Transfer to another position at the initiative of the employer. How to transfer an employee to a lower position

I agree to another position

Often, employers prefer to “forget” that an employee can be transferred to work in another profession, specialty, position, or qualification only with his consent (Article 72 of the Labor Code). And this does not depend on whether the new job will be permanent or temporary. In addition, when an employee is transferred to a lower paid job Labor Code demands that he keep the same average earnings within one month from the date of transfer (Article 182 of the Labor Code). And vice versa. If wages are higher at the new place of work, then the employee’s salary must be given based on the new conditions. “If an employee’s rights are violated, he has every right not to start work in a new position and go to court with a demand to reinstate him in his previous job and pay the average salary for the entire period of downtime,” explains lawyer Gennady Velekhov.

To avoid such troubles, the transfer of an employee to another job must be formalized in accordance with all the rules. Thus, the employee must be notified in writing about upcoming changes at least two months in advance. For two months after this, the employee can continue to perform his duties under the employment contract. And after this period, he must announce either his agreement with the transfer and changes in working conditions, or his refusal of the offer made to him.

If the employee accepts the new terms, put this in writing. Confirmation of consent can be the employee’s application for transfer, as well as the employee’s handwritten signature on the transfer order: “I agree with the transfer.” If, after two months, the employee declares that he is not satisfied with the new position, the employer has the right to dismiss him under paragraph 7 of Article 77 of the Labor Code (the employee’s refusal to continue working due to a change essential conditions employment contract). Upon dismissal, in addition to compensation for unused vacation the employee will have to pay severance pay(Article 73, paragraph 2 of Article 81 of the Labor Code).

The same rules apply when an employee is transferred to a new job in another location. But in this case, one more nuance must be taken into account. “Article 169 of the Labor Code obliges the employer to pay the costs of moving and transporting property to both the employee and his family members,” says Gennady Velekhov. - However, the Labor Code allows specific amounts of reimbursement to be determined by agreement. So the moving employee will have to fight on his own for the amount of compensation that suits him. However, instead of paying for relocation, the employer has the right to provide the employee with appropriate means of transportation. This frees him from having to compensate the employee for travel expenses.”

By necessity

Without the consent of the employee, transferring him to another job is allowed only in exceptional cases (Article 74 of the Labor Code). These include the transfer of an employee:

to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, accident or natural disaster;
to prevent accidents, downtime (temporary suspension of work for reasons of economic, technological, technical or organizational nature), destruction or damage to property;
to replace an absent employee.

In these cases, the employee may be transferred to a job not stipulated by the employment contract with him. The employee's specialty or qualifications are not taken into account.

However, there are some peculiarities here too. The fact is that an employee can be transferred to another position in case of production necessity for no more than one month (Article 74 of the Labor Code). Moreover, if we're talking about to replace a temporarily absent employee, this is allowed to be done no more than once a calendar year (from January 1 to December 31). You can temporarily transfer an employee for other reasons several times a year (but each time for no more than a month).

In addition, if the job to which the employee is temporarily transferred pays higher than his permanent job, the employer is obliged to pay him a salary based on the conditions at the new place of work.

Please note: an employee can only be transferred to a job of lower qualifications with his consent. Moreover, if temporary work is paid lower, then the employee needs to maintain the average earnings at his previous place of work.

"Lightweight" work

Some employees have the right to demand that they be transferred to another, more light work. These include:
workers who need lighter work due to health reasons;
pregnant women and women with children under the age of one and a half years;
employees who were injured or otherwise damaged at work.

If they wish to get easier work, such employees must provide the employer with an application, as well as a corresponding medical report.

Please note: an employee who has been transferred to easier work due to health reasons must be paid the same average salary for the first month of work (Article 182 of the Labor Code). When an employee is transferred to another job due to injury, occupational disease or other work-related health damage, his previous average earnings are retained until a permanent loss of professional ability to work is established or until recovery (Article 182 of the Labor Code).

A pregnant woman and a woman with a child under the age of one and a half years have the right to receive the same average earnings during the entire period of work in a new place. If the employer is unable to provide a pregnant woman with easier work (for example, due to the lack of a corresponding vacancy), he will have to release her from work altogether and pay the average salary until a corresponding vacancy appears. In extreme cases, the employer will be forced to pay the employee average salary until the day she goes on maternity leave (Article 254 of the Labor Code).

Good afternoon.

Translation is possible only with your consent. The transfer is formalized by an additional agreement to the Employment contract indicating all the conditions to be changed. The agreement is signed by the parties and is an integral part of the employment contract.

According to clause 7 of Article 77 of the Labor Code of the Russian Federation, if an employee refuses to continue working due to a change in the essential terms of the employment contract, and a change in remuneration is an essential condition of the employment contract, the employment contract is subject to termination.

Your employer offers you another job to replace the one you are doing by transferring you from one position to another.

According to part one of Art. 72.1 of the Labor Code of the Russian Federation, transfer to another job is a permanent or temporary change in the employee’s labor function. Transfer to another job is permitted only with the written consent of the employee, except for the cases provided for in parts two and three of Art. 72.2 Labor Code of the Russian Federation.

An employee can also be transferred to a lower paid job. The exceptions are the grounds specified in part four of Art. 72.1 of the Labor Code of the Russian Federation, namely, it is not allowed to transfer an employee to a job that is contraindicated for him for health reasons.

Remuneration is made according to the work performed (part one of Article 132 of the Labor Code of the Russian Federation).

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

By offering a lower paid position, the employer can explain to you the reason for the change in job function. However, the employer has no right to insist on permanent translation. You cannot be forced to sign an agreement to transfer to another job.

Based on the above, it follows that you can be transferred to another position with a lower salary, but only if you agree to this.

In the question, you also indicate that a position in your department is being reduced, which means that the employment contract with you may be terminated if the number or staff of the organization’s employees is reduced. (Article 81 of the Labor Code of the Russian Federation)

Dismissal on the basis of a reduction in numbers or staff, is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (either a vacant position or a job corresponding to the employee’s qualifications, or a vacant lower position or lower-paid work) that the employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

Thus, in answer to your question, we can clarify that the employer does not have the right to force you to sign a transfer to another position, however, if you refuse this transfer, your employer, having fulfilled all the requirements of the law, will simply fire you due to a reduction in the number or staff . These are the risks you face.

Best regards, Sergei.

Situations related to the transfer of an employee to a lower position always raise many questions from employers. From the article you will learn when such a transfer can be made, what documents will need to be completed, and how to reflect payments guaranteed to certain categories of personnel in tax accounting.

Let us remind you that, on the basis of Article 72.1 of the Labor Code of the Russian Federation, transfer to another job is a permanent or temporary change in the labor function of an employee and (or) the structural unit in which he works (if the structural unit was specified in the employment contract), as well as transfer to another job locality together with the employer. In turn, the labor function is work according to the position staffing table, profession, specialty indicating qualifications; the specific type of work entrusted to the employee (Article 15 of the Labor Code of the Russian Federation).

When you are demoted, your job function changes. This is accompanied by a number of amendments to the essential terms of the employment contract. But first things first.

When can you be demoted?

Demotion may be permanent or temporary. The transfer can be initiated by either the employer or the employee. However, it is rare to find employees who ask for a lower position. After all, this, as a rule, entails receiving a lower wages.

Please note: transfer to a lower position is permitted only with the written consent of the employee. Exceptions are cases related to emergency circumstances listed in Part 2 of Article 72.2 of the Labor Code of the Russian Federation.

If the employee does not agree, the entrepreneur must have grounds for demotion. Labor legislation allows you to do this in several situations:

- by written agreement of the parties (Part 1 of Article 72.2 of the Labor Code of the Russian Federation). The purpose of such a transfer is often to replace a temporarily absent employee;

— due to downtime (part 3 of article 72.2 of the Labor Code of the Russian Federation);

— due to the employee’s refusal to work in new conditions (Article 74 of the Labor Code of the Russian Federation);

- in connection with the suspension of the employee’s special right (Article 76, clause 9, part 1 and part 2, article 83 of the Labor Code of the Russian Federation). Such rights include a work permit for a foreign citizen, a driver’s license, the right to carry a weapon for an employee of a private security company, etc.;

— due to a reduction in the number or staff of employees (clause 2, part 1 and part 3, article 81 of the Labor Code of the Russian Federation);

- based on the results of the certification (clause 3, part 1 and part 3, article 81 of the Labor Code of the Russian Federation). In this case, transfer to a lower position is an alternative to dismissal for lack of proper qualifications;

- according to a medical report (Article 73 of the Labor Code of the Russian Federation);

- to eliminate the impact of adverse production factors for a pregnant woman (Part 1 of Article 254 of the Labor Code of the Russian Federation);

- due to the impossibility of performing previous labor functions by a woman who has children under the age of one and a half years (Part 4 of Article 254 of the Labor Code of the Russian Federation);

- due to the expiration of a woman’s employment contract during her pregnancy, if this contract was concluded during the performance of the duties of an absent employee (Part 3 of Article 261 of the Labor Code of the Russian Federation);

- in connection with the termination of an employment contract due to violation of the rules for its conclusion (Article 84 of the Labor Code of the Russian Federation).

Please note: some individual entrepreneurs transfer employees to lower positions for committing a disciplinary offense. However, such actions are illegal. Article 192 of the Labor Code of the Russian Federation contains a closed list of types of disciplinary sanctions: reprimand, reprimand and dismissal. As you can see, demotion of an employee is not included in this list.

For your information.The position of an employee who is on parental leave until the child reaches three years of age is not vacant (Part 4 of Article 256 of the Labor Code of the Russian Federation). During such leave, the employment contract with her continues to be valid. Thus, the entrepreneur is not obliged to offer this position to the employee for transfer based on the results of certification. A similar conclusion is contained in the Determination of the St. Petersburg City Court dated August 30, 2010 No. 33-11908.

Documentation of translation

Any change in the essential terms of the employment contract at the will of both parties must be documented. The diagram (p. 20) shows the document flow when employees are demoted.

Document flow when transferring an employee to a lower position

Application for transfer. As we noted above, sometimes a transfer to a lower position is carried out on the initiative of the employee (in particular, for family reasons). In such a case, he will be required to submit a statement in any form. An example of it is shown on the right.

Translation proposal. If the transfer initiative comes from an individual entrepreneur, he must obtain the employee’s consent to the transfer. To do this, the employee is sent a corresponding proposal drawn up in any form.

This document justifies the need for his transfer to a lower position and indicates a list of all available positions that the employee can occupy in accordance with his qualifications. The document also provides information on official salaries corresponding to vacant positions.

If an employee is temporarily or permanently transferred to a lower position on the basis of a medical report, the transfer proposal must indicate the number and date of such report.

The employee's consent to a demotion is also made in writing. For this purpose, a special column can be provided in the proposal for transfer to another job.

In addition, the employee can submit an application to the individual entrepreneur and inform him of his decision. Please note that the labor legislation does not establish a deadline for withdrawing an employee’s application for transfer to another job. That is, before signing an additional agreement to the employment contract, the employee has the right to contact the individual entrepreneur with a statement indicating refusal to transfer to a lower position.

Additional agreement. If the employee does not object to being transferred to a lower position, an additional agreement to the employment contract is concluded with him. It specifies all the conditions for the transfer: the employee’s new job function, the structural unit in which he will work, the terms of remuneration and the deadline for the transfer.

When an employee is temporarily transferred to another job, the terms of the employment contract are changed for a certain period. The duration of temporary transfer to a lower position is established by agreement of the parties. For example, if an individual entrepreneur temporarily demotes an employee due to deprivation of a special right, the document must reflect the exact date of the employee’s return to his previous place of work. If it is unknown, you can make a note: “Until the day of restoration of special rights.”

Please note: an employee can be temporarily transferred to another position for a period of up to one year (Part 1, Article 72.2 of the Labor Code of the Russian Federation). If the transfer was carried out while replacing an absent employee whose job is retained, its term ends on the day the employee returns to work. That is, in such a situation, the period of transfer to a lower position may exceed a year.

There are cases when an employee is transferred to a lower position temporarily, but as a result, work in the new place becomes permanent for him. This is possible if, at the end of the transfer period, the employee is not given his previous job, and he himself does not require it and continues to work.

Please note that an additional agreement to the employment contract, which implies a demotion, must be signed by both the employer and the employee. If the employee refuses to sign it and does not return to work in a new position, in the event judicial trial the servants of Themis will take his side (Determination of the Moscow City Court dated 08/03/2010 N 33-23228).

Order. Based on the additional agreement, an order is prepared for the employment contract using one of the unified forms - N T-5 or T-5a (approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 N 1). The individual entrepreneur must familiarize the employee with this order against signature.

Marks on your personal card. The fact of transfer to a lower position for an individual entrepreneur must be reflected in the employee’s personal card (form N T-2, approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 N 1). In Section III “Hiring and transfers to another job” the following should be indicated:

— date of transfer;

- structural subdivision;

— position (specialty, profession), rank, class (category) of qualifications;

— tariff rate (salary) and bonus;

- basis for translation.

Please note: the individual entrepreneur is obliged to familiarize the employee with each entry made on the basis of an order to transfer to another job, against signature.

Sample filling Personal card

Entries in work book. Information about transfers to another permanent job must be entered in the work book. About this - Article 66 of the Labor Code of the Russian Federation and paragraph 4 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers (approved by Decree of the Government of the Russian Federation of April 16, 2003 N 225). In this case, the temporary transfer is not reflected in the work book.

An entry about a transfer to a lower position is made on the basis of an order (instruction) of an individual entrepreneur no later than a week.

Note that if the transfer of an employee to a lower position is not confirmed by relevant documents and records, and the employee’s salary remains the same, then in court it will be difficult to prove the fact of such a transfer (Determination of the Moscow City Court dated October 18, 2010 N 4g/8-8373 /2010).

Finally, I would like to note the following. Before the employee begins new job, the merchant needs to familiarize him, against signature, with job description. Also, an individual entrepreneur may need to conclude a liability agreement with him and conduct safety training.

Sample filling Work book

N	date	Information about hiring, transfer to another permanent job, qualifications, dismissal (indicating reasons and reference to the article, clause of the law)	Name, date and number of the document on the basis of which the entry was made
Number	Month	Year
1	2	3	4
7	26	02	2013	Transferred to position	Order
				Seller,	From 06/26/2011 N 8-k
				Part 3 of Article 81 of Labor
				Code of the Russian
				Federation

Salary

Labor legislation provides guarantees to employees who, due to a medical report, need to be transferred to another job (including to a lower position). Thus, they retain the average salary for their previous position for a month from the date of transfer to a lower-paid job.

When transferring due to a work injury, occupational disease or other work-related health damage - until a permanent loss of professional ability to work is established or until the employee recovers (Article 182 of the Labor Code of the Russian Federation).

In addition, pregnant women, in accordance with a medical report and upon their application, are transferred to another job that excludes the impact of adverse production factors, while maintaining the average earnings for their previous job (Part 1 of Article 254 of the Labor Code of the Russian Federation).

According to Part 1 of Article 129 of the Labor Code of the Russian Federation, the accrued average earnings are wages employee. That is, remuneration for work, payment for which is made in accordance with a special norm.

Please note: in case of temporary transfer by agreement of the parties, payment is made by agreement between the employee and individual entrepreneur.

If, with the consent of the employee, he is transferred to a less qualified job, the parties may agree to maintain the previous salary or to assign an additional payment up to the previous salary.

Personal income tax and insurance premiums on employee income

The income of employees in the form of average earnings is included by an individual entrepreneur in the tax base for personal income tax (subclause 6, clause 1, article 208 and clause 1, article 210 of the Tax Code of the Russian Federation).

Tax calculation by an individual entrepreneur is carried out at a rate of 13% (clause 1 of Article 224 of the Tax Code of the Russian Federation).

In accordance with Article 226 of the Tax Code of the Russian Federation, an individual entrepreneur withholds the amount of personal income tax at the time of payment of income to an employee.

In addition, the amount of saved average earnings is accrued insurance premiums for mandatory pension insurance, for compulsory social insurance in case of temporary disability and in connection with maternity, for compulsory health insurance, for compulsory social insurance against accidents at work and occupational diseases. About this - articles 7 and 8 Federal Law dated July 24, 2009 N 212-FZ and Article 20.1 of the Federal Law dated July 24, 2009 N 125-FZ.

How to deal with personal income tax for the businessman himself

As you know, individual entrepreneurs determine the composition of expenses in the manner established by Chapter 25 of the Tax Code of the Russian Federation. Based on Article 255 of the Tax Code of the Russian Federation, labor costs include any accruals to employees in cash and (or) in kind, incentive accruals and allowances, compensation accruals related to working hours or working conditions, bonuses and one-time incentive accruals, expenses associated with maintenance of these employees, provided for by law Russian Federation, labor agreements (contracts) and (or) collective agreements.

These expenses include, in particular, labor costs during the performance of lower-paid work in cases provided for by the legislation of the Russian Federation. About this - clause 14 of part 2 of article 255 of the Tax Code of the Russian Federation.

Thus, if an employee medical indications transferred to a lower position, the salary of which is lower than the previous one, then the entrepreneur has the right, to calculate the tax base for personal income tax, to take into account the costs associated with maintaining the employee’s average salary as part of labor costs for the entire period determined for the corresponding case.

Taxation of "simplified" farmers and agricultural producers

The closed list of expenses for which individual entrepreneurs applying the simplified tax system with an object of income minus expenses or paying the Unified Agricultural Tax have the right to reduce the income received includes expenses for wages, payment of compensation, temporary disability benefits in accordance with the legislation of the Russian Federation (subclause 6 p. 1 article 346.16 and subparagraph 6 paragraph 2 article 346.5 of the Tax Code of the Russian Federation).

In accordance with paragraph 2 of Article 346.16 and paragraph 3 of Article 346.5 of the Tax Code of the Russian Federation, individual entrepreneurs determine the composition of labor costs on the basis of Article 255 of the Tax Code of the Russian Federation.

Based on the provisions of this article, the accrued average earnings are remuneration for certain categories of workers who have been demoted.

That is, individual entrepreneurs have the right to take its amount into account in expenses that reduce the tax base for the single tax or Unified Agricultural Tax. Based on paragraph 2 of Article 346.17 and subparagraph 2 of paragraph 5 of Article 346.5 of the Tax Code of the Russian Federation, entrepreneurs can do this after actually paying the average salary to the employee.

Demotion without the consent of the employee, i.e. changing working conditions is impossible. Please note that if such an entry is made in the work book without your consent, it will be made illegally.

Transfer to a lower position implies a change in job responsibilities, a change of unit (if indicated in the employment contract) on the territory of one employer.

Some laws of the Labor Code provide for cases of demotion of an employee at the initiative of a manager.

This must be done legally correctly so that later controversial situations do not arise.

Disagreements arise when an efficient and hardworking specialist does not correspond to the position he holds. His qualities are well suited for less responsible work, and a qualified specialist is applying for his place. What to do in such a situation?

Article 74 of the Labor Code of the Russian Federation

According to this law, there is a provision for demotion of an employee.

If the enterprise has undergone changes in management or technical re-equipment with the installation of the latest equipment, the employer can revise the provisions of the concluded agreement in unilaterally with the exception of the employee's employment status.

The head of the enterprise warns the employee about changes in the employment contract and the reasons for these changes 2 months in advance. This must be done in writing.

If a person does not agree with these conditions, he is offered another job. It may be at the same skill level or associated with a demotion. Possible vacancies on the employer's territory that meet the requirements are indicated.

If provided for by the concluded contract or agreement of the parties, the employer is responsible for providing work in another location.

If the employee is not satisfied with the vacancy and refuses the offered job, then the employment relationship with him is terminated.

How certification for compliance with qualifications is carried out

The procedure must be carried out in compliance with all legal subtleties, otherwise problems cannot be avoided if the employee decides to go to court to protect his rights.

Key points to pay attention to:

conducting certification to identify the level of professional knowledge;
documentary support of certification;
issuing an order on the results obtained;
employees who have not passed the certification must be offered possible vacancies;
transfer to another job with demotion or termination of employment obligations.

Before each test to determine the level of knowledge of employees, a certification commission is created. A special normative act specifies the official composition and list of commission members. If there is no staff turnover at the enterprise, then this list remains unchanged from year to year.

It is necessary to take seriously the formation of the composition of the commission. If a highly specialized employee will undergo certification, then the commission must include a specialist who is well versed in these issues.

The local regulatory act of the organization must contain information on the procedure for certification.

The commission must provide a reasoned conclusion signed by all members of the certification group. Recommendations are drawn up for each employee, which the head of the enterprise can take into account in the future. If provided for by legal act, an attestation sheet is drawn up for each employee.

Documentary support. The form of the protocol is determined by each enterprise individually and is an annex to the legal act on the certification procedure.

Issuance of an order. The decision to demote or dismiss an employee is made only by the head of the organization or the person replacing him. The employee is warned about this 2 months in advance.

Important to remember:

The manager can demote an employee only with his consent, documented. Moreover, this must be done before the transfer order is issued.
The employee must be familiar with the conclusion of the certification check, as well as the order of transfer or dismissal.

The duty of the company’s personnel officers is to prepare a list of vacancies for the employee, taking into account his work schedule, qualifications and health status. This document must contain the signature of the head of the enterprise. It is handed over to the employee for review.

It is necessary to draw up an act if the employee does not want to sign the document or refuses to accept it.

If the employee agrees with the proposed vacancy, the HR department issues a transfer.

The manager may terminate the concluded contract if the employee does not accept the demotion or refuses the offered job.

The reason is the employee’s inadequacy for the position held due to an insufficient level of qualifications identified and confirmed by the certification commission (Article 81 of the Labor Code of the Russian Federation, clause 3).

The above provisions apply to employees of civil services, as well as to employees of law enforcement and other specialized departments.

Article 73 of the Labor Code of the Russian Federation - transfer to another place of work for medical reasons

It is carried out in accordance with the established procedure according to the conclusion of doctors. Moreover, the working conditions of the proposed work must comply with the recommendations of doctors. In this case, written consent for translation is required.

A situation when a person does not agree with the transfer or the employer does not have vacancies.

If a medical report confirms the need for light work for a period of up to four months, then the employee is suspended from performing his duties for the entire period of restriction without retaining pay (except for specified cases). At the same time, his position is retained.

If he needs to be transferred to another place of work for a period of more than four months, then the employer has the right to terminate his employment relationship.

If the management of the enterprise needs a transfer for medical reasons, then the employment contract with them is terminated. By agreement of the parties, the manager may remove them from work without maintaining pay (except for specified cases). The period of suspension is determined by agreement of the parties.

It is also important to know that demotion without the employee’s consent cannot be considered a disciplinary measure.

Art. 192 of the Labor Code of the Russian Federation provides for the following types of disciplinary punishment:

comment;
rebuke;
dismissal according to the law established in a particular case.

As you can see, the “demote” measure does not apply here. Part 2 of this law talks about the possibility of establishing other penalties. However, in the process of studying the regulations, it becomes clear that there is no such type of punishment as “demotion.”

The employer can only issue a warning to the employee about insufficient suitability for the position held.

A reduction in wages occurs when an employee is transferred to a lower position. A salary reduction based on the results of an attestation audit is a violation of the law.

A woman who is on maternity leave or parental leave is protected by law. The manager does not have the right to fire her, transfer her to another position, declare her idle, or suspend her from work, even if she has not passed the certification test before going on maternity leave.

Demotion as a disciplinary sanction

An exception is made for certain categories of persons for whom transfer to a lower position is used for disciplinary punishment:

Art. 15 clause 3 of the law “On service in the internal affairs bodies of the Russian Federation”;
Art. 41 clause 7 of the law “On the Prosecutor’s Office of the Russian Federation”;
Art. 28 of the Law “On the Investigative Committee of the Russian Federation”.

Part I: Legal Demotion Options

In all cases of demotion, this movement is made by transferring the employee. Transfer to another job should be considered a permanent or temporary change in the labor function of an employee and (or) the structural unit in which he works (if the structural unit was specified in the employment contract), while continuing to work for the same employer, as well as transfer to another job locality together with the employer (part 1 of article 72.1 of the Labor Code of the Russian Federation).

Possibility 1: mutual consent of the parties, the desire of the employee

Suitable for situation: the employer is not satisfied with the result of the employee’s work, while the latter understands the current situation and agrees to move to a less responsible position, one of a lower rank than the one occupied.

How to use: having previously received an application for transfer from the employee, enter into an additional agreement to the employment contract and issue a corresponding order for the transfer.

Compliance with Law: complies with legal requirements.

Risk of dispute: there is a risk that the employee may challenge the transfer, either citing coercion on the part of the employer, or changing his position on this issue. However, in in this case The position of the judiciary is interesting.

One of the reasons for changing an employment contract is transfer to another job.

One of the reasons for changing an employment contract is transfer to another job. Promotion and demotion refer to transfers that require the employee's consent. Transfer to another job, according to the current labor legislation, is clearly permitted only with the written consent of the employee. This general rule, from which the legislator establishes exceptions for cases provided for in Parts 2 and 3 of Art. 72.2 Labor Code of the Russian Federation. According to paragraph 16 of the Plenum Resolution Supreme Court RF dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, in accordance with Art. 60 and 72.1 of the Labor Code of the Russian Federation, the employer does not have the right to require the employee to perform work not stipulated by the employment contract, except in cases provided for by the Labor Code of the Russian Federation and other federal laws, and also to transfer the employee to another job (permanent or temporary) without his written consent, except in cases , provided for in Parts 2 and 3 of Art. 72.2 Labor Code of the Russian Federation.

A transfer based on an application received from an employee complies with the procedure established by law. The fact that wages decreased significantly after the transfer cannot serve as an unconditional basis for declaring the transfer illegal, since this circumstance in itself does not indicate the forced nature of writing an application for transfer. And even the fact that the employee performed his duties improperly, and the manager was dissatisfied with such an employee and offered to take a less responsible position, does not indicate that the employee wrote the transfer application under pressure.

On practice. The employee filed a lawsuit challenging her transfer from the position of deputy head of the bureau for economic affairs to the position of an ordinary senior economist. In justification, she indicated that she first wrote, under pressure from the employer, an application for transfer to a lower position, and then withdrew this application. However, the employer still transferred her to another position, as a result of which she lost not only her official status, but also now began to earn less due to the difference in salaries. She asked that her translation be declared illegal. The court refused to satisfy her demands, recognizing the downward transfer as fully consistent with the law. Based on the data presented, the court found that the manager agreed to the transfer after receiving the plaintiff’s application - but after two weeks of work, taking into account the need to select a new candidate for this position. The company issued an order to transfer the plaintiff to the position of accounting economist, which she was familiarized with, but refused to sign, which was not disputed by anyone. The plaintiff’s argument that she &date> filed an application to withdraw her application for transfer cannot serve as a basis for declaring such a transfer illegal by analogy with Art. 80 Labor Code of the Russian Federation, because the transfer order was issued before receiving an application from her to withdraw the transfer application. The court found the argument that the plaintiff could not previously file an application for revocation because she was undergoing treatment to be unfounded, since a significant period of time had passed from the moment the application for transfer was written until the temporary loss of ability to work. The court came to the conclusion that the plaintiff’s writing of an application for transfer to a lower position due to unsatisfactory performance as deputy head of the bureau for economic affairs and refusal to perform her duties cannot be regarded as pressure from the employer and as a lack of voluntary expression of the employee’s will. Based on the above, the court recognized the downward transfer as legal (decision of the Levoberezhny District Court of the Lipetsk Region).

Possibility 2: Demotion as a result of performance appraisal

Suitable for situation: The organization carried out certification of individual employees, and some of them showed unsatisfactory results. In accordance with this, the certification commission came to the conclusion that the positions held by these certified persons were inappropriate.

How to use: strictly in accordance with the requirements of Part 3 of Art. 81 Labor Code of the Russian Federation. Thus, dismissal on the grounds provided for in clause 3, part 1, art. 81 of the Labor Code of the Russian Federation (as a result of the employee’s incompatibility with the position held or the work performed due to insufficient qualifications confirmed by the results of certification), is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (either a vacant position or a job that matches the employee’s qualifications, or and a vacant lower position or lower paid job) that the employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

Thus, after the certification commission decides that the employee is not suitable for the position held, and the head of the enterprise decides to dismiss the employee under clause 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation, the employer must first offer him a transfer to another job and only if he refuses the transfer, dismiss him on the above grounds.

The same applies to a specific category of workers – civil servants. So, clause 3 and clause 16 of Art. 48 of the Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation” provide, as one of the possible consequences of unsatisfactory certification results, the demotion of an employee to a civil service position and exclusion from the personnel reserve if he is in it. If a civil servant refuses to be transferred to another position in the civil service, the employer's representative has the right to release the civil servant from the position being filled and dismiss him from the civil service.

Similar procedure actions are also provided for employees law enforcement and other “specific” categories of workers whose activities are regulated by special regulations.

Compliance with Law: complies with the law if the procedure is followed.

Risk of dispute: there is a risk of dispute regarding the legality of the certification itself, as well as the validity of its results. The dismissal procedure under clause 3, part 1, art. 81 Labor Code of the Russian Federation. However, here too, the court does not always find itself on the side of the employee: if the court determines that the certification was carried out in accordance with the internal local act (the legality of its content and the procedure for approval in these types of disputes is always verified by the court), the results are recorded in the commission act and comply with the assessment rules competence of employees, the court recognizes dismissal based on the results of certification (or transfer with demotion in accordance with Part 3 of Article 81 of the Labor Code of the Russian Federation) as legal and justified.

On practice. An employee who was transferred to another position with a demotion filed a lawsuit to challenge the transfer. In support of the requirements, he indicated that the basis for the transfer was the certification, which revealed his inadequacy for the position held. He was forced to agree to a downward transfer because... I didn’t want to be fired under clause 3, part 1, art. 81 Labor Code of the Russian Federation. However, he still believes that the purpose of the certification was the dismissal of undesirable employees, among whom he found himself. The court examined both the basis for the certification and the compliance of the certification established order its implementation and found no violations in the actions of the employer. Moreover, the court also assessed the employee’s certification sheet. The fact that the plaintiff was asked 14 questions during the certification process, and the plaintiff gave incorrect answers to 11 of them, was correctly assessed by the court as evidence of the validity of the certification commission’s conclusions about the plaintiff’s unsuitability for the position held. Taking this into account, the court came to the conclusion that the results of the certification were legal, the plaintiff’s transfer was downgraded, and the plaintiff’s claim was accordingly denied (decision of the Selivanovsky District Court of the Vladimir Region dated July 12, 2011 in case No. 2-248/2011).

On the contrary, if the court establishes the illegality of the certification, its results or the procedure, then the downward transfer may be declared illegal. Moreover, trial can generally end quite disastrously for the employer: all subsequent actions of the employer with the specified employee “along the chain” may be considered illegal, and the employee is reinstated in his previous (the one he had before the certification) position, in which he will continue to work calmly... until the next certification or dismissal for suitable reasons.

On practice. The employee, recognized by the results of certification as inappropriate for the position held, was transferred from the position of specialist expert to the position of senior specialist of the 1st category (with reduction) and was soon dismissed from this position due to staff reduction. By going to court, the employee demanded that the certification results be declared illegal, and that the transfer and subsequent dismissal be declared illegal as well. The court examined the procedure for conducting certification and came to the conclusion that its results were illegal due to unconfirmed circumstances indicating the low quality of the plaintiff’s work. In addition, the court came to the conclusion that the certification of the plaintiff was carried out unlawfully - without following the procedure for its conduct. Based on these findings, the court declared the certification results illegal and the demotion of the plaintiff carried out in connection with this was also illegal. Despite establishing that there were no violations in the procedure for dismissing the plaintiff due to staff reduction, the court declared the plaintiff’s dismissal on the above grounds illegal, reinstating her at work. At the same time, the court indicated that since the results of the certification and the transfer were recognized as illegal, the plaintiff was subject to reinstatement as a specialist expert. This means that she was not subject to dismissal due to staff reduction, unlike the position of senior specialist of the 1st category, which was reduced (decision of the Supreme Court of the Republic of Tatarstan dated 07/07/2011 in case No. 8430/11).

If the court recognizes the results and certification procedure as lawful, but finds only a violation of the translation procedure, it may also declare such a translation illegal.

On practice. The court declared the transfer of the employee to a lower position illegal and reinstated him in his previously held position. As the court found, the employee filled the position of the state civil service of the legal consultant department of the legal support department of the legal department of the apparatus of the regional Duma. Based on the results of the certification of the civil servant, the certification commission decided that the employee does not correspond to the position being filled. By notification, the employee was warned about the upcoming transfer to the lower position of the state civil service proposed for filling - a leading specialist in the general department of the apparatus of the regional Duma with<дата>, and he was explained the right to refuse the transfer, as a result of which he would be dismissed from the state civil service. The employee was familiarized with this notice. By order from<дата>The legal consultant of the legal support department of the legal department of the regional Duma apparatus was transferred to a lower position in the state civil service - a leading specialist in the general department of the regional Duma apparatus. The court declared the transfer illegal taking into account the provisions of paragraph 1 of Art. 28 of the Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation” on the possibility of transferring a civil servant to another position in the civil service only with the written consent of the civil servant. According to the established facts, the transfer of the employee to a lower position was carried out without his written consent established by law (cassation ruling of the Volgograd Regional Court dated 06/01/2011 in case No. 33–7037/2011).

In practice, however, there are also small incidents: the results of certification are recognized as legal, the actions of the employer that followed as a reaction to unsatisfactory results of certification are also legal, but the dismissal of an employee is not.

On practice. Based on the results of the certification, the maritime pilot was deprived of his pilot’s license and then dismissed under clause 9 of Art. 83 of the Labor Code of the Russian Federation (expiration, suspension for a period of more than two months or deprivation of an employee of a special right (license, right to manage vehicle, the right to bear arms, other special rights) in accordance with federal laws and other regulatory legal acts of the Russian Federation, if this entails the impossibility of the employee fulfilling his duties under the employment contract). The employee did not agree with the results of the certification, nor with the deprivation of his pilot’s license, nor with the dismissal and went to court. The court examined the specific regulations governing the work of maritime employees and came to the conclusion that the conclusions of the certification commission were legal, as well as the legality of the employer’s subsequent order to deprive the plaintiff of his pilot’s license (which was permitted by regulations governing the work of maritime pilots). At the same time, the court considered that, despite the defendant’s compliance with the general procedure for terminating the employment contract provided for in Art. 84.1 of the Labor Code of the Russian Federation, the wording of the grounds for dismissal is incorrect due to the fact that it is impossible to recognize a pilot’s license as confirmation that an employee has a special right: a pilot’s license only certifies that the plaintiff holds the position of pilot and confirms his right to pilot ships in certain areas. Meanwhile, the plaintiff was dismissed on the grounds provided for in paragraph 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation, - due to the employee’s inadequacy for the position held due to insufficient qualifications, which is confirmed by the results of certification. Due to the incorrect application of the grounds for dismissal and the inability to change the wording of the grounds for dismissal in accordance with Art. 394 of the Labor Code of the Russian Federation and paragraph 60 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, the plaintiff was reinstated at work, even without a pilot’s license (decision of the Kirovsky District Court of St. Petersburg dated 05/04/2009 in case No. 2–971/09).

Possibility 3: Demotion as a result of penalty

Suitable for situations: demotion of law enforcement officers, for whom the law calls demotion a disciplinary sanction. This is possible in relation to, for example:

police officers (clause 3 of article 15 of the Federal Law of November 30, 2011 No. 342-FZ “On service in the internal affairs bodies of the Russian Federation and amendments to certain legislative acts of the Russian Federation”);
employees of the prosecutor's office - a reduction in class rank and a warning about incomplete official compliance (Article 41.7 of the Federal Law of January 17, 1992 No. 2202-1 “On the Prosecutor's Office of the Russian Federation”);
employees of the Investigative Committee of the Russian Federation - also a reduction in special rank and a warning about incomplete official compliance (Article 28 of the Federal Law of December 28, 2010 No. 403-FZ “On the Investigative Committee of the Russian Federation”).

How to use: taking into account the norms of the Labor Code of the Russian Federation and the law specifically regulating the work of the above-mentioned employees.

Compliance with Law: complies with the law only when applied to employees from the above-mentioned specific bodies. In relation to employees of ordinary organizations, demotion as a punishment is illegal.

Risk of dispute: there is a risk that the employee will challenge the punishment applied to him in the form of demotion. The position of the court in these types of disputes is identical to the position in similar disputes with employees of any enterprise: if during the consideration of the case violations of the procedure for bringing an employee to disciplinary liability are established, the punishment cannot be considered lawful.

On practice. An employee of the internal affairs bodies (hereinafter referred to as the Department of Internal Affairs) was reinstated at work by a court decision. The court found that the plaintiff was dismissed due to refusal to transfer to a lower position. A proposal in the form of a transfer order came from the employer after an internal audit established that the employee had improperly performed his duties. When considering the case, the court found that the employer violated the deadlines for bringing the plaintiff to disciplinary liability, as well as the procedure for conducting an internal audit. The plaintiff was not notified of the fact that an inspection was being carried out against him, an explanation for the violations job responsibilities was not taken away from the employee. Taking into account these conclusions, the court found the disciplinary action against the plaintiff illegal and reinstated the police officer in his previous position (decision of the Oktyabrsky District Court of Arkhangelsk dated May 28, 2012 in case No. 2-1562/2012).

Part II. Some important questions related to demotion

Question about salary reduction without demotion

So, the enterprise has only equivalent positions of the same profile with the same pay. Many employers are interested in whether, in this case, they have the right, without moving the employee, to only reduce wages if it is determined that his competence is not too high.

Let's figure it out.

According to Part 2 of Art. 57 of the Labor Code of the Russian Federation, the amount of remuneration must be specified in the employment contract as a separate condition.

According to Art. 72 of the Labor Code of the Russian Federation, changing the terms of the employment contract determined by the parties, including transfer to another job, is allowed only by agreement of the parties to the employment contract, with the exception of cases provided for by the Labor Code of the Russian Federation. An agreement to change the terms of the employment contract determined by the parties is concluded in writing. Since the change in salary in this case will not be a consequence of a transfer to another job, this method of amending the employment contract cannot be used.

However, there is also the possibility of changing the terms of the employment contract unilaterally - in accordance with Art. 74 Labor Code of the Russian Federation. But in this case, the employer will have no reason to use it, because the necessary reasons for this will be absent - changes in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, other reasons).

Conclusion: If the results of the certification reveal that the employee is unsuitable for the position held, then by reducing his already established salary, the employer is acting illegally. In the same way, you cannot reduce the salary of an employee whose incompetence has been established by other means.

Demotion of an employee with a certain status

According to the requirements of the law and internal local regulations, certain categories of employees are temporarily not subject to certification, including women directly on maternity leave or parental leave. However, there is no restriction regarding the application of certification results to a pregnant woman. What measures can be taken against an employee who was recognized by the certification commission as unsuitable for her position, did not agree to the transfer, but brought a certificate of pregnancy?

Let's look into the issue.

According to Part 1 of Art. 261 of the Labor Code of the Russian Federation, termination of an employment contract at the initiative of an employer with a pregnant woman is not allowed, except in cases of liquidation of the organization or termination of activities by an individual entrepreneur. Thus, dismiss the employee under clause 3, part 1, art. 81 of the Labor Code of the Russian Federation, as a result of an employee’s inadequacy for the position held or the work performed due to insufficient qualifications confirmed by certification results, the employer has no right. At the same time, the procedure for transferring to a lower position requires the employee’s consent to the transfer. Thus, the employer in this case will not be able to:

dismiss (clause 3, part 1, article 81 of the Labor Code of the Russian Federation and article 261 of the Labor Code of the Russian Federation);
transfer to another job (Articles 72–74 of the Labor Code of the Russian Federation);
suspend from work (Article 76 of the Labor Code of the Russian Federation);
declare downtime (Article 72.2 of the Labor Code of the Russian Federation).

Conclusion: a pregnant employee, despite unsatisfactory results of certification (conducted before receiving information about her pregnancy), will legally continue to work in the same position and with the same salary due to the special protection of her status by law.

conclusions

Based on the foregoing, the following conclusions can be drawn:

Despite the fact that the Labor Code of the Russian Federation provides for demotion only during the dismissal procedure as a result of the establishment of an employee’s inadequacy for the position held based on the results of certification, practice is much more varied in resolving this issue.
The court does not always recognize a demotion as illegal if the parties have chosen the first option to resolve this issue. At the same time, the court’s position is based on the freedom of expression of the employee, who may “want” to take a less significant and less paid position due to his own conclusions and reasons.
In relation to employees whose activities are regulated by other laws, demotion is also possible as a disciplinary sanction.
A reduction in salary is possible only in conjunction with a transfer to a lower position. The law does not provide for a reduction in the amount of pay based on negative certification results.
There is a category of workers with a special status – pregnant women. If it is established that such an employee does not correspond to her position, the issue will be resolved in the standard way with a demotion in position in accordance with Part 3 of Art. 81 of the Labor Code of the Russian Federation is impossible, as is her dismissal. There is a way out of the situation, but only by using the first option, if, of course, an appropriate agreement is reached between the parties.