Maximum trial period for a fixed-term contract

Is it possible?

Is there a probationary period for a fixed-term employment contract?

Yes , it is installed. Which one is done by agreement of the parties. True, with reservations, namely (Article 70 of the Labor Code):

• duration limitation;
• this is acceptable with candidates of not all categories;
• a probationary period is possible only for work for a period of more than two months (Article 289 of the Labor Code).

The number of months is calculated in accordance with Article 14 of the Labor Code.

Categories of citizens who cannot be assigned a probationary period (Article 70 of the Labor Code):

• pregnant women, also mothers with children under the age of one and a half years;
• minor workers;
• citizens appointed to fill a position on a competitive basis;
• graduates of universities and secondary vocational institutions working for the first year from the date of receiving a diploma of relevant qualifications;
• transferred by agreement from another institution;
• appointed to an elected position;
• employed for a period of less than two months;
• others, in accordance with the law.

Is it possible to assign a probationary period for a fixed-term employment contract?

Art. 70 and 71 of the Labor Code of the Russian Federation confirm the legality of the appointment of a verification period for new workers. For a manager, this is an opportunity to evaluate the abilities and professional qualities of a subordinate. In case of improper performance of your duties, you can terminate the contract without completing the required period and severance pay.

For the employee, this is a chance to understand whether this is really the company and field of activity to which he would like to devote himself.

If a person gets a job temporarily, for such cases the Labor Code stipulates the execution of a fixed-term contract. This document is drawn up under the following conditions:

• the work is temporary and takes up to several months to complete (seasonal);
• only specifically specified tasks are implemented;
• employees work outside the state;
• a place is reserved for the absent person for whose position the candidate is hired (the period of parental leave);
• expansion of the enterprise occurs for a short period of time;
• internship.

ATTENTION! A probationary period for a fixed-term contract is appointed with the consent of both parties.

An employer has the right to enter into a non-permanent work agreement:

• with elderly people or people with disabilities (due to health reasons);
• with part-time workers and students;
• in case of receiving a pension by employees of the federal service;
• when the company has up to 35 employees.

A temporary employment contract is concluded for a certain period; all interested parties must be familiar with its terms.

When is it not prescribed?

In what cases is a trial not prescribed for a fixed-term employment contract?

As already mentioned. This is an option when the candidate gets a job for too short a period (up to two months) .

It should be remembered that a period of 2 months and 1 day already falls into the category of exceeding .

This means that the employer, if he still has doubts and wants to check the qualifications and necessary qualities of the applicant, it makes sense to conclude an agreement for, say, 2 months and 1 week.

True, the period for such a check is nothing at all - fourteen days.

Duration

It all depends on what position the person is applying for . For example, an employment contract with a probationary period of 3 months applies to an ordinary position (unless otherwise provided by law), and if it is a managerial one - a maximum of 6.

If the contract lasts from 2 to 6 months

When concluding an employment contract for a period of 2 to 6 months, the probationary period cannot exceed two weeks . Moreover, those days when the employee was absent or “voted out” are not counted .

When employed for 3 months

The probationary period for a fixed-term employment contract for 3 months will be no more than two weeks . True, there is one more “but” - why such a short period of time, what kind of work is this? And in general, is it provided for in this organization? The reason must be indicated in the text of the employment contract - for example, temporary or seasonal work (Article 57 of the Labor Code).

True, employers most often resort to cunning . Why bother and rack your brains over legal registration and how to formulate a refusal more tolerantly, if you can first sign a document for exactly three months, and then, if everything suits you, for an indefinite period?

This is what can often be seen in advertisements from employers (and in the text of the contract itself).

In fact, this is nothing more than an elegant bypass of the Labor Code norms (Article 70 and Article 71).

Usually the condition is this: first, they sign a temporary employment contract (implying a reduced salary and no social package), then, if the employer is satisfied with everything, they sign an open-ended one .

True, again, the reason for the short duration must be indicated in the text of the contract ; if this is not the case, the employee can sue the employer if the result is not satisfactory. Another thing is that it will not be easy to prove illegality.

We draw up fixed-term contracts with employees correctly

In order to avoid future misunderstandings and disagreements in the relationship between the employer and the employee hired for the vacated position, consent to testing him for professionalism must be mutual. The conditions for its implementation must necessarily be contained in the contract with the employee, which is signed before he begins to perform his labor functions.

If this was not done before his first start at work, then it is a priori considered that the employee was hired into the organization without an aptitude test procedure.

Considering the fact that 3 days are allotted for drawing up an employment contract, and a person can already start work, you should still sign with him before this moment any other document confirming his consent to conduct the test within the allotted time frame, for example, an agreement .

Such actions are provided for in Article 70 of the Labor Code of the Russian Federation. What else should be reflected in such an agreement:

1. The start and end date of its validity. If you do not specify the date until which it is valid, it automatically becomes indefinite;
2. The rationale for concluding an agreement for a specific period must be indicated;
3. Duration of the test period.

If these points are omitted, then later in the event of controversial issues between the parties, problems may arise with defending their position.

Extension

Is it possible to extend the probationary period with a fixed-term employment contract?

Actually, it's not possible . The time that the Labor Code provides for the manager to make a decision should be quite enough to make up his mind. But, as is most often the case in Russian legislation, if it is really necessary, then it is possible , and in this case.

It’s one thing if the candidate worked honestly and continuously during the test, without sick leave or time off. And it’s completely different if they did exist.

In this case, the employer issues an appropriate order - an extension - in accordance with the local standards of the company.

Here's what it says:

1. Passport information of the applicant, what position he is working in;
2. Full name of the company.
3. Document Number.
4. Why does the employer extend the test?
5. Based on what document?
6. Date, signature, seal.

Documents explaining the reason for the extension (for example, sick leave) must be present.

And the extension period itself cannot be more than what the employee missed.

This document must also be presented to the subject for review.

When probation is illegal

In order to avoid controversial situations, you need to know not only the rules for drawing up fixed-term contracts, but also the circumstances prohibiting the establishment of a probationary period.

Apart from those with a short-term contract, the test does not apply to the following categories of workers:

• pregnant women;
• employees with children no older than 1.5 years;
• under the age of majority;
• graduates who get a job in their specialty during the first year after graduating from an accredited educational institution, provided that they have not previously worked anywhere in their field;
• persons hired as a result of a transfer agreed between employers from one company to another and other cases reflected in the Labor Code.

Therefore, personnel officers must keep their finger on the pulse and check the documents submitted by the applicant for a vacant position before prescribing a probationary clause in a fixed-term contract.

Please note that it is unacceptable, even by mutual agreement of the parties, to expand the boundaries of the trial interval beyond what is prescribed by labor law.

Decor

How to arrange a probationary period for a fixed-term employment contract?

It all starts with the announcement of the “wanted” category.

That is:

1. The company advertises for employment indicating the expected “test” period .
2. An appropriate contract is concluded with the candidate you like, and its text must stipulate a trial period , as well as its conditions and for how long it is set (for example, for three weeks).
3. The manager issues an order of appointment.

All these components are mandatory . Even if this period was assumed, but there is not a word about it in the text of the employment contract, this will mean that the candidate was hired for the position without testing.

And if the agreement itself has not been drawn up, then in this case it is too late to talk about a “test period” and about introducing it retroactively into the text of the main document - unless the parties signed an agreement on this the day before.

If the appointed end date of the probationary period has already passed, and the candidate continues to work in the company, this means that he has been hired for good .

Does an employee have the right to refuse a probationary period?

According to the law, a candidate for a position, at the discretion of the employer, is given a probationary period, from which the potential employee has no right to refuse.

However, when concluding a fixed-term employment contract, the trial period is established by the employer, only in agreement with the employee. That is, when signing a fixed-term employment contract, a probationary period can only be established on a voluntary basis.

The employee expresses his consent to undergo the test in writing, after which he is assigned a probationary period.

Thus, if an employee refuses to undergo testing of his professional qualities and skills, the employer cannot force him to undergo the test. It is also impossible to dismiss an employee due to the latter’s refusal to assign him a probationary period.

Dismissal

How to fire during a probationary period with urgent work?

This can happen at the will of both the employer and the subject himself.

The employer, if he does not like the candidate , has the legal right to get rid of him (Article 71 of the Labor Code) and no urgency of the contract will be an obstacle to this.

The director must officially notify the employee in writing at least three days before the intended dismissal .