, as well as other allowances and incentives that depend on the achievements of employees and their length of service at the enterprise.

If an employee resigns after the completion of the probationary period, the company settles with him on a general basis, in accordance with the requirements of the law. The employee is paid:

  • the salary stipulated by the employment contract in full;
  • payment of funds for vacation not taken by the employee (if any).

No severance pay is paid to an employee who resigns after the expiration of the probationary period.

Temporary disability and probationary leave

The law guarantees every employee, no matter whether he works on a permanent basis or on a probationary period, the right to vacation and sick leave. An employer cannot deny its employee the exercise of these rights, even if the probationary period has not yet expired.

If an employee goes on sick leave, this fact must be confirmed with a certificate of incapacity for work. The document is issued by the medical institution to which the employee applied for help after treatment was completed. At the same time, as mentioned earlier, the time spent on sick leave does not count towards the probationary period.

An employee who is on sick leave is entitled to compensation payments on disability. Their size is determined based on the employee’s length of service and his average salary.

Upon resigning, an employee has the right to receive payments for vacation that he did not have time to use. This right is enshrined in law. It does not matter whether the person quits during the probationary period or after its completion. It must be taken into account that an employee undergoing a probationary period could not possibly work for the full one-year period. When calculating vacation compensation for him, the number of days/months worked is taken as a basis.

Rules for calculating the work period:

  • periods of less than half a month are excluded from the calculation;
  • if the terms cover more than half a month, then such a period is rounded up to a whole month. That is, 2 months and 16 days, for example, are rounded to three.

The probationary period is legally introduced and is intended to optimize the labor relationship between the employer and the new employee. To minimize possible problems and disagreements, it is extremely important to timely and correctly prepare all required personnel, financial and other documents. And then, if the entire procedure is carried out correctly, the probationary period will serve to establish long and productive relationships between the participants in the labor relationship.

An employee is the main driving mechanism of every enterprise: from a small company to a large corporation. The functioning of the the whole organization. In the process of searching for suitable candidates, a significant portion of applicants are screened out according to various reasons. For rate professional qualities the prospective employee needs to be seen in action. It is for these purposes that a probationary period is provided in Labor Code(hereinafter referred to in the article as the Code).

What do you need to know about the probationary period?

A probationary period may be issued to test candidates for compliance with the stated requirements. Its duration should not exceed three months. Moreover, there is one more limitation - for work that lasts from two to six months, tests are not recommended. If you cannot do without them, then it is permissible to arrange for their duration to be no more than two weeks.

Article 70 of the Code contains a list of persons for whom a probationary period of six months is possible. Among them:

  • heads of enterprises and organizations,
  • heads of structural and separate divisions, branches of organizations and enterprises,
  • chief accountants and their deputies.

When passing the tests, periods of incapacity or actual absence from work for any reason are not taken into account. If the employment contract does not indicate a probationary period, then it is considered that the employee was hired without it. During the testing period, the employee is obliged to comply with the standards established in labor legislation. It is also necessary to take into account that there are some categories of persons for whom a probationary period is not established.

Restrictions on the application of the probationary period

When applying for certain citizens to work, simplified conditions of admission are used. This is based on the fact that they belong to special groups for which application general order unacceptable for a number of reasons. A probationary period is not established for the categories of persons indicated below:

  • women during pregnancy,
  • women with children under one and a half years old,
  • minors (under 18 years old),
  • employees who have entered into a contract for a period of less than two months,
  • applicants who have received education (specialized secondary or higher education) in programs with state accreditation and are getting a job in their specialty for the first time within a year after the end of their studies,
  • candidates who have applied for an elective position (paid),
  • employees who were transferred from another company by agreement of employers,
  • applicants who were selected through a competition to fill a specific position.

The first part of Article 207 of the Code also contains information about the prohibition of a probationary period for persons who have successfully completed an apprenticeship and subsequently entered into an agreement with the employer from whom they were trained. A similar restriction also applies to citizens who undergo an alternative civil service(clause 41 of Resolution No. 256 of May 28, 2004). In a situation where an agreement is concluded with the listed persons, which contains information about their completion of the probationary period, it is automatically canceled (will have no force). The dismissal of these employees due to failure to pass tests within the period is considered illegal (Article 71 of the Code).

To restore justice, the listed persons can sue. In accordance with Article 394 of the Code, an employee may be offered the following options:

  • monetary compensation (moral damage),
  • reinstatement,
  • monetary compensation for the period of forced downtime.

A few words about the design of tests

All relations between employers and employees are formalized by appropriate agreements. The probationary period is no exception. A special note is placed in the contract. If there is no mention of a probationary period, it is concluded that the employee was hired on a general basis (without passing tests). If for some reason the employee began to perform his duties without signing the relevant papers (the agreement was signed later), then it is considered that he has been accepted.

A probationary period can only be issued before the start of work. Salary for specified period paid in full in accordance with the position held. According to Article 70 of the Code, an employee on probation has all the rights and obligations contained in labor law. In accordance with this, penalties and measures provided for in the organization for violation of internal rules may be applied to him.

When passing tests, not only the employer makes a decision regarding the employee. The latter can also analyze the situation within the company and decide on the need to continue working. If anything does not suit him, he can terminate the contract. Before this (three days in advance), the employee must notify the manager of his intention in writing.

Negative test results are a valid reason for terminating the contract. The manager notifies the employee in writing three days in advance. The reasons must be indicated in the decision. The employee has the right to appeal it in court. If the probationary period has ended, but the employee continues to perform job responsibilities, then this is automatically considered passing the test. In this case, termination of the contract can be carried out on a general basis.

Penalties for violation of labor regulations

The legislation strictly regulates the relationship between employees and employers. Any violations - intentional or accidental - are punishable by certain types of penalties. Article 5.27 of the Code of Administrative Offenses provides for (administrative) liability for non-compliance with established standards. An amount of from thirty to fifty thousand rubles is collected from legal entities. Officials and individual entrepreneurs will be required to pay from one to five thousand rubles.

Errors in drawing up an agreement or its absence lead to a fine equal to ten to twenty thousand rubles for officials. For legal entities it will be fifty to one hundred thousand rubles. If the violation was committed by a person who is engaged in entrepreneurial activity without education legal entity, then the amount is from five to ten thousand. Repeated commission of these violations is punishable by increased monetary penalties and suspension of activities for certain categories of employers (Article 5.27, paragraphs 4 and 5).

Employees are the most important element in building a reliable and profitable business. It does not matter what duties they perform - draw up documentation or are directly involved in the production of goods. The prosperity of the company and the quality of project implementation depend on the correct selection of personnel. Every employer strives to find a high-quality professional, but this is not always easy.

The probationary period allows you to solve a wide range of problems that arise (assessing the candidate’s personality, level of qualifications, etc.). When hiring an employee, it becomes possible to analyze his behavior and principles of work in the conditions of a particular company. If he successfully demonstrates his skills, he receives a vacant position. For many employers, this approach to employee selection is the only acceptable option, because no interview can guarantee a candidate’s 100% suitability for the position. Actual performance and actual results are the best proof of applicants' abilities.

Probation period: rules for establishing

Searching for a job, as well as recruiting personnel, is a labor-intensive process. Even if the candidate’s professional qualities meet the requirements of the vacancy, and the proposed job is completely suitable for this specialist, there is no guarantee that the cooperation will necessarily be successful and long-lasting.

What deadline can be set?

Hiring for a probationary period allows you to determine opportunities for further cooperation. According to this period, different cases be different. The following options exist:

No more than 2 weeks;

Probation period 3 months (or less);

Up to six months;

Up to one year.

At the same time, the shortest duration is provided when a fixed-term contract is concluded (up to six months). This also applies to seasonal workers. A probationary period of 2 weeks may be established for them, but no more.

However, it usually lasts longer. In most cases, the probationary period lasts up to 3 months. The Labor Code of the Russian Federation indicates that it can end by agreement of the parties or earlier, but not later. A period of 6 months can be set, for example, for the head of the company, its representative office, branch, chief accountant, as well as their deputies.

In what cases is hiring carried out for a probationary period for the longest period of time? For example, when an employee enters the civil service. How long does the probationary period last in this case? Up to one year. However, if an employee is transferred to a new place from one government agency in another, the same longer time it is six months.

Categories of employees for whom a probationary period cannot be established

The rules listed above do not apply to all potential employees. There are categories of employees for whom a probationary period cannot be established (the Labor Code of the Russian Federation indicates relevant cases). These are pregnant women, candidates under 18 years of age, employees with whom the contract is concluded for 2 months or less. Another case is if a candidate was hired through a competition. In addition, this category includes former students who have received higher, secondary or primary education and who are taking up positions in their specialty for the first time. Also, hiring for a probationary period is impossible for disabled people who were assigned to this position based on the results of a medical examination. Another category is specialists who were invited to this position as a result of transfer to another employer. The last two cases are if a candidate is elected to an elective position, and also if he retires from service (alternative, military).

Why is a probationary period needed?

Hiring for a probationary period upon taking up a position is introduced not only for the future employee, but also for the employer. During this period, both parties have the opportunity to take a closer look at each other and understand whether cooperation should continue. During the test, the employer evaluates the employee’s business qualities, abilities, communication skills, ability to carry out assignments efficiently, suitability for the position held, compliance with the rules established in the company, as well as discipline. During this period, the employee draws a conclusion about the company, his position, salary, responsibilities, management and team.

How is work paid during the probationary period?

The employee who is at the probationary stage is fully covered. Therefore, if the company stipulates in the contract that this period will not be paid, this is a clear violation of Russian law. In addition, many employers nowadays deliberately set a lower salary for the test subject, promising to increase it later. The following can be said about this.

Firstly, an employee who is at the probationary stage cannot be limited in wages. His rate must be no less than that stipulated for the given position in staffing table. Secondly, a company that reduces the salary during the probationary period falls under an article such as discrimination. In the staffing table of a company, for example, there are two positions for a purchasing manager. The first one is occupied by an old employee, and the second one was invited new person with the completion of a probationary period. In this case, from the first day of work, the newcomer must have a salary no less than that of an employee who has been working for several years in a similar position.

Legal way to set a lower salary during the probationary period

Nevertheless, almost all companies pay lower salaries to employees during the probationary period. This can be done quite legally by changing, for example, the salary of employees for a newbie position in the staffing table. However, it should be remembered that its size should not be lower than the minimum wage.

A specialist on a probationary period may be paid a bonus, as well as other incentive payments that are specified in the regulations on remuneration and bonuses. The employer is also required to pay the subjects overtime, sick leave, and time off work on holidays and weekends.

Registration of a probationary period

A probationary period is required. It is necessary to conclude with the employee labor contract, and the order to hire an employee is issued on the basis of it. These documents indicate the duration of the test period. IN work book they do not make the entry “accepted for a probationary period”; it only indicates that the employee was hired.

Extension of probationary period

It is not prohibited to increase it, but only if the duration of the probationary period does not exceed the norms established by law. For example, if initially it is 1 month, and after this period the employer still has doubts about the candidate’s suitability for this position, the probationary period can be extended to 3 or 6 months, if we're talking about about the vacancy of a branch manager, chief accountant.

It is impossible to increase its duration without the employee’s consent. Therefore, the employer must justify the decision to extend the probationary period.

The need for written recording of facts of violation of labor discipline by an employee

Late performance of tasks by an employee, his mistakes, violation labor discipline should be documented, and if there are managers, then they should be attached as well. Facts certified in this way should be handed over to the employee for review. To confirm, he must sign. If the employee agrees with the shortcomings in the work, then the employment contract is added, and the probationary period is increased. If the employee believes that the claims against him are unfounded and does not give his consent to an additional period, dismissal is allowed, which must be based on written irrefutable evidence.

Rights and obligations that an employee has during the probationary period

They are no different from those that other employees working in this company have. A specialist registered for a probationary period has the following rights:

Receive salaries, bonuses, salary increments for overtime work, as well as other incentive payments;

Take sick leave, on the basis of which to receive insurance payments during incapacity;

Resign at any time on your own initiative (it is not necessary to wait until the end of the probationary period);

Take a weekend at your own expense or towards a future vacation; however, the employer in this case can refuse leave on legal grounds, if this does not contradict the Labor Code of the Russian Federation, Article 128: for example, if an employee has a child, then he should be given time off without pay for up to five days.

The employee's responsibilities are as follows:

Comply with internal regulations, fire and labor discipline;

Comply with the terms of the contract;

Perform job duties in accordance with the job description.

Dismissal of an employee who has not passed the test period

First of all, you should prepare a notice in writing for the employee in advance, in which you need to indicate the reasons why further cooperation is impossible. They must be documented. This could be an act of disciplinary action, about the employee’s failure to fulfill his job duties, written complaints from clients who interacted with the specialist, or, for example, the minutes of a commission meeting in which the outcome of the probationary period was determined, etc. The notice also indicates the date of the planned dismissal and the preparation of the document. It is made in two copies (for the employee and for the employer).

The next step is to deliver this notice to the employee no later than three days (preferably 4) before the end of the probationary period or the date of his planned dismissal (if the decision to terminate the contract was made much earlier than the end of the probationary period). Please note that if this is not done on time, the employee will automatically be considered to have passed the test.

The next step is for employees to familiarize themselves with the notice and sign it with the date. If those who have not completed the probationary period refuse to sign, the employer draws up a special act. It must be signed by at least 2 witnesses.

The next step is that on the day of dismissal, the employee receives a salary for the days he worked, a work book and compensation for unused vacation, if any.

Termination of the contract by decision of the employee

If a specialist independently decides to terminate the contract before the end of the probationary period, the employer should be notified about this. He must write a letter of resignation, indicating the reason “on his own initiative,” and then the contract is terminated under this article. If employees who have already completed their probationary period are required to notify their employer of their desire to resign two weeks in advance, then an employee undergoing probation must notify him only three days in advance.

Cases in which dismissal is not possible

It should be noted that the dismissal of employees who have not completed the probationary period is equivalent to their dismissal precisely at the initiative of the employer. Therefore, it is necessary to familiarize yourself with the Labor Code of the Russian Federation before removing from office a specialist undergoing a probationary period (Article 81). For example, an employer does not have the right to fire a woman who is pregnant or raising a child under 3 years of age. If he is incapacitated or is on vacation, he is also prohibited from being removed from his position.

Who benefits from a probationary period?

It benefits both the employer and the employee. Thanks to the probationary period, the company can make sure that the candidate has professionalism, or start looking for another specialist. And the employee, in turn, will be satisfied with his new place or will begin to look for another. Thus, neither the company nor the specialist will waste additional time looking for another candidate or a new job.

The Labor Code indicates that the employer has the right to assign an applicant a test when hiring. This is necessary to check the professional qualities of the future employee. This does not mean that the employer is obliged to establish a probationary period.
indicate that a probationary period can be established for an employee only by agreement of the parties. However, in practice this is not the case. The employer confronts the job seeker with the fact that there is a probationary period, and wage at this time it is set slightly lower than after it.

When hiring, even if there is a probationary period, the employer enters into an employment contract with the employee. The contract must indicate that the employee is hired “with a probationary period of ....”. The salary that the employer is going to pay the employee during the trial must also be specified in the contract. If there is no provision in the employment contract about assigning a test to the applicant when hiring, this means that the employee was hired for a vacant position without a probationary period.

Article 70 of the Labor Code of the Russian Federation states that the duration of the probationary period cannot exceed 3 months. If the head of the organization, his deputy, Chief Accountant or his deputy, the trial period is increased to 6 months. If a fixed-term employment contract is concluded with an applicant for a vacant position for a period of 2 to 6 months, then the probationary period cannot exceed 2 weeks. If the employee was sick or actually absent from work for other reasons, these periods are deducted from the probationary period.

  • persons who occupy a vacant position as a result of a competition;
  • pregnant women;
  • women who have a child under 3 years of age;
  • minor workers;
  • persons holding an elected position;
  • persons occupying a vacant position as a result of a transfer from another employer;
  • applicants who enter into an employment contract for a period of less than 2 months;
  • to other persons, if this is provided for by local regulations or collective agreements.

The employee must understand that if there is a test, then there must be its results. They can be both positive and negative.

If the employee passes the test, then there is no need to conclude a new employment contract with him. He continues to work under the conditions specified in the employment contract concluded upon acceptance. If the results of the test, in the opinion of the employer, are negative, then he can terminate the employment contract with the employee before the end of the probationary period.
To do this, he must warn the employee in writing about the upcoming dismissal 3 days in advance. The notice of termination must also detail the reasons. The employer must justify its decision regarding negative test results.
If the employee does not agree with the results of the test, he must also notify the employer about this. If he considers his dismissal illegal, he has the right to appeal to the labor inspectorate or to court. The opinion of the trade union is not taken into account in this case. The employee also has the right to terminate the employment contract with the employer if, during the test, he decides that the job is not suitable for him for a number of reasons. To do this, he must notify the employer in writing 3 days in advance.

Probation period according to the labor code

According to established practice, a probationary period is a certain period of time during which the employer checks the suitability of the employee being hired for the position for which he is being hired.
Establishing the period required for probation is the right of the employer, but not his obligation. Therefore, if he believes that the applicant is suitable for the vacant position, he can hire him without passing the test.

The employer has the right to apply a probationary period to one or another applicant for a vacant position, regardless of the organizational and legal form of the enterprise and the goals of economic activity.

The appointment of a probationary period is regulated by Art. 70 Labor Code of the Russian Federation and Art. 71 Labor Code of the Russian Federation. But this does not mean that he works on preferential or special terms. Absolutely all norms of the current labor legislation, as well as other regulations containing labor law norms, apply to it. That is, he has everything labor rights and must do everything job responsibilities, and may also be held accountable for violating the norms of the Labor Code of the Russian Federation.
A probationary period can only be established by agreement of the parties. That is, if one party (usually a future employee) did not know about the establishment of the test or was not properly notified, this is considered a gross violation of the norms of the Labor Code of the Russian Federation.
Therefore, the employer must notify his future employee that he intends to set a certain period for checking his professional suitability. The duration of the period must be announced. The applicant does not have to agree! But he may offer the future employer another term. When the parties come to a mutual agreement, they sign an employment contract, which specifies the duration of the tests for a specific applicant.

The length of the probationary period is not essential condition employment contract, that is, without this clause the contract will be valid. In addition, if during the labor relationship the parties agreed that the test period needs to be changed, then they can sign an additional agreement and include this provision in it.
Based on the signed employment contract or additional agreement, an order is issued, which also reflects the duration of the probationary period. If such conditions are absent, the employee is considered accepted without a probationary period.

Working conditions during the probationary period should not be worse than after its completion. This right to the employee is guaranteed by Art. 70 Labor Code of the Russian Federation. In addition, a real employment contract is immediately concluded with the employee, and not for the duration of the test. An employer cannot conclude a fixed-term contract on such a basis as during the probationary period, since this is not the basis for concluding a fixed-term contract. This is a violation of current legislation.

The same situation applies to wages. It should not be less than what other employees receive in a similar position and with the same work experience as the new employee. That is, the employer does not have the right to stipulate in the employment contract one amount of remuneration for the duration of the trial, and then another amount.

But employers found a way out of this situation without violating the norms of the Labor Code of the Russian Federation. They set low salaries for all employees, regardless of position, qualifications and work experience. And then they pay their employees monthly bonuses, taking these facts into account. Therefore, an employee on a probationary period, as a rule, receives less than other employees.
It is possible to carry out dismissal during a probationary period according to a simplified scheme, regardless of who is the initiator - the employee or the employer. If one of the parties comes to the conclusion that this employment relationship is impossible, then the employment contract is terminated without the participation of the trade union organization and payment of severance pay.

To whom the probationary period does not apply

The law establishes a certain circle of persons to whom a probationary period cannot be applied as a measure of professionalism. The circle of such workers is defined in Art. 70 Labor Code of the Russian Federation. These include:

  • applicants who are accepted for a vacant position based on the results of a competition;
  • pregnant women, with the appropriate certificate, and persons who have a child under the age of 1.5 years;
  • minor applicants;
  • applicants who are university graduates and who get a job for the first time within 1 year after graduation educational institution;
  • applicants who are intentionally elected to a given position;
  • employees with whom an employment contract is concluded due to a transfer from another employer, if there is an appropriate agreement between these employers;
  • applicants who enter into an employment contract for a period not exceeding 2 months;
  • applicants of other categories, which are prescribed in other, more “narrow” regulations.

In relation to these employees, the employer does not have the right to apply tests when applying for a job.

Exceeding the probationary period

The maximum duration of the probationary period, according to current legislation, is 3 months. That is, the employer does not have the right to check the professionalism of his employee beyond this period.
But there are several categories of workers for whom the probationary period should not exceed the time limit strictly established by law. Therefore, the employer must first determine whether his new employee belongs to this category or not, and only then set tests for him for a certain period.

A probationary period of no more than 6 months is established for:

  • the head of the enterprise, as well as for his deputy;
  • head of a branch, representative office, structural unit;
  • chief accountant and his deputy.

The probationary period cannot exceed more than 2 weeks for applicants:

  • concluding an employment contract for a period of 2 months to six months;
  • working in seasonal jobs.

Tests for a period of 3 to 6 months are established:

  • for civil servants who are hired for the first time;
  • for persons who are transferred to the public service for the first time.

In more “narrow” regulations governing the activities of various categories of workers, other testing periods may be established. Therefore, if an employer, in order to conduct its activities, is guided by such regulations, then he must take this into account when hiring new employees.

If the probationary period is specified in the employment contract and does not exceed the duration established by law, then it can be changed. The manager has the right to shorten the probationary period of his employee without compelling reasons, but he has no right to increase it.
However, there are periods of work that are not included in the employee’s probationary period, that is, they actually increase the probationary period for a particular employee. These are time periods such as:

  • a period of illness, that is, the employee can justify his absence with a certificate of incapacity for work;
  • administrative leave, that is, leave when the employee does not retain his salary;
  • study leave, that is, absence from work due to training;
  • the employee is engaged in public works or performs government duties;
  • absence of an employee from his/her workplace for other valid reasons.

In effect, these periods extend the probationary period of a particular employee, although there are no changes to the employment contract.

The probationary period applies to a fixed-term employment contract

You can conclude either a fixed-term employment contract with an employee or a contract fixed for a period of time actions. This point is reached by agreement of the parties. The duration of the employment relationship must be specified in the employment contract. A probationary period can also be applied to such an employee, but with some nuances.

A fixed-term employment contract can only be concluded in certain cases. These are cases such as:

  • for a period of no more than 5 years;
  • a worker is hired to perform a certain amount of work when the exact date The completion of such work cannot be determined. This should be stated in the employment contract;
  • temporary absence of another employee. An often common case is an employee’s maternity leave;
  • performing seasonal work. For example, harvesting or sowing.

In other cases, the employment contract is concluded for an indefinite period.

In a fixed-term employment contract, the duration of the trial is also established by agreement of the parties, as in the case of open-ended contract. Apply General terms purpose of the test. The period for checking a new employee cannot exceed 3 months. But if new employee is issued for a period of 2 months to six months, then the employer cannot set a verification period of more than 2 weeks. This situation arises when an employee, for example, is hired to perform seasonal work.
If an employee is hired for a period that does not exceed 2 months, then the employer does not have the right to set a probationary period. If the employer insists on this, then he violates the basic labor rights of this employee.