What is the probationary period for? The maximum probationary period for employment under the labor code.

The selection and hiring of a new employee in a company is often a long and laborious process. As a rule, the applicant goes through several stages of the interview, often - professional tests. However, even the most painstaking selection does not exclude the risk for the employer that the new employee will be insufficiently qualified or will simply be negligent in his duties. To determine how a new employee meets the requirements of the company, it is advisable to set a probationary period when hiring a new employee. In order to be able to assess 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 legally correctly execute the passage of the probationary period. Consider the legal basis for the probationary period established by the Labor Code (Articles 70, 71 of the Labor Code of the Russian Federation), and the most common errors in their application in practice.

Set up a trial period

The probationary period is set to verify the suitability of the employee for the work assigned to him, while the following is important:

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

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

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

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

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, the probationary period is established only by agreement of the parties, and the document reflecting the mutual expression of will is precisely the employment contract. If the condition on the probationary period is contained only in the order for employment, then this is a violation of labor legislation, and, in the event of a dispute, the court will recognize the condition of the probation as invalid.

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

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

The employer is obliged not only to include the test condition in the relevant documents, but also to familiarize the new employee with his job duties, job description and internal 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 the dismissal of an employee who has not passed the probationary period, the fact of his familiarization with labor duties will be important to confirm the non-compliance with the assigned work.

Organizations often conclude a fixed-term employment contract with an employee they hire instead of an open-ended contract with a probationary period. Many employers believe that by entering into a fixed-term employment contract, for example, for three months, they simplify the situation for themselves in case the employee does not 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 expressly 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 avoid granting the rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period.” The Plenum of the Supreme Court of the Russian Federation in its resolution of December 28, 2006 No. 63 recommended that the courts pay special attention to the observance of 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 a probationary condition.

Probationary workers have the same rights as regular workers.

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. In practice, the application of this rule is expressed as follows:

the establishment in an employment contract of a lower remuneration of an employee for a 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 a probationary period has any specifics. In the event of a conflict, the employee in court will be able to receive the amount of underpayment.

From the position of the employer, this issue can be resolved in various 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 accept in the organization a provision on bonuses (additional payments), the amount 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 norms 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, such as 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 period of probation is included in the length of service, giving the right to annual basic paid leave. When an employee is dismissed after the probationary period (or before its expiration), despite the fact that the employee has not worked in 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 vocational education and for the first time come to work in their specialty within one year from the date of graduation from the educational institution;

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, and in other cases.

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

Probationary period

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.

If you conclude 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 disability 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 that established by law.

In practice, the employer often extends the probation period during the period the employee passes the test agreed upon at the conclusion of the employment contract. This is against the law. And, if the employer does not make a decision 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.

It should be noted that the legislation in some cases establishes a longer probationary period compared to the established Labor Code, in particular for civil servants (Article 27 of the Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation”).

The result of the test for employment

The Labor Code of the Russian Federation establishes: “If the probationary period has expired, and the employee continues to work, then he is considered to have passed the probation and subsequent termination of the employment contract is allowed only on general grounds.” That is, if the employer considers the employee to be appropriate 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 a personal signature.

What 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 an appropriate act in the presence of several employees of this organization. Employees-witnesses will confirm with their signatures in this act the fact that the notification was delivered to the employee, as well as his refusal to certify this fact in writing. A copy of the notice may be sent to the employee's home address by registered mail with acknowledgment of receipt. 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 with a notice of dismissal must be submitted to the postal authority at least three days before the expiration of the probation period set for the employee. The date of posting is determined by the date on the postmark imprint on the receipt and the notice of receipt of the letter returned to the employer. The notice of termination of the contract during the trial period must have all the necessary features of the document, namely: the date, the outgoing number, the signature of the person authorized to sign the relevant documents, as well as the imprint of the seal intended for processing the documents of this organization;

in the notice given to the employee, it is necessary to correctly and legally correctly formulate the reason for the dismissal. The wording should 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 not suitable for the position held.

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

As documents confirming the validity of the dismissal, the following can be accepted: an act of committing a disciplinary offense, a document confirming the discrepancy between the quality of the work of the test subject and the standards of production and time standards adopted in the organization, an explanatory note from the employee about the reasons for the poor performance of the job assignment, written complaints from customers.

Evaluation of business qualities and how an employee copes with the work assigned to him directly depends on the sphere 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 the production sphere, where the result of labor is a specific materialized result, one can clearly determine how well the work is done; in the service sector, one can take into account the number of customer complaints about the quality of the provision of a particular service. The situation is more complicated when the work is connected with intellectual labor. In this case, the quality of execution of the manager's instructions, compliance with the deadlines for the execution of tasks, the performance by the employee of the total volume of the proposed work, and the employee's compliance with professional and qualification requirements should be analyzed. The direct supervisor of the new employee should draw up the relevant documents and send them to the head of the company.

As you can see, the procedure for dismissing an employee based on the results of the test requires a certain formalism from the employer. In addition, the law in any case gives the employee the right to appeal the decision of the employer in court.

It is also necessary to say about the employee’s right to terminate the employment contract: “If during the probation 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, warning the employer in writing for three days". This norm is important for the employee, since it is fundamentally important for many potential employers 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 accepted employee "in action", and the employee, in turn, can assess the compliance of the proposed work with his interests and expectations. The legislation clearly defines the conditions for the application of 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 employees during 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 decision of the employer to dismiss him based on the results of the test. In this case, the court will check the legality of establishing a probationary period, the correctness of the execution of the necessary documents and the employer's compliance with all legal aspects. Based on this, both the employee and the employer have the right to decide for themselves on the appropriateness of the application and the conditions for passing the probationary period.

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

2 Decree of the Plenum of the Supreme Court of the Russian Federation No. 63 of December 28, 2006 “On introducing amendments and additions to the decision 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 P. 11 of the Review of the Court Practice of the Supreme Court of the Russian Federation for the third quarter of 2005 in civil cases. The text has not been officially published.

The probationary period is set for newly hired employees for up to 3 months (in some cases it can be extended up to 6 months). According to the Labor Code, the employer is not entitled to reduce wages for the probationary period.

The nuances of the preliminary testing of employees are indicated in Art. 70 of the Labor Code of the Russian Federation. According to the Law, any employer reserves the right to set a certain period during which the employee has the opportunity to show their positive qualities in the professional field, and then find a job on a permanent basis.

Probationary period for employment: features and differences

The essence of the trial period is that the employer can learn about the positive and negative professional qualities of a new employee during this time. If an agreement is concluded between the parties that does not contain a note on testing his knowledge and skills for a certain period of time, then the employee is automatically considered accepted without testing.

When there is no contract between the employer and his subordinate, but the latter has already started work, the test can only be if an agreement was concluded before the start of work.

acc. from Art. 70 of the Labor Code of the Russian Federation, a probationary period is not established for the following persons:

• For those who came to work on a competitive basis.
• For minors, pregnant women and women with children under the age of 2 years.
• For those who received higher or secondary vocational education in state-accredited educational programs less than a year ago in the same specialty in which they are employed.
• For persons applying for an elective paid position (winning by voting results).
• When transferring from one place of work to another, if this was agreed by both managers.
• If the employment contract is concluded for a period not exceeding two months.
• When concluding a student agreement with an organization: at the end of its validity, only registration without preliminary tests is possible.

How does the recruitment process work with a preliminary test:

• An order for employment is issued over the signature of the head.
• The new employee gets acquainted with the order and puts his signature.
• An entry is made in the work book about the conclusion of an employment contract indicating the number of the order and the corresponding article of the Labor Code of the Russian Federation.
• All data is placed in the card or personal file of the trainee.

Salary during trial period

The accepted employee is subject to all internal regulations and acts, as well as the provisions of labor legislation - i.e. a new person in the team has the same rights as everyone else, so the reduction in wages in this case is unlawful.

The employer can only indicate a lower salary in the employment contract, and if the professional skills of the subordinate suit him, an additional agreement is concluded with the condition of increasing the basic rate.

Length of probationary period for employment

The lower limits are not limited by law, but the maximum probationary period when hiring cannot exceed three months for ordinary employees, and six months for management and their deputies in organizations and branches; accountants and their substitutes.

If the employment contract is concluded for less than six months, the probation cannot last more than two weeks. Any extensions in all of the above cases are prohibited, and when the time runs out, but the employee continues to work, he is considered to have passed the test, and the contract can only be terminated on a general basis.

During the test period, sick leave, absenteeism and other circumstances due to which the employee was unable to work or actually absent from the workplace are not counted.

Dismissal at the initiative of the employer

If the employee during the verification period did not observe labor discipline, skipped or behaved incorrectly in relation to the team, the manager has the right to notify him of the upcoming dismissal in writing 3 days before the dismissal. The work book will indicate “at the initiative of the employer” as the reason.

Features of dismissal of an employee on probation

If desired, any employee undergoing probation must submit a letter of resignation to the manager three days before the proposed dismissal or end of the period, but is not required to explain the reasons. In the future, the corresponding column indicates "on the initiative of the employee."

When an employer does not have the right to fire an employee during the probationary period

There are several reasons why a manager cannot fire a tested subordinate:

• Sick leave.
• personal motives.

An exception is the suspension of the company's activities, when an appropriate order is issued.

The process of dismissing an employee who did not pass the test:

• The employer prepares evidence confirming the incompetence of the employee: memos, information about absenteeism, explanatory or previously drawn up complaints.
• A written notice of the desire to terminate the contract is issued. It indicates the reasons, and it is also recorded in the log.
• An appropriate order is drawn up, which is signed by the dismissed person, and then the document is registered in the journal.

If fired illegally

It is not uncommon for a manager to force them to write a letter of resignation of their own free will, but the employee himself does not want to do this. If such a situation arises, it is necessary to contact the labor inspectorate or the prosecutor's office with a written complaint. Despite the fact that the employee is on probation, he has the same rights as long-term colleagues, and this situation is no exception.

Employee risks during the probationary period

Of course, employees registered with a trial period have certain risks, the main of which is the non-renewal of the contract. More details can be found in the video:

| 18.08.2011

Article 70 of the Labor Code of the Russian Federation states that “when an employment contract is concluded, it may, by agreement of the parties, provide for a condition on testing an employee in order to verify his compliance with the assigned work.” However, some categories of citizens are exempt from probation.

Related materials:

under protection

The Labor Code lists the categories of employees for whom a probationary period is not established in principle. Article 70 of the Labor Code exempts from testing:

1. Persons elected by competition for the relevant position held in the manner prescribed by law. Such competitions are held for citizens who apply, regional and municipal institutions, scientific organizations, etc.
2. Pregnant women and women with children under the age of one and a half years. At the same time, it has no legal significance when it became known about the pregnancy - before or after the conclusion of an employment contract with a test. If pregnancy occurred already during the probationary period, or the woman herself found out about it after signing the contract, she needs to provide a document confirming, on the basis of which the employer is obliged to issue an order to release the expectant mother from passing the test.
3. Graduates of educational institutions of primary, secondary and higher professional education with state accreditation, who first get a job in their specialty within one year from the date of graduation. Please note: we are talking about admission to the first job in the specialty received. If, for example, a young man who has studied to be a doctor has previously worked as a courier, then when he is admitted to a hospital as a doctor, he is not assigned a probationary period.
4. Persons elected to elective office for paid employment. For example, deputies of the State Duma.
5. Persons invited to work in the order of transfer from another employer as agreed between employers.
6. Persons entering into an employment contract for a period of up to two months.

Due to the fact that the test is only valid upon hiring, it cannot be assigned to employees who are promoted to a higher position in the same organization.

In addition, Article 207 of the Labor Code of the Russian Federation exempts persons who have successfully completed apprenticeship from a probationary period when concluding an employment contract with the enterprise where they were trained.

Even if a person belonging to one of the categories listed above agrees to the establishment of a probationary period, it will not have legal significance. Such an employee, dismissed as not having passed the test, will be reinstated at work.

You will need

• employment contract form, employment order form, employee documents, computer, printer, A4 paper, pen, company seal.

Instruction

If the employee agrees to go through a probationary period, conclude an employment contract with him, in which indicate that the employee is accepted for work with a test term. The contract is signed by the employee, enters all the necessary details, and the head of the company. The presence of a signed employment contract that each of the parties has given its consent to the employee passing the test. Certify the contract with the seal of the organization.

Submit an order for admission work, where indicate that this employee is accepted for work with a test term according to the timetable. Familiarize the employee with the order against signature. Put the signature of the head and the seal of the organization. The trial period at the discretion of the employer can be from two weeks to three months.

If, when concluding an employment contract or when issuing an order, the employer did not establish a probationary period, the employee is considered accepted for work on a general basis, that is, without a probationary period.

Please note that the employer does not have the right to establish a probationary period for certain categories of citizens provided for by law.

Related videos

Advice 2: How to register an employee with a condition on a probationary period

Labor legislation provides for the possibility of establishing a probationary period for the employment of an employee. The law defines the procedure for issuing a test and restrictions for its establishment.

Instruction

Familiarize the employee with internal local documents.

Sign an employment contract with the employee. When drawing up an employment contract with an employee, include a condition on the appointment of a probationary period. The wording may be as follows: “The Employee is set a probationary period of 3 (Three) months in order to verify the compliance of the Employee's qualifications with the position held. The Employee is considered to have successfully passed the test with the qualitative and timely performance of the job duties provided for by the job description, as well as the fulfillment of the Task given to the Employee within 7 (Seven) working days from the start of work.

If you intend to allow an employee to work before concluding an employment contract, then draw up an agreement with him on a probationary period. This agreement must be completed prior to commencement of work.
It should be borne in mind that the absence in the employment contract of a condition on a probationary period or another agreement with an employee on a probationary period excludes the possibility of dismissal of an employee as having not passed the test.

Draw up an Order for employment with the condition of a probationary period and familiarize the employee with it against signature.
Make a record of employment in the employee's work book.

Provide the employee with an Assignment that contains:
- a list of work with which the employee must cope during the probationary period;
- terms for performance of the given works;
- Criteria for assessing the success of the work.

note

As a general rule, the duration of the probationary period cannot exceed 3 months. For a number of categories of workers, the law makes an exception. For example, for a civil servant, a test can be set for a period of 3 months to 1 year.

Helpful advice

The law establishes a number of categories of workers who are prohibited from setting a probationary period, for example, pregnant women and minors.

Sources:

• how not to register an employee

Advice 3: What is the probationary period for a fixed-term employment contract

The probationary period is the period of work, which makes it possible to evaluate how a new employee copes with his duties. The conditions for this must be initially spelled out in the employment contract.

Probation

According to Article 70 of the Labor Code, this period is established by the labor agreement. In the future, this provision must be indicated in the order for hiring an employee. This information is not included in the personal card of the employee. If the contract does not contain a record of a probationary period, it is considered that the employee was hired without him.

The test period is negotiated in each case individually, but the maximum period should not exceed 3 months. However, there are exceptions to this rule: their deputies, chief accountants, the test period can be extended to six months.

In other cases, it can be reduced to two weeks. The Labor Code establishes such a rule for a fixed-term employment contract, which is concluded for a period of two months to six months. If the employee is hired for a shorter period (up to 2 months), the probationary period is not provided for him at all.

Features when establishing a probationary period

If the employee fell ill, was absent from work for a good reason during this period, then the trial period should be extended by the same number of days. In other cases, this is prohibited, and violation of the Labor Code of the Russian Federation is punishable under Art. 05.27 of the Administrative Code of the Russian Federation.

The employer can also shorten the trial period. This decision must be reflected in the form of a written agreement to the employment contract (Articles 9 and 57 of the Labor Code of the Russian Federation). The Labor Code of the Russian Federation also prohibits the conclusion of a fixed-term employment contract for a probationary period if the conditions for its conclusion do not meet the requirements listed in Article 59 of the Labor Code of the Russian Federation.

When does probation not apply?

For persons elected to a position by competition, through popular elections;
- for pregnant women, mothers with children under 1.5 years old;
- for underage workers;
- for graduates of accredited universities within a year after graduation;
- for employees who have transferred to another translation job;
- For persons who have completed training and some other categories of citizens, in accordance with Art. 207 of the Labor Code of the Russian Federation and FZ-79 of July 27, 2004

When an employee fails to perform his duties during the probationary period, the employer has the right to terminate the employment relationship with him, notifying the employee in writing 3 days in advance. This document should detail the reason for this decision. If the employee wants to terminate the employment contract, he must also notify the manager in writing 3 days in advance.

If an employee continues to perform his duties after the end of the probationary period, it should be considered that he passed the probationary period, and he can be dismissed in accordance with the Labor Law.

Related videos

Tip 4: What you need to know about the dismissal of an employee hired on probation

Employers often use the opportunity provided by law to hire an employee on probation. However, such an “uncertain” position of the employee until the end of the test does not mean that his rights are less protected than other employees. In particular, it is possible to dismiss such an employee only on the grounds provided for by the Labor Code of Russia.

So, if an employee is actually admitted to work, an employment contract has not yet been concluded with him and a separate agreement on the appointment of a probationary period has not been signed before the start of work, he cannot be fired for failing the test, because he is considered hired without probation.

There are cases when an employer dismisses an employee as having not passed the test, referring to the fact that the condition on the probationary period is contained in the collective agreement of the enterprise. But, in the Labor Code of the Russian Federation it is clearly stated that the absence of a test condition in the employment contract means that the employee is hired without a test. That is, the test condition should be written in the employment contract.

It is also not allowed to dismiss an employee after the expiration of the probationary period on the grounds that he did not pass the test, since if the probationary period has expired, and the employee continues to work, then he is considered to have passed the test and the subsequent termination of the employment contract is allowed only on general grounds. But here it must be remembered that the total probation period according to the law is no more than 3 months, and the list of positions that can be probation up to 6 months is closed. And if, for example, an employee was accepted with a 6-month trial, but his position is not included in this list, it is impossible to dismiss him after 4-6 months due to an unsatisfactory test result, because the legal trial period for him - 3 months - has already expired.

An employee who got a job for the first time after receiving higher education due to failure to pass the test cannot be dismissed. For such persons, a test cannot be established at all, therefore, even if the employment contract contains conditions for a probationary period, dismissal on the basis of Part 1 of Art. 71 of the Labor Code of the Russian Federation is not allowed.

As it shows, one cannot be fired for failing the test, if the employee has not completed the assignment, not in his official duties.

In addition, as an additional guarantee upon dismissal of an employee who has not passed the test, the law establishes the obligation of the employer to warn in writing about the upcoming dismissal. Failure to comply with this requirement may result in the dismissal being declared unlawful.

It is also important to know that the dismissal of an employee who has not passed the test is a dismissal at the initiative of the employer; employees who are in the period of temporary disability and leave of the employee, including maternity leave, as well as women with children under the age of 3 years old. Concealment by an employee of temporary disability at the time of dismissal is an abuse of the right, as a result of which the court may refuse to satisfy the claim for recognition of the dismissal as illegal.

In order to verify the suitability of an employee for the assigned work, the employer may provide for a probation clause in the employment contract. About how long such a test can be and about persons for whom a probationary period cannot be established, we will tell in our consultation.

Probation period for employment

The maximum probationary period under the Labor Code is 6 months. But a test of such duration may not be established for all employees, but only for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of the organization. In other cases, the maximum total testing period for employees is 3 months (part 5, article 70 of the Labor Code of the Russian Federation).

A special probation period is established for employees with whom an employment contract is concluded for a period of 2 to 6 months. The maximum duration of the probationary period for employment in this case is 2 weeks (part 6 of article 70 of the Labor Code of the Russian Federation).

Please note that if the employment contract does not contain a probation clause, it is considered that the employee has been hired without probation.

And if the employee was actually allowed to work without an employment contract? Recall that when the employee is actually admitted to work, the employer is obliged to draw up an employment contract with him in writing no later than 3 working days (part 2 of article 67 of the Labor Code of the Russian Federation). In this case, it is possible to include a test condition in the employment contract only if the parties have drawn it up in the form of a separate agreement before starting work (part 2 of article 70 of the Labor Code of the Russian Federation).

If the employee does not want to undergo a probationary period, which the employer insists on, then an employment contract with such an employee is not concluded.

Please note that even with the consent of the employee, the employer does not have the right to establish a trial period of a longer duration than is allowed by the Labor Code of the Russian Federation and federal laws. On the other hand, within the maximum duration of the probationary period, the employer may set any period or refuse to test the employee at all.

How is the probationary period calculated?

The period for which the employee is placed on probation is calculated from the day the work began and includes only the periods during which the employee actually worked. If the employee was absent from work (for example, he was on sick leave or on vacation at his own expense), the specified time does not count towards the test period (part 7 of article 70 of the Labor Code of the Russian Federation). That is, in fact, the probationary period is extended.

Who is not eligible for probation?

The employer is not entitled to establish a probationary period, in particular, for the following categories of persons (part 4 of article 70, part 1 of article 207 of the Labor Code of the Russian Federation):

• pregnant women;
• women with children under the age of 1.5;
• persons invited to work in the order of transfer from another employer;
• persons who have received secondary vocational education or higher education in state-accredited educational programs and for the first time come to work in their specialty within 1 year from the date of graduation;
• persons who have successfully completed apprenticeship, when concluding an employment contract with the employer, under the contract with which they were trained;
• persons under the age of 18;
• persons concluding an employment contract for a period of up to 2 months;
• persons elected by competition to fill the relevant position.

Recall that the employee who is undergoing a test is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations of the employer (