Why is there a probationary period for an employee? Categories of employees for whom a probationary period cannot be established. Restrictions on the application of the probationary period

Almost every capable Russian will one day have to find a new job. Most newly hired employees find a clause in their employment contract requiring them to undergo a probationary period. Labor legislation also provides for some exceptions. The hiring company is, in principle, deprived of the right to arrange test periods for certain categories of citizens. Unfortunately, not all working citizens are familiar with their rights in the world of work and know how to use and defend them. Such situations lead to abuse by unscrupulous employers.

What is a probationary period

The concept of a probationary period is regulated by Articles 70 and 71 of the Labor Code of the Russian Federation. The probationary period is the time allotted for the employer to practically evaluate professional skills and personal qualities newly accepted candidate. The length of the probationary period may vary and depends on the level of the position for which the employee was hired, as well as on the nature of the work performed. The condition of a probationary period when hiring is mandatory in the employment contract with the citizen being hired. In turn, the employee also has the right to use this period of test work in order to assess factors that are significant to him, for example, working conditions, the mood in the work team, the characteristics of colleagues and his immediate superior. If one of the parties finds that something does not suit her, the employment contract can be terminated. The initiator of termination of the contract can be either the employee or the employer.

Video: probationary period during employment

Is the probationary period included in the length of service?

The probationary period is included in the length of service, and the entry in the work book that the employee has started work for a probationary period is not made. After signing the employment contract at the enterprise, a corresponding order is issued, on the basis of which work book a standard entry for employment in a specific position is performed.

In order for a newly hired employee to avoid unnecessary worry about whether a probationary period is included in the length of service in each particular case or not, he is recommended to make all necessary efforts to obtain a signed employment contract within the first days in a new place.

How is a probationary period different from an internship?

The difference between an internship and a probationary period lies in the period of conclusion of the employment contract. In the case of a probationary period, the employment agreement is concluded before the start of direct work, and the internship implies that the employment agreement will or will not be signed by the parties based on the results of the internship. If specialists of any level, up to directors and top managers, can undergo a probationary period, then internships, as a rule, involve recent graduates who are employed for the first time. There are also internships for employees who have radically changed their field of activity and do not yet have sufficient qualifications in the new type of activity.

The Labor Code of the Russian Federation reports that the employer is required to conclude a fixed-term employment contract with the intern. Otherwise, the procedure for completing an internship, as well as its content and the conditions under which the internship is considered successfully completed, are determined individually in each organization. The corresponding rules are fixed in the local documentation of the enterprise.

Video: what is an internship

Duration of probationary period

The duration of the entrance examination period may vary depending on the position held, the nature of the work, as well as other internal conditions at the enterprise where the employee is employed.

Maximum and minimum probationary period

In most cases, for ordinary positions, the probationary period cannot last longer than three months. Employees hired for leadership positions, are subject to close management attention for a six-month period. If a condition for completing a probationary period is included in a fixed-term contract lasting from two to six months, such a probationary period cannot last longer than two weeks. Periods of temporary incapacity for work for any reason, as well as days during which the employee was absent from the workplace, are not taken into account towards the probationary period.

Is it possible to extend the probationary period?

In some cases, the employer may take the initiative to increase the length of the probationary period. From the employer’s point of view, the need to extend the trial period for a new employee may arise if, after the agreed period of work, the employer was unable to verify that the candidate’s skill level meets the requirements, or if the employer is not sure that the adaptation of the new employee to the team was successful. There are two opposing opinions regarding the legality of extending the test period of work.

Supporters of the ban on extending the period under review include, in particular, the Federal Service for Labor and Employment. Such an addition to an already concluded agreement will be considered void, since it will mean a worsening of the employee’s situation compared to previously agreed conditions (see Letter of Rostrud dated 03/02/2011 N 520–6-1 and). However, federal laws allow some exceptions to this rule. Thus, in accordance with the provisions of the Federal Law of January 17, 1992 N 2202–1 “On the Prosecutor’s Office,” citizens who entered service in the prosecutor’s office can receive an extension of the probationary period within six calendar months by agreement of the parties. In this case, the additionally assigned trial period must also be documented and with the consent of both parties to the transaction. Most often, an additional agreement to the main contract is used for this.

Labor law specialists who consider the extension of the trial period to be legitimate argue their position as follows. General rule, set out in Article 72 of the Labor Code of the Russian Federation, allows for changes to certain terms of the employment contract by mutual agreement of the parties. At the same time, for each category of workers, the maximum duration of labor tests is legally established. Thus, if the employer has received the employee’s consent to extend the probationary period, they can enter into an additional agreement to the main employment contract. The main condition of this agreement will be that the extended trial period will not exceed the periods specified in the legislation for this category of employees.

Early termination of the trial period

Early termination of the probationary period is possible when the employer wants to reward the hired employee for special successes during testing. As with the extension of the trial period, its early termination requires appropriate documentation and consent of both parties. The employer and employee enter into an agreement on the early termination of the probationary period (see explanation by the Federal Service for Labor and Employment N 1329-6-1 of May 17, 2011).

In addition, there are a number of other reasons for early termination of trials. These reasons are not related to the direct results of the employee’s activities in the workplace:

the employee was accepted to study at a higher educational institution;
the employee has a relative who needs constant care;
the newly hired employee provided documents about pregnancy or the presence of a child under the age of one and a half years.

Features of setting up and passing a probationary period for certain categories of workers

For some categories of citizens, there are some peculiarities in determining the procedure for completing the probationary period. These categories include, in particular, state civil servants, seasonal workers, and people working part-time.

The specifics of organizing the probationary period for civil servants are regulated by Article 27 of the Federal Law “On the State Civil Service of the Russian Federation.” When a citizen is hired for the first time in the civil service, the duration of the test period for him can vary from one to twelve months. For professionals who already have experience working in government agencies appointed to a new place by transfer from another state organization, a probationary period of one to six months is provided. An employee appointed to such a public position, the decision to accept and release from it can only be made by the President or the Government of the Russian Federation, may also be subject to probation from one to twelve months. If the employer finds the test results unsatisfactory, the service contract with the employee may be terminated. The employee must receive the appropriate written notice indicating the reasons for termination no later than three days before the date of termination of the contract.

Employment contracts for seasonal workers are most often short in duration. For a contract lasting from two to six months, the period for checking the employee’s competencies cannot exceed two weeks. If the contract is concluded for a period of no more than two months, a probationary period cannot be established in principle.

For persons working part-time, it is possible various situations when the appointment of a probationary period is regulated by general rules, and also when the appointment of a probationary period is in principle illegal. In particular, if an employee is employed part-time in a company that is not his main employer, this company may assign him a probationary period on a general basis. If the employee plans to combine two similar types of activities at one enterprise, the appointment of a probationary period will be illegal, since the employee has already proven his competence.

Video: labor rights of pregnant women

Probationary period regulations

The law does not require the creation of a separate provision on the probationary period, however, many companies practice issuing such a local regulation. This document describes in as much detail as possible the procedure for organizing a probationary period for newly hired employees. In particular, from it you can find out who is obliged to draw up an assignment for the probationary period, who, in what time frame and by what principles evaluates the success of the candidate’s completion of the probationary period, and so on. Below is a sample probationary period clause.

Probationary period provisions. Sample.
1. GENERAL PROVISIONS.
1.1. The probationary period is the last stage of assessing the professional suitability of a candidate for a vacant position.
1.2. The purpose of the probationary period is to verify the specialist’s compliance with the activities assigned to him directly in the work environment.
1.3. The probationary period lasts no more than three months.
1.4. The duration of the probationary period is indicated in the employment contract and in the employment order (Articles 68, 70 of the Labor Code of the Russian Federation).
1.5. The probationary period does not count the period of temporary disability and other periods when the employee was absent from work for valid reasons (Article 70 of the Labor Code of the Russian Federation).
1.6. The probationary period may be reduced to a duration of at least 1 month. The basis for reducing the probationary period is the decision of the Rector (or First Vice-Rector) of the university, confirmed by satisfactory test results.
1.7. If the test result is unsatisfactory, the employee is dismissed on the initiative of the university administration without the consent of the trade union body and without payment of severance pay, with the wording “as someone who failed the test” (Article 71 of the Labor Code of the Russian Federation).
1.8. If the probationary period has expired and the employee continues to work, he is considered to have passed the test. Subsequent termination of the employment contract is carried out only on a general basis (Article 71 of the Labor Code of the Russian Federation).
2. PROCEDURE FOR COMPLETING THE PROBATIONAL PERIOD.
2.1. On the first day after a newly hired employee returns to work, the immediate supervisor:
2.1.1. Conducts an informational conversation about the conditions professional activity(Appendix 3);
2.1.2. Introduces the new employee to job description. The employee certifies with his signature that he has read the job description and agrees to perform the functional duties listed in it. The job description is issued to the employee. A copy signed by the employee remains with the immediate supervisor;
2.1.3. Introduces the employee to the Regulations on the unit and other local acts regulating the activities of the unit and the activities of the employee.
2.1.4. Appoints a supervisor - an employee of the unit who has worked in this position for at least six months or the most qualified employee of the unit, and in the absence of one, supervision is assigned to the immediate superior or head of the unit;
2.1.5. If a probationary period is established for an employee hired to the position of head of a structural unit or vice-rector, then the most qualified employee of this unit or another senior manager, the immediate superior and the head of the unit - the dean of the faculty, the vice-rector according to affiliation, or the rector of the university can be appointed as the supervisor.
2.2. Organization of probationary period.
2.2.1. The probationary period can be completed in one (if, if successful work during the first month of the probationary period, the latter was reduced to 1 month) or two stages (if the probationary period was not shortened).
2.2.2. Immediate supervisor with a new employee within first three days after returning to work, they draw up a work plan in accordance with the job description for the first month of the probationary period (Appendix 1). The new employee’s work plan is approved by the head of the unit, signed by the employee and agreed with the vice-rector according to affiliation (rector or chief accountant). The employee and immediate supervisor must have a plan.
2.2.3. Three days before the end of the first month of the probationary period, the immediate supervisor, supervisor and employee discuss the compliance of the specific results achieved with the set goals (work plan).
2.2.4. No later than one day before the end of the first month of the probationary period, the immediate supervisor draws up an information and analytical note on the results achieved by the employee (Appendix 2) for the first month of the probationary period and gives the conclusion “passed the test and the probationary period can be reduced to 1 month” or “failed the test, leave the probationary period the same.” If the probationary period does not exceed one month, then the conclusion “passed the test” or “failed the test” is given. The conclusion is agreed upon with the head of the unit and the vice-rector according to the affiliation (rector or chief accountant) and transferred to the human resources department for further work.
2.2.5. If the probationary period has not been reduced to 1 month, then at the beginning of the next stage a work plan for the employee for the remaining period is also drawn up in accordance with clause 2.2.2. of this provision. No later than 7 days before the end of the probationary period, the immediate supervisor, supervisor and employee discuss the compliance of the specific results achieved with the work plan. The immediate supervisor draws up an information and analytical note about the results achieved by the employee during the next stage of the test, and gives a conclusion “passed the test” or “failed the test.” The conclusion is agreed upon with the head of the unit and the vice-rector of the affiliation and transferred to the human resources department for further work no later than 5 days before the end of the probationary period.
2.2.6. The originals of plans for completing the probationary period and information and analytical notes are transferred to the personnel department and are stored in the employee’s personal file.
Applications:
1. Appendix 1. “Work plan for the employee during the probationary period.”
2.Appendix 2. “Information and analytical note on the results of the probationary period.”
3. Appendix 3. “Matrix for determining levels of functional responsibilities.”
4. Appendix 4. “Scheme of an interview with an employee at the time of going to work.”
AGREED:
First Vice-Rector __________________________
Head of HR Department ______________________
Lawyer _____________________________________
Chairman of the trade union committee of employees _______________
Annex 1.
“AGREED” “APPROVED”
Vice-rector Head of department
_______________________ ________________________
"___"_______________200__g. "___"______________200__g.

Who should not be given a probationary period?

According to the Labor Code of the Russian Federation, for some categories of working citizens a probationary period cannot be established in principle (see part 4 of Article 70 of the Labor Code of the Russian Federation). Such preferential categories include, in particular, the following:

Persons selected to fill a vacant position through a competition held in accordance with the requirements of legislation or local regulations of the enterprise. The appointment of a trial period under such circumstances may provoke the emergence of labor disputes.
Women who are pregnant or raising one or more children under the age of one and a half years, and the children can be either natural or adopted.
Workers whose age does not exceed eighteen years.
Citizens entering their first job after graduation vocational education within a year from the date of graduation.
Citizens elected to elective positions for paid work.
Citizens moving to a new job by transfer from another employer as agreed between company managers.
Citizens with whom an employment contract has been concluded for a period of no more than two months.

The legislation also provides for other cases of categories of beneficiaries:

citizens who have successfully completed their training and enter into an employment contract with the employer from whom they were trained;
citizens employed in alternative civil service;
civil servants appointed to a new position through a transfer caused by the liquidation or reorganization of the previous employing organization.

If the employer has unknowingly established a probationary period for an employee belonging to one of the preferential categories, that is, for an employee for whom a probationary period cannot be established in principle, it is necessary, immediately, as soon as the fact of belonging to the benefit recipients is revealed, to draw up an additional agreement to the agreement on employment, in which to state a condition that cancels the clause on the probationary period. This can be done, for example, if a newly hired employee is pregnant. Employers must remember that for violating the provisions of the Labor Code of the Russian Federation they face administrative, and in some cases, criminal liability.

Registration of an employee for a probationary period

When hiring an employee with the condition of mandatory completion of a probationary period, the employer must correctly prepare all the necessary documents and include in the employment contract, including a clause on the availability of preliminary tests for the newly hired employee. Otherwise, labor disputes and litigation may arise.

How to draw up an employment contract with a probationary period

The employment contract must necessarily contain a clause stating that the employee will have to undergo a probationary period to confirm his qualifications. There cannot be separate contracts for the probationary period. Some employers offer to sign an internship agreement first. Such behavior is a sign of the employer's dishonesty. According to the law, the employment contract must be prepared no later than three days since starting work. A sample employment contract with a three-month probationary period can be easily downloaded from the link.

Video: popular questions about the probationary period

Liability agreement for the probationary period

During the probationary period, the employee is subject to the provisions of the Labor Code of the Russian Federation and other regulations defining labor law standards. Accordingly, an agreement on financial liability can be concluded with an employee already during the probationary period, if there is such a need and the position is included in the list of positions for which the conclusion of such an agreement is mandatory.

Probationary assignment

A probationary assignment serves several purposes. First of all, a specifically formulated task helps a newly hired employee better understand his tasks in a new place and get up to speed. On the other hand, the company uses this task to assess the level of professionalism of the newly hired specialist. The fact is that it is impossible to dismiss an employee who has failed to complete the test period without a clear evidence base and documentary evidence of his incompetence, therefore the employer company must approach the evaluation of the employee’s performance during the probationary period very seriously.

The content of the test task may vary depending on the nature of the work. Such a task may include both a requirement to follow the most detailed instructions, for example, for operating a cash register, and leave room for creativity. In general, it is recommended to include in the task the most significant points for the given position and for the company as a whole. A sample assignment for the trial period is shown in the illustration below.

The task for the probationary period may include those items, the implementation of which is most important for management

Features of establishing a probationary period when transferring to another position

When transferring to another position, a probationary period may be established if the duties that will be performed by the employee in this new position are fundamentally different from his previous activities within the company. Unfortunately, a common situation is when an employee is asked to undergo a probationary period when being transferred to a higher position. It is important to know that such behavior by the employer is not legal. The probationary period, according to the Labor Code of the Russian Federation, is not mandatory and can only be assigned to new employees. An employee who has received a promotion can be returned to his previous position or fired if it is revealed that he is not suitable for the new position.

The result of the probationary period and its personnel registration

After the parties sign an employment agreement, which states that the employee is accepted subject to a probationary period, the personnel service of the enterprise issues a corresponding order. At the end of the probationary period, the enterprise issues special documents confirming the success or failure of the test period by the new employee.

Probation period report

Many enterprises today have adopted the practice of creating a final report on the completion of the probationary period by the employee undergoing probation. In such a report, the employee reveals the following questions:

the difficulties and problems that the employee encountered during his working life, the ways in which he tried to solve them;
which tasks the employee was able to complete;
what tasks the employee was unable to cope with during work and for what reasons;
What new did the employee learn during his work?

A detailed report will help both the employee and his immediate supervisor to better analyze the work. It is recommended to prepare the report not on the last day of the probationary period, but in advance. In this case, you can find weak spots in work and have time to eliminate them before making a decision. The illustration below shows an example of a report on work during the test period.

Reports can be generated in various ways

Characteristics of the employee after the verification period

The employee's characteristics are compiled by the immediate supervisor or mentor who worked with the new employee during the trial period. This document indicates what the specialist knew and was able to do at the time of taking up the position, what tasks were assigned to him during the trial period, how he showed himself during the performance of work tasks, what strengths and weak sides personality demonstrated. Characterization ends general conclusions, forecasts and recommendations.

Conclusion on passing the probationary period

Some companies have adopted the practice of collegial decision-making on completing a probationary period. An assessment of the employee’s qualifications and his achievements is requested from all specialists and managers with whom he dealt during the test. The final decision is made by the immediate supervisor, but this practice allows you to take into account the entire range of opinions and create a complete picture about the new employee. The documented decision is called a conclusion on completion of the probationary period.

The conclusion can be drawn up in the form that is customary at a particular enterprise

Order to end the probationary period upon successful completion

The issuance of an order to end the probationary period upon successful completion is not mandatory. The employee simply continues to work at the enterprise.

Actions of the employer if the employee fails to complete the probationary period

The reasons for failing to complete the probationary period may vary. An employee, from the employer’s point of view, may not confirm his level of qualifications, may not find a common language with colleagues, may violate labor discipline or provoke the emergence of some unpleasant situations for business. In any case, an employer cannot fire an employee simply because he doesn’t like him for something. Dismissal during the probationary period must be supported by objective facts and documentary evidence confirming that the employee really cannot cope with the activities assigned to him. Such documentary evidence may include a plan of tasks for the probationary period, a report on the completion of the probationary period, memos from the immediate supervisor, reviews from colleagues and clients. It is very important not only to explain to the employee why the probationary period was not recognized as completed, but to obtain his agreement with these explanations. Otherwise, the dismissed employee may file a claim with the court. If the company cannot correctly justify the decision to dismiss, the employee will have to be hired back, and all expenses incurred by him will be compensated, including lost wages for the period when the employee was considered dismissed.

If dismissed due to a negative test result, the employee receives appropriate notice three days before dismissal. In some cases, by agreement with the employer, dismissal can occur on the same day, that is, without any work.

Video: dismissal if the probationary period is not completed

What rights and responsibilities does an employee have during the probationary period?

The rights and obligations of an employee hired under the condition of completing a probationary period are regulated by the Labor Code of the Russian Federation and are no different from the rights and obligations of other working citizens. The probationary employee is entitled to the following preferences:

timely payment of wages, bonuses, overtime bonuses, as well as other incentive payments, if provided for by the terms of the contract;
going on sick leave and receiving insurance payments during a period of temporary disability.
using unpaid leave at your own expense or using days towards future leave, while the employer has the right to refuse to provide leave in accordance with the law (if the decision does not contradict Article 128 of the Labor Code of the Russian Federation);
receiving up to five unpaid days off at the birth of a child;
voluntary dismissal at any time before the end of the probationary period.

The responsibilities of the newly hired employee include:

fulfillment of the terms of the employment contract;
fulfillment of work obligations in accordance with the job description;
compliance with labor discipline requirements and internal regulations of the employing company, as well as fire safety requirements.

Is it possible to take sick leave or vacation during the probationary period?

An employee on probation has the right to go on sick leave during a period of temporary incapacity. With the permission of the manager, during the probationary period you can take leave at your own expense, as well as leave on account of future paid leave. This time is not included in the probationary period and upon return to workplace The countdown of the days of the test period is resumed.

The amount of sick leave pay is determined based on the employee’s length of service and the average daily earnings. The accounting department can find out the work experience from the work book, and earnings are affected by both the salary at the current job and payments at the previous place, which can be easily assessed using the 2-NDFL certificate.

An employee who is on sick leave and wants to resign from the probationary period must first close his sick leave. Dismissing an employee while he is on sick leave is illegal. In addition, the employer is obliged to pay for sick leave for an employee for another 30 days from the date of dismissal, provided that the employee has not found a new job during this time.

Is it possible to fire a pregnant employee during a probationary period?

The dismissal of an employee who, during her probationary period, discovered that she is expecting the birth of a child, is illegal if it occurs at the initiative of the employer. A pregnant woman can only be fired at her own request. Moreover, the very appointment of a probationary period to a pregnant employee is illegitimate. If the fact of pregnancy is confirmed, the probationary period must be canceled by an additional agreement to the concluded employment contract.

Salary during probationary period

An employee on a probationary period is entitled to a salary, from which the employer is obliged to pay all mandatory taxes to the budget, including income tax. Many Russian enterprises are trying to evade paying taxes by offering only part of their salary payments in “white” money with official registration. Unfortunately, employees often agree to such unfavorable conditions for them. Many employers also offer a reduced salary for the probationary period with the promise of a salary increase upon successful completion of the test period. From the point of view of the Labor Code of the Russian Federation, such a proposal is also not legitimate, but rarely does any employee decide to enter into conflict with the employer for this reason.

Video: salary during probationary period

Pros and cons of a probationary period for the employee and for the employer

A probationary period is provided by law so that both parties involved in concluding an employment contract have the opportunity to evaluate each other and, if such a need arises, part with minimal losses. This opportunity can be considered an absolute advantage for both the employee and the employer. When leaving a probationary period, an employee is not required to work for two weeks, and the employer has the opportunity to evaluate the candidate’s qualities not only from his words at the interview, but also in practice.

Among the disadvantages for the employee is the fact that many employers offer a reduced salary for remuneration during the probationary period. On the other hand, the employer bears increased load, caused by the need to allocate additional resources to introduce a new employee to a position and test his skills and abilities.

When working in test mode, an employee may experience some psychological discomfort, since the result of his actions determines his future in this job. The employing company, when concluding an agreement with a new employee, always runs the risk of legal proceedings upon dismissal under Article 71 of the Labor Code of the Russian Federation.

In general, the balance of positive and negative aspects of the use of a probationary period allows both parties to use it with the greatest benefit for themselves.

Requirement to undergo a mandatory probationary period when applying for employment Russian companies is optional. from the point of view of the Labor Code of the Russian Federation. However, many employers are happy to use this opportunity to thoroughly study a new employee, as well as save some money on his salary, at least in the first months of his work. Employees accept this requirement as a given and do not try to dictate their terms to the employer. Thus, the very concept of a probationary period has become firmly established in work practice and is actively used throughout Russia.

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 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 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 the legal basis of the probationary 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

The probationary period 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 a probationary period must be contained in the 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 labor regulations. The employee confirms the fact of familiarization with his signature. This is especially important when hiring a job with a probationary period, since in the event of dismissal of an employee who did not complete the probationary period, the fact that he was familiarized 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 an open-ended contract with 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 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 evade the provision of rights and guarantees provided to employees with whom an employment contract is concluded for an indefinite period.” The Plenum of the Supreme Court of the Russian Federation, in resolution No. 63 of December 28, 2006, recommended that courts apply Special attention to comply with these guarantees.

Document fragment

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 will be able to obtain the amount of underpayment in court.

So, in LLC " Trade company" a note was made to staffing table, which stated 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.

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 is no different from other employees and there are grounds for reducing him for this period official salary No. 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 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 adopt a provision in the organization on bonuses (additional payments), the amount of which is established 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 have graduated from state-accredited educational institutions of primary, secondary and higher vocational education and are entering work for the first time in the acquired specialty within one year from the date of graduation from the 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 organizations - six months, unless otherwise provided 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.

Let us note that the legislation in some cases establishes a longer probationary period compared to that established by the Labor Code, in particular for civil servants (Article 27 Federal Law dated July 27, 2004 No. 79-FZ “On the State Civil Service of the 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.

Document fragment

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 return receipt requested. 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 on reinstatement as a teacher, payment of time forced absenteeism, 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. Thus, in the production sphere, 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 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 standard 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 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 is labor relations is a socially vulnerable 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 employer compliance 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 of Judicial Practice of the RF Armed Forces for the third quarter of 2005 in civil cases. The text was not officially published.

Hiring employees with a probationary period has long become the norm - it is a rare case of employment today that goes without it. At the same time, it is believed that it will be easier to fire an employee after a probationary period than without one. Is it really? Let's figure it out.

Who can set a deadline?

An employer can establish a probationary period, or, in the language of the Labor Code, a test when hiring, in relation to an employee hired by the organization (Article 70 of the Labor Code of the Russian Federation). At the same time, the Labor Code immediately establishes restrictions on the inclusion this condition into the employment contract.

Thus, the first limitation follows from the fact that a probationary period can only be established upon hiring. This means that when already existing employees are appointed to a position (promotion, transfer, etc.), the test cannot be established. Please note: this rule also applies in cases where an employee was initially hired for a position on probation, but was transferred to another job before the end of the probationary period. In this case, the transfer simultaneously means the end of the probationary period.

In addition, the Labor Code contains a list of persons for whom, in principle, a probationary period cannot be established. It includes pregnant women and women with children under the age of one and a half years; persons under 18 years of age, as well as graduates educational institutions. True, the Code does not contain the employer’s obligation to establish these facts. This means that the employee himself must submit documents confirming that a test cannot be introduced against him. So if the employer has not received the relevant documents at the time of signing the employment contract, establishing a probationary period will be legal.

Special attention should be paid to graduates of educational institutions. For them, the Labor Code establishes several additional conditions. Thus, the institution from which they graduated must have state accreditation, and no more than a year must have passed since graduation. In addition, the position for which the employee is hired must correspond to the specialty specified in the education document, and the employee’s work book should not contain records of work in this specialty. Accordingly, when hiring graduates, the employer needs to be especially careful and monitor whether these conditions are met or not. After all, the inclusion in a contract of a condition on a probationary period in cases where this is prohibited by law entails administrative liability up to the suspension of the organization’s activities (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

What to do when setting up a test

Let’s assume that the employee being hired is not included in the “prohibited” list, which means that a probationary clause can be included in the employment contract with him. In most cases, everything is limited to this entry. However, with this design, there is no benefit for the employer from the probationary period - it will be almost impossible to dismiss an employee as having failed the test. But an employee can use this record if, for example, he finds a better job and wants to quit quickly. Indeed, during the probationary period, the period of “working out” upon dismissal at one’s own request is not two weeks, but only three days (Article 71 of the Labor Code of the Russian Federation).

So, we found out that the probationary period should be formalized not only by an entry in the employment contract. Let's now see what documents the employer will need to submit.

The first thing to do is to reflect the condition of the probationary period and its duration in the employment order. Please note that for most employees the maximum probationary period is three months, but the employer may set a shorter period. So, if in the contract and order we have fixed a trial lasting, for example, two months, then in the future it will not be possible to extend it to three months permitted by the Labor Code without the consent of the employee. After all, the probationary period is one of the essential terms of the contract and can only be changed by agreement of the parties.

It should be noted here that many experts believe that the organization does not have the opportunity to extend the test at all, even with the consent of the employee. At the same time, they refer to the fact that the probationary period, according to Article 70 of the Labor Code of the Russian Federation, is established upon hiring. However, a careful reading of this article of the code leads to the conclusion that when hiring, it is imperative to resolve the issue of establishing a probationary period. But the Code does not require establishing the duration of the probationary period directly upon hiring. It turns out that the Labor Code does not prohibit changing the length of the probationary period after concluding an employment contract.

The second stage of establishing a probationary period will be the development of tasks for the probationary period and the conditions under which the employee will be considered to have passed the test. These documents must be handed over (or announced) to the employee against signature. We would like to clarify that both the tasks and the conditions for determining the success of their completion must be clear, not allowing for ambiguous interpretation and subjectivity.

Further, throughout the entire period of probation, the employer is obliged to monitor the employee’s performance of these tasks and, in case of poor quality or untimely performance, promptly record these facts. To do this, you can use various acts, reports or memos. In these documents, it is necessary to indicate as clearly as possible what specific task was given to the employee, what exactly the failure was, etc. If possible, each such document should be accompanied by the task that was given to the employee and which he failed to complete.

If during the test the employee was given Additional tasks, these facts also need to be recorded in writing, in memos. The task must contain a clear description of the result to be obtained, deadlines for completion and evaluation criteria. Such tasks must be handed over to the employee against a signature, indicating the date of receipt and that the essence of the task is clear to the employee.

As you can see, a real probationary period requires a rather complex formalization of the relationship between the employee and the employer. Each step must be documented in order to have irrefutable evidence in the future that the employee did not complete the probationary period, and therefore he can be fired.

Dismissal: don't miss the moment

Since we touched on the topic of dismissing an employee who has not completed the probationary period, we will dwell on this in a little more detail. The Labor Code requires that an employer who decides to dismiss an employee who has not completed the probationary period warns him about this in writing no later than three calendar days before the planned dismissal (Article 71 of the Labor Code of the Russian Federation). In this case, it is better to carry out the dismissal itself on the last day of the probationary period. The fact is that, according to the same Article 71 of the Labor Code of the Russian Federation, if an employee continues to work after the end of the probationary period, he is considered to have passed the test (from this, by the way, it follows that successful completion of the test is not necessary to be documented in a separate document).

Therefore, the employer needs to carefully monitor the deadlines and provide the employee with notice at least four working days before the end of the test. It must indicate the reasons why the employee is considered to have failed the test, the documents that support these reasons, and the date of the planned dismissal. This document must be given to the employee against signature, indicating the date of delivery.

Also, do not forget that special rules for calculating its length have been established for the probationary period. Thus, the probationary period does not include periods of temporary incapacity for work of the employee and other times when he was actually absent from work, including for an unexcused reason. In this case, the period itself is considered in calendar days, that is, taking into account weekends and holidays. This means that it may well end on a non-working day. This also needs to be taken into account if a decision is made to dismiss - the day of dismissal in this case will be the last working day before the end of the probationary period, and all notifications will need to be made in advance.

Finally, do not forget that the dismissal of an employee who has not completed the probationary period is a dismissal at the initiative of the employer. This means that you cannot fire an employee while he is sick or on vacation. Accordingly, these points also need to be taken into account when preparing notices and orders of dismissal.

An employee is the main driving mechanism of every enterprise: from a small company to a large corporation. The functioning of the entire organization depends on the quality of his work. In the process of searching for suitable candidates, a significant portion of applicants are eliminated for 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 for in the Labor Code (hereinafter in the article - 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 it is impossible to 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 what they relate to special groups, for which the application of the general procedure is 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 perform 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. Wage for the specified period is 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 to 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 punished certain types penalties. Article 5.27 of the Administrative Code provides for liability (administrative) for non-compliance 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).

The employees are the most important element when 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. From correct selection personnel depends on the prosperity of the company and the quality of project implementation. 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

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

Why is this measure needed?

To check employees, a probationary period is established in accordance with the Labor Code

Many people are interested in why a probationary period is established. This is done to determine whether the new employee is suitable to perform the duties assigned to him. The duration of the trial is determined by the company's internal requirements, but the period for non-managerial positions cannot be longer than three months.

The employee test allows the employer to evaluate professional opportunities new employee, and if his work is unsatisfactory, terminate the contract with him.

Who determines hiring on special grounds?

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

The company's management conducts a test of the candidate to determine his suitability for the position. The following must be taken into account:

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

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

A separate issue is a fixed-term contract

The probationary period is established only for new employees

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

Who is not accepted on probation?

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

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

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

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

What is important to remember

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

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

The probationary period is included in the length of service. During the period of incapacity for work, the employee, like other employees, is entitled to social benefits. He also receives additional pay for extracurricular work.

Did you pass the test?

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

Employers do not strive to hire employees who are often sick or ask for time off, so they often fire them at the end of the probationary period, citing the fact that the employee failed to cope with his direct job responsibilities. Evidence confirming that the employee successfully copes with his job responsibilities will help you avoid being in such a situation. It is better to collect them immediately, from the first working day.

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

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