To what extent is a probationary period a fertile ground for getting rid of an employee or parting with the company yourself? Let's look at all the intricacies of the mechanism dismissal during probationary period: rights, obligations and guarantees for each party.

Opportune moment

On the other hand, the employee himself may decide for himself that he still does not want to work in this company. And then he has the right to write a statement requesting dismissal during a probationary period at the initiative of the employee. The management will have no reason to reject this request.

The convenience is that dismissal during probationary period follows a somewhat simplified scheme. And this rule applies in both the first and second cases. Although, of course, it is more beneficial to the employer. He will face less paperwork if the applicant fails the test.

As a rule, potential employees themselves are much less likely to become disillusioned with working conditions and submit a resignation letter.

Test period

Details about the probationary period are written in Articles 70 – 71 of the Labor Code of the Russian Federation. They clearly define the procedure for administering this test, the maximum period and documentation rules.

The trial period has two main functions. During his time:

1. the employer can evaluate the professional qualities of the applicant, his hard work and suitability for the position for which he expects;
2. a subordinate can become more familiar with the internal regulations of the company, learn all the nuances of the work and decide whether the proposed vacancy meets his expectations.

Failure to comply with one of these points may result in dismissal during probationary period. At the initiative of one party or another.

The most important thing to know about the probationary period is that it has a clearly defined upper limit on its duration. Thus, the maximum period of time during which an employer can test an employee is six months. And then, this applies only to a narrow category of applicants who want to occupy one of the leadership positions in the organization. For example, if we are talking about a vacancy for a deputy head of a company, head of a structural unit, director of a representative office or branch.

In all other cases, for ordinary employees, the maximum duration of the probationary period cannot exceed three months. And no boss has the right to exceed this period, since by his actions he will then automatically break the law.

At the same time, the Labor Code does not mention a minimum probationary period. That is, it may not exist at all, or it may last a week. In this case, each company establishes its own procedure, which is regulated by internal documents.

And the test test can end at any time, even if the specified time has not passed. This happens, as a rule, if management sees that the new employee copes well with his responsibilities and is suitable for his position. By interrupting the trial period, management makes it clear to the employee that he is on the right track. And at the same time, it further motivates him for further work.

But this rule does not apply to single mothers raising children aged 1.5 years and above. To the question Can you be fired during a probationary period?, in their case, unfortunately, the answer is yes.

And one more interesting nuance when a boss cannot fire a subordinate due to failure to pass the test: if the employment contract does not stipulate a trial period at all. That is, in fact, this means that the employee is enrolled on a general basis without a probationary period. Then the same rules apply to him as to everyone else. This is enshrined in Art. 70 Labor Code of the Russian Federation.

Warning

As stated above, to the question, does he have the right to dismiss during the probationary period? boss, the answer is yes, it does. But observing the rules of the Labor Code of the Russian Federation. And first of all, by notifying the employee of your decision in writing no later than three days before the date of the planned dismissal.

For example, such a notice might look like this:

If it happened dismissal during a probationary period under a contract, then the settlement with the employee is made according to the following rules. According to Art. 140 of the Labor Code of the Russian Federation, all money that management must pay to a person is accrued on the day of his dismissal. Remember: not on the day when all employees are given their salaries, but on the day of dismissal!

Read also Civil defense and individual entrepreneurs: compliance with requirements

On the other hand, you have the right dismiss during a probationary period at the initiative of the employer and not pay severance pay. Here the law is on the side of the organization, as stated in Art. 71 and 178 of the Labor Code of the Russian Federation.

At the request of the employee

The trial period gives the employee the opportunity to take a closer look at the new place, learn in more detail all the nuances and internal regulations. And as a result, a person decides for himself whether this place is suitable for him or not. If the first option, then after the end of the test he continues to work in the company on a general basis. Of course, if there were no complaints from management about him.

In the second case, she has the right to take such a step as dismissal “on your own” during the probationary period. But this does not mean that one day the employee simply does not come to work. You must inform management about your decision. And this must be done in writing. This is what the fourth part of Article 71 of the Labor Code says.

An application for voluntary resignation must be submitted at least three days before the date of dismissal. Therefore, to answer the question, can I quit while on probation?, the answer is yes, but in compliance with all procedures.

The law does not provide for any special form of such a statement. It is enough to compose it in free form. But the following things must be reflected in it: the date of dismissal and the reason. The latter is described simply by the words: “at one’s own request.”

There is no need to write specific reasons for your decision. You may be forced to voice them only in a confidential conversation. Management is always interested in why an employee refused to work for the company. But you can voice them only if you want.

Another nuance. Many people are interested in how it happens dismissal during probationary period on sick leave. So: it is prohibited only if the dismissal is at the initiative of the employer. If at your own request, then sick leave will not be an obstacle to leaving the company.

Deny such a right as dismissal “on your own” during the probationary period, the employer cannot. And when the date specified in the application arrives, the employee can consider himself completely free.

By the day of dismissal, the HR department fills out the work book properly and gives it to the employee. On the same day, the company must fully pay the resigned employee. This is stated in Art. 77 Labor Code of the Russian Federation.

There is another borderline case - when voluntary dismissal during a probationary period occurs even before a person has worked even one day. That is, an agreement was already concluded with him, and then he suddenly changed his mind. In such a development of events, the contract is simply canceled, which is reported in a separate order. And there is no need for any other paperwork.

Working off

Answering the question, Is it possible to quit during a probationary period?, we showed above that it is possible, but all formalities must be observed. Namely, submit the corresponding application at least three days in advance. However, in this case, the management cannot assign any additional work to the employee. These three days before dismissal will actually mean working off. But it is calendar days that are taken into account.

Experts recommend, even if a person at first glance is ideally suited for a position, to conclude an employment contract with him with a probationary period. In this case, it will be possible to evaluate his professional qualities and terminate the contract if he does not suit the employer. Next, let's take a closer look at what an employee's probationary period is.

General information

The Labor Code with comments to the articles quite clearly regulates the procedure for registering a person for a particular position. Personnel selection is often a fairly lengthy process. Typically, hiring is based on the results of an interview. Often, when hiring, he is offered professional tests.

However, even the most careful selection of personnel does not eliminate risk for the employer. The new person may end up being underqualified or underdisciplined. To assess how well he meets the requirements set by the enterprise, it is advisable to establish a probationary period for the employee. To implement this, it is necessary not only to stipulate, but to legally formalize the agreement correctly. The Labor Code with comments to the articles establishes the legal basis for employment with such conditions. However, you need to know some nuances in order to avoid mistakes in practice.

Principles by which a probationary period at work is established

As mentioned above, this period is necessary to test the professional and some personal qualities of a person. Hiring in this case is subject to a number of conditions. These include, in particular:

• A probationary period is established for hired people who have not previously held any position in the enterprise. For example, this applies to cases when a specialist is transferred to a higher position or to another department.
• The probationary period is established until the person begins to perform his duties. This means that before starting activities at the enterprise, an appropriate agreement must be drawn up. It can be a probationary agreement (as a separate appendix) or these conditions are included in the general contract. Otherwise, this agreement has no legal force.

It should be noted that the condition on the application of a probationary period must be present not only directly in the employment contract, but also in the order to enroll a person on the staff. In this case, the future employee must confirm with his signature the fact of familiarization and agreement with these facts. It is not necessary to put a mark on the appointment of a probationary period in the work book.

Legal registration

As stated in the Labor Code, the probationary period is applied only in accordance with the agreement of the parties. The conditions for registration must be documented. The main document is an employment contract with a probationary period. If the conditions are fixed only in the order, then this is considered a violation of the law. In this case, the judicial authority recognizes the conditions for the appointment of the test as invalid.

In addition to the main contract and order, the procedure for registering an employee may be reflected directly in his application for appointment to a particular position. It should be said that the employer’s responsibilities include not only legally competent execution of the contract and other documents, but also familiarization of the future employee with job responsibilities, internal rules of the enterprise, and job description. The employee certifies this fact with his signature. This is of particular importance if the person has not completed the probation period. If the employer is forced to dismiss an employee who has not completed the established period, the fact that he is familiar with the duties is used to confirm his inadequacy for the assigned position.

Alternative option

Quite often, instead of an open-ended contract with a trial period, employers enter into a fixed-term agreement. In their opinion, such registration of an employee significantly simplifies the situation when a person has not coped with the assigned tasks and should be fired. The period of the fixed-term contract will end and the employee will leave on his own. However, the law establishes certain conditions for concluding such an agreement. Thus, according to Article 58 of the Labor Code, the execution of a fixed-term contract for the purpose of evading the guarantees and rights provided for employees for whom an open-ended contract should be used is prohibited. It is recommended that courts pay special attention to compliance with these conditions when investigating violations.

Resolution of the Plenum of the Supreme Court (Supreme Court) No. 63 (dated December 28, 2006), paragraph 13

If, during the consideration of a dispute about the legality of drawing up a fixed-term agreement, it is revealed that the employee was forced to conclude it, then the court applies the rules of a contract for an indefinite period. If a person applies to a legal authority or the relevant inspection, then the agreement can be recognized as concluded for an indefinite period. In this case, no probationary period is assigned. During the probationary period, a person is subject to the relevant provisions of legislation and other acts that contain the norms of established law, collective agreement, contract, local documents.

Salary

It is considered a violation of the law to establish lower remuneration for an employee during the probationary period in an employment contract. The norms do not stipulate that the salary of a specialist in this case is different. If a conflict situation arises, the employee has the right to receive underpayment in court. On the part of the employer, this issue can be resolved in different ways. In particular, when drawing up an employment contract, the amount of payment for the trial period is indicated as permanent. At the end of the period, an additional agreement is signed with the specialist, which establishes an increase in payment. Also, the enterprise may adopt a provision on bonuses. The amount of these additional payments may be determined in accordance with length of service.

Dismissal procedure

During the probationary period, the employee is also subject to guarantees and standards related to the grounds for the employer’s refusal, on his initiative, to refuse the employee’s services. They are provided for in Article 81. An employment contract cannot include additional grounds not established by law. These include, for example, reasons of “expediency” or “at the discretion of management.” These statements are often found in contracts. However, they do not comply with the law.

Vacation

The probationary period is included in the employee's length of service. It gives the right to basic annual paid leave. In case of dismissal during the probationary period or after its completion, despite the fact that the person did not fulfill his duties at the enterprise for six months, he has the right to compensation for the unused vacation period. It is assigned in proportion to the period of his presence at the enterprise as an employee.

Special cases

When drawing up an employment contract, you need to know that the law excludes the possibility of applying a probationary period to a number of categories of persons. These include:

• Those elected through a competition for filling a particular position, conducted in accordance with the procedure established by law or other regulations.
• Women who are pregnant or have dependent children under one and a half years old.
• Persons under 18 years of age.
• Invited to work by way of transfer from another employer as agreed between the management of the enterprises.
• Persons applying for work under a contract for a period of less than two months and others.

Length of period

A probationary period of 3 months is established in general cases. For managers, chief accountants and their deputies, directors of representative offices, branches and other structural separate divisions - six months, unless otherwise provided by Federal Law. When drawing up an employment contract for 3-6 months, the probationary period is no more than two weeks.

This period does not include days when the employee was actually absent from the enterprise. This could be temporary disability due to illness, for example. In practice, employers often resort to extending the probationary period specified in the contract. These actions are contrary to the law. If at the end of the period the employer does not make a decision to dismiss, the employee is considered to have passed the test. In some cases, a longer period is provided. It is regulated by Art. 27 Federal Law No. 79 and concerns civil servants.

End of probationary period

Often, after the period expires, the employee continues to work for the enterprise. In this case, he is considered to have passed the test, and further termination of the employment contract is carried out on a general basis. If the employer believes that the person is not suitable for the position, then no additional paperwork is required. In other words, the employee continues to work on a general basis.

Article 71

If the test result is unsatisfactory, the employer has the right to terminate the contract before its expiration. In this case, he should notify the employee about this three days before terminating the contract. The warning must contain the reasons why the employer finds that the person is unsuitable for the position and has failed the test. The employee can appeal this decision in court. In case of unsatisfactory results, the contract is terminated without taking into account the opinion of the trade union body and without paying severance pay. If an employer decides to fire a new employee, then in this case it is necessary to follow a certain procedure and prepare the relevant documents. In particular, a notice of unsatisfactory result is drawn up. It must be in two copies - for the employee and the manager. The document is handed over to the employee against signature.

Actions of the employer in case of refusal to accept notice

The employee may refuse to accept the paper. In this case, the employer must take certain actions. In particular, a corresponding act is drawn up in the presence of several employees of the enterprise. Employee-witnesses confirm with their signatures the fact of delivery of the document and refusal to accept it. A copy of the notice may be sent by mail to the employee's home address. Sending is carried out by registered mail. It must also come with a receipt.

In this case, it is very important to comply with the deadline established in Article 71: a letter notifying about dismissal must reach the post office no later than three days before the completion of the test assigned to the employee. The date of departure is determined by the stamp on the receipt and the delivery receipt returned to the employer. The document on termination of the contract must contain all the necessary characteristics: date and reference number, signature of an authorized person, stamp of the seal that is intended for issuing such papers.

Legally correct formulation of the reasons for dismissal

It must be based on documents that confirm the validity of the decision made by the employer. As judicial practice shows, in the process of considering disputes about dismissal due to unsatisfactory test results, the employer is required to confirm the fact that the employee is not suitable for the position. To do this, moments when a person failed to cope with the task or committed other violations (for example, job descriptions, internal regulations, etc.) must be recorded.

These circumstances must be documented (protocoled), indicating the reasons if possible. At the same time, the employee should be required to provide written explanations of his actions. Experts believe that when dismissing under Article 71, it is necessary to provide evidence of the employee’s professional inadequacy for the position held. If he violates internal discipline (played truant or in some other way showed a negligent attitude towards activities at the enterprise), he should be dismissed under the relevant paragraph of Article 81. The documents with which the employer confirms the validity of the dismissal may be:

• Act on violation of discipline.
• A document confirming the non-compliance of the quality of work with the requirements and production and time standards adopted at the enterprise.
• Explanatory notes from the employee about the reasons for non-fulfillment of tasks.
• Customer complaints in writing.

Assessment of business qualities

It has a direct dependence on the specifics and scope of the enterprise. Based on this, conclusions about the test results can be based on various data. For example, in the field of production, in which the result of activity is an object (product), the level of quality can be determined quite clearly. If the company is engaged in the provision of services, then the assessment of the employee’s business qualities is carried out in accordance with the number of customer complaints.

There are certain difficulties in the field of intellectual activity. In this case, to evaluate the results, the quality of execution of assignments, compliance with established deadlines, fulfillment of the total scope of tasks, and compliance with professional qualification standards are recorded. The new employee’s immediate supervisor is responsible for preparing and sending these documents. The procedure for dismissing an employee, therefore, requires a certain formality from the employer. However, the employee can legally appeal the decision in any case.

Employee's right to terminate the contract

An employee can use it if during the test he understands that the proposed activity is not suitable for him. He must notify management of his decision three days in advance. The notification must be in writing. This rule is of particular importance for employees. This is because potential employers would like to know the reasons why the applicant left his previous employer so quickly.

Finally

The legislation quite precisely defines the conditions under which the application of a probationary period is allowed. Due to the fact that a new employee is often considered a party without social protection within the framework of these relations, the rules of law establish certain guarantees for him. At the same time, the procedure for dismissing an employee due to unsatisfactory results of the trial period is quite formalized. The legislation defines the right of an employee to appeal the decision of the management of the enterprise in court.

In such cases, the executive body will carefully check the legality of establishing the probationary period and the legal literacy of the necessary documentation. Of no small importance will be compliance by the management of the enterprise with all legal aspects within the framework of these relations. Based on this, both the employer and the applicant himself have the right to personally determine for themselves the feasibility of applying and the conditions for passing a probationary period at the enterprise. As practice shows, cases of conflict situations occur less frequently where selection is carried out based on the results of several stages of interviews.

Getting a job has a lot of subtleties and nuances. When applying for legal employment, you must first undergo a probationary period, which lasts from one to several months, and only then does the work experience begin to count.

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But there are cases when an employee is fired during the probationary period, or he himself leaves the place. Let's find out how the dismissal procedure occurs during the probationary period by law.

What does the law say?

According to Art. 16 Labor Code of the Russian Federation, official registration of an employee, that is, the establishment of a certain salary, is possible only after passing the probationary period.

Also Art. 26 of the Labor Code of Russia states that in some cases it can be omitted.

Why take a closer look at the employee?

As practice shows, a probationary period helps to identify shortcomings in a candidate for a position, gaps in knowledge and lack of necessary skills. Or, conversely, it provides an opportunity to reveal the best sides of a potential employee.

In any case, before official employment, the employer should look at the candidate “in action.”

According to Art. 70 of the Labor Code of the Russian Federation, after successfully completing the probationary period, days of work can be entered into the work book as a count of length of service (with the consent of the employer).

Who is tested and when?

The employer has the right to establish a probationary period for all persons who have reached the age of 18, have work experience and have finally left their place of work.

Its passage begins on the first working Monday. Holidays and weekends do not count towards your probationary period.

Restrictions for the employer

An employer does not have the right to hire a candidate for a position on a probationary period if he:

• has not reached the age of majority;
• a pregnant woman or mother with small children under 1.5 years of age;
• transferred from one company to another (at the invitation of the company) to a similar position;
• won a competition to replace a fired/left employee.

If a potential employee belongs to at least one of the above categories, then setting a probationary period is illegal.

Deadlines

Depending on the class of the employee, in Art. 27. The Labor Code provides for different deadlines:

• for representatives of blue-collar professions, a probationary period of no more than one month is provided;
• for representatives of other professions – about 3 months;
• in special cases, in the presence of negative reviews – 6 months.

Possible test results

There are two possible outcomes of the situation – positive and negative.

If the “practice” is completed in good faith, the employer formalizes the employee by concluding an employment contract with him.

If the results of the probationary period cause criticism, then the employer has the right not to continue cooperation with the person.

In what cases is dismissal possible?

Leaving work before the end of the probationary period is possible at the initiative of the employer or employee.

Let's consider both cases.

Employer initiative

Article 71 of the Labor Code of the Russian Federation states that the employer has the right to early employment - upon completion of the probationary period.

However, you should notify about this no later than 3 days in advance of the necessary care. The dismissal of an employee who is on a probationary period occurs in writing.

On a piece of paper, the employer must indicate the reasons why he is not satisfied with the performance of a potential candidate for the position.

The notice is drawn up in two copies: one for the employer, the other for the employee.

Example notification:

Employee initiative

There are also cases when an employee leaves his post by his own decision.

He is obliged to write a written notice three days before leaving in one copy, which is intended for the employer.

The person must also pay back all the money received as salary for the probationary period and return the work book to the company secretariat.

Example document:

Features and nuances of the situation

The dismissal procedure during the probationary period has its own nuances and features. Let's look at them.

Working off

As a rule, processing takes from three days to a week. During the working period, cases related to dismissal are resolved.

It is necessary for the following reasons:

• in a few days the employee completes all his work and completes his projects;
• during the service, management can find a replacement for the person who left the post;
• all documents necessary for the full departure of the former employee are completed and prepared.

The employee went on sick leave

Taking sick leave during a probationary period is normal legal practice.

The legislation of the Russian Federation provides for leave for people who have a fever, have received any injuries, etc.

Some employers mislead employees that if they go on sick leave, they will not pass the probationary period. This is not true: it is enough to provide evidence of your illness (certificates from a doctor, x-rays, etc.), and the employer must release you from duties.

At the same time, dismissal is impossible until the employee returns to work after illness.

Directors and financially responsible persons

The procedure for their dismissal does not differ from the above rules: the same provisions of the Labor Code of the Russian Federation come into force.

Replacements for management positions are sought during the previous employee's service.

It is worth considering that when a financially responsible person leaves, you should check the property and funds for which he was responsible, and only after that draw up a departure agreement. Property verification occurs through an inventory.

In any officially operating company or organization there is an inventory commission that operates constantly.

It consists of the heads of departments or workshops of the enterprise, the chief accountant, the head of the company or her deputy.

During the inventory process, an act of counting material assets is drawn up, in which the commodity property is weighed, measured, the initial number of valuables is calculated, and the state of things before and after the employee’s work is compared.

Public and private companies

The conditions for dismissal during a probationary period do not differ much in public and private companies.

For example, an employee of a government agency will have to write a statement three days before leaving; if the initiator was the manager, then he writes the notice, accordingly.

The same procedures must be followed by an employee in a private company. Therefore, there are no differences.

The procedure for registering dismissal during a probationary period

The departure of an employee who was on a probationary period is accompanied by a lot of hassle: preparing documentation, processing the work record book, establishing the necessary payments and compensation.

Preparation of documents

There is a certain scheme according to which an employee who is on a probationary period is dismissed.

It includes the following steps:

• First of all, the manager prepares documentation confirming that the employee does not meet the requirements to perform the job and his competence is insufficient in the relevant area. As a rule, reports, notes from the employee’s colleagues, explanatory notes, etc. act as evidence.
• Next, the manager writes a notice in which he notifies the employee of his decision. The employee is informed of his imminent dismissal by attaching documentation.
• After reviewing the claims, the employee signs in a special work journal.

Entry in the work book

After completing the collection of documentation and the dismissal procedure, a corresponding entry is made in the employee’s work book (example):

The Labor Code indicates that the employer has the right to assign an applicant a test when hiring. This is necessary to check the professional qualities of the future employee. This does not mean that the employer is obliged to establish a probationary period.
indicate that a probationary period can be established for an employee only by agreement of the parties. However, in practice this is not the case. The employer confronts the job seeker with the fact that there is a probationary period, and the salary during this period is set somewhat lower than after it.

When hiring, even if there is a probationary period, the employer enters into an employment contract with the employee. The contract must indicate that the employee is hired “with a probationary period of ....”. The salary that the employer is going to pay the employee during the trial must also be specified in the contract. If there is no provision in the employment contract about assigning a test to the applicant when hiring, this means that the employee was hired for a vacant position without a probationary period.

Article 70 of the Labor Code of the Russian Federation states that the duration of the probationary period cannot exceed 3 months. If the head of the organization, his deputy, the chief accountant or his deputy is hired, the probationary period is increased to 6 months. If a fixed-term employment contract is concluded with an applicant for a vacant position for a period of 2 to 6 months, then the probationary period cannot exceed 2 weeks. If the employee was sick or actually absent from work for other reasons, these periods are deducted from the probationary period.

• persons who occupy a vacant position as a result of a competition;
• pregnant women;
• women who have a child under 3 years of age;
• minor workers;
• persons holding an elected position;
• persons occupying a vacant position as a result of a transfer from another employer;
• applicants who enter into an employment contract for a period of less than 2 months;
• to other persons, if this is provided for by local regulations or collective agreements.

The employee must understand that if there is a test, then there must be its results. They can be both positive and negative.

If the employee passes the test, then there is no need to conclude a new employment contract with him. He continues to work under the conditions specified in the employment contract concluded upon acceptance. If the results of the test, in the opinion of the employer, are negative, then he can terminate the employment contract with the employee before the end of the probationary period.
To do this, he must warn the employee in writing about the upcoming dismissal 3 days in advance. The notice of termination must also detail the reasons. The employer must justify its decision regarding negative test results.
If the employee does not agree with the results of the test, he must also notify the employer about this. If he considers his dismissal illegal, he has the right to appeal to the labor inspectorate or to court. The opinion of the trade union is not taken into account in this case. The employee also has the right to terminate the employment contract with the employer if, during the test, he decides that the job is not suitable for him for a number of reasons. To do this, he must notify the employer in writing 3 days in advance.

Probation period according to the labor code

According to established practice, a probationary period is a certain period of time during which the employer checks the suitability of the employee being hired for the position for which he is being hired.
Establishing the period required for probation is the right of the employer, but not his obligation. Therefore, if he believes that the applicant is suitable for the vacant position, he can hire him without passing the test.

The employer has the right to apply a probationary period to one or another applicant for a vacant position, regardless of the organizational and legal form of the enterprise and the goals of economic activity.

The appointment of a probationary period is regulated by Art. 70 Labor Code of the Russian Federation and Art. 71 Labor Code of the Russian Federation. But this does not mean that he works on preferential or special terms. Absolutely all norms of the current labor legislation, as well as other regulations containing labor law norms, apply to it. That is, he has all labor rights and must perform all labor duties, and can also be held accountable for violating the norms of the Labor Code of the Russian Federation.
A probationary period can only be established by agreement of the parties. That is, if one party (usually a future employee) did not know about the establishment of the test or was not properly notified, this is considered a gross violation of the norms of the Labor Code of the Russian Federation.
Therefore, the employer must notify his future employee that he intends to set a certain period for checking his professional suitability. The duration of the period must be announced. The applicant does not have to agree! But he may offer the future employer another term. When the parties come to a mutual agreement, they sign an employment contract, which specifies the duration of the tests for a specific applicant.

The duration of the probationary period is not an essential condition of the employment contract, that is, without this clause the contract will be valid. In addition, if during the labor relationship the parties agreed that the test period needs to be changed, then they can sign an additional agreement and include this provision in it.
Based on the signed employment contract or additional agreement, an order is issued, which also reflects the duration of the probationary period. If such conditions are absent, the employee is considered accepted without a probationary period.

Working conditions during the probationary period should not be worse than after its completion. This right to the employee is guaranteed by Art. 70 Labor Code of the Russian Federation. In addition, a real employment contract is immediately concluded with the employee, and not for the duration of the test. An employer cannot conclude a fixed-term contract on such a basis as during the probationary period, since this is not the basis for concluding a fixed-term contract. This is a violation of current legislation.

The same situation applies to wages. It should not be less than what other employees receive in a similar position and with the same work experience as the new employee. That is, the employer does not have the right to stipulate in the employment contract one amount of remuneration for the duration of the trial, and then another amount.

But employers found a way out of this situation without violating the norms of the Labor Code of the Russian Federation. They set low salaries for all employees, regardless of position, qualifications and work experience. And then they pay their employees monthly bonuses, taking these facts into account. Therefore, an employee on a probationary period, as a rule, receives less than other employees.
It is possible to carry out dismissal during a probationary period according to a simplified scheme, regardless of who is the initiator - the employee or the employer. If one of the parties comes to the conclusion that this employment relationship is impossible, then the employment contract is terminated without the participation of the trade union organization and payment of severance pay.

To whom the probationary period does not apply

The law establishes a certain circle of persons to whom a probationary period cannot be applied as a measure of professionalism. The circle of such workers is defined in Art. 70 Labor Code of the Russian Federation. These include:

• applicants who are accepted for a vacant position based on the results of a competition;
• pregnant women, with the appropriate certificate, and persons who have a child under the age of 1.5 years;
• minor applicants;
• applicants who are university graduates and who get a job for the first time within 1 year after graduation;
• applicants who are intentionally elected to a given position;
• employees with whom an employment contract is concluded due to a transfer from another employer, if there is an appropriate agreement between these employers;
• applicants who enter into an employment contract for a period not exceeding 2 months;
• applicants of other categories, which are prescribed in other, more “narrow” regulations.

In relation to these employees, the employer does not have the right to apply tests when applying for a job.

Exceeding the probationary period

The maximum duration of the probationary period, according to current legislation, is 3 months. That is, the employer does not have the right to check the professionalism of his employee beyond this period.
But there are several categories of employees for whom the probationary period should not exceed the time limit strictly established by law. Therefore, the employer must first determine whether his new employee belongs to this category or not, and only then set tests for him for a certain period.

A probationary period of no more than 6 months is established for:

• the head of the enterprise, as well as for his deputy;
• head of a branch, representative office, structural unit;
• chief accountant and his deputy.

The probationary period cannot exceed more than 2 weeks for applicants:

• concluding an employment contract for a period of 2 months to six months;
• working in seasonal jobs.

Tests for a period of 3 to 6 months are established:

• for civil servants who are hired for the first time;
• for persons who are transferred to the public service for the first time.

In more “narrow” regulations governing the activities of various categories of workers, other testing periods may be established. Therefore, if an employer is guided by such regulations to conduct its activities, then it must take this into account when hiring new employees.

If the probationary period is specified in the employment contract and does not exceed the duration established by law, then it can be changed. The manager has the right to shorten the probationary period of his employee without compelling reasons, but he has no right to increase it.
However, there are periods of work that are not included in the employee’s probationary period, that is, they actually increase the probationary period for a particular employee. These are time periods such as:

• a period of illness, that is, the employee can justify his absence with a certificate of incapacity for work;
• administrative leave, that is, leave when the employee does not retain his salary;
• study leave, that is, absence from work due to training;
• the employee is engaged in public works or performs government duties;
• absence of an employee from his/her workplace for other valid reasons.

In effect, these periods extend the probationary period of a particular employee, although there are no changes to the employment contract.

The probationary period applies to a fixed-term employment contract

You can conclude either a fixed-term employment contract with an employee or a contract with a specified duration. This point is reached by agreement of the parties. The duration of the employment relationship must be specified in the employment contract. A probationary period can also be applied to such an employee, but with some nuances.

A fixed-term employment contract can only be concluded in certain cases. These are cases such as:

• for a period of no more than 5 years;
• an employee is hired to perform a certain amount of work when the exact completion date of such work cannot be determined. This should be stated in the employment contract;
• temporary absence of another employee. An often common case is an employee’s maternity leave;
• performing seasonal work. For example, harvesting or sowing.

In other cases, the employment contract is concluded for an indefinite period.

With a fixed-term employment contract, the duration of the trial is also established by agreement of the parties, as with an open-ended contract. The general test conditions apply. The period for checking a new employee cannot exceed 3 months. But if a new employee is hired for a period of 2 months to six months, then the employer cannot set a verification period of more than 2 weeks. This situation arises when an employee, for example, is hired to perform seasonal work.
If an employee is hired for a period that does not exceed 2 months, then the employer does not have the right to set a probationary period. If the employer insists on this, then he violates the basic labor rights of this employee.

Nowadays, most employers set probationary periods for new employees. In this way, they want to check whether the new candidate will cope with his responsibilities.

It is possible that the proposed vacancy will not suit the new employee - due to the specifics of work, the inability to establish relationships with the team, or for personal reasons. In this article we will describe in detail how dismissal occurs during a probationary period at the initiative of an employee and how the law regulates this procedure. You will also find out what rights and responsibilities arise for an employee who leaves the company at this stage.

A step-by-step description of the procedure for dismissal during a probationary period at the initiative of the employee

In Russia, it is allowed to quit during the probationary period. This rule is enshrined in Art. 77 Labor Code of the Russian Federation.

Art. 80 of the Labor Code of the Russian Federation fixes the procedure in accordance with which dismissal at one’s own request is organized during the probationary period.

Stage No. 1. Employer Notice

Curious facts

According to research, for 19% of respondents the probationary period ended with the termination of the employment contract on their initiative, for 6% - at the will of the employer. The majority of applicants managed to complete the probationary period and remain employed by the company (66%). Most often, women, Russians aged 35 to 44 years old and specialists with high salaries remain to work in the company after the end of the probationary period (68% each).

According to Art. 280 of the Labor Code of the Russian Federation, during the probationary period, notification of superiors occurs 3 days before the date of expected dismissal. Separate guidance is provided for management employees. To terminate the employment contract, they are required to notify the founders 1 month before the date of departure from the company.

The employee should submit a resignation letter to the human resources department of the organization. It is necessary to ensure that the document is registered. To do this, the employee must ask for a duplicate or copy of the document with the registration number. This ensures the movement of the document, as well as compliance with the date and procedure for dismissal.

Stage No. 2. Working off

After notifying the employer, the employee must work for 3 days. The countdown starts from the day following the day the application was submitted. The employer has the right to pay the employee off on the day of notification, if he considers this possible.

The law states that, if there are good reasons, it is permissible for an employee to terminate an employment contract during a probationary period without working out. In this case, the employee must indicate in the application the basis for immediate dismissal:

• moving;
• admission to an educational institution;
• retirement;
• serious illnesses in relatives who now require care.

Stage No. 3. Making an order

Having received the resignation letter, the manager signs it and puts a stamp on it. The document is then sent back to the HR department. Here the dismissal order is prepared.

An entry about hiring and dismissal is made in the employee’s work book with reference to the probationary period.

Stage No. 4. Calculation of the employee and issuance of documents

Based on the order, the organization’s accounting department makes calculations for the employee. On the day of dismissal, he is given documents and the full amount of compensation due. If the employee did not pick up the papers on the day of dismissal, he should be notified of the need to obtain them.

If the employer refuses to pay, then the deceived employee has the right to file a claim in court: 88% out of a hundred is a winning case. The remaining 12% is an unsuccessful encounter with local corruption.

Stage No. 5. Withdrawal of application

At any time before the expiration of the 3-day notice period, the employee has the right to withdraw his resignation. To do this, you need to write a new application and register it with the personnel service. The management will be obliged to reinstate the person in the position, unless another person who cannot be denied the job has already been officially invited to it.

Watch a video that will tell you about the termination of an employment contract at the initiative of the employee

General information that an employee should know when leaving in such a situation

If you intend to quit during the probationary period, an employee should study a number of nuances that management sometimes neglects:

1. The employer does not have the right to demand disclosure of the reason for dismissal.
2. The calculation should include compensation for unused vacation, salary and severance pay.
3. The employee is paid off on the last day of work.
4. Work during a probationary period is included in the length of service. The corresponding entry must be entered in the work book.
5. If the employment contract does not specify a probationary period, the working period will be 2 weeks.

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