Increase of the probationary period. The established procedures should be followed

21.09.2019

Extension of the probationary period - is it possible from the point of view of labor legislation, how to arrange it correctly and other nuances associated with the probationary period are often of great interest to employers. And this is understandable - after all, any violation of labor laws is fraught with at least fines.

Norms of legislation

Two articles are devoted to the issues of the probationary period (IP) in the Labor Code of the Russian Federation:

article 70 “Test for admission to work”;
article 71 "Test result for admission to work".

The main nuances of the installation and compliance with the rules of the trial period are spelled out in these articles, but in addition to them, you should also rely on federal laws (for example, on issues of the trial period for civil servants).

How the probationary period is established

According to the Labor Code, the probationary period is part of the labor process, which is not mandatory, but if it is already established, then it must be observed in full accordance with the rules. The IS is set to see if the employee is as good as he advertised himself on the resume and showed at the interview. Therefore, the test can only be established when hiring, and not when transferring to another position, to another department or when promoted. The only exception to this rule is civil servants, who can be transferred to a probationary period if they are transferred and not replaced in leadership positions.

As displayed in the employment contract

Since all the nuances of labor relations must be recorded in writing in official documents, the probationary period must also be reflected in the employment agreement: the start date and the end date. The same information must be repeated in the order for employment - the dates in these two documents must match.

Duration

The employer can set the IP period at his own discretion, of course, based on the norms of the Labor Code. So, in the general case, the probationary period is set for two to three months, but for civil civil servants it can be set for a duration of three months to a year.

A probationary period of up to 6 months can be set for the chief accountant, director of the enterprise and their deputies. It should be borne in mind that those employees whose employment contract is signed for two months or less cannot be installed IP at all, no matter how long it may be. For employees whose employment contracts are less than six months, this period cannot be longer than two weeks.

What will be the result

After the expiration of the IP, the employer must either dismiss the employee because he does not meet the requirements and the general policy of the enterprise, or leave him at work as having passed the test. In case of dismissal of an employee, he must be warned three days before the date of dismissal and the reasons why he is being dismissed must be explained.

In the case when the employee fully complies with all the requirements and has established himself as a professional, at the end of the tests nothing additional is required to draw up - the employee continues to work as before.

How to extend the trial period

Situations when the probationary period has ended or is about to end, and the employer cannot decide whether to leave the employee in the workplace or say goodbye to him, are quite common. Many employers are considering renewing their IP. Is this legal?

Rules for establishing a probationary period: video

According to the Labor Code, the probationary period is set upon hiring and cannot exceed the established limit of days. Consequently, there can be no question of any prolongation of such a period on legal grounds. Of course, the employer may try to negotiate with the employee about dismissal in order to then recruit him and re-establish the IP, but it is doubtful that the employee would willingly agree to this.

Nevertheless, there is a possibility of extending the probationary period, moreover, it is quite legal. The fact is that the test period does not include days when the employee, for whatever reason, did not fulfill his work duties, for example, was sick or took time off from the workplace for the whole day.

In this case, the actual date of the end of the probationary period does not coincide with the date specified in the employment contract and the order for hiring, therefore, the extension must be documented.

Renewal order

To extend the employee's probationary period for the number of days that he spent on sick leave or time off, it is necessary to issue an order for the enterprise. The order is drawn up in accordance with the rules established at the enterprise and contains the following details:

the full name of the enterprise or the surname, name and patronymic of an individual entrepreneur;
document's name;
Document Number;
the reason for the extension of the IP is due to absence from the workplace, downtime of the enterprise, temporary incapacity for work, and so on;
renewal period - it must fully coincide with the number of working days missed by the employee. For example, if an employee was sick from Monday to Wednesday of the next week, and Friday was also a public holiday, the period should be extended not by ten days, but by seven;
last name, first name, patronymic, position and personnel number of the employee;
a link to documents confirming that the employee was absent from the workplace during the IP;
the signature of the head of the enterprise;
company seal.

Responsibility for the execution of such an order is usually assigned to the employees of the personnel department.

Documents that confirm the absence of the employee at the workplace during the probationary period and which are referred to in the text of the order must be attached to it. An employee who is extended the probationary period must be familiarized with this order by signing. And most importantly, remember that the probationary period can be extended by such an order only in the absence of an employee.

Find out how long the employment test lasts and whether it is legal to renew it if the employee took sick leave or vacation. In the article you will find a list of good reasons for shifting the dates of the deadline and a sample transfer order.

The article

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Can the employer extend the probationary period to the employee on his own initiative?

No, he can not.

The duration of a job test is limited by law. As a general rule, it cannot exceed three months, and in some cases, for example, when a director or chief accountant of a company is employed, it is six months. During this time, the employer must evaluate the professionalism, personal qualities and performance of the newcomer in order to decide whether he is really suitable for the company.

If you set a probationary period for newcomers, specify its duration in employment contracts and internal company documents. You can also develop a separate provision on the probationary period and reflect in it the test conditions, verification periods, criteria for evaluating the results.

Consider legal requirements, including a ban on extending a trial period beyond three months. The law does not establish a lower threshold for duration.

What if the trial period expires from day to day, and its result is still not clear? Is it possible to extend the probationary period for an employee for several days or weeks?

No. The law makes it clear that the answer to this question will be negative, even if the employee himself does not mind and is ready to give written consent to the extension of the probationary period under the employment contract. Rostrud adheres to a similar point of view (see letter No. 520-6-1 dated 2.03.2011).

Exceptions

Federal legislation provides for rare exceptions to the general rule, for example, recruitment to the prosecutor's office. But even in this case, the order to extend the probationary period is drawn up only by agreement of the parties, and the total duration of the trial should not exceed the maximum permissible six-month threshold (Art. 40.3 of Law No. 2202-1 of 01/17/1992).

Cases when the probationary period can be extended

Although the answer to the question “is it possible to extend the probationary period for an employee if the result of the test is unclear” in the case of commercial structures will always be negative, in some situations the probation is still extended.

If during the test the employee was absent from work for some time, these periods are not taken into account. Accordingly, the date of completion of the probationary period is shifted. There is a shift rather than an extension of the probationary period under an employment contract.

What periods are not included in the trial period

Temporary disability.
Truancy
Any vacation - study, paid, without pay.
Appearing in court as a witness and performing other public duties.
Military fees.

The extension of the probationary period due to sick leave, absenteeism or other reasons for which the employee did not fulfill his professional duties occurs automatically and does not require special registration. Both the legislator and the courts recognize that such a transfer does not in any way affect the status of the subject (see the definition of the Krasnodar Regional Court No. 4g-12841/14 of 12.24.2014).

But the employer has the right to insure himself in the event of a conflict and fix the fact of a break: attach a copy of a sick leave or a call to military training to a personal file, make a corresponding entry in a personal card or issue a written order to postpone the date from which the employee is considered to have passed the test.

How to issue an order to extend the probationary period: sample

To document the displacement of the probationary period, issue an order or a memorandum, certified by the signature of the head of the organization. Make the document in any form. Be sure to indicate the details of the employer, information about the employee, as well as the reason why he was absent from work and could not fulfill his job duties.

Copies of certificates, sick leaves and other documents confirming the reason for the absence can be attached to the order or note. At the bottom of the form, write the current date and leave space for the CEO's signature.

Attention! Do not forget to familiarize the employee with the order of his superiors for signature.

Responsibility for illegal extension of the term

An unjustified extension of the probationary period threatens the guilty officials and the company as a whole with a large administrative fine.

For a repeated violation, the organization will be fined up to 70,000 rubles, and its head may be disqualified for a period of one to three years.

An expert from Sistemy Kadry will tell you how to establish a test when applying for a job without breaking the law

Can the employee's probationary period be extended at the request of the employer? Only in cases stipulated by federal law, for example, when recruiting to serve in government agencies, and only with the consent of the employee.

But every personnel officer should know how to extend the probationary period, or rather, to arrange the postponement of the date of its completion if the employee is sick or took a vacation. To justify the transfer, issue an order document and make the appropriate marks on the employee's personal card.

But all this does not look like: "Vasya, come to us for no known time, we will look closely at you." When the test is present where you are employed, it is directly reflected in your employment contract.

He will tell you about the rules for registering the test period in the employment contract and other documents.

Duration

Probation does not occur as a prerequisite for everyone in absolutely any job. It happens that the applicant can be enrolled in the company after the interview. But if you first need to go through some introductory period in order to check professional skills, then Labor Code is strictly regulated how long it can take.

Some persons cannot be assigned a probationary period at all (for example, pregnant women, as well as those who have not reached the age of majority).

Let's say employment is carried out for a short period of time, specifically 6 months (for example, seasonal work, temporary positions). Then according to Art. 70 of the Labor Code of the Russian Federation, the trial period is just two weeks.

Typically, the maximum probationary period for employment is three months.

But it is possible that it takes up to six months for certain individuals. Namely:

from the heads of organizations, as well as their deputies;
heads of representative offices, branches and other structural divisions of organizations;
chief accountants and their deputies.

Probationary period 6 months can be established for those who wish to enter the civilian government service. According to paragraph 1 of Art. 27 of the Federal Law "On the State Civil Service of the Russian Federation", their probationary period - from three months up to one year... It should be noted, according to paragraph 3 of the above article, when the applicant does not apply, but transferred from one state body to another, the term can be from three to 6 months.

The probationary period for employment cannot exceed 3 months, in rare cases - 6 months or even 1 year (for example, for those entering the civil service). At the same time, the minimum test period is 2 weeks - you will not get off with one day.

But do not think that the probationary period is automatically counted. In reality it does not include periods when:

the employee was temporarily disabled (sick);
was on non-long-term leave not paid by the employer;
was on leave due to study;
performed public or state duties;
any time period when the employee did not come to his workplace (days off, absenteeism).

In other words, for example, a sick leave on a probationary period is just a period in the life of an employee - there will be no automatic shortening of the test period due to illness... Accordingly, after recovery, the new employee will not become a full-time employee. So the questions about whether the sick leave is included in the probationary period, shouldn't be on anyone's side.

When the probationary period came to an end, the events develop in two ways... The employee either remains in his position, or the employer fires him.

Of course, the employee, at his discretion, has the right to write at any time termination of employment after discovering that the position is not suitable for him. But then he must notify the employer about it 3 days in advance in writing.

Can the probationary period be reappointed or extended?

The employer may still be unable to make a decision whether the employee is satisfied with it. Perhaps, on the contrary, if the newcomer is not particularly successful in the new job, he would like to stay longer, even on such conditions, in order to get the opportunity prove your usefulness to the employer... Sometimes it happens that while an employee was going through his probationary period, he was offered a different position. In these cases listed above, one can see the reasons for extend the probationary period for an employee.

However, the Labor Code of the Russian Federation does not care does not provide an opportunity for the employer to increase it, even with the consent and approval of the employee.

It is possible that the employer tells the employee to quit in order to take him again for the same position... But this option is doubtful for the employee and does not inspire confidence. To agree to this or not, everyone decides for himself.

The only legal possibility of extension opens if the employee, for one reason or another, was not at his workplace(illness, time off, etc.). Moreover, the most important thing is that there are documentary evidence(sick leave, etc.).

Extension of the probationary period must be documented, since the date of the expiration of the trial period in fact and the date in the hiring order will differ.

The same is true for the date in the employment contract.

Therefore, the solution in this situation would be creation of an order to extend the probationary period.

Such a document is created in accordance with the design rules and regulations that are accepted in this organization.

In the order, of course, the term must be indicated, for which the trial period is extended.

He will certainly must correspond to the number of working days during which the employee, for one reason or another, did not perform his duties.

Such an order is drawn up, as a rule, by employees of the personnel department.

The employee must be familiar with the above order, and even against signature.

Employer's liability before the law

If the employer decided to extend the probationary period on his own initiative, and not because of the absence of the employee on certain days, this could end badly for him... He can be brought to administrative responsibility under Art. 5.27 of the RF Code of Administrative Offenses.

So, according to paragraph 3 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, improper execution of an employment contract is fraught with imposition of a fine to such an unscrupulous employer. Namely:

on officials - in the amount of ten thousand to twenty thousand rubles;
for persons who carry out entrepreneurial activities without forming a legal entity - from five thousand to ten thousand rubles;
for legal entities - from fifty thousand to one hundred thousand rubles th.

If the employer is convicted of such acts again, the fines will increase accordingly. Similar violations are still can be identified by GIT inspectors(state labor inspectorate).

However, lawsuits in reality between the employer and the employee do not occur often, especially if the employee's problems arose during the probationary period. Although in reality this period is important for both the employee and the employer.

The second should take a closer look at this employee, he is interested in working at his enterprise performed efficiently.

And the first has the opportunity to take a closer look at the new work and team, to understand can he cope with his duties as far as this place suits him.

The duration of the probationary period is regulated by the Labor Code of the Russian Federation, therefore the employer can't just set the time he wants... An employee's knowledge of his rights is a guarantee that he will not waste his nerves, time and money dealing with an unscrupulous employer in court.

Useful video

For the rules and procedure for establishing and registering a probationary period, as well as responsibility for violating its duration, see this video:

Applying for a trial period is a frequent practice permitted by the labor legislation of the Russian Federation. The Labor Code (LC) of the Russian Federation, Articles 70 and 71, regulates this process. The duration of the inspection is established with the mutual consent of the employer and the employee, but no more than is allowed by law. The length of the probationary period is stipulated in the employment order and in the employment contract concluded with the future employee of the company.

Sometimes the employer extends the deadline for checking the employee. Let's consider whether it is possible to extend the trial period, and in what cases it is allowed by law.

Reasons that may serve as a basis for extending the trial

Some facts

According to the survey to the question "Do you think you need a probationary period for employment?" 93% of the respondents answered in the affirmative, 4% believe that such measures are unnecessary, and 3% of the respondents found it difficult to answer.

The duration of the probationary period for employment is indicated by the Labor Code of the Russian Federation, it can be set from 14 days to 1 year (for senior positions in the civil service). You can learn more about this on our Internet portal. In some cases, the employer has the right to extend the trial period. This does not depend on the desire of the head, all possible reasons are clearly spelled out by law.

Initiation of an extension of the verification period without reason threatens the employer with administrative liability (Article 5.27 of the Code of the Russian Federation on Administrative Offenses). The violator can be fined up to 50 thousand rubles if the employer is a legal entity. With repeated similar violations, the fine can reach 200 thousand rubles.

The most common cases of illegal extension of the probationary period:

dismissal for the purpose of re-hiring again with a probationary period
writing a statement with an open date. In this case, the manager promises not to fire the employee after the trial period and use the signed document only in forced cases.

It is possible to postpone the end date of the employee's inspection only for the time that he was absent from the workplace for any reason.

These reasons are:

disability of an employee, confirmed by medical documents;
short-term unpaid leave (administrative leave);
leave for the duration of the session at the educational institution where the employee is receiving education;
the use of time off for processing working hours;
absenteeism committed by the employee. It should be borne in mind that absenteeism is a serious violation of labor discipline, for which the employer has the right to dismiss an employee without extending his trial period (Article 81 of the Labor Code of the Russian Federation);
fulfillment of public and state orders;
forced downtime of the enterprise;
force majeure (natural disasters, terrorist act or its threat, etc.).

All the reasons why the employer can postpone the end of the employee inspection must be necessarily confirmed by the relevant documents.

For work during and after the trial period, see the video

Renewal order execution

If there are documented reasons for extending the trial period, the employer must officially extend the period. This action is necessary so that there are no inconsistencies between the employment order, the employment contract signed earlier by the employee and the actual state of affairs.

Extension of the term for checking an employee is formalized by a special order. Its compilation is entrusted to the personnel department. In the absence of such a subdivision in the company, the order is drawn up by the head.

This document must contain the following information:

organization details;
Full name of the head;
Document Number;
the subject of the order;
data of the employee about whom this document is issued (surname, name, patronymic, position held in the company, personnel number);
a specific period for which the trial is extended. The duration of the extension must exactly correspond to the total number of days when the employee was absent from his workplace for any reason. In this case, the number of weekends and holidays is not taken into account;
a description of the reasons due to which the extension of the check is being carried out, with the attachment of copies of supporting documents;
date of preparation of the document;
the signature of the head with a transcript and the seal of the organization.

Documents confirming the reasons for the employee's absence from the workplace (or their copies) must be attached to this order. The employee must be obliged to familiarize himself with the document within 3 days from the moment of its signing by the head. The fact of acquaintance must be confirmed by the signature of the employee in a special register.

Someone A, after graduating from an economic college, was hired as a sales manager at Mars LLC. A month later, his probationary period ended. The head of the marketing department, someone V., believes that someone A has not shown himself to be a qualified specialist and it is not yet clear whether the employee is fit for the position. Therefore, the head of the marketing department appeals to the director of the LLC with a proposal to extend the trial period. What are the actions of the director?

Answer

According to the law, the probationary period is interrupted for the duration of the actual absence of the employee from work (for example, periods of temporary disability of the employee are not included in the probation period). After returning to work, the employee's probationary period continues.

As such the extension of the probationary period is not provided for by the Labor Code of the Russian Federation. The exceptions are cases directly established by other federal laws (for example, the trial period may be extended to employees of the prosecutor's office).

The test is established by the employee upon hiring and cannot be subsequently extended by changing the employment contract. Rostrud also adheres to this position (see the letter of Rostrud dated 02.03.2011 N 520-6-1).

If the employer allowed the employee to work without drawing up an employment contract, the test condition can be included in the employment contract later. However, this can be done on one condition - before starting work, the parties entered into an agreement on the appointment of a probationary period.

This procedure is established by parts and article 70 of the Labor Code of the Russian Federation. In the order for employment, also fix the condition of the probationary period ().

Answer: Test duration

As a general rule, the duration of the test should not exceed three months. But for some employees, the probationary period can be extended to six months. These employees are:

heads of organizations and their deputies;

chief accountants and their deputies;

heads of branches, representative offices and other separate structural divisions.

The trial period does not include the period of temporary disability and other periods of the employee's actual absence from work (). After the break, the trial period will continue.

Situation: Is it possible to extend the trial period for an employee if it has ended, but the result is not clear

No, you can’t, with the exception of certain cases directly provided for by law.

As a general rule, a test for an employee can be set once, namely at the conclusion of an employment contract. An increase in the probationary period is not provided for by the Labor Code of the Russian Federation, even if the employee agrees to it. The basis is the Labor Code of the Russian Federation. For an unlawful extension of the probationary period, the labor inspectorate may attract the organization or its officials to ().

The exceptions are cases directly provided for by federal law (). For example, for persons recruited into the service of the Prosecutor's Office of Russia, the trial period can be reduced or extended within six months by agreement of the parties ().

Nina Kovyazina
Deputy Director of the Department of Education and Human Resources of the Ministry of Health of Russia

Regulatory framework: Letter of the Federal Service for Labor and Employment of March 2, 2011 No. 520-6-1

"On the establishment of a condition on probation in an employment contract when hiring under a labor function stipulated by an employment contract, as well as on the absence of grounds for extending the probationary period by amending the employment contract."

FEDERAL LABOR AND EMPLOYMENT SERVICE

The Legal Department of the Federal Service for Labor and Employment reviewed the appeal. We report the following.

According to Part 1 of Art. 70 of the Labor Code of the Russian Federation, when concluding an employment contract, by agreement of the parties, a condition may be provided for testing an employee in order to verify his compliance with the assigned work.

In accordance with Part 5 of Art. 70 of the Code, the test period cannot exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations - six months, unless otherwise provided by federal law.

More about Extension of the probationary period we wrote in the material under the link.

Based on the meaning of this article, the condition for testing an employee can be established only when hiring under a labor function stipulated by an employment contract (work according to the position in accordance with the staffing table, profession, specialty indicating qualifications; the specific type of work entrusted to the employee).

The possibility of extending the probationary period by amending the employment contract is not provided for by the labor legislation of the Russian Federation.

Boss

Legal management

A. V. ANOKHIN

Answer: Prohibition of testing

Some employees may not be eligible for a hiring test. These include:

employees hiring on a competitive basis;

pregnant women and women with children under the age of 1.5 years;

employees under the age of 18;

young specialists who first come to work in their specialty within one year from the date of graduation from an educational institution;

employees elected to an elective paid position;

employees invited to work as a transfer from another organization.

This is stated in article 70 of the Labor Code of the Russian Federation.

In addition, the test is not established when concluding an employment contract for a period not exceeding two months (Labor Code of the Russian Federation). It is impossible to establish a probationary period for an employee who has successfully completed training under an apprenticeship agreement (A ready-made plan for the main affairs of a personnel officer for the first quarter of 2019
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