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Temporary transfer to another job according to the Labor Code of the Russian Federation. Transfer to a lower position: legal cases and possible violations

At the same time, working conditions change significantly, which are not mentioned in the employment contract. Is it legal to transfer to another job, and what needs to be taken into account?

General information

Transfer of an employee to another job can be temporary or permanent. Translation purposes:

A means of rational distribution of labor	Within an organization or between several
Education method	In case of transfer to a better paid position, in case of promotion) or punishment (in case of violations and, as a result, demotion
Occupational safety and health equipment	For example, during pregnancy, for medical reasons
Base	For termination employment contract
Guarantee of the right to work	Employment

It is allowed to transfer to another job only after the written consent of the employee. But if there was no such consent, and the employee proceeded to new job, then the translation is legal.

The procedure must be formalized by order of the manager and an entry in the work book. The Labor Code of the Russian Federation provides temporary transfer to another job.

Unlike a permanent transfer, a temporary transfer does not require a written agreement from the employee. Conditions for such a transfer:

• the basis should only be an exceptional case when there is a threat to life;
• the duration cannot be more than a month;
• without consent, you can only transfer to work with the same employer;
• work activity must correspond to qualifications;
• if the work may harm the employee’s health, then transfer to such a position is not allowed;
• labor must be paid in accordance with the work performed. Below wage it can not be.

If the above conditions are met, then such a transfer is considered legal, the employee does not have the right to refuse the employer.

During the transition to another job, the employee does not leave his employer, but only changes the type of activity. In what cases is the procedure allowed:

• to reduce or increase the number of workers;
• when opening new branches of the organization;
• For career growth employee;
• in case of forced removal of an employee from his position.

The employer is responsible for the translation. You must inform the employee of your decision in advance.

What it is

Transfer to another job is a change in an employee’s job functions for a certain time or on an ongoing basis.

The employee is provided with work that is not provided for. At the same time, the conditions of its activity change.

No matter what changes workplace or remains the same, a distinction is made between transfer to another area and to another job, but together with the enterprise.

There are internal and external. The first type is a change in the employee’s field of activity on a temporary or permanent basis. The employer does not change. External transfer – transition to a new manager.

Such a transfer requires the employee's consent. How to arrange an external transfer to another job? The scheme is simple:

1. The employee writes a statement.
2. The employer turns to the future manager with a request to hire an employee.
3. The reply is in process.
4. If approved, transfer to a new employer.

Also, the transfer can be temporary or permanent (has no deadline). Types of permanent:

• when the employer does not change;
• transfer to another job together with the manager. This may be another organization, locality. The employment contract does not change;
• external translation.

With a temporary transfer, work activity changes for a certain period. It happens by mutual consent of the employer and employee, without the consent of the employee, or as necessary for the manager.

Advantages and disadvantages of the procedure

The process of transferring an employee to another position has both disadvantages and advantages. Minuses:

• the new employer can set a salary that will be lower than the previous one;
• long-term adaptation to a new workplace is possible;
• Conflicts with colleagues cannot be ruled out.

Pros:

• guaranteed employment;
• no probationary period.

For the guarantees to apply, the employee must apply to a new employer within a month from the date of his previous job.

Before agreeing to a transfer, you need to think it over carefully, weigh all the advantages and disadvantages.

Current regulatory framework

Dedicated to transferring to another job. The Law clarifies the concept of translation, the basic conditions for the procedure and its procedure.

Its shape is arbitrary. In the application, indicate the reasons for the transfer and the new position. Next, sign and submit to your boss for review.

If the transfer is temporary, then the employer and employee draw up an employment contract (some of its clauses change).

If the transfer is permanent, then it is better to terminate the contract and draw up another one at the new workplace. The employer must issue an order, form T-5.

In the column “Reason for transfer” it is indicated – “At the initiative of the employee.” The employee has the right to demand a photocopy of the order.

If for a lower paid job

If the transfer involves a lower-paid position, then this is possible in some cases:

• as a result;
• dismissal due to lack of qualifications;
• staff reduction;
• mutual consent of the parties.

In these cases, the translation is legal grounds. There are also illegal ones that you need to know so that the employee’s rights are not violated.

The manager may demote an employee due to misconduct. This is illegal, the manager should simply reprimand or deprive.

If the translation is legal, then its procedure is as follows:

An employee can sue the manager, so all grounds for transfer to a lower-paid position must be justified.

For the first 2 weeks, the employee receives the same salary as in the previous place (with mutual agreement on the transfer). If the reasons did not depend on the employee, then the previous salary is paid for 2 months.

According to medical report

This procedure is considered as a transfer at the initiative of third parties - entities that do not belong to the organization.

With the written consent of the employee, the employer is obliged to transfer him to work, the conditions of which will not harm his health.

If the employee refuses to transfer, or the employer does not have a position, then he has the right to suspend the employee from work for the period specified in the doctors’ report. At the same time, the position remains with him, the salary is not paid.

To a permanent job from a temporary one

With this type of transfer, there is no need to write an order of dismissal and then acceptance of a new job.

All you need to do is follow a few steps:

The employee writes a statement addressed to the head of the organization	With a request to translate it to permanent job. It must be completed before the expiration of the temporary employment contract. Sign and date the application
The employer issues an order	In it, indicate the employee’s data, type of transfer, old and new workplace. Order form – T-5. the reason for the transfer is from a temporary basis to a permanent one. The order should be signed and given to the employee for review against his/her signature.
Drawing up a new employment contract	Which indicates the position, salary, responsibilities of the employer and employee. Issue in 2 copies
Make a note on the employee card	Make an entry in work book. Make changes to all necessary documents
In case of termination of the temporary contract, the employee’s service will be interrupted	Therefore, there is no need to do this; a transfer order will be sufficient

Formation of an application (sample)

The application from the employee is filled out in the standard form. At the top right, indicate the name of the organization, details of the manager and from whom the application is addressed.

In the text you must write about your desire to transfer to another job, indicating the position. You can also indicate the reason for the transfer.

At the end, sign the application, date it and submit it to the HR department. Based on this, a transfer decree is issued.

Order – important document, confirming the transfer of an employee from one job or position to another. Its form is standard, approved by law - .

The document is filled out by a HR employee after the written consent of the employee. If the transfer is temporary, then you must indicate the end date of the new job.

It is also important to indicate the employee’s details, the reason for his transfer, and all details. At the end, be sure to have the order certified by the head of the organization and the employee himself.

Is it possible for an employee to refuse?

There are cases when an employee refuses to be transferred to another position and threatens. What to do in this case? The employer must offer him another vacancy in writing.

It must correspond to the qualifications of the employee and his health, and not harm. If this work is absent, the manager may offer a lower-paid position.

If the employee does not agree with this, then the employer has every reason to terminate the employment contract with him.

If it is intended to transfer an employee to another location, and he refuses, then he can be dismissed on the basis of Article 77.

But! If the employer himself does not move to this area, then the employee’s refusal cannot be the reason for terminating the contract with him.

After termination of the employment contract, the manager is obliged to pay severance pay, the amount of which is two weeks’ salary of the employee.

The following entry is made in the work book - dismissed due to refusal to transfer to another job.

Thus, transfer from one job to another is possible only with the written consent of the employee. Without consent, the transfer will be considered illegal.

However, there are grounds for transfer for which the employee’s consent is not required; they are spelled out in Article 72 of the Labor Code Russian Federation.

If an employee approves of his transfer, then he must write an agreement addressed to the manager; if this is his personal initiative, then an application requesting a transfer to another position.

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The reason for transferring an employee to lower position It can be either a business need, where the initiator is the employer, or own wish employee. But for some workers, demotion is the result of disciplinary action.

Situations when it is necessary to demote an employee do not occur often, and there are not many options when this can be done legally. And yet, employers manage to add to the practice of labor disputes through erroneous decisions and actions. In the article, we will consider in which cases an employer can demote an employee without violating his rights.

Labor legislation allows an employer to demote an employee in certain cases:

Let's look at several examples of transferring an employee to a lower position and give recommendations on how to prepare the relevant documents.

TRANSFER BY EMPLOYER INITIATIVE (TEMPORARY)

According to Part 1 of Art. 72.2 of the Labor Code of the Russian Federation, by agreement of the parties, concluded in writing, an employee may be temporarily transferred to another job with the same employer for a period of up to one year, and in the case where such a transfer is carried out to replace a temporarily absent employee, for whom, in accordance with the law, the place of work is retained until the employee returns to work.

When registering a temporary or permanent transfer of an employee to a lower position at the initiative of the employer, it is important to obtain the employee’s consent. To do this, it is necessary to draw up an additional agreement to the employment contract (example 1).

Based on an additional agreement to the employment contract, the employer issues an order to transfer the employee to another job.

DECORATION IN POSITION DUE TO HEALTH

An employee who needs to be transferred to another job in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, with his written consent, the employer is obliged to transfer to another job available to him that is not contraindicated for the employee for health reasons (h 1 Article 73 of the Labor Code of the Russian Federation). Depending on the doctor’s recommendations, such a transfer can be either permanent or temporary.

Note. The medical certificate must be issued in the manner established by the Order of the Ministry of Health and Social Development of Russia dated May 2, 2012 No. 441n “On approval of the procedure for issuing medical organizations certificates and medical reports."

When transferring an employee to another lower-paid job, this employer in accordance with the medical report issued in the prescribed manner, labor legislation establishes certain guarantees. So, according to Art. 183 of the Labor Code of the Russian Federation, he retains the average earnings from his previous job for one month from the date of transfer, and in case of transfer due to a work injury, occupational disease or other work-related health damage - until permanent loss of professional ability to work is established or until recovery employee.

At the end of the term, transfer by general rule is terminated, and the employee is given the work provided for in the employment contract.

If, in accordance with a medical report, an employee needs a temporary transfer to another job for a period of more than four months or a permanent transfer, then if he refuses the transfer or the employer does not have the corresponding job, the employment contract is terminated in accordance with clause 8 of part 1 of Art. 77 of the Labor Code of the Russian Federation (Part 3 of Article 73 of the Labor Code of the Russian Federation).

In the work book, information about the temporary transfer of the employee are not included. If necessary, he can confirm this fact based on the following documents:

• a copy of the additional agreement to the employment contract on temporary transfer to another job;
• a copy of the order for transfer to another job (the employee has the right to request it from the personnel department in accordance with Article 62 of the Labor Code of the Russian Federation).

It is necessary to enter information about transfers to permanent work into the employee’s work book no later than a week later, duplicating them in the employee’s personal card.

DEMORATION IN POSITION FOLLOWING THE RESULTS OF CERTIFICATION

If the employee does not correspond to the position held or the work performed due to insufficient qualifications, confirmed by the results of certification, then if there are vacant lower positions (lower paid jobs) in the organization, the employer must first offer the employee a transfer to another job, and only if the transfer is refused, dismiss him according to the above mentioned grounds (part 3 of article 81 of the Labor Code of the Russian Federation).

For the certification results to be legal, the employer must approve the Certification Regulations. If such a document is missing, the certification performed is considered invalid.

DEMORATION IN POSITION AS A RESULT OF DISCIPLINARY ACTION

Subject to the provisions of regulatory legal acts, demotion as a disciplinary sanction may be applied only for certain categories of employees:

• Investigative Committee (Article 28 Federal Law dated December 28, 2010 No. 403-FZ “On Investigative Committee Russian Federation" (as amended on December 30, 2015));
• police (Part 3, 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” (as amended on July 3, 2016));
• prosecutor's office (Article 41.7 of the Federal Law of January 17, 1992 No. 2202-1 “On the Prosecutor's Office of the Russian Federation” (as amended on July 3, 2016)).

Part 4 art. 66 Labor Code of the Russian Federation; pp. 4, 8 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 No. 225 “On work books” (as amended on March 25, 2013).

Transfer to another position at the initiative of an employee is his right, enshrined in law. The main condition for its application is the presence of appropriate grounds.

These include:

Request for transfer

If the employee does not have a preliminary agreement with the employer on his transfer to another position or another place of work, he has the right to demand such a transfer only on the basis of a medical report. In other cases, there must be agreement of both parties.

• State of health, if it does not allow further implementation of the intended work function;
• An employee’s pregnancy and feeding a child implies release from physical work, performing activities in harmful (dangerous) conditions (read about transferring a maternity leaver to another position);
• Replacing an absent employee for a certain period of time or permanently replacing a resigned employee;
• Other grounds (including change of service unit).

The procedure for transfer at the initiative of an employee

The legislation establishes 2 forms of transfer - internal transfer to another position (with one employer) and external (implies a change in employer). Regardless of this, transfer to another job at the employee’s initiative involves the following sequence of actions:

1. Filling out an application. It is an expression of the employee’s initiative and is sent for consideration to superiors. The application is drawn up in any wording or on the company’s letterhead (if provided for by the local regulatory legal acts). Content:
   1. request for transfer;
   2. reason for the decision;
   3. documentary evidence (for example, a medical report).
2. Drawing up an agreement containing the terms of the transfer (with the consent of management). It is drawn up in writing and signed by each party to the employment relationship. The agreement is attached to the employment contract and may contain the following information:
   1. conditions for future work;
   2. payment for labor functions;
   3. working hours;
   4. other working conditions (for example, provision of leave, appointment and payment of bonuses).
3. Issuance of a Transfer Order (based on an agreement between the employee and the employer). Compilation is carried out according to the form unified by the legislator - T-5/T-5a. The order is issued by management and signed by the employee. His signature indicates familiarization with the terms of the transfer and further performance of the labor function.
4. Making changes to the work book, the employee’s personal file. Adjustments are recorded based on the order.

The above transfer procedure must be fully observed by both parties to the employment relationship.

Learn more about the procedure for transferring an employee to another position from this video

Transfer to ½ rate

Transferring an employee to part-time at the employee's initiative is possible if the employee cannot cope with the responsibilities assigned to him or he needs additional free hours.

The procedure for such a translation:

1. Drawing up an application. It is issued in the name of the director of the company (enterprise) indicating the request for transfer to 0.5 rates and the reasons.
2. Drawing up an agreement to an employment contract. Must contain new changed conditions for performing the labor function (schedule of activities, duration working week, payment system, etc.).
3. Issuance by the employer of the relevant Order. It contains information about changes to the staffing table of the organization (enterprise).

In this case, no changes are made either to the personal file or to the work book, since the change in rate does not relate to information that requires indication in this documentation.

Transfer to a lower paid job

Additionally

Also, a company employee can initiate his transfer to a permanent position if he previously performed work under a temporary contract (for example, he worked in place of an employee on maternity leave). The procedure for transferring to permanent place temporary work is described in .

Transfer to a lower position at the initiative of the employee is carried out in the same manner - an application is drawn up, an additional agreement to the contract is drawn up, a corresponding Order is issued, changes are made to the employee’s work book and personal card. Employees of the Labor Inspectorate may have doubts that the employee’s transition to a lower-paid job was carried out voluntarily.

To avoid such precedents, it is recommended to indicate in the transfer application the reason for such a decision (for example, family circumstances, elderly age and etc.). Situations cannot be ruled out when it is easier for an employee to perform other job responsibilities and receive less pay than in a higher position.

Do you have any questions about transferring to another position at the employee’s initiative? Ask them in the comments

Transfer to another position at the initiative of the employer is associated with the economic difficulties of the company or the desire to dismiss an employee.

When is it possible to transfer to another job at the initiative of the employer?

Transfer to a lower position with a reduction in salary at the initiative of the employer is possible when:

1) there is a medical report for transfer (for example, in connection with the discovery of a disease), which is provided for in 76 Labor Code of the Russian Federation. Reducing the production rate or transferring pregnant women to light work on the basis of a medical report does not allow a reduction in wages. guarantees the preservation of the average earnings for this category of workers in their previous work;

2) there has been a change in organizational or technological working conditions (Article 74 of the Labor Code of the Russian Federation).

Types of transfers at the initiative of the employer

An internal transfer can be either permanent or temporary, depending on the reasons for the personnel event. The main differences between these types of transfers are the documents drawn up, making (permanent transfer) or not making (temporary transfer) an entry in the employee’s work book.

Permanent internal transfer to another job at the initiative of the employer is regulated by the following articles of the Labor Code of the Russian Federation:

Transfer at the initiative of the employee (promotion)

Cases in which a transfer to another position with an increase in salary and an expansion of the range of responsibilities is possible are concentrated around organizational changes (dismissal, creation of a new staff unit, temporary transfer to the place of a temporarily absent employee).

Such changes, duly recorded in a written agreement between the parties labor relations, according to Art. 72 of the Labor Code of the Russian Federation are possible only by agreement of the parties to the employment contract, with the exception of cases provided for by the Labor Code.

August 13, 2014

Accounting News, No. 18

A lower-paid job means both another vacant position in a company with a lower salary, and work in the same regular position, but, for example, not full-time.

An employee's transfer to a lower-paid job can occur for several reasons:

1. Personal interest of the employee in this work

This is usually due to the employee’s desire for career growth. For example, in the course of work, an employee receives new additional education. If there is a vacant position in the organization where he works, then to acquire practical experience or length of service in a new specialty, it is the employee who is interested (i.e., is the initiator) in transferring him to the existing job, even in the case when the wages are significantly lower.

2. An urgent need to change working conditions due to family circumstances

Thus, the presence of a young child forces an employee to switch to a job with a different working schedule in order to care for the baby. In this situation, the employee’s interest in transferring to a lower-paid, but “convenient” (more preferable in specific life circumstances) job schedule is clearly expressed.

3. Personal initiative of the employer

For example, an employer changes the staffing table, which does not provide for the position held by the employee. In such a situation, the employer is obliged to offer such an employee a job through employment, including a lower-paid one. The employee is forced to make a decision: agree or disagree with the proposal, understanding that refusal of the proposed work is one of the reasons for termination of the employment contract with him.

4. State of health of the employee

If an employee, as a result of deteriorating health, cannot continue to perform his previous job for medical reasons, the employer is obliged to remove such employee from work by offering him vacant positions that correspond to his qualifications and below, including lower-paid work.

In any case, whatever the reason for transferring the employee to a lower-paid job, this event can only occur with the consent of the employee.

If the transfer is carried out at the initiative of the employee, then the employer must request from the employee a personal statement (preferably indicating the reason) and a medical report (if the transfer is for health reasons). When an employee is transferred to an easier, lower-paid job due to health reasons, he retains his previous average earnings for one month from the date of transfer (Article 182 of the Labor Code of the Russian Federation).

If the transfer is carried out at the initiative of the employer, then the employer must notify the employee in writing about the upcoming changes in working conditions at least two months in advance.

The employee must continue to perform his duties under the employment contract for two months. After this period, he either agrees or disagrees with the transfer and changes in working conditions.

The employee’s consent to the transfer must be obtained in writing (for example, the employee’s application for transfer, the employee’s handwritten signature on the transfer order “I agree with the transfer”).

If the employee does not agree to the transfer and new working conditions, he may be dismissed under clause 7 of Art. 77 of the Labor Code of the Russian Federation (an employee’s refusal to continue working due to a change in the essential terms of the employment contract).

Transfer without the employee’s consent in case of production necessity

In exceptional cases, it is possible to temporarily transfer an employee to another job without his consent. Such cases are listed in Art. 74 Labor Code RF.

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. In this case, the transfer is possible several times during the year, but each time for no more than one month.

However, an employee cannot be transferred to a job that is contraindicated for him due to health reasons.

Please note: the duration of a transfer to another job to replace a temporarily absent employee cannot exceed one month during a calendar year (from January 1 to December 31).

If temporary work is paid lower, then the salary should not be lower than the average earnings of the employee at his previous place of work.

Shortened working hours, shortened working week

Abbreviated work time- standard working time of less than 40 hours per week, established for the purpose of labor protection of workers of certain categories, for example:

• for workers under 16 years of age, the standard working time is no more than 24 hours per week,
• for workers aged 16 to 18 years - no more than 35 hours per week,
• for employees who are disabled people of group I or II - no more than 35 hours per week;
• for employees whose working conditions at their workplaces, based on the results of a special assessment of working conditions, are classified as hazardous working conditions of the 3rd or 4th degree or hazardous working conditions - no more than 36 hours per week;
• for teaching, medical and other categories of workers, reduced working hours may be established by federal law.

If an employee is given a reduced working time, this does not affect the amount of his remuneration, because The employee works his normal working hours.

The establishment of part-time work should be distinguished from reduced working time.

Part-time work

Part-time working hours are established by mutual agreement of the parties to the employment contract and are optional. A reduction in working hours is mandatory in the cases listed above.

Part-time working hours can be established not only at the request of the employee, but also at the initiative of the employer. The introduction of such a regime in an organization is a special case of a change, at the initiative of the employer, of the essential terms of the employment contract. Therefore, the employee must be notified about this in writing two months in advance (Part 2 of Article 73 of the Labor Code of the Russian Federation).

Part-time working time is established in the form of a part-time working week, part-time working day or part-time working week and part-time working day at the same time.

In this case, remuneration is made in proportion to the time worked by the employee or depending on the amount of work performed by him. For the duration of annual main leave, as well as for calculating length of service and other labor rights part-time work does not affect (Article 93 of the Labor Code of the Russian Federation).

Please note that the establishment of part-time work must be reflected in the employment contract with the employee. The work and rest schedule is one of the essential conditions of an employment contract (Article 57 of the Labor Code of the Russian Federation). Shortened working hours should also be mentioned in the employment contract.