Unreasonable refusal to conclude an employment contract is prohibited. Any direct or indirect restriction of rights or the establishment of direct or indirect advantages when concluding an employment contract depending on gender, race, skin color, nationality, language, origin, property, family, social and official status, age, place of residence ( including the presence or absence of registration at the place of residence or stay), attitudes to religion, beliefs, membership or non-belonging to public associations or any social groups, as well as other circumstances not related to the business qualities of employees, are not allowed, with the exception of cases in which the right or obligation to establish such restrictions or advantages is provided for by federal laws. It is prohibited to refuse to conclude an employment contract to women for reasons related to pregnancy or the presence of children.
It is prohibited to refuse to conclude an employment contract to employees invited in writing to work by way of transfer from another employer, within one month from the date of dismissal from their previous place of work. At the written request of a person who is refused to conclude an employment contract, the employer is obliged to provide the reason for the refusal in writing no later than seven working days from the date of presentation of such a request.
Commentary on Article 64 of the Labor Code of the Russian Federation
1. Non-discrimination is one of the most important principles of the legal organization of labor (see Article 3 of the Labor Code and the commentary thereto).
The general definition of the concept of “discrimination” is given by ILO Convention No. 111 “Concerning Discrimination in Employment and Occupation” (adopted in Geneva on June 25, 1958). Part 2 of the commented article fully reproduces the provisions of this Convention. At the same time, the Labor Code defines additional guarantees when concluding an employment contract with certain categories of workers, and also clarifies those organizational and legal forms within the framework of which an interested person can protect his right.
The Labor Code specifically stipulates the prohibition of refusing to conclude an employment contract for women for reasons related to pregnancy or the presence of children (Part 3 of the commented article). This norm follows from the constitutional norms defining Russia as a social state, which assumes state support and protection of the family, motherhood and childhood (Articles 7, 38 of the Constitution of the Russian Federation). A concrete manifestation of such state support and protection is a number of measures carried out by the state, up to the establishment of criminal liability for unjustified refusal to hire or unjustified dismissal of a pregnant woman or a woman with children under the age of three (Article 145 of the Criminal Code).
The Labor Code prohibits refusing to conclude an employment contract to an employee invited by transfer from another employer (Part 4 of the commented article). From a formal legal point of view, the establishment of such a ban is aimed at ensuring the principle of contract law “contracts must be executed”; in fact, this prohibition guarantees the person who left his previous job the conclusion of an employment contract. An invitation to work must be made in writing and remains valid for a month after the employee’s dismissal from his previous job. Consequently, if an employee does not contact the employer with a proposal to conclude an employment contract within a month after his dismissal, the employer is released from the obligation to hire him. If the employee makes the specified offer before the expiration of the specified period, the employer’s obligation to conclude an employment contract remains, regardless of any other deadlines.
2. As follows from the said ILO Convention, any distinction, exclusion or preference in relation to a particular job based on its specific requirements is not considered discrimination.
In accordance with Art. 5 of the Convention, special measures of protection and assistance provided for in other conventions and recommendations adopted by the International Labor Conference are not considered discrimination. Each Member of the ILO may, after consultation with representative employers' and workers' organizations where such exist, determine that any other special arrangements designed to meet the special needs of persons who, for reasons of sex, age, handicap, family circumstances or social or cultural level, usually recognized as requiring special protection or assistance will not be considered discrimination.
Consequently, a refusal to conclude an employment contract based on one of two groups of circumstances cannot be considered discriminatory: 1) the specifics of the work for which the employment contract is concluded, as well as the business qualities of employees, or 2) restrictions or prohibitions established by law in order to protect the interests of certain categories of citizens.
3. The employer has the right to select employees based on their qualifications and business qualities that best meet the specifics of the work for which they are hired.
The business qualities of an employee should be understood as the ability of an individual to perform a certain job function, taking into account the professional qualifications he has (for example, the presence of a certain profession, specialty, qualifications), the personal qualities of the employee (for example, health status, a certain level of education, work experience in a given specialty, in a given industry).
In addition, the employer has the right to present to a person applying for a vacant position or work other requirements that are necessary in addition to standard or typical professional qualification requirements due to the specifics of a particular job (for example, knowledge of one or more foreign languages, ability to work with the computer).
If the court finds that the employer refused to hire due to circumstances related to the business qualities of this employee, such a refusal is justified (clause 10 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code Russian Federation").
The law provides for the following cases when an employee cannot be refused to conclude an employment contract: a) a person is invited by way of transfer from another employer; b) the unemployed person is sent to work against the established quota of jobs (see, for example, Article 13 of the Law of the Russian Federation of April 19, 1991 N 1032-1 “On Employment of the Population in the Russian Federation”; Article 21 of the Federal Law of November 24 1995 N 181-FZ “On social protection of disabled people in the Russian Federation”); c) a court decision obliges the employer to conclude an employment contract (see Article 16, 391 of the Labor Code and comments thereto); d) the person was elected to the position (see Articles 16, 17 of the Labor Code and comments thereto); e) a person was elected through a competition to fill the corresponding position (see Articles 16, 18, 332 of the Labor Code and comments thereto).
It is prohibited to refuse to conclude an employment contract with a pregnant woman or a woman with young children (Part 3 of the commented article). However, this does not mean the employer’s unconditional obligation to conclude an employment contract with them: their business and professional qualities are subject to assessment along with the qualities of other applicants for concluding an employment contract. Refusal to conclude an employment contract is illegal only if it is motivated by pregnancy and the presence of children.
As a general rule, an employer’s refusal to conclude an employment contract based on the employee’s age is discriminatory. However, such a refusal is possible, for example, due to direct instructions in the legislation. Thus, in state and municipal educational organizations of higher education, the positions of rectors, vice-rectors, and heads of branches (institutes) are filled by persons under the age of 65, regardless of the time of conclusion of employment contracts (see Article 332 of the Labor Code and the commentary thereto).
4. Since the current legislation contains only an approximate list of reasons why an employer does not have the right to refuse to hire a job seeker, the question of whether discrimination occurred when refusing to conclude an employment contract is decided by the court when considering a specific case (clause 10 Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).
5. In a number of cases, the employer is obliged to refuse to conclude an employment contract by virtue of the law. Such a prescription is determined either by special requirements for the qualities of a person performing a certain job, or by considerations of labor protection, moral and physical health of certain categories of citizens.
For example, as a general rule, persons who are not citizens of the Russian Federation cannot be appointed to positions in the state or municipal service. In a number of cases provided for by federal laws, a Russian citizen cannot be accepted into the state or municipal service and remain in the state or municipal service (Articles 16, 17 of the Federal Law of July 27, 2004 N 79-FZ “On State Civil Service of the Russian Federation"; Articles 13 - 15 of the Federal Law of March 2, 2007 N 25-FZ "On Municipal Service in the Russian Federation").
In accordance with Art. 14 of the Federal Law of July 25, 2002 N 115-FZ “On the Legal Status of Foreign Citizens in the Russian Federation” foreigners do not have the right to:
fill positions as part of the crew of a ship sailing under the State Flag of the Russian Federation, in accordance with the restrictions provided for by the Merchant Shipping Code of the Russian Federation;
be members of the crew of a warship of the Russian Federation or another vessel operated for non-commercial purposes, as well as an aircraft of state or experimental aviation;
be commanders of a civil aviation aircraft;
be hired at facilities and organizations whose activities are related to ensuring the security of Russia (The list of such facilities and organizations was approved by Decree of the Government of the Russian Federation of October 11, 2002 N 755);
engage in other activities and hold other positions, the admission of foreign citizens to which is limited by federal law.
Persons who do not have access to state secrets cannot be hired with information constituting a state secret (Article 21 of the Law of the Russian Federation of July 21, 1993 N 5485-1 “On State Secrets”).
An employment contract cannot be concluded with persons who do not have special knowledge or skills and do not have a document certifying their availability - if the nature of the work requires such special knowledge or special training (see Article 65 of the Labor Code and the commentary thereto) .
Persons deprived by a court verdict that has entered into legal force of the right to occupy certain positions or engage in certain activities cannot enter into an employment contract involving the performance of the relevant work within the period appointed by the court (Article 47 of the Criminal Code).
Persons subjected to administrative punishment in the form of disqualification cannot be appointed to leadership positions in the executive body of a legal entity (Article 3.11 of the Administrative Code).
The legislation establishes a number of restrictions and prohibitions related to the implementation of teaching activities (see Articles 331, 351.1 of the Labor Code and comments to them).
Federal Law of January 8, 1998 N 3-FZ “On Narcotic Drugs and Psychotropic Substances” in Art. Art. 10, 30 provides for a ban on the permission of a number of persons to work with these substances.
The state establishes restrictions on the performance of certain types of work by persons with various types of mental disorders. Decree of the Government of the Russian Federation of April 28, 1993 N 377 approved the List of medical psychiatric contraindications for carrying out certain types of professional activities and activities associated with a source of increased danger.
In a number of cases, the impossibility of concluding an employment contract with a particular person is due to the peculiarities of his status as a subject already carrying out a certain labor activity. Thus, the legislation prohibits state and municipal employees from engaging in other paid activities, including on a part-time basis. A similar prohibition is contained in the legislation on certain types of public service. Deputies are prohibited from being in state or municipal service, as well as from engaging in entrepreneurial or other paid activities, except for teaching, scientific and other creative activities.
The possibility of working part-time is also limited by the Labor Code (see Articles 276, 282 of the Labor Code and comments to them).
Considerations for ensuring health protection dictate age restrictions on the use of workers in certain jobs (see Articles 63, 265 of the Labor Code and comments thereto); restrictions on the use of women’s labor (see Article 253 of the Labor Code and commentary thereto).
6. The employer is obliged, by virtue of the commented article, to inform the person applying for work the reason for the refusal to conclude an employment contract in writing. This means that the subject of dispute may be not only the refusal itself, but also the employer’s evasion from fulfilling the specified public legal obligation. An interested person has the right to file a corresponding complaint both with the state labor inspection body (see Articles 356, 357 of the Labor Code and comments thereto) and with the court. When considering a complaint, the question arises about the distribution of the burden of proof, since the employer may claim that the employee did not ask him for a written explanation of the reasons for refusing to conclude an employment contract, or that the person did not contact him at all to conclude a contract.
If the employer does not deny the existence of negotiations and refusal to conclude an employment contract, the dispute about the absence of a corresponding written document becomes unnecessary, since it is completely covered by a conflict of a more general nature - about the employer’s refusal to conclude an employment contract. If the employer claims that there were no negotiations, the burden of proving their existence should be placed on the person making the complaint. The logic of solving the problem is obvious: no one will ever be able to prove the absence of an event that did not happen.
The presence or absence of a corresponding written document drawn up by the employer in a person who is challenging in court the refusal to conclude an employment contract cannot serve as a basis for refusing to consider the labor dispute on its merits.
7. Since the Labor Code does not contain rules obliging the employer to fill vacant positions or jobs immediately as they arise, courts, when considering cases related to the employer’s refusal to conclude an employment contract, are asked to check whether the employer made an offer for the vacancies available to him (for example, message about vacancies was transmitted to the employment service authorities, published in a newspaper, announced on the radio, announced during speeches to graduates of educational organizations, posted on a notice board), whether he negotiated a job with this person and on what grounds he was refused concluding an employment contract (part 2, clause 10 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2).
8. By virtue of clause 6 of Art. 25 of the Law of the Russian Federation “On Employment of the Population in the Russian Federation” it is prohibited to disseminate information about available jobs or vacant positions containing information about any direct or indirect restriction of rights or the establishment of direct or indirect advantages depending on gender, race, color skin, nationality, language, origin, property, family, social and official status, age, place of residence, attitude to religion, beliefs, membership or non-belonging to public associations or any social groups, as well as other circumstances not related to business qualities of employees, except for cases in which the right or obligation to establish such restrictions or advantages is provided for by federal laws (information about available jobs or vacant positions containing restrictions of a discriminatory nature).
The dissemination of this kind of information in itself is not an act of discrimination due to the absence of a subject who could be recognized as discriminated against. Dissemination of such information constitutes an independent act that forms part of the relevant administrative offense (Article 13.11.1 of the Administrative Code).
At the same time, if a specific person is denied an employment contract with reference to an advertisement containing the specified information, such a refusal should certainly be interpreted as an act of discrimination.
How will the employer be punished if he violates the prohibition established by Art. 64 Labor Code of the Russian Federation?
If an employer once unreasonably refuses to enter into an employment contract with a potential employee and this situation is discovered by inspectors, the company and its manager may suffer financially.
For unlawful refusal to conclude an employment contract, a fine is possible under Art. 5.27 Code of Administrative Offenses of the Russian Federation:
- from 10,000 to 20,000 rub. - for officials;
- from 5,000 to 10,000 rubles. — for individual entrepreneurs;
- from 50,000 to 100,000 rub. - for companies.
If the employer systematically allows this kind of refusal and has previously been held accountable under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, an official may be disqualified for a period of 1 to 3 years and a fine on the company in the amount of 100,000 to 200,000 rubles. An entrepreneur in such a situation will be punished in the amount of 30,000 to 40,000 rubles.
An unmotivated refusal to hire a disabled person who came to the workplace in accordance with a quota may lead to punishment of the official under Art. 5.42 of the Code of Administrative Offenses of the Russian Federation in the form of a fine in the amount of 5,000 to 10,000 rubles.
The materials on our website will tell you about other types of administrative responsibility of the employer:
- “Administrative fines for accounting violations have been tightened”;
- “What are the penalties for failure to submit accounting reports to statistics?”.
