Test and competition for employment. Can I take sick leave?

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

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

Absence in employment contract probation conditions means that the employee is hired without probation. In the event that an employee is actually allowed to work without drawing up an employment contract (part two of Article 67 of this Code), a probationary condition may be included in the employment contract only if the parties have drawn it up in the form of a separate agreement before starting work.

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

A test for employment is not established for:

persons elected in accordance with the competition for the corresponding position held in accordance with the procedure established by labor law and other normative legal acts containing labor law norms;

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

persons under the age of eighteen;

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

persons elected to elective office for paid work;

persons invited to work in the order of transfer from another employer as agreed between employers;

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

other persons in cases stipulated by this Code, other federal laws, a collective agreement.

The trial period may not 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 organizations - six months, unless otherwise provided by federal law.

When concluding an employment contract for a period of two to six months, the probation may not exceed two weeks.

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

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

Separate consideration deserves the restrictions associated with the establishment for persons entering the work, tests at the conclusion of an employment contract. The purpose of this test is to verify compliance professional qualities the employee assigned to him in accordance with the employment contract work (labor function).

It is understood that with a positive outcome of the test, the employee will continue to work at the enterprise. In the event that an employee is found not to have passed the test, he, as a rule, is subject to dismissal after the expiration of the probationary period.

The general procedure for conducting such a test is set out in article 70 of the Labor Code of the Russian Federation. In the event that a test is established for an employee upon admission to work, an appropriate condition must be contained in the employment contract about this.

However, it should be borne in mind that a test for employment cannot be established for certain categories of persons.

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

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

Note that the duration of the test is fixed at the conclusion of an employment contract as part of one of its additional conditions. Changing the duration of the test is allowed only by mutual agreement of the parties labor relations and only within the above time limits.

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

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

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

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

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

The condition of the test and its duration are indicated in the order of appointment.

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

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

3. Legislation establishes the maximum allowable period tests. By general rule the probation period may not exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices and other separate structural subdivisions of organizations - six months, unless otherwise provided by federal law.

The norms of the law that determine the deadlines for testing are imperative and cannot be the subject of an agreement between the parties to an employment contract. In other words, when concluding a contract, the parties may determine a trial of any duration, but within the limits of a three- or six-month period, respectively. The parties have the right to revise the test period, provided that its initial period has not expired, and the total duration of the test does not exceed three (six) months. So, in accordance with the Law of the Russian Federation of January 17, 1992 N 2202-1 "On the Prosecutor's Office Russian Federation"The period of probation in the course of service may be reduced or extended within six months by agreement of the parties (Article 40.3).

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

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

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

5. The test condition cannot serve as a basis for restricting the labor rights of an employee in terms of remuneration, work and rest regime, and other labor rights. During the trial period, the provisions of labor legislation, local regulations, a collective agreement, an agreement apply to it (see also paragraph 1 of the commentary to article 71 of the Labor Code of the Russian Federation).

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

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

Restrictions in the exercise of powers, as a rule, are associated with the activities of an official as a representative of the state. For example, a trainee holding an employee position customs authorities not entitled to make their own decisions on customs clearance goods and Vehicle, accrual and collection of customs payments and fees and perform other administrative and imperious actions in his position.

Civil servant before the end of the probationary period the next qualification category ( cool rank, special rank) are not assigned.

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

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

For which employees can not set a test when hiring

For some categories of employees, it is not possible to set a period for checking when hiring. Full list workers who are not subject to a test when hiring, is specified in Part 4 of Art. 70 of the Labor Code of the Russian Federation, in part 1 of Art. 207 of the Labor Code of the Russian Federation.

• Elected to fill a vacant position by competition.
• Under 18 years of age.
• For the first time coming to work within the first year after receiving secondary vocational, higher education in programs with state accreditation.
• Elected to an elective office that is paid.
• Invited as a transfer by agreement between employers.
• Concluded an employment contract for a period of up to two months.
• Completed training with the employer.

which employees should not be tested when hiring. From the article you will learn about all categories of workers who cannot set a term for checking professional suitability for employment.

When an employment test is not applicable

Probation when hiring under the Labor Code of the Russian Federation, the organization has the right to establish an employee not in all cases.

Check the employee for professional suitability not allowed for transfers, transfers even if the employee himself agrees to such a check. This rule applies even if for a certain position it is possible to establish longer periods of probation. For example, the chief accountant has the right to establish a six-month check upon employment, but cannot be issued upon transfer to such a position, for example, from the position of an accountant (taking into account part five of article 70 of the Labor Code of the Russian Federation).

Employment test labor law allows you to set employees who are not included in the category, which is subject to a direct ban. But if the verification period has not expired, upon transfer to a new position, the previously established probation condition loses its force.

This is explained the following reasons. During the test, the employer checks whether the specialist corresponds to the work assigned to him (taking into account the first part of Article 70 of the Labor Code of the Russian Federation). When transferring, the employee is assigned a new job (taking into account the first part of Article 72.1 of the Labor Code of the Russian Federation). Therefore, when transferring, the condition of checking compliance with the originally assigned work loses its force.

Advice from the editor. If the employer is not sure that the employee will cope with new job, you can arrange a temporary transfer, after which a decision is made - to leave the employee in a new position or return to the previous one (based on Article 72.2 of the Labor Code of the Russian Federation).

★ The expert of "System Kadra" will tell you in detail, how to set a probationary period for an employee when hiring

How to set a probationary period when applying for a job: Labor Code of the Russian Federation

In the absence of a direct ban, a test is established for the employee when hiring.

Conditions and duration of the check

The conditions and duration of the verification are included in the text of the employment contract. If the employer allowed the employee to perform official duties without the conclusion of the TD, specified conditions can be included later. But this can only be done if an agreement on testing is concluded between the parties. It should be taken into account that such an agreement does not replace the inclusion of the corresponding wording in the text of the TD. If the test condition is not included in the TD, a separate agreement between the parties is not concluded, it will not be possible to dismiss the employee for unsatisfactory test results.

HR officers often have the question of whether it is necessary to set a trial period when hiring a new employee. In accordance with article 57 of the Labor Code of the Russian Federation the condition of the test does not apply to the mandatory. The employer has the right to check how the newcomer will cope with the work. To do this, he is given an appropriate verification period. But in the absence of such a condition in the TD, the employee is considered accepted into the staff of the company without testing.

Andrey Berezhnov, PhD in Law, Associate Professor of the Department of Labor Law of the Faculty of Law of Moscow State University, lawyer of Balashova Legal Consultants.

Is it possible to extend the duration of the probationary period when applying for a job?

The maximum test period for employment is indicated in the TD. Taking into account Article 70 of the Labor Code of the Russian Federation, it cannot be extended even if the result is not clear to the employer, and the employee agrees that the period be extended. Improper extension of the verification period is considered a violation of labor law. For this, the labor inspectorate has the right to bring the organization and officials to administrative responsibility.

The fines are:

• for officials from one to five thousand rubles (in case of repeated violation - from ten to twenty thousand or disqualification for the head for a period of one to three years);
• for organizations - from thirty to fifty thousand rubles (in case of repeated violation - up to seventy thousand).

Exceptions are cases that are expressly provided for by federal law. For example, for citizens hired by the bodies of the Prosecutor's Office of Russia, the verification period can not only be reduced, but also extended to six months by agreement of the parties (based on the first paragraph of Article 40.3 of the Law of January 17, 1992 under No. 2202-1).

The end date of the check is automatically shifted to the time of illness or other absence of the employee. It is easy to see from the table which periods are not included in the verification period:

What is the maximum and minimum duration of a probationary period when applying for a job

Maximum probation period as a general rule, should not exceed 3 months. In some cases, the duration may be reduced or increased.

So, a test of up to six months is established:

• heads of the organization and deputies;
• chief accountants, deputies;
• heads of branches, representative offices, other separate structural divisions.

This follows from the provisions of the fifth part of Article 70 of the Labor Code of the Russian Federation.

Minimum trial period(reduced) for a period of up to two weeks is established at the conclusion of a TD for a period of two to six months. IN general case the minimum term is not limited. It can be anything - from several days to one week, one month. The specific duration is set by the employer, taking into account labor legislation, existing prohibitions, the specifics of future activities, the qualifications of the employee, and so on.

In the absence of a direct ban, a test is established for the employee when hiring. The conditions and duration of the verification are included in the text of the employment contract.

The test condition is optional. But with the help of verification, the employer can determine the professional suitability of the employee.

The specific duration of such a check is established by the employer, taking into account labor legislation, existing prohibitions, the specifics of future activities, the qualifications of the employee, and so on.

Legislation in the field of labor relations provides for the need to conclude between the employee and the employer either an employment contract or a civil law contract. Only if one of these documents is present, a person is authorized to start work. By decision of the management of the enterprise, a person being hired can be installed. About what it is, why it is required, who can't be put on probation and other intricacies of legislation, we will talk in this article.

Why is a trial period necessary?

So, trial period is period of time set by the employer for accepted employee in order to verify his suitability for his position. For example, it is advisable to establish a probationary period in the case of hiring persons who have a different education than that required for a particular position, or who do not have work experience in a particular field. At the same time, such a trial period is necessary not only for the employer, but also for the employee himself, in order to draw conclusions about the suitability of the chosen position, about how suitable the organization and the team are for him.

Quite often, a probationary period is also established for employees who fully comply with all the requirements established for a particular position. Employers do this in order to verify the accuracy of the information indicated by the person in.

If, during the probationary period, the employer concludes that the person hired does not cope with the duties provided for his position, then the employment contract concluded with him may be terminated even before the final completion of the probation. At the same time, the employer must notify the employee 3 days before the dismissal of decision in writing, stating the reason for the dismissal.

In order to avoid that the employee has grounds for applying to labor inspection or judicial authorities, he should be familiarized with his official duties against signature. They can be fixed in job description, as well as other local regulations. Each fact of violation of official duties must also be recorded in writing.

What does the law say about probation?

Legislation regarding the probationary period contains article 70 of the Labor Code of the Russian Federation "Employment Test". This article clearly defines the optional nature of the probationary period, its deadlines, as well as the list of persons for whom a probationary period is not established.

Article 70 of the Labor Code of the Russian Federation - Test for employment

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

The absence of a test clause in the employment contract means that the employee is hired without a test. In the case when an employee is actually allowed to work without drawing up an employment contract (part two of Article 67 of this Code), a test condition can be included in the employment contract only if the parties have drawn it up in the form of a separate agreement before starting work.

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

A test for employment is not established for:

Persons elected on the basis of a competition for the relevant position held in accordance with the procedure established by labor legislation and other regulatory legal acts containing labor law norms;
pregnant women and women with children under the age of one and a half years;
persons under the age of eighteen;
persons who have received secondary vocational education or higher education in state-accredited educational programs and for the first time come to work in the specialty they have received within one year from the date of receiving vocational education of the appropriate level;
persons elected to elective office for paid work;
persons invited to work in the order of transfer from another employer as agreed between employers;
persons concluding an employment contract for a period of up to two months;
other persons in cases stipulated by this Code, other federal laws, a collective agreement.

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

When concluding an employment contract for a period of two to six months, the probation may not exceed two weeks.

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

For certain positions, a six-month probationary period may be provided. These include the positions of heads of enterprises and organizations, their deputies, chief accountants and their deputies, as well as heads of structural divisions, branches and departments.

Specified officials must pass a semi-annual test in the event that they are not subject to separate legislative acts federal level, which cancel the test for employment.

At the same time, the duration of the probationary period does not include the days when the employee was on sick leave and on. So, if an employee was on a probationary period from March 1 to 31, but he went on sick leave from March 6 to March 10, his probation will last until April 5.

About those who cannot be placed on probation

The aforementioned article of the Labor Code provides for a list of citizens for whom it is prohibited to establish a test for employment. This list includes:

Pregnant women;
persons employed before the age of 18;
women with children under the age of 1.5;
persons holding elective offices;
persons hired for temporary work for a period not exceeding 2 months;
persons who, by agreement, are employed by transfer from another enterprise;
persons who are employed for the first time in their specialty after completing their studies at an educational institution accredited by the state;
employees hired as a result of the competition.

Also, a probationary period is not established when hiring for other categories of employees, if this is provided for by local regulations for the enterprise, primarily by the collective agreement.

How is the probationary period

As already noted, the need for a probationary period, as well as its duration in each specific case are determined in the employment contract, which the employer signs with the employee upon admission to work. If such information is not contained in the employment contract, it is considered that a person is hired without a test.

It happens that it is made out backdating when the employee has already begun to perform his job duties. In this case, the test takes the form additional agreement to the contract, what must be done before starting labor activity. As noted in article 67 of the Labor Code, if an employee starts work without signing any documents, he is considered accepted.

What is wage during the trial period?

Labor legislation establishes the right of an employee on probation to receive all benefits, as well as to enjoy the rights provided for persons in their main job. This means that his salary should not differ from that which he would receive as a main worker. This also includes bonuses and other types of material incentives established at the enterprise. But, as a rule, everyone who goes through a probationary period, wages are much less. This is primarily due to the fact that the employee joins the work and cannot work at full capacity.

But a similar legislative norm also applies to, since an employee on a trial period is considered a full member of the labor collective.

16.10.2017, 12:33

There is no probationary period for certain categories of persons. In order for this not to become an unpleasant surprise for a personnel specialist, and also in order to avoid violating labor laws that impose these restrictions on the employer, you need to know all categories of employees who are not subject to a probationary period upon admission. Let's talk about this in detail.

In general, the test can be set

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

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

For some individuals, the test is prohibited

So, by Labor Code Some employees cannot be placed on probation.

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

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

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

Thus, when hiring new employees, you need to remember about the benefits established by labor legislation for certain categories of citizens and check with the list of employees who cannot be placed on probation.

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

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

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

A test for employment is not established for:

persons elected on the basis of a competition for the relevant position held in accordance with the procedure established by labor legislation and other regulatory legal acts containing labor law norms;

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

persons under the age of eighteen;

persons who have received secondary vocational education or higher education in state-accredited educational programs and for the first time come to work in the specialty they have received within one year from the date of receiving vocational education of the appropriate level;

persons elected to elective office for paid work;

persons invited to work in the order of transfer from another employer as agreed between employers;

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

other persons in cases stipulated by this Code, other federal laws, a collective agreement.

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

When concluding an employment contract for a period of two to six months, the probation may not exceed two weeks.

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

Commentary on Art. 70 of the Labor Code of the Russian Federation

1. A test for employment is one of the additional conditions of an employment contract, which may take place by agreement of the parties.

2. During the probation period, employees are fully subject to laws and other regulatory legal acts containing labor law norms, as well as agreements and local regulations operating for this employer.

3. Part 4 of this article contains only an approximate list of persons for whom a test for employment is not established.

4. Pointing to periods not counted as a probationary period, this article establishes a maximum probationary period of three months, providing for the possibility of establishing for some categories of workers both longer and more short terms tests.

Second Commentary on Article 70 of the Labor Code

1. The test for employment refers to the additional (optional) terms of the employment contract. It can take place only by agreement of the parties. If the parties have agreed on a test in a particular employment contract, then it automatically becomes a prerequisite.

The test is set regardless of the qualifications and experience of the accepted employee. It determines the suitability of an employee for a given job.

2. For workers during the test period in full labor law applies. For example, an employee hired on a probationary period may terminate the employment contract for own will V general order(see Article 80 of the Code).

3. In cases where the test condition was not specified in the text of the employment contract, the employee is considered accepted without testing.

4. In part 4 of Art. 70 of the Code, the legislator lists the circle of persons who cannot be tested for employment. These include: minors under 18; young workers entering work after graduating from vocational educational institutions; young specialists after graduating from higher and secondary specialized educational institutions; when hiring in another locality and when transferring to work in another organization; pregnant women and women with children under the age of one and a half years; persons elected to elective office for paid work.

In addition to them, the test for employment is not established for temporary workers; persons sent to work after graduation from work; persons applying for work on a competitive basis for elective positions; leaders elected to the respective position.

5. The specific period of the test is established by the parties to the employment contract when hiring. However, this period may not exceed three months, and for heads of organizations and their deputies, heads of branches, representative offices and other separate structural subdivisions of organizations - six months, unless otherwise established by federal law. For state civil servants, a probationary period of three months to one year is established (see Art. 27 federal law"On the State Civil Service of the Russian Federation" dated July 27, 2004).

Hence, provided by law deadlines cannot be increased or extended even by agreement of the parties.

6. The probationary period does not include the period of temporary disability of the employee, as well as other periods when the employee was absent from his job due to good reasons. For example, in accordance with Art. 186 of the Labor Code of the Russian Federation, the employee was in healthcare institutions in connection with blood donation for transfusion, or he performed state or public duties(see art. 170). The probationary period does not include the period during which the employee, in accordance with Art. 128 of the Code was on leave without pay.

In these cases, the probationary period will continue after the break. However, the total duration of the test before and after this break cannot exceed the time limits established by labor legislation.