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Published: 05/09/2017
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Refusal to hire is a fairly common practice among employers. It often happens that the candidate himself realizes at one of the stages of employment that he is not suitable for a particular position and leaves, but it often happens the other way around.
Unreasonable refusal of employment is prohibited by the Labor Code of the Russian Federation , and, therefore, can be challenged in court if the candidate has not resigned himself and is going to achieve justice. In our article we will analyze in detail the most important questions that the reader may have, and also provide examples from judicial practice.
- Legislation of the Russian Federation
- Concept and types of unjustified refusal
- Mechanism of action after refusal: appeal and employer liability
- Judicial practice regarding unjustified refusals First example
- Second example
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Who should not be refused work?
In addition to the principles on the issue of unreasonable refusal to hire, Article 64 of the Labor Code establishes groups of persons who can be justifiably refused only due to the absence of any professional characteristics, these are:
- employees who get a job at the written invitation of the employer, having previously resigned from their previous job;
- pregnant women, as well as those with children, if these characteristics had an impact on the employer’s decision regarding hiring a candidate.
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What is an unreasonable refusal?
Russian labor law prohibits unjustified refusal to hire. Based on Art. 64 of the Labor Code of the Russian Federation, three types of unreasonable refusal can be distinguished:
1) without specifying a reason;
2) for reasons expressly prohibited by labor legislation (for example, discriminatory refusal);
3) for reasons that do not relate to the employee’s business qualities.
If the court finds that the candidate was not hired for the position due to circumstances related to his business qualities, such refusal by the employer is justified.
Reasons for refusal to hire: unlawful and discriminatory motives
If in any way a refusal to hire restricts a person’s right to work, such a refusal, according to the norms of the current labor legislation, is considered unlawful. Thus, denial of employment is considered illegal:
- applicant due to age restrictions, nationality, religion, race, political beliefs, language and other characteristics that are not related to the professional qualities of the candidate;
- a woman who is pregnant or has children;
- a citizen of Russia who, for some reason, does not have registration at the place of residence/stay or at the location of the employer;
- An HIV-infected applicant due to his illness;
- to the applicant depending on his membership or non-membership in a trade union;
- a person who has the status of a disabled person and is assigned to employment under a job quota;
- an applicant who was sent to a position by a court decision obliging the employer to conclude an employment contract with him;
- a candidate who was elected to a position or received the right to fill it as a result of a competition;
- an employee who was invited to a position by transfer (if he came for employment within a month from the date of dismissal from his previous place of work).
Legal grounds for refusing a job applicant
The reasons that any authority considers legitimate for refusal can only be related to the professional qualities of the candidate or to personal ones that may affect the quality of future activities. These are the reasons that should be indicated in a written notice of refusal, which will be considered justified.
IMPORTANT! It doesn’t matter what prompted the personnel officer to reject the candidate: lack of the required diploma, tattoo or too avant-garde hairstyle of the applicant, or a criminal record. The wording should not contain discriminatory statements, so only a justified reason should be voiced.
The following are recognized as legal grounds for refusing a candidate:
- Inconsistency of the applicant’s qualifications with the vacant position (confirmed by the absence of supporting documents, revealed at an interview or during the probationary period).
- Lack of knowledge, experience or skills necessary for future activities (confirmed by documents, recommendations, interviews, tests, tests, etc.)
- Unsuitable health status for this vacancy (confirmed by medical documents).
- Lack of suitable vacancies at the time of application (confirmed by the staffing table).
- Psychological inconsistency (confirmed by testing, interview, probation period).
- Age reasons determined by the Labor Code: some positions cannot be held by minors and persons who have crossed a certain threshold (Article 63 of the Labor Code).
- A court ban on holding certain positions.
- The candidate's reluctance to undergo a probationary period.
FOR YOUR INFORMATION! If a candidate was interviewed by a person not authorized to hire a person, then the positive outcome may be considered unlawful, and the refusal, on the contrary, may be justified.
Liability for unjustified refusal to hire
An illegal or unmotivated refusal by an employer to employ an applicant may result in disciplinary, administrative and even criminal liability. Thus, guilty officials of companies who are brought to disciplinary liability are subject to penalties in the form of a reprimand, reprimand, or dismissal. Also, according to Article 5.27 of the Code of Administrative Offenses of the Russian Federation, in case of violation of labor and labor protection legislation, a fine is provided:
- for an official – 5,000 rubles;
- for organizations - 30,000-50,000 rubles or suspension of the organization’s economic activities for up to 90 days.
Important! Repeated violation of labor and labor protection legislation by the same person entails disqualification for up to 3 years.
Criminal liability is provided for refusal to conclude an employment contract with a pregnant woman or a candidate with children under 3 years of age. The perpetrator may be fined up to 200,000 rubles or in the amount of wages, as well as other income of the convicted person for a period of 18 months, or assigned to compulsory work for a period of up to 180 hours.
Justified and legal reasons for refusal to hire
An employer who has decided to refuse to hire an applicant must rely on legislative documents, acts, if they comply, should be indicated in a written refusal in order to correctly argue their point of view. The main regulatory legal acts that an employer has the right to refer to in case of a reasoned refusal to hire, depending on the situation:
- for persons under 16 years of age and 14 years of age, in the absence of parental consent, the employer has the right to refuse employment in accordance with Art. 63 Labor Code of the Russian Federation;
- a citizen may be refused employment with reason if all necessary documents are not provided - Article 65 of the Labor Code of the Russian Federation: identification document of the applicant;
- certificate of pension insurance;
- document on education and special knowledge;
- certificate of presence/absence of criminal record or fact of criminal prosecution (on request)
- military registration document;
- employment history.
In addition, the employer can justify the refusal to hire on other legal grounds that are not supported by the norms of documents, but are no less significant for the normal functioning of the organization in the future, these are:
- the applicant lacks a certain education, qualifications and other professional qualifications;
- lack of practical experience in this field;
- the applicant lacks special knowledge and skills to fill the vacant position;
- the applicant’s lack of certain personal qualities that are necessary to perform work within the given position, for example, inability to find compromises, which can create certain difficulties in communicating with clients, etc.;
- if there is a conclusion from a medical commission about the candidate’s health condition, which does not allow him to hold this position;
- absence of a vacant position at the time of the applicant’s application, which must be confirmed by the staffing table;
- conducting an interview with a person who was not authorized to do so.
How to formalize a refusal to hire
As a rule, if an applicant is refused a job, the employer informs him about this verbally. However, the candidate has the right to demand a written explanation from the employer. Article 64 of the Labor Code of the Russian Federation establishes the exact period during which the employer must provide the applicant with a written refusal to hire - this is seven working days from the date of presentation of the request for its provision. To issue a written refusal in accordance with all the rules, it must be supplemented with the following details:
- the full name of the organization is indicated;
- the signature of the manager or authorized person responsible for hiring and dismissing the employee is affixed;
- certified by the seal of the organization or the HR department of the organization.
As mentioned above, the notification must contain a description of the reason for refusal of employment in compliance with all legal norms and not contain discriminatory language; if possible, indicate the rule of law.
Important! If the employer cannot prove a motivated reason for the refusal, his behavior may be interpreted as an unfounded refusal to hire, which may lead to the applicant going to court.
The law does not establish the need for registration of a document, but personnel officers recommend not to deviate from this rule and be sure to enter the document in the log of outgoing correspondence indicating the details, method and date of sending the letter to the applicant, especially if the document is sent by post. The document should be sent by mail with a description attached and a return receipt.
What to do in case of an unreasonable refusal?
Part 6 of Article 64 of the Labor Code of the Russian Federation establishes the provision that an employer’s unlawful refusal to conclude an employment contract with an applicant can be appealed in court. That is, for example, appealing to the State Labor Inspectorate (state labor inspectorate) to resolve this issue is pointless - this is not within its competence. Such cases are subject to consideration in the prescribed manner by district courts. In this case, the period for applying to the court is three months from the moment when the person looking for work learned about the illegality of the refusal to sign an employment contract with him.
In the statement of claim, the applicant needs to structuredly and consistently set out all the circumstances of the failed employment and, most importantly, make a demand to recognize the refusal to hire as illegal.
Do not forget in the statement of claim to ask the court to oblige the defendant:
- compensate for the losses incurred by the plaintiff (this may include the payment of state duty and lost earnings that the applicant could have received if he had not encountered discrimination when hiring);
- compensate the candidate for moral damages;
- as a result, still conclude an employment contract.
If you believe that you were denied a job illegally, you must obtain a written refusal from the employer.
And only with this document go to court. Since the absence of such a document, or at least confirmation of the fact that a citizen has contacted a given employer regarding employment, will put the plaintiff in a very difficult position during the trial. This will make his position more unstable and reduce the chances of winning the case. Rate the quality of the article. Your opinion is important to us:
Refusal to hire: inconsistency of business qualities
This reason for a motivated refusal to hire is very common, since it does not require specifying the conditions established by federal laws. However, the relevant Resolution of the Supreme Court of the Russian Federation obliges the employer, when choosing this reason, to provide full justification for his point of view. In addition to studying the documents provided, in order to analyze the personal and business qualities of the candidate, the employer has the right to test the applicant, hold a competition between candidates and compare their results, and conduct a detailed interview with a large number of different questions.
Disputes about refusal to hire
In accordance with Part 6 of Article 64 of the Labor Code of the Russian Federation, if, in the opinion of the applicant, the refusal to hire is illegal and unfounded, he has the right to appeal this decision of the employer in court. At the same time, according to Article 3 of the Labor Code of the Russian Federation, a person who believes that he was discriminated against by an employer when hiring has the right to demand in court to eliminate this violation, as well as compensation for damage and compensation for moral damage.
Important! The question of whether discrimination occurred when refusing to conclude an employment contract is decided in court only when considering a specific case, since the current legislation contains only an approximate list of reasons when an employer does not have the right to refuse an applicant employment.
Articles 381 and 391 of the Labor Code of the Russian Federation establish that a labor dispute over a refusal to hire falls within the competence of district courts. A claim against an organization is brought by the applicant at its location (Article 28 of the Code of Civil Procedure of the Russian Federation). Since any civil process is adversarial in nature, the employee is obliged to prove the circumstances that have legal significance for this dispute - the non-compliance of this refusal with the current norms of Russian labor legislation, and the employer to provide existing objections - to prove the legality of his actions, in particular the fact that the business qualities of the applicant position does not meet the employer's requirements for the candidate.
Important! The legislator takes a very sensitive approach to labor disputes regarding the issue of refusal to hire, since concluding an employment contract with a specific applicant is a right, not an obligation, for the employer. The Plenum of the Supreme Court of the Russian Federation gave an explanation: when considering such cases, the court must establish whether the employer made an offer about the vacancies available to him (for example, it was announced on the radio, an advertisement was placed in newspapers and other media, a message about the vacancy was transmitted to the service authorities employment, etc.), whether direct negotiations were held with the applicant about employment and on what grounds the decision was made to refuse employment.
The court's decision to satisfy the plaintiff's demands is the basis for the emergence of labor relations. By satisfying the person's claim, the court recognizes the refusal to hire as illegal and unfounded, and thereby obliges the employer to conclude an employment contract with the applicant in the manner prescribed by Article 68 of the Labor Code of the Russian Federation. In particular, the court decision may indicate from what date the employee must begin performing official duties at a new job.
Mechanism of action after refusal: appeal and employer liability
We recommend that each candidate who has been refused employment for a certain position contact the employer with a request to in writing the reason for the refusal of employment.
The boss or personnel officer is forced, based on current legislation, to notify the candidate in writing within seven days of the reasons for the refusal. If there was no reason, and also contradicted the law or was discriminatory, it is worth going to court to appeal. The basis for the appeal will be a written document in which the employer illegally refused employment, as well as Art. 64 Labor Code of the Russian Federation.
If the court decision was in favor of the plaintiff (candidate, in our case), he has the right to compensation for material damage that was caused to him, as well as compensation for moral damage (based on Article 3 of the Labor Code of the Russian Federation). The amount of compensation depends on each specific case.
The court also obliges the employer to conclude an employment contract with the candidate in the manner prescribed by law. In a legal dispute, we recommend that you rely on both the norms of the Labor Code and the principles and norms of the Civil Procedure Code.
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