Transfer of an employee to a position below. Transfer to a lower paid position

Temporary transfer to another job is a special set of legal relations between an employee and an employer, clearly regulated by the legislation of the Russian Federation. We will talk about the process of such a transfer and its consequences for each of the parties below.

Labor Code of the Russian Federation on transfer to another job

Speaking of a temporary transfer to another job, it should be noted that in this case, we mean providing the employee with another paid job with the same employer. Depending on the specific situation and the reasons for the transfer, the temporary job offered may require qualifications both lower and equal to those that the employee already has.

It must also be remembered that the transfer of a person to another workplace(be it another structural unit or just equipment / unit) cannot be considered a transfer to another job if the terms of the employment contract originally concluded between the employer and the employee are not violated.

The duration of a temporary transfer to another job directly depends on the reasons for which it is caused, but usually its period is from a month to a year (in certain situations, its increase is not ruled out).

IMPORTANT! According to general provisions Labor Code of the Russian Federation, even a temporary transfer to another job can take place only with the consent of the employee (although in some cases this condition may not be observed, as evidenced by Article 72.2 of the Labor Code).

Typically, the reason for such a transfer is situations where:

Don't know your rights?

• it is not possible to find an employee for a certain position, which is necessary in the state;
• one of the employees (permanent) is temporarily absent from his workplace, but at the same time, his workplace remains in accordance with current law(for example, when he is on his next vacation or parental leave, on sick leave, etc.).

The duration of the temporary performance of duties of another employee in such situations should not, according to the provisions of the law, exceed 1 year, although in this case there are exceptions. So, for example, if one employee performs the duties of another (temporarily absent, but retaining this position), the period of temporary transfer to another job can be extended for the entire period of absence of the main employee.

Additional agreement on transfer to another position

Of course, from a legal point of view, it is impossible to force a person against his will to perform other work, that is, one that is not directly provided for by the previously concluded contract with him. employment contract and does not comply with his job description. Therefore, in order to endow a temporary translation with legal force, in addition to the existing contract, it is also concluded additional agreement on transfer to another position. This document indicates the new position and the period during which the agreement will be valid. In addition, the transferred employee is instructed, he is introduced to job description and other local acts related to the new position. This procedure must be followed in view of the changing nature labor activity employee.

The additional agreement concluded regarding the temporary transfer to another job is a kind of guarantee that the employee, as soon as the agreement expires, can return to his previous position, the right to which he retains. If this does not happen, i.e., the employee will not be provided with the previous job, but he will continue to work in a temporary place without demanding reinstatement in his position, the additional agreement will lose its temporary nature and may be considered concluded for an indefinite period.

Transfer to a lower-paid job at the initiative of the employer

Many are interested in whether it is possible to temporarily transfer to another job, and even with a lower wage, initiated directly by the employer?

Here it is important to understand what exactly should be understood as the initiative of the employer. If he offers the employee to terminate the existing employment contract (or, by mutual agreement, change the conditions reflected in it) and the employee is satisfied with such a proposal (including a reduction in salary), then the transfer is possible and does not create any problems for either one or the other sides. If the employee does not express a desire to switch to a lower-paid job, then he has the right to refuse the offer of the employer and continue to perform official duties stipulated in his employment contract.

Transfer to a lower-paid job is possible, for example, if the employee's position is subject to reduction in the manner prescribed by Russian labor legislation. In such a situation, after notification of the reduction, the employer must offer the employee other vacancies available to him (including those with lower wages). And if the latter is satisfied with the proposed position, then he can accept the offer and continue to perform labor functions for this employer even though wages are lower.

Forced transfer to work requiring lower qualifications

Article 72.2 of the Labor Code provides for situations where it is possible to transfer an employee to another position without obtaining consent from him. This can happen in 2 cases:

1. If the transfer is due to a catastrophe or accident (regardless of whether it is natural or man-made), an accident, a natural disaster (flood, earthquake, fire, etc.) or any other phenomenon that endangers the life of the population in whole or in part. In this case, the term of the transfer cannot exceed 1 calendar month.
2. If the reason for the temporary transfer is simple (i.e. the suspension of the company / organization or its constituent parts for one reason or another of an economic / technical / technological or organizational nature) or the need to ensure the safety of property belonging to the employer or to replace a temporarily absent employee. And this is provided that the reason for the downtime or the need to ensure safety / replacement was the emergency events mentioned earlier in paragraph 1. In situations of this kind, the duration of the transfer should also not exceed 1 calendar month.

As for the inability of the employee to perform the labor functions that the employer is trying to impute to him due to health problems, the transfer in this case is simply impossible (Article 72.1 of the Labor Code) even if the employer has grounds for temporarily transferring the employee to another job without obtaining consent from the last.

Also, a temporary transfer to another job without obtaining the consent of the employee is not possible if it requires a lower qualification. This means that it must be appropriate to its already existing level - otherwise, it is necessary to obtain consent for a transfer of this kind from the employee in writing.

For the time during which the employee performs other duties, the employer must pay him a salary on the terms reflected in the supplementary agreement. We emphasize that the earnings of employees, in accordance with the provisions of par. 4 tbsp. 72.2 of the Labor Code of the Russian Federation, when they are temporarily transferred to another job, it should not be lower than the average monthly salary at the main place of work. Its calculation is based on general order, in which, in addition to the salary, other payments are taken into account, in particular bonuses, additional payments, allowances, compensations and remunerations received by the employee during the accounting period. Of course, in average earnings will only include those cash, which are received from a specific employer and are provided for by labor legislation, internal acts of the organization and an employment contract.

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 issued and how to reflect payments guaranteed to certain categories of personnel in tax accounting.

Recall that on the basis of Article 72.1 of the Labor Code of the Russian Federation, a transfer to another job is a permanent or temporary change in the labor function of an employee and (or) structural unit in which he works (if the structural unit was indicated in the employment contract), as well as transfer to work in another area together with the employer. In turn, the labor function is work according to the position according to the staff list, profession, specialty, indicating qualifications; the specific type of work assigned to the employee (Article 15 of the Labor Code of the Russian Federation).

With a demotion, the 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?

The demotion may be permanent or temporary. The initiator of the transfer can be both the employer and the employee. However, it is rare to find employees who ask for a lower position. After all, this, as a rule, entails receiving lower wages.

Please note: transfer to a lower position is allowed only with written consent worker. An exception is 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 employer must have a reason for demotion. Labor law 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 the new conditions (Article 74 of the Labor Code of the Russian Federation);

- in connection with the suspension of the special right of the employee (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 weapons by 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);

- according to 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 exclude the impact of adverse production factors on 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 with 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 the woman's employment contract during her pregnancy, if this contract was concluded for the duration of 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 the employment contract due to violation of the rules for its conclusion (Article 84 of the Labor Code of the Russian Federation).

For your information: some individual entrepreneurs transfer employees to lower positions for committing a disciplinary offense. However, their actions are illegal. Article 192 Labor Code The Russian Federation contains a closed list of types of disciplinary sanctions: remark, 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 he reaches three years of age is not vacant (part 4 of article 256 of the Labor Code of the Russian Federation). For the duration of such a vacation, the employment contract with her continues to operate. 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 Ruling of the St. Petersburg City Court of August 30, 2010 N 33-11908.

Documentation of the 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 workflow when employees are demoted.

Document flow when transferring an employee to a lower position

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

Translation proposal. If the translation initiative comes from individual entrepreneur, he needs to obtain the consent of the employee for 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, indicates a list of all available positions that an employee can take 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 a report.

The consent of the employee to the demotion is also made in writing. To do this, a special column can be provided in the proposal for transfer to another job.

In addition, the employee can apply to the individual entrepreneur and inform him of his decision. Note that the term for withdrawing an employee's application for transfer to another job is not established by labor legislation. That is, before signing an additional agreement to the employment contract, the employee has the right to apply to an individual entrepreneur with a statement indicating a refusal to be transferred to a lower position.

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

When an employee is temporarily transferred to another job, the terms of the employment contract change for a certain period. The duration of a 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 the employee returned to his previous place of work. If it is unknown, you can make an entry: "Until the day the special rights are restored."

Please note: an employee can be temporarily transferred to another position for up to one year (part 1 of article 72.2 of the Labor Code of the Russian Federation). If the transfer was made for the period of replacement of the absent employee, who retains the place of work, its period ends on the day of going to work this employee. 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 a new place becomes permanent for him. This is possible if, at the end of the transfer period, the employee is not provided with his previous job, but he himself does not require this and continues to work.

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

Order. On the basis of an additional agreement to the employment contract, an order is being prepared in one of the unified forms - N T-5 or T-5a (approved by the Decree of the State Statistics Committee of Russia dated 01/05/2004 N 1). An individual entrepreneur must be familiarized with the specified order of an employee against signature.

Marks on a personal card. The fact of transfer to a lower position by an individual entrepreneur must be reflected in the employee's personal card (form N T-2, approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 N 1). In section III "Employment and transfers to another job", the following should be indicated:

— date of transfer;

- structural subdivision;

- position (specialty, profession), category, class (category) of qualification;

— tariff rate(salary) and allowance;

- the basis of the translation.

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

Sample Fill personal card

Entries in the work book. Information about transfers to another permanent job must be entered in the workbook. About this - article 66 of the Labor Code of the Russian Federation and paragraph 4 of the Rules for maintaining and storing work books, making forms work book and providing employers with them (approved by the 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 on the 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 the relevant documents and records, and the employee’s salary remains the same, then it will be difficult in court to prove the very fact of such a transfer (Determination of the Moscow City Court dated 10/18/2010 N 4g / 8-8373 /2010).

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

Sample Fill work book

N	date of	Information on hiring, transfer to another permanent job, qualifications, dismissal (with reasons and a link to the article, paragraph 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 the Labor Code
				Code of the Russian
				Federations

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). So, they retain the average earnings in their previous position for a month from the date of transfer to a lower-paid job.

When transferring due to an industrial injury, occupational disease or other damage to health associated with work - 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 from 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 salary worker. 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 the 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 to the previous salary.

Personal income tax and insurance premiums from the income of employees

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

Tax is calculated by an individual entrepreneur at a rate of 13% (clause 1, 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 retained average earnings is accrued insurance premiums for compulsory pension insurance, for compulsory social insurance in case of temporary disability and in connection with motherhood, for compulsory medical insurance, for compulsory social insurance against industrial accidents and occupational diseases. About this - Articles 7 and 8 of the Federal Law of July 24, 2009 N 212-FZ and Article 20.1 of the Federal Law of July 24, 1998 N 125-FZ.

How to deal with personal income tax for the merchant himself

As you know, individual entrepreneurs determine the composition of expenses in the manner prescribed 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 the mode of work or working conditions, bonuses and one-time incentive accruals, expenses associated with the maintenance of these employees, provided for by the norms of the legislation Russian Federation, labor agreements (contracts) and (or) collective agreements.

These expenses include, in particular, expenses for remuneration for the time of performing lower-paid work in cases provided for by the legislation of the Russian Federation. About this - paragraph 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, in order 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 relevant case.

Taxation of “simplifiers” and agricultural producers

In 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 are entitled to reduce the income received, the expenses for wages, compensation, temporary disability benefits in accordance with the legislation of the Russian Federation are named (subparagraph 6 of clause 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 the wages of certain categories of workers demoted.

That is, individual entrepreneurs have the right to take into account its value in expenses that reduce the tax base for a single tax or UAT. On the basis of 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 the actual payment of the average salary to the employee.

The employee was temporarily transferred to a position with a lower average salary with his written consent for the period of absence of the main employee. Is the employer obliged to pay extra to the average earnings at the main place of work of this employee?

Answer

Answer to the question:

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 when such a transfer is carried out to replace a temporarily absent employee who, in accordance with the law, retains his job, until this employee returns to work . This rule is established by part 1 of article 72.2 of the Labor Code of the Russian Federation.

In the event that the transfer is carried out with the consent of the employee, the Labor Code of the Russian Federation does not oblige the employer to make an additional payment up to the average earnings in the previous position (part 4 of article 72.2 of the Labor Code of the Russian Federation).

The employer is obliged to make such an additional payment in the event of a temporary transfer of an employee to a lower-paid position for up to one month without the consent of the employee himself. Such a transfer is made to prevent disasters, to prevent downtime, etc. (Parts 2 and 3 of Article 72.2 of the Labor Code of the Russian Federation).

Thus, when an employee is temporarily transferred by his consent to a lower-paid position during the absence of another employee, the employer is not obliged to make an additional payment up to the average earnings in the previous position.

Details in the materials of the System Personnel:

Situation: How to issue a temporary transfer of an employee to another job

Types of temporary transfers

Temporary translation is . Temporary transfers include:

In addition, () has its own characteristics.

Temporary translation by written agreement

The duration of the transfer, which is carried out without the consent of the employee, cannot exceed one month. At the same time, the number of such transfers and their frequency are limited by law only in relation to a foreign employee, who can be transferred no more than once during a calendar year. If during the year it becomes necessary to re-temporarily transfer a foreign employee without his consent and at the same time he will not be able to perform work under his employment contract due to, then it is necessary ().

The work of an employee during the period of temporary transfer without consent must be paid after the fact, but not lower than the average earnings for the previous job.

Record of temporary transfer

Do not make an entry about a temporary transfer in the work book, but it (Rules, approved, instructions, approved).

If temporary work is of a special nature and is important for confirming the employee’s privileged length of service, for example, temporary work as a doctor, then such length of service can be confirmed by a certificate from the employer on the performance of the relevant work, an additional agreement to the employment contract on temporary transfer, etc.

The courts take a similar position. See, for example, .

Termination of temporary transfer

After the end of the transfer period, it is advisable to issue an order to provide the employee with the previous place of work, since if at the end of the transfer period the employee is not provided with the previous job, but he did not demand its provision and continues to work, the condition of the agreement on the temporary nature of the transfer becomes invalid, and the transfer is considered permanent (). Such an order does not unified form, so compose it in .

If the condition of the agreement on the temporary nature of the transfer has become invalid and the transfer is considered permanent, then in order to document this situation, it is recommended to draw up a new one between the employee and the employer on changing the nature of the transfer and issue an appropriate one. Among other things, you will need to make records of a permanent transfer to and an employee (,

Translation according to a medical report

According to Art. 73 of the Labor Code of the Russian Federation of an employee who needs to be transferred to another job in accordance with a medical certificate issued in the manner prescribed federal laws and other regulatory legal acts of the Russian Federation, the employer is obliged to transfer to another job he has that is not contraindicated for the employee for health reasons. Translation can be like temporary, and permanent and is issued after the employer receives a medical opinion on the need for such a transfer.
The procedure for the employer to issue documents on the transfer of an employee to another job as follows:
1. The employee is sent a notification about the need to transfer to another job, indicating the vacancies available in the institution. It is drawn up in free form in duplicate, on the copy of the employer, the employee must put a mark on receipt of the notification. Consent to transfer or refusal to transfer may also be indicated on a copy of the employer's notice, or may be presented as a separate document in simple written form addressed to the employer (see sample notice below).

Limited Liability Company "Alta"

22.02.2011
Loader Krivtsov A.E.

Notification

Dear Alexander Evgenievich!
We offer you a temporary one for a period of three months in accordance with the recommendations contained in the medical report of 21.02.2011 N 21.
As of February 22, 2011, Alta LLC has the following vacancy that matches your qualifications and is not contraindicated for your health:
- watchman (salary - 10,000 rubles).

In case of refusal to transfer in accordance with Art. 73 of the Labor Code of the Russian Federation, you will be suspended from work. During the period of suspension from work, wages will not be accrued.

Director Smirnov / G.O. Smirnov /

Acquainted with the notice.
I agree with the temporary transfer to the post of watchman.
Krivtsov A.E. 22.02.2011

2. Compiled additional agreement to the employment contract, which reflects all the terms of the transfer (see the sample additional agreement below).

Additional agreement No. 1
to the employment contract dated 30.06.2010 N 56

22.02.2011
Moscow city

Alta Limited Liability Company represented by Director Gennady Olegovich Smirnov, acting on the basis of the Charter, hereinafter referred to as the Employer, on the one hand, and Alexander Evgenievich Krivtsov, hereinafter referred to as the Employee, on the other hand, have entered into this agreement as follows:
1. The employee, in accordance with the medical report No. 21 dated February 21, 2011, was transferred on February 22, 2011 to the position of a watchman for a period of three months.
2. An employee is paid an official salary in the amount of 10,000 (ten thousand) rubles per month.
3. This additional agreement is made in two copies, one for each party, and comes into force from the moment it is signed by both parties. Both copies have equal legal force.

Employer: Employee:

3. Compiled transfer order in form N T-5, approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 N 1 (hereinafter - Decree N 1).
4. Information about the permanent transfer is entered in the workbook no later than a week from the date of issuance of the order (clause 10 of the Rules for maintaining and storing work books, preparing work book forms and providing employers with them, approved by Decree of the Government of the Russian Federation of 04/16/2003 N 225 "On work books" (as amended on 19.05. 2008)). Recall that an entry on a temporary transfer is not made in the work book.
5. Information about the transfer (both temporary and permanent) is entered in the personal card of the employee.
The specified procedure is common for all cases of making a transfer, indicated below.
If the transfer was temporary, upon completion of the transfer, the employee must be provided with the previous place of work. If the employer did not do this, the employee did not demand its provision and continues to work, the condition of the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent (Article 72.2 of the Labor Code of the Russian Federation).
If the employee, after receiving a notice of the need to transfer to another position, refused him or the employer does not have vacant positions, the employee must be suspended from work without pay. However, it should be remembered that this rule is valid if a medical certificate prescribes a transfer for up to four months. If a temporary transfer is established for a period of more than four months or a permanent transfer, the employer, as in the first case, must send the employee a notice of the need to transfer to another position and indicate a list of available vacancies. If the employee refuses to be transferred to the provided vacancies or there are no vacancies in the organization, the employee should be dismissed. In this regard, we also recommend that you indicate the legal consequences of refusing to transfer in the notice of the need for a translation. The wording may be as follows: "In case of refusal to transfer in accordance with part 3 of article 73 of the Labor Code of the Russian Federation, the employment contract with you will be terminated in accordance with paragraph 8 of part 1 of article 77 of the Labor Code of the Russian Federation." The order is drawn up in the form N T-8, after which a corresponding entry is made in the work book and a mark is made in the personal card of the form N T-2.
If, in accordance with a medical report, the head of an organization (branch, representative office or other separate structural unit), his deputy or Chief Accountant, if the transfer is refused or if the employer does not have the relevant work, the contract is terminated on the basis of paragraph 8 of part 1 of Art. 77 of the Labor Code of the Russian Federation. The employer has the right, with the written consent of these employees, not to terminate the employment contract with them, but to suspend them from work for a period determined by agreement of the parties. During the period of suspension from work, wages specified employees not accrued, with the exception of cases provided for by the Labor Code of the Russian Federation, other federal laws, collective agreement agreements, employment contracts.

Transfer in connection with the decision of the attestation commission

Paragraph 3 of Part 1 of Art. 81 of the Labor Code of the Russian Federation provides for such a basis for terminating an employment contract as an employee’s inconsistency with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification. However, dismissal is made only if it is impossible to transfer the employee, with his written consent, to another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job), which the employee can perform taking into account his condition health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract. If the employee refused to be transferred to a lower position or there are no vacancies, dismissal follows.
Recall that the procedure for attestation is established by labor legislation and other regulatory legal acts containing norms labor law, local regulations adopted taking into account the opinion of the representative body of employees. Therefore, in order to recognize the certification carried out and the subsequent transfer of employees as legal, organizations must adopt local regulations, establishing the procedure for attestation and the actions of the employer based on its results. Employees of the organization must be familiarized with these documents against signature (Article 68 of the Labor Code of the Russian Federation).
The translation itself is executed in the same manner as discussed in Sec. 1 article.

Reduction

A reduction in the number or staff of employees of an organization, an individual entrepreneur may also cause the termination of an employment contract with an employee (clause 2, part 1, article 81 of the Labor Code of the Russian Federation), but before that, as in the previous case, the employee must be offered the employer’s vacant positions or work, including lower and lower paid. When carrying out the reduction, it is important to pay attention to the correct execution of documents related to this procedure:
1. Issue a layoff order.
2. Send a written message to the elected body of the primary trade union organization about the upcoming reduction in order to obtain information about the members of the trade union.
3. Create a commission to determine candidates for layoffs, as well as candidates who have the right to preferential retention at work.
4. Send a written message to the employment service authorities about the decision to reduce the number or staff of the organization's employees and the possible termination of employment contracts with employees.
5. Notify in writing the candidates for dismissal of the upcoming reduction in the number (staff) and offer vacant positions, jobs to which employees can be transferred.
If the employee agrees to the transfer, the employer draws up documents according to the scheme specified in sec. 1 of this article, and in case of refusal to transfer, issues an order to terminate the employment contract (forms N T-8, N T-8a, approved by Resolution N 1).

Translation by agreement of the parties

Transfer to a lower position can be carried out in the absence of the above grounds, but only if there is the consent of the employee. This can be either temporary (for example, to replace a temporarily absent employee - part 1 of article 72.2 of the Labor Code of the Russian Federation), or permanently (for example, in connection with family circumstances and the impossibility of continuing work in the previous position). If the transfer is carried out at the initiative of the employee, it is advisable to receive from him a written application for transfer to a lower position and conclude an additional agreement to the employment contract, in which to prescribe new working conditions. In the case when the initiative comes from the employer and the employee is not against the transfer, only an additional agreement is drawn up to the employment contract. In both cases, it is desirable to indicate the reasons for the transfer, clearly indicating the need for its implementation.
Note that part 3 of Art. 72.2 of the Labor Code of the Russian Federation provides for the possibility of transferring an employee without his consent for up to one month to work not stipulated by an employment contract with the same employer in case of downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), the need to prevent the destruction or damage to property or replacement of a temporarily absent employee, if the downtime or the need to prevent the destruction or damage to property or to replace a temporarily absent employee is caused by emergency circumstances specified in Part 2 of Art. 72.2 of the Labor Code of the Russian Federation. However, if the job requires a lower qualification, then the written consent of the employee is also required.
The only grounds for transferring an employee to another job without his consent (including to a job of a lower qualification) are cases of a natural or man-made disaster, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic, and any exceptional cases that endanger the life or normal living conditions of the entire population or part of it, in order to prevent these cases or eliminate their consequences (part 2 of article 72.2 of the Labor Code of the Russian Federation).
For transfers carried out in cases provided for in Parts 2, 3 of Art. 72.2 of the Labor Code of the Russian Federation, the employee's remuneration is made according to the work performed, but not lower than the average earnings for the previous job.
Please note that in the event of a litigation arising in connection with the temporary transfer of an employee to another job without his consent (parts 2, 3 of article 72.2 of the Labor Code of the Russian Federation), the obligation to prove the existence of circumstances with which the law associates the possibility of such a transfer rests with employer (Clause 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 (as amended on December 28, 2006) "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation").

Cases of transfer that are in violation of the law

The most common case is the transfer of an employee to a lower position as a measure of responsibility for a disciplinary offense. Full list possible disciplinary sanctions are given in Art. 192 of the Labor Code of the Russian Federation. These include reprimand, reprimand and dismissal on the grounds specified in this article. Accordingly, any transfer as a measure of disciplinary action will be declared illegal by the court. In addition, there are cases when the employer transfers objectionable employees to a lower position, thereby wanting to force them to quit of their own free will.
For illustration, let's consider the decision of the Tatarsky District Court of the Novosibirsk Region dated April 27, 2010, according to which the plaintiff R. on April 15, 2010 filed a lawsuit against the defendant, the Interschool Methodological Center municipal institution, for reinstatement in her previous position, declaring the transfer order illegal and seeking compensation for moral damages. It is known from the materials of the case that R. worked in the organization as a chief accountant. By order dated April 1, 2010, she was transferred to a lower position of an accountant. The basis for issuing the order was the conclusion of an internal audit conducted by K. (legal adviser). In particular, in her conclusion, K. proposed to involve R. in disciplinary responsibility- announce a reprimand, but the management decided to transfer R. to a lower position. K. knew that the order was illegal, in connection with this, on April 21, 2010 (after R. filed a statement of claim with the court), the transfer order dated April 1, 2010 was canceled and R. was reinstated as chief accountant. In this regard, at the court session, R. abandoned her claims regarding reinstatement at work in her previous position, but asked that this order be recognized as illegal, since R. knew nothing about the internal audit conducted in relation to her, the audit was carried out by one person, not As a specialist in the field of accounting, there were no requests for explanations from the management, R. did not give consent to the transfer and believes that the events that took place during her illness served as the reason for the transfer. In particular, she returned to work after the operation (03/30/2010) and they began to require her to execute documents to which she had nothing to do, the execution of which she was not entrusted with. Moreover, legal adviser K. stated that R. “doesn't care not to work as a chief accountant”, since this is an instruction from the head of the education department. R. stated that she did not know why the head of the education department had such an attitude towards her.
In addition, R. believed that the illegal translation had undermined her business reputation both at the level of Ust-Tarksky and at the level of the Tatar region. After the incident, the workers who had previously submitted to R. began to treat her disrespectfully, the experiences associated with these events affected R's health. In connection with the above, R. asked to recover compensation for moral damage in the amount of 100,000 rubles.
The court, having considered the materials of the case, issued a decision on the satisfaction of the claims. In particular, the order was declared illegal municipal institution"Interschool methodological center" dated 04/01/2010 on the transfer of employee R. permanently from the position of chief accountant to the position of accountant, compensation for moral damage in the amount of 6,000 rubles was recovered from the defendant in the interests of R., as well as state duty on income federal budget in the amount of 4000 rubles.
According to Part 1 of Art. 72.1 of the Labor Code of the Russian Federation, a transfer to another job (both permanently and temporarily) can be made only with the written consent of the employee (exceptions are listed in parts 2, 3 of the named article). Therefore, any transfer not agreed with the employee will be recognized by the court as illegal. A striking example is the decision of the Turin District Court Sverdlovsk region dated 12/16/2008 N 2-245 / 08, according to which Ch. applied to the Turinsky District Court with a statement of claim against MDOU "Blagoveshchensky Kindergarten"on the restoration of violated rights. From the materials of the case, it is known that from May 14, 2007, she worked in the institution as an educator at 0.65 rates without drawing up an employment contract. In August and September 2008, the plaintiff was on annual paid leave, after which she she was not allowed to work, her duties were performed by another teacher, who replaced Ch. during her vacation. After that, Ch. performed the instructions of the headmaster, not related to the educational process, namely, she worked as a laborer in the kitchen. Ch. asked to recover her lost earnings (since she received less money in connection with the transfer). wages), compensation for non-pecuniary damage, costs of paying for the services of a lawyer and fare associated with trips to court.
The representative of the defendant T. did not recognize the claims, she explained in court that she transferred Ch. to the position of a laborer in the kitchen due to the fact that the latter does not have the appropriate pedagogical education, but only has a certificate of completion of the one-year Turin pedagogical class, completed in 1968 M., who has a diploma from the Irbit Pedagogical College, was taken in to replace Ch. There was no written statement from Ch. about his consent to be transferred to the position of a laborer in the kitchen.
The court, having considered the materials of the case, drew attention to the following. From May 2007 to September 2008, Ch. filled the position of an educator at the institution for 0.65 of the rate on a permanent basis, this is confirmed by a copy of the work book and time sheets. While Ch. was on vacation (August - September 2008), her duties were performed by M., who was accepted to this position on a permanent basis, as indicated in the order of 07/01/2008, although there were no vacant positions in the institution. After Ch.'s vacation, on the basis of an order dated 10/01/2008, she was transferred to the position of an auxiliary worker in the kitchen for 0.5 rates, although Ch. did not give written consent to the transfer. The court pointed out that this translation was made in violation of the requirements of the law.
The court decided to partially satisfy Ch.'s claim:
- to reinstate Ch. as a teacher at Blagoveshchensk Kindergarten for 0.65 points;
- recover from the defendant in favor of Ch. average earnings for the period from 22.09.2008 to 16.12.2008 in the amount of 4634.62 rubles. minus the amounts to be withheld in accordance with the law, compensation for non-pecuniary damage in the amount of 1,000 rubles, procedural costs in the amount of 6,000 rubles;
- recover from the defendant state duty in the amount of 400 RUB.
Summarizing the foregoing, we recommend that employers use only the grounds provided for by law to transfer employees to lower positions, since this will allow them to avoid litigation in the future, and, if any, win a case in court.
Please note that refusal to perform work in a translation made in compliance with the law is recognized as a violation labor discipline, and absence from work - absenteeism. However, one should take into account par. 5 hours 1 art. 219, part 7 of Art. 220 of the Labor Code of the Russian Federation, according to which an employee cannot be subjected to disciplinary action for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, with the exception of cases provided for by federal laws, until such danger is eliminated or from performing heavy work and work with harmful and (or) hazardous conditions work not covered by the employment contract. Since the Labor Code of the Russian Federation does not contain norms prohibiting an employee from exercising this right even when the performance of such work is caused by a transfer on the grounds specified in Art. 72.2 of the Labor Code of the Russian Federation, the refusal of an employee to temporarily transfer to another job in the manner prescribed by Art. 72.2 of the Labor Code of the Russian Federation, for the above reasons is reasonable.

When carrying out the downsizing procedure in a company, existing vacancies should be offered to employees whose positions are being reduced. In this case, not only an equivalent position can be offered, but also a lower or lower paid one. Should the employee agree to such a proposal and what will happen if he does not agree? Transfer to a lower-paid position in case of reduction, as well as to another position, is allowed only with the consent of the employee. But if the employee refuses this position, then there is a possibility that he will be fired if there are no other vacancies.

Downsizing procedure

Downsizing or downsizing is not the same thing. With a reduction in staff, certain positions are removed from the staff list. With a reduction in the number of employees, the position in the staff list remains, but the number of employees holding this position decreases. For example, in the staffing table there are two positions of a legal adviser. If the position of legal adviser is excluded from the staff list, then there is a reduction in staff. If the position of a legal adviser in the state remains, but the number is reduced by 1 unit, then we are talking about a reduction in the number.

However, regardless of what kind of process is going on in the company, the procedures for downsizing and staffing are virtually identical. The following main stages can be distinguished:

• making a decision to reduce (an order is issued to reduce the number or staff);
• new staffing;
• employees who are subject to reduction are determined taking into account the pre-emptive right to remain at work;
• employees who have been made redundant are notified of their dismissal;
• reduced employees are offered vacancies available in the company;
• notification of staff reduction (number) of the employment service body;
• notification of the reduction of the trade union and coordination with it of the dismissal of workers - members of the trade union;
• settlements with employees who refused the proposed positions;
• transfer of employees who agreed to fill vacant positions;
• dismissal of employees who refused to transfer.

Transfer of an employee to a lower-paid position

Staff members whose positions are being reduced should be offered vacant positions. Moreover, the employer is obliged to offer all available vacancies, with the exception of higher positions or vacancies available in another locality (unless otherwise provided by the collective or labor agreement).

Thus, the employee may be offered a lower or lower paid position. And with the consent of the employee, he will be transferred to a lower-paid job or a lower position. Will the employee's previous earnings be retained in this case? Certainly not. In this case, payment will be made for a new position, that is, in a smaller amount. For this reason, employees have a question about how long they can consider the employer's proposal, for example, if the employer requires a response as soon as possible.

On the one hand, employees are not required to immediately agree to the proposed vacancies, and employers are required to make an offer of vacancies more than once during the period from the moment of notification of the reduction. However, if the employee does not agree to the proposal received, then this position may subsequently be occupied by another employee.

An employee may refuse to be transferred to a lower paid position. And if there are no other positions of interest to him, then in the event of dismissal due to a reduction in staff, the employee is provided with a number of guarantees:

• severance pay(the size of which is the monthly average earnings);
• preservation of average earnings for the period of employment (up to 2 or in exceptional cases up to 3 months; in relation to employees of the Far North, areas equated to them up to 3 months, and in exceptional cases up to 6 months).