Transfer to another position at the initiative of an employee is his right, enshrined in law. The main condition for its application is the presence of appropriate grounds.

These include:

Request for transfer

If the employee does not have a preliminary agreement with the employer on his transfer to another position or another place of work, he has the right to demand such a transfer only on the basis of a medical report. In other cases, there must be agreement of both parties.

• State of health, if it does not allow the further implementation of the intended work function;
• An employee’s pregnancy and feeding a child implies release from physical work, performing activities in harmful (dangerous) conditions (read about transferring a maternity leaver to another position);
• Replacing an absent employee for a certain period of time or permanently replacing a resigned employee;
• Other grounds (including change of service unit).

The procedure for transfer at the initiative of an employee

The legislation establishes 2 forms of transfer - internal transfer to another position (with one employer) and external (implies a change in employer). Regardless of this, transfer to another job at the employee’s initiative involves the following sequence of actions:

1. Filling out an application. It is an expression of the employee’s initiative and is sent for consideration to superiors. The application is drawn up in any wording or on the company’s letterhead (if provided for by the local regulatory legal acts). Content:
   1. request for transfer;
   2. reason for the decision;
   3. documentary evidence (for example, a medical report).
2. Drawing up an agreement containing the terms of the transfer (with the consent of management). It is drawn up in writing and signed by each party to the employment relationship. The agreement is attached to the employment contract and may contain the following information:
   1. conditions for future work;
   2. payment for labor functions;
   3. working hours;
   4. other working conditions (for example, provision of leave, appointment and payment of bonuses).
3. Issuance of a Transfer Order (based on an agreement between the employee and the employer). Compilation is carried out according to the form unified by the legislator - T-5/T-5a. The order is issued by management and signed by the employee. His signature indicates familiarization with the terms of the transfer and further performance of the labor function.
4. Making changes to the work book, the employee’s personal file. Adjustments are recorded based on the order.

The above transfer procedure must be fully observed by both parties to the employment relationship.

Learn more about the procedure for transferring an employee to another position from this video

Transfer to ½ rate

Transferring an employee to part-time at the employee's initiative is possible if the employee cannot cope with the responsibilities assigned to him or he needs additional free hours.

The procedure for such a translation:

1. Drawing up an application. It is issued in the name of the director of the company (enterprise) indicating the request for transfer to 0.5 rates and the reasons.
2. Drawing up an agreement to an employment contract. It must contain new changed conditions for performing the labor function (schedule of activities, length of the working week, payment system, etc.).
3. Issuance by the employer of the relevant Order. It contains information about changes to the staffing table of the organization (enterprise).

In this case, no changes are made either to the personal file or to the work book, since the change in rate does not relate to information that requires indication in this documentation.

Transfer to a lower paid job

Additionally

Also, a company employee can initiate his transfer to a permanent position if he previously performed work under a temporary contract (for example, he worked in place of an employee on maternity leave). The procedure for transferring to a permanent place of work from a temporary one is described in.

Transfer to a lower position at the initiative of the employee is carried out in the same manner - an application is drawn up, an additional agreement to the contract is drawn up, a corresponding Order is issued, changes are made to the employee’s work book and personal card. Employees of the Labor Inspectorate may have doubts that the employee’s transition to a lower-paid job was carried out voluntarily.

To avoid such precedents, it is recommended to indicate in the transfer application the reason for such a decision (for example, family circumstances, old age, etc.). Situations cannot be ruled out when it is easier for an employee to perform other job duties and receive less pay than in a higher position.

Do you have any questions about transferring to another position at the employee’s initiative? Ask them in the comments

A transfer to another position does not always mean a promotion. In some cases, personnel changes may result in demotion. There are certain rules for processing such a transfer.

Article 72 of the Labor Code determines that transfer is a change in the labor function of an employee of a temporary or permanent nature.

The document indicates all changes made to the employment contract between the employer and employee: name of the new position, salary, etc.

On the basis of an additional agreement, a transfer is issued (T-5).

It is prohibited to provide work that is contraindicated for the employee’s condition.

The employee agrees

The parties enter into an additional agreement. The main reasons why employees may voluntarily accept a demotion are:

1. Professional failure. If an employee is unable to cope with assigned tasks, fails to meet planned targets, or systematically makes mistakes, an employee can independently decide that he is not suitable for his position. In this case, a transition to a lower position corresponding to the level of competence is possible.
2. Change of field of activity. An employee may decide to move to another structural unit, work in which is more consistent with his professional interests and skills. In this case, demotion is not a significant point due to the emergence of new prospects for growth.
3. Personal factors. The reason for the transfer may be of a personal nature: health status, conflict situations with colleagues, inconvenient work schedule for the position held.

The employee does not agree

If the employee does not agree to the transfer, the following options for developing the situation are possible:

1. The employer invites the employee to make the transition, citing objective reasons for the advisability of such a move.
2. The employer argues that the demotion is due to the employee’s inadequacy for the position he occupies. Such conclusions of the employer must be based on the official results of employee certification. Art. 81 of the Labor Code allows for an employment contract with an employee if the job he or she occupies does not correspond to him, if there is no possibility of transferring the employee (with his written consent) to another suitable job within his organization. In other words, if an employee who has not passed the certification refuses to move to a lower-paid position, the employer has the right to fire him.
3. The employer makes the transfer for a reason. The position held by the employee before the reduction is abolished. As a result, he is faced with a choice: to be laid off and lose his job, or to agree to keep his job with a demotion.

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Transfer to another position at the initiative of the employer is associated with the economic difficulties of the company or the desire to dismiss an employee.

When is it possible to transfer to another job at the initiative of the employer?

Transfer to a lower position with a reduction in salary at the initiative of the employer is possible when:

1) there is a medical report for transfer (for example, in connection with the discovery of a disease), which is provided for in 76 Labor Code of the Russian Federation. A reduction in production standards or transfer to light work for pregnant women on the basis of a medical report does not allow a reduction in wages. guarantees the preservation of the average earnings for this category of female workers in their previous work;

2) there has been a change in organizational or technological working conditions (Article 74 of the Labor Code of the Russian Federation).

Types of transfers at the initiative of the employer

An internal transfer can be either permanent or temporary, depending on the reasons for the personnel event. The main differences between these types of transfers are the documents drawn up, making (permanent transfer) or not making (temporary transfer) an entry in the employee’s work book.

Permanent internal transfer to another job at the initiative of the employer is regulated by the following articles of the Labor Code of the Russian Federation:

Transfer at the initiative of the employee (promotion)

Cases in which a transfer to another position with an increase in salary and an expansion of the range of responsibilities is possible are concentrated around organizational changes (dismissal, creation of a new staff unit, temporary transfer to the place of a temporarily absent employee).

Such changes, duly recorded in a written agreement between the parties to the labor relationship, in accordance with Art. 72 of the Labor Code of the Russian Federation are possible only by agreement of the parties to the employment contract, with the exception of cases provided for by the Labor Code.

CONCLUSION ON LABOR LAW

on the issue of unilateral transfer of employees, including transfer to a lower paid position

Question: Does the head of an organization have the right to transfer an employee, including his deputy, to another, lower position and/or lower-paid job without the written consent of the employee, in the case where the Charter of a federal government institution states: “The head of a federal state institution ....: appoints to position and dismisses employees, distributes responsibilities among his deputies.”

Answer:

In accordance with Article 5 of the Labor Code of the Russian Federation, “the norms of labor law contained in other federal laws, as well as local regulations, must comply with the Labor Code. In case of contradictions between the Labor Code and another federal law, as well as a local regulatory act containing labor law norms, the Labor Code is applied.” The norms of the Labor Code have greater legal force than the Charter of a federal government institution. Based on this, the head of the organization cannot transfer an employee to a lower position and/or lower paid job and salary without his consent. Thus, unilateral transfer of an employee to a lower-paid position is illegal.

In accordance with Article 57 of the Labor Code of the Russian Federation, the essential terms of an employment contract include:

Place of work, and in the case where an employee is hired to work in a branch, representative office or other separate structural unit of an organization located in another area - place of work indicating the separate structural unit and its location;

- labor function (work according to the position in accordance with the staffing table, profession, specialty indicating qualifications; specific type of work assigned to the employee).

The date of commencement of work, and in the case where a fixed-term employment contract is concluded, also the period of its validity and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract in accordance with this Code or other federal law;

- terms of remuneration (including the size of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments);

Working hours and rest hours (if for a given employee it differs from the general rules in force for a given employer);

Compensation for hard work and work with harmful and (or) dangerous working conditions, if the employee is hired in appropriate conditions, indicating the characteristics of working conditions in the workplace;

Conditions that determine, if necessary, the nature of the work (mobile, traveling, on the road, other nature of work);

Condition on compulsory social insurance of the employee in accordance with this Code and other federal laws;

Based on Article 72 of the Labor Code of the Russian Federation:

“Changing the terms of the employment contract determined by the parties, including transfer to another job, is allowed only by agreement of the parties to the employment contract, except for cases provided for by this Code. An agreement to change the terms of an employment contract determined by the parties is concluded in writing.”

Article 72.1. The Labor Code of the Russian Federation also states that transfer to another, including lower-paid, job is permitted only with the consent of the employee:

“Transfer to another job is a permanent or temporary change in the labor function of an employee and (or) the structural unit in which the employee works (if the structural unit was specified in the employment contract), while continuing to work for the same employer, as well as transfer to a different job locality together with the employer. Transfer to another job is permitted only with the written consent of the employee."

Cases when the employee’s consent to a transfer is not required are also provided for in the Labor Code of the Russian Federation:

“Article 72.1 of the Labor Code of the Russian Federation: “The consent of the employee is not required to move him from the same employer to another workplace, to another structural unit located in the same area, or to assign him work on another mechanism or unit, if this does not entail changes in certain parties to the terms of the employment contract." And the position and salary are certain parties to the terms of the employment contract.

Article 72.2. TCRF: “In the event of a natural or man-made disaster, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic and in any exceptional cases threatening the life or normal living conditions of the entire population or part of it, the employee may be transferred without his consent for a period of up to one month to work not stipulated by the employment contract with the same employer in order to prevent these cases or eliminate their consequences.

Transfer of an employee without his consent for a period of up to one month to a job not stipulated by an employment contract with the same employer is also permitted in cases of downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), the need to prevent destruction or damage to property or temporary replacement absent employee, if downtime or the need to prevent destruction or damage to property or to replace a temporarily absent employee is caused by emergency circumstances. At the same time, transfer to a job requiring lower qualifications is permitted only with the written consent of the employee.”

Article 73 of the Labor Code of the Russian Federation:

“If an employee who, in accordance with a medical report, needs a temporary transfer to another job for a period of up to four months, refuses the transfer or the employer does not have the corresponding job, then the employer is obliged to suspend the employee from work for the entire period specified in the medical report while maintaining his job. (positions). During the period of suspension from work, wages are not accrued to the employee, except in cases provided for by this Code, other federal laws, collective agreements, agreements, and employment contracts.

If, in accordance with a medical report, an employee needs a temporary transfer to another job for a period of more than four months or a permanent transfer, then if he refuses the transfer or the employer does not have the corresponding job, the employment contract is terminated in accordance with paragraph 8 of part one of Article 77 of this Code .

Employment contract with heads of organizations (branches, representative offices or other separate structural units), their deputies and chief accountants, in need according to a medical report in a temporary or permanent transfer to another job, if the transfer is refused or the employer does not have the corresponding job, it is terminated in accordance with paragraph 8 of part one of Article 77 of this Code. The employer has the right, with the written consent of these employees, not to terminate their employment contract, but to remove them from work for a period determined by agreement of the parties. During the period of suspension from work, wages are not accrued to these employees, except for the cases provided for by this Code, other federal laws, collective agreements, agreements, and employment contracts.

If, in accordance with a medical report, an employee needs a temporary transfer to another job for a period of more than four months or a permanent transfer, then if he refuses the transfer or the employer does not have the corresponding job, the employment contract is terminated in accordance with paragraph 8 of part one of Article 77 of this Code "

Article 74. Changes in the terms of the employment contract determined by the parties for reasons related to changes in organizational or technological working conditions

“In the event that, for reasons related to changes in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, other reasons), the terms of the employment contract determined by the parties cannot be preserved, they may be changed at the initiative of the employer, with the exception of changes in the employee’s labor function.

The employer is obliged to notify the employee in writing of the terms of the employment contract determined by the parties, as well as the reasons that necessitated such changes, in writing no later than two months, unless otherwise provided by this Code.

If the employee does not agree to work under the new conditions, then the employer is obliged to offer him in writing another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower paid job), which the employee can perform taking into account his health status. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

In the absence of the specified work or the employee’s refusal of the offered work, the employment contract is terminated in accordance with paragraph 7 of part one of Article 77 of this Code.”

The employer is liable for illegal translation of the Labor Code of the Russian Federation :

Article 234 of the Labor Code of the Russian Federation. The employer's obligation to compensate the employee for material damage caused as a result of illegal deprivation of his opportunity to work

“The employer is obliged to compensate the employee for the earnings he did not receive in all cases of illegal deprivation of his opportunity to work. Such an obligation, in particular, arises if earnings are not received as a result of:

illegal removal of an employee from work, his dismissal or transfer to another job».

Article 394. Making decisions on labor disputes regarding dismissal and transfer to another job

“In case of recognition of dismissal or transfer to another job illegal the employee must be reinstated at his previous job by the body considering the individual labor dispute.

The body considering an individual labor dispute makes a decision to pay the employee average earnings for the entire period of forced absence or differences in earnings for the entire period of performing lower-paid work.

At the request of the employee, the body considering an individual labor dispute may limit itself to making a decision to recover in favor of the employee the compensation specified in part two of this article.

The decision to reinstate an illegally dismissed employee or to reinstate an employee who was illegally transferred to another job to his previous job is subject to immediate execution. If the employer delays the execution of such a decision, the body that made the decision makes a determination to pay the employee the average salary or difference in earnings for the entire time of delay in execution of the decision.”

Thus, transferring an employee to a lower-paid job without his consent is illegal and entails liability for the head of the organization established by labor legislation.

Senior lawyer

Legal Bureau "JURISTOCRAT"

Panteleeva Yulia Viktorovna

Tel. 8-926-522-85-41

e-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it, Attention Ms. Panteleeva Yu.V.

Can a manager hire an employee for one position and then transfer the same employee to another position with a lower salary? How to arrange this correctly? The transfer of an employee is due to the fact that his qualifications do not correspond to the position held.

According to part one of Art. 72.1 of the Labor Code of the Russian Federation, transfer to another job is a permanent or temporary change in the labor function of the employee and (or) the structural unit in which the employee works (if the structural unit was specified in the employment contract), while continuing to work for the same employer, as well as transfer to work in another location with an employer. Transfer to another job is permitted only with the written consent of the employee, except for the cases provided for in parts two and three of Art. 72.2 Labor Code of the Russian Federation.

An employee may also be transferred to a lower-paid job. According to part four of Art. 72.1 of the Labor Code of the Russian Federation, it is not allowed to transfer an employee to a job that is contraindicated for him for health reasons. As we understand from the question, we are talking about transferring to another permanent job.

Labor legislation contains a requirement that earnings from a new job correspond to the average earnings from a previous job only for cases of temporary transfer, the need for which is caused by emergency circumstances (parts two to four of Article 72.2 of the Labor Code of the Russian Federation). In all other cases, remuneration is made according to the work performed (part one of Article 132 of the Labor Code of the Russian Federation). Thus, it is possible to transfer an employee to “another position with a lower salary” if he agrees to this.

The transfer of an employee to another job is formalized, as a rule, by an additional agreement to the employment contract, which stipulates all changes made. The agreement must indicate the new position (profession, specialty, specific type of work assigned), as well as the date of transfer. Based on the agreement, the employer issues an order (instruction) on the transfer according to the unified form N T-5, approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 N 1.

If the initiator of the transfer is the employer, then by offering a lower-paid position, he can explain to the employee the reason for the change in job function. However, the employer does not have the right to insist on a permanent transfer. An employee cannot be forced to sign an agreement to transfer to another job. If an employee does not want to move to a lower-paid position, then the employment relationship continues without changes.

At the same time, if the employee is not suitable for the position held or the work performed due to insufficient qualifications, the employer has the right to terminate the employment contract with such an employee under clause 3 of part one of Art. 81 Labor Code of the Russian Federation. In this case, the employee’s inadequacy for the position held or the work performed due to insufficient qualifications must be confirmed by certification results.

In accordance with part three of Art. 81 of the Labor Code of the Russian Federation on this basis is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower paid work), which the employee can perform taking into account his health status. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

Prepared answer:
Expert of the Legal Consulting Service GARANT
Komarova Victoria

Checked the answer:
Reviewer of the Legal Consulting Service GARANT
Mikhailov Ivan
Company "Garant", Moscow

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